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The most important duty of the 105th Congress is to
protect America from judicial usurpation and restore our
constitutional balance of powers among the three
branches of our government. This goal should take
priority over everything else because the federal courts
pose the number-one threat to our democratic process, as
well as to conservative and pro-family goals, and because
the Congress has the power to take many constructive
steps that cannot be vetoed by President Clinton.
When a constitutional case is presented to the courts,
judges make their decisions in one of two ways. They
can look to the United States Constitution and see
whether it authorizes or forbids the disputed action, or
they can impose their own social views on us, dressed up
with self-serving jargon. Unfortunately, personal opinions are what the Supreme Court has imposed in the areas
of racial preferences and quotas, criminal procedures,
pornography, forced busing, prayer and the Ten Commandments in public schools, internal security, and term
limits.
The courts have invented new "rights" such as the
right to abortion and to receive welfare payments, and
have arbitrarily overturned the votes of the people in
California, Colorado, Arizona, Arkansas, and Washington State who had the old-fashioned belief that they could
exercise self-government. Although the Constitution
grants "all legislative Powers" to Congress, the federal
courts have set themselves up as a super-legislature and
grabbed the authority to micromanage schools, prisons,
hiring standards, and legislative reapportionment.
In the latest outrage, a federal judge ruled that
Penthouse magazine and other sexually explicit magazines and videos have a First Amendment right to be
available in subsidized post exchanges on military bases.
By the ruling in General Media Communications v. Perry
(1997), the military is enjoined from obeying the Military
Honor and Decency Act of 1996, which forbade such
materials on military bases.
In United States v. Virginia (1996), the Supreme
Court ordered women admitted to Virginia Military
Institute, an institution that had been constitutionally all-male for 150 years. The Court simply wrote Ruth Bader
Ginsburg's radical feminism into the law and even
smeared as "close-minded" those who believe there are
inherent differences between men and women.
In Romer v. Evans (1996), the Supreme Court
overturned the majority of the people of Colorado who,
by statewide referendum (Amendment 2), precluded
localities from granting special status to homosexuals.
Without any authority from the Constitution or citation
of any applicable legal precedent, the Court ruled that
Colorado's Amendment 2 was totally without a rational
basis and was "born of animosity" toward homosexuals.
It would be more accurate to say that the Court's decision was without a constitutional basis and was born of
animosity toward traditional moral standards and the
people who hold them sacred. Will the Court's own
animosity prevail when it considers whether other states
must respect the Hawaii Supreme Court's invention of
the new "right" of same-sex marriages?
Also in the 1995-1996 term, the Court struck down
a federal statute that required cable television operators
to put their "patently offensive" pictures of sexual
activities or organs on a separate channel that could be
accessed only on a subscriber's written request. Without
any authority from the Constitution, the Court again
perverted the First Amendment in order to protect
pornography.
The arrogance of the Supreme Court justices reached
its apogee in Planned Parenthood v. Casey (1992), when
the Court linked its own legitimacy with abortion in a
circular, macabre argument. Roe v. Wade (1973) was
handed down without any authority from the Constitution, yet the Court in Casey insisted that Roe was cast in
stone lest "the Court's legitimacy be undermined." In
other words, to maintain the Court's "legitimacy," we
are told an illegitimate decision can't be overruled!
Taking their lead from the Supreme Court, lower
federal courts have manifested their disdain for the
popular will by arrogantly overturning the wishes of the
majority of the voters expressed in statewide referenda.
A single federal judge nullified California Proposition
187, which received five million votes in 1994 and
would have prohibited giving taxpayer benefits to illegal
aliens.
Another single federal judge nullified Proposition
209, the California Civil Rights Initiative to end affirmative action, which overwhelmingly passed in 1996. It is
nonsense to call it unconstitutional when its text reads
like it was copied from the 1964 Civil Rights Act. Judge
Thelton Henderson, the Carter appointee and a former
ACLU board member and civil rights litigator who
rendered this decision, not only used his judicial power
to overturn the wishes of 4.7 million Californians, but in
a highly suspect procedure, he grabbed jurisdiction over
this case away from another judge to whom it had been
assigned.
In a statewide referendum in 1991, the voters in the
state of Washington reaffirmed a state statute that
prohibited anyone from "knowingly causing or aiding
other persons in ending their lives." In Compassion in
Dying v. Washington in 1996, a federal appeals court
overturned the vote of the people, invented a "right" to
physician-assisted suicide, and smeared those who
oppose this as "cruel." In Quill v. Vacco (1996), another
federal appeals court threw out the state of New York's
prohibition against assisted suicide. The Supreme Court
has not yet decided these cases, but meanwhile one
federal judge's injunction has nullified enforcement.
What Can Congress Do?
What are our remedies? Since law-abiding citizens
can't hold the life-tenured radical judges accountable,
grassroots groups everywhere are planning on holding
accountable every Senator and Congressman who fails to
act to reign in the imperial judiciary. Here's what we
expect.
1. Senators should use their Article II "Advice
and Consent" power to "just say no" to Clinton's
nominees unless they publicly pledge to abide by the
words of the Constitution and statutes and the intent of
their authors. When Clinton's nominees demur, Republican Senators should do what Democratic Senators have
done so often: just don't schedule a vote or even a
hearing on the nominees.
President Clinton has already appointed 202 activist
judges, more than 25 percent of the entire federal bench.
The Senate did not defeat a single Clinton judicial
nominee, either in committee or on the Senate floor. It
approved 198 Clinton nominees by unanimous consent
without a minute of floor debate. It was a disgrace that
Republican Senators gave a free pass to Ruth Bader
Ginsburg, despite her documented paper trail espousing
the most bizarre feminist positions.
If the Republican Senate continues to confirm
Clinton's nominees, by the end of his term Clinton will
have named a majority of judges. If the Republican
Senate allows this to happen, it doesn't deserve to be
reelected next time around.
2. Congress should use Article III to limit the
jurisdiction of the federal courts. This explicit power
is given to Congress by the Constitution, and it ought to
be used without delay.
Article III, Section 1 of the Constitution provides
that "the judicial power of the United States shall be
vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and
establish." Since Congress created the federal district
and appellate courts, Congress can regulate, reorganize
or even abolish them. As an example of proper regulation, Congress in the past has ordered that all cases of a
certain kind must be heard by a three-judge district
court, instead of by just one judge.
In the 1930s, liberals in Congress thought the
federal courts were too pro-business to handle cases
involving labor strikes fairly. In 1932 Congress passed
the Norris-Guardia Act removing jurisdiction in this
field from the federal courts, and this was upheld by the
Supreme Court in Lauf v. E. G. Shinner (1938). Liberals followed the same procedure when they passed the
Hiram Johnson Acts to remove federal court jurisdiction
over public utility rates and state tax rates.
Another celebrated example was the Emergency
Price Control Act of 1942 (OPA), in which Congress
removed from federal courts the jurisdiction to consider
the validity of any OPA regulation. In the test case
upholding this law, Lockerty v. Phillips (1943), the
Supreme Court held that Congress has the power of
"withholding jurisdiction from them [the federal courts]
in the exact degrees and character which to Congress
may seem proper for the public good." In 1946 the
Supreme Court handed down the portal-to-portal pay
decision, which was generally recognized to be a big
mistake that would send hundreds of firms into bankruptcy. Congress simply removed jurisdiction from the
federal courts to handle any more such cases.
Although Congress's power over the Supreme Court
is somewhat limited, the Constitution still gives Congress the power to define the boundaries of the Supreme
Court "with such Exceptions, and under such Regulations as the Congress shall make." The Supreme Court
upheld this limitation of its own authority in Ex parte
McCardle (1868), stating, "the power to make exceptions to the appellate jurisdiction of this Court is given
by express words."
One of the tragedies of history is that the effort led
by Senator Robert Griffin (R-MI) to withdraw jurisdiction from the federal courts over forced busing failed in
the Senate by only one vote on February 29, 1972. In
1980, Senator Jesse Helms' (R-NC) amendment to
withdraw jurisdiction over prayer in public schools
passed the Senate, but failed to come to a vote in the
House because of Speaker Tip O'Neill's legislative
chicanery. And in 1969 after the Supreme Court had
shocked America with a series of 22 pro-obscenity
decisions, Senator Everett Dirksen (R-IL) made a
valiant, but unsuccessful, effort to withdraw jurisdiction
from the federal courts to overturn a jury's finding that
something is obscene.
For starters, Congress should deny federal judges the
power to impose taxes. One of the Supreme Court's
most arrogant decisions, Missouri v. Jenkins (1990),
upheld a federal judge's doubling of property taxes in
Kansas City in order to pay for the world's most extravagant public school facilities. The Court simply ignored
the Constitution's most peremptory directive, "All Bills
for raising Revenue shall originate in the House of
Representatives" (Article I, Section 7), and the words of
James Madison in Federalist No. 48: "The legislative
branch alone has access to the pockets of the people.''
Congress should take away all jurisdiction from the
federal courts to issue injunctions to overturn referenda
and to prevent enforcement of the voters' wishes during
the years that a case winds its way through the court
system. It is outrageous that a single federal judge can
nullify initiatives passed by a majority of the voters, as
has happened in a half dozen states.
Congress should also take away any power of the
federal courts to invent new rights, such as the so-called
"rights" to same-sex marriage or to assisted suicide.
Congress should stop the courts' arrogant micromanagement of schools and prisons.
3. Congress should remove from the federal
courts all jurisdiction over crimes that are already
crimes under state law. Over the last several years,
Congress itself has been guilty of vastly increasing the
jurisdiction of the federal courts by creating thousands of
new federal crimes. There are now more than 3,000
federal crimes. This trend even accelerated during 1995
and 1996, proving that all the pious talk about the Tenth
Amendment by Bob Dole and others was as phony as a
$3 bill.
Under our federal system, criminal law should be a
state, not a federal, function. The Constitution only
made three crimes federal offenses, and there's no reason
to have more than about a dozen federal crimes.
4. The Senate and House Judiciary Committees
should hold extensive hearings on various proposals to
stop the usurpation of power by the federal courts.
Congress's investigative function is one of its most
important duties, and now is the time to use it. Many
experts and scholars have been proposing various
remedies to curb judicial usurpation, and Congressional
hearings are the proper forum to air them.
For example, Judge Robert Bork has suggested
making court decisions subject to modification or
reversal by a majority vote of Congress. Others have
suggested limiting the terms of all federal judges, or
bringing them up for reconfirmation after a certain
number of years, or requiring them to stand for reelection
as most state court judges do. No state grants lifetime
tenure to its judges. These proposals would require a
constitutional amendment.
We should have a national debate on the issue of
lifetime tenure for federal judges. Justice William
Douglas was appointed to the U.S. Supreme Court
because President Franklin D. Roosevelt wanted to
replace what he called the "nine old men" with young
liberal justices. Douglas stayed on the Court for 36
years (writing 1,200 opinions), through the fourth term
of Roosevelt and the terms of Presidents Harry Truman,
Dwight Eisenhower, John Kennedy, Lyndon Johnson,
Richard Nixon, and Gerald Ford. Douglas's prejudice
against religion was so intense that he even questioned
the constitutionality of chaplains in the armed services
and the words "In God We Trust" on our money. Four
times Justice Douglas took a wife "for better or worse .
. . until death do us part." He divorced three of his
wives. Yet, the American people were locked in a
judicial embrace with Douglas no matter how outrageous his decisions or behavior. Congressman Gerald
Ford once tried (unfortunately, unsuccessfully) to have
Douglas impeached because of his money dealings with
Las Vegas gamblers.
5. Congress should reassert its own investigativefunction and eliminate the special status the American
Bar Association has long enjoyed in evaluating court
nominees. The ABA is a special-interest political group
with its own leftwing agenda, including abortion, the
Equal Rights Amendment, affirmative action quotas,
restricting welfare handouts, and perpetuating the out-of-control Legal Services Corporation.
6. Congress should let it be known that it takes
its impeachment power seriously and intends to use it.
Article III specifies that all federal judges, including
Supreme Court justices, "shall hold their offices during
good behavior." Making outrageous rulings that have
no basis in the Constitution should be grounds for
impeachment.
Even the threat of impeachment is useful. When
New York Judge Harold Baer allowed a confessed drug
dealer to go free, and critics from Mayor Rudy Giuliani
to President Clinton threatened him with impeachment,
he quickly reversed himself.
The federal courts are out of control. They have
fundamentally altered our form of government and
effectively changed the definition of "the supreme law
of the land" from "this Constitution, and the Laws of the
United States which shall be made in Pursuance thereof"
to "whatever a federal judge decides this week." This
situation is intolerable, and it is the duty of the Republican Congress to use its constitutional powers to restore
the balance of power among the three branches.
In the granddaddy document of American freedom,
the Magna Carta signed at Runnymede in 1215, King
John promised, "We will appoint as justices, constables,
sheriffs, or other officials, only men that know the law
of the realm and are minded to keep it well." We expect
at least as much from Republican Senators as our
forefathers got from King John.
Tell your Senators and Congressmen you want them
to get moving immediately with plans to curb the
Imperial Judiciary.
Taxpayer-Funded Art Doesn't Have to be Decent
A new federal court decision is
sufficient to prove the thesis of
Robert Bork's new book that we
are Slouching Toward Gomorrah.
The decision also provides Congress with more than adequate reason to hurry up and abolish the
National Endowment for the Arts,
and the Senate with ammunition to
reject confirmation of any more
liberal judges.
In a 2-to-1 ruling in Karen
Finley et al v. National Endowment
for the Arts, the Ninth U.S. Circuit
Court of Appeals held that it is
unconstitutional for a government
agency to consider "decency and
respect" for American values when
it doles out the taxpayers' money.
The decision itself is an assault on
decency and respect for American
values.
The winners in this case are
Karen Finley, the woman who
made her fame by parading on
stage dressed in nothing but a layer
of chocolate, and three others
whose nude performances centered
on homosexual themes, plus, of
course, the American Civil Liberties Union. The losers are the
American taxpayers and especially
those foolish people who thought
they could pass legislation in 1990
to "reform" the out-of-control National Endowment for the Arts.
After the American public was
outraged over the N.E.A.'s awarding of taxpayer grants for Robert
Mapplethorpe's homoerotic images
and Andres Serrano's photograph
of a crucifix immersed in his own
urine, Congress tried to ban the
flow of money to projects that are
obscene, sadomasochistic or homoerotic. The Democratic-controlled
Congress watered that down to a
legislative plea to the N.E.A. to
observe "general standards of
decency," but that didn't satisfy the
federal court.
The 1990 law required the
N.E.A. to ensure that "artistic excellence and artistic merit are the
criteria by which applications are
judged, taking into consideration
general standards of decency and
respect for diverse beliefs and values of the American public."
That's the language that Judge
James Browning held violates the
First and Fifth Amendment rights
of artists who apply for taxpayer
grants.
The New York Times gave the
"chocolate-smeared woman" space
on the Op-Ed page to whine that
the case (even though she won) has
had a "chilling effect" on art. If
she would put on some clothes,
maybe she wouldn't find the atmosphere so chilly.
Judge Browning looked to the
legislative history to interpret the
new law and discovered that it
"was specifically designed to prevent the funding of similar [e.g.,
Mapplethorpe and Serrano] art
works." He quoted the law's author, Rep. Paul Henry (R-MI), as
telling Congress, "Works which
deeply offend the sensibilities of
significant portions of the public
ought not to be supported with
public funds." Henry thought he
was making a reasonable argument.
But Judge Browning expressed
judicial horror at such narrow-mindedness!
In reality, N.E.A. officials took
the new law with a large grain of
salt. Instead of actually applying
"general standards of decency,"
N.E.A officials merely instructed
the advisory panels (which are
made up of you-scratch-my-back-and-I'll-scratch-your-back friends
of the grant-seeking "artists") to
bring their own definitions of these
terms "to the table" and make them
"part of the deliberative process."
But even that didn't satisfy
Judge Browning! He expressed his
constitutional worry that the "decency and respect" standard is
"vague" because it raises "the danger of arbitrary and discriminatory
application." The dissent replied
that the statute is every bit as
"vague" in specifying that "artistic
excellence and artistic merit are the
criteria by which applications are
judged." The federal court, however, ruled that it isn't "arbitrary"
for the N.E.A. to claim that nude
and sexual on-stage performances
have "artistic excellence," but it is
"arbitrary" to say that they are indecent.
The liberal judge resolved this
inconsistency by simply asserting
that the N.E.A. advisory panels
have "expertise" in determining
"artistic excellence," but have "no
corresponding expertise in applying such free-floating concepts as
'decency' and 'respect.'" (He's
probably right about that.)
Dissenting Judge Andrew
Kleinfeld argued that government
art grants are not "entitlements"
(like Social Security or tax exemptions), or at least they shouldn't be.
In fiscal 1994, only 88 out of 5,168
applicants for Visual Artists Fellowships received grants of the
type contested by the "N.E.A.
Four," so it's obvious that arbitrary
and subjective decisions were
made.
The dissent stated what should
be a clear principle of law: "That
offensive or indecent expression
cannot be censored does not mean
that the government has to pay for
it." That is the main argument of
those who oppose funding for the
N.E.A.
This case should be the final
nail in the coffin of the National
Endowment for the Arts. Having a
federal Ministry of Culture is bad
enough, but forcing the taxpayers
to finance one that is forbidden to
observe standards of decency, is
downright obscene.
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