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PART II

WHY WE MUST RETURN CONSTITUTIONAL SANITY
TO THE U.S. FEDERAL COURTS —
SOME CASES IN POINT

Even as important constitutional questions like Senatorial 'coups of one' affecting the entire nation go unaddressed (See Pt III, "The Power Shift: A Reality Check"), the U.S. Supreme Court recently issued a decision in the matter of PGA Tour v. Casey Martin, in which they decided it was within their power to "interpret" the Americans with Disabilities Act by rewriting the PGA's tournament rules. The increasingly activist Court seems determined to prove there is virtually no area of American life that will remain beyond their jurisdiction and meddling control. In order to fashion their decision, the majority had to invent tortured new definitions of what constitutes a "public accommodation" (the PGA), as well as a "customer" (the golfer/plaintiff), to comport with language in the Disabilities Act, and thereby justify their intrusion into a private association's right to set their own competitive rules. Mr. Martin, who has a circulatory problem in his right leg, will now be allowed to ride the course in a golf cart, while the rest of the players have to walk under the PGA's rules. Justice Scalia opened his dissent by observing that the Court had "exercised benevolent compassion which the law does not place within the Court's power to impose." (See our Court Watch Talking Points Bulletin, June/July 2001 for more details on this case and those listed below.)

As they released that activist decision, the High Court simultaneously announced their refusal to hear the appeal of Books v. Elkhart, and thus allowed a Seventh Circuit Court ruling to stand that bans a monument bearing the Ten Commandments in the city of Elkhart, Ind., as a violation of the "separation of church and state." The ACLU had brought the suit on behalf of two city residents who claimed they were "offended" by the granite marker that has stood on the lawn of the city office building since 1958. By its refusal to take the case, the Supreme Court has signaled that the ACLU may proceed with its unrelenting and systematic efforts to strip federal buildings, court-houses, schools and public accommodations of the Ten Commandments, "In God We Trust" and other mottos that reference the Creator. Chief Justice William H. Rehnquist, who wrote the dissent, said the petition to hear the case should have been granted based on the "foundational role of the Ten Commandments in secular matters(and) the development of our legal system." Justices Antonin Scalia and Clarence Thomas joined him in his dissent.

Chandler v. Siegelman (orig. Chandler v. James) -- better known as the "Prayer Police" case. The ACLU, has recently filed another appeal with the Supreme Court seeking to overturn the Eleventh Circuit's decision that had blocked Judge Ira DeMent's outrageous unconstitutional ruling to censor student prayer and other religious expression. Apparently encouraged by the activist direction of the High Court, the ACLU is petitioning for the reinstatement of DeMent's injunction which called for the school district in DeKalb County, Alabama to appoint "prayer monitors" that would patrol campuses in order to enforce a ban on all forms of religious speech, including discussions of faith, references to the Bible and voluntary student-led prayer.

Ashcroft v Free Speech Coalition ­ This pending case on appeal to the Supreme Court involves The Child Pornography Prevention Act passed by Congress which targets high-tech and computer images that have electronically altered an innocent picture of a child to create a depiction of that child engaged in sex. The Ninth Circuit Court of Appeals declared that the law is unconstitutional, ruling that it targets images of child pornography that cannot be proven to include an actual minor person. The court did not address the victimizing effects on children that such imagery, whether "real" or computer-generated , can produce, nor its potential incitement to pedophilia, child molestation and criminal endangerment to minors. Rather, the Ninth Circuit ruled in favor of the "Free Speech Coalition" of California, a self-described "alliance of adult-oriented materials distributors," which argued that the court should not categorize "virtual" child porn as any "real" harm since it is only an "idea." Judge John Molloy, a Montana district court judge who was assigned temporarily to the 9th Circuit, heartily agreed, writing this astounding opinion for the 2-1 majority: "Throughout its legislative history, Congress has defined the problem of child pornography in terms of real children. [This] law... changes course. The direction shifted from defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not." Molloy then concludes, "Enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment." (emphasis added)

Besides exulting in the misuse of the First Amendment via opinions of judges like the above Molloy, who disdain long-standing fundamental principles of law -- such as the state's compelling interest to protect minor children -- the adherents of leftist legal thought also often rely on judicial activists to effectively cut-off important public policy debate. Were legal leftists to run up more frequently against judges who exercise restraint --i.e. the type of judges President Bush wants to install ­ it would greatly cut down on the activist federal courts being used to paralyze conservative policies and run the government via lawsuit from all angles, including pre-emptive strike. Two such recently announced actions against the Bush Administration include:

  • The Center for Reproductive Law and Policy filed suit last week in Federal District Court in Manhattan against the Bush Administration in an attempt to block implementation of its pro-life policy denying federal funds to foreign family planning or health organizations that perform or advocate abortions.

  • Another lawsuit being filed in Washington accuses the Bush Administration of causing "irreparable harm" by withholding federal funding for stem cell "research" using aborted children. The suit is reportedly being brought by seven scientists and actor Christopher Reeve, and charges the Bush Administration with illegally delaying "research" that may someday lead to a cure for various life-threatening conditions.

WILL "LIBERTY UNDER LAW" REMAIN?

In light of the above, it is not overstating the case to say that the action we take over the next weeks and months may well determine if the very foundation of "Liberty under Law" in America will be retained for future generations. If we fail to act during this critical period, our children and grandchildren might one day turn to us and demand to know, "Where were you?" when they —

  • Said that the First Amendment affords more protection for pornography than it does for prayer?

  • Stripped our public square and schools of all biblical references, religious symbols and the very mention of God under the guise of "separation of church and state" ?

  • Said the U.S. Constitution gives protection to those who would kill babies, even "partially born," and then use their brains and body parts for research?

  • Supplanted "government of the people, by the people and for the people" with the tyrannical rule of unelected judges?

WE CAN EXPOSE WHAT JEFFERSON CALLED
THE "GERM OF DESTRUCTION OF OUR NATION" —

Though Liberal Democrats are quite fond of quoting Thomas Jefferson considerably more frequently than our other Founders, they studiously avoid ever referencing his numerous exhortations against the fatal mistake of allowing usurpation of runaway power by the federal courts — including this ominous warning:

"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body — working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

Unlike our present day politicians, the Founders did not mince words when it came to the cause of Liberty. Let us imitate that virtue in the spirit of the July 4th holiday we've set aside to celebrate our original separation from that "venal and oppressive government" to which Jefferson referred. Let us tell it like it isActivist judges and their enablers have advanced as thieves "over the field of jurisdiction," literally stealing those rights which belong to the people. They now threaten to render powerless the ability of our other branches of government to even provide a check on their unconstitutional activism.

Our Declaration principles ­ those self-evident truths outlined for us by the Founders -- tell us that "Life, Liberty and the pursuit of Happiness" can be secured ONLY if and when the "Governments which are instituted among men" do two essential things ­

  • acknowledge that "unalienable rights are endowed by our Creator" and

  • derive their just powers from the consent of the governed." (Note that whereas "just powers" are directly linked to the voters consent, unjust powers are those that flagrantly disregard the will of the governed.)

As our Founders penned 225 years ago this July 4th — "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it" And as they further pledged their support of these words, "with a firm reliance on the protection of Divine Providence," they told us it is not only our right, but it is our duty, to alter or abolish it. Now is the appointed time in America for Court Reform -- for altering the Third Branch of Government ­ an unelected and unaccountable branch wreaking havoc on our constitutional liberties via the pernicious judicial activism the Founders warned us would destroy the Republic.

Therefore, let us rightfully honor Independence Day 2001 and beyond by sounding the alarm to our fellow Americans that it is once again time to break free -- America desperately needs a new DECLARATION OF INDEPENDENCE from the oppressive power of an activist-leftist Federal Judiciary and its enablers!

As we enjoin this critical battle let us remember the following admonition and timeless truth:

"Duty is ours; results are God's." John Quincy Adams

 
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