The following was a quick, informal email response to “Paul,” an inquisitive soul that asked me via email about a posting I made at fsp.com on their discussion board. While Paul was quite short with his words, I had to ascertain his actual question based on context. The question I ascertained is below, and my informal response follows it.----
I am guessing you’re asking for some information related to the question ABOVE your notation, “Yes, that's the one. –Paul,” which is, “Or, perhaps I have you thinking about the higher power of the Legislature over the Judiciary?
This question is one of the easiest ones to answer because it is quite basic in its context. Nothing more than a review of the Constitution will prove out my claim that the Legislature is superior to the Judiciary.
The judiciary does not make law; it can only respond to what laws are on the books. And those existing laws began in the Congress (the House of origin is determined by the kind of bill).
Carefully pay attention to this: If Congress had balls, it could virtually shut down an “activist” Supreme Court by passing a law that was highly explanatory within itself that’s in direct conflict with an interpretation of the high court. All the Court can do is interpret the law; if the Congress closed all the loop holes, dotted all the I’s, crossed all their T’s, and wrote in plain language, the high court would then be powerless to “modify” that law to meet its own agenda. The only power the high court could then exercise would be if they could possibly find that particular law to be unconstitutional. Ha!
That is the kicker here Paul—If the high court then decided that a certain law was unconstitutional, it is very possible that the authority they are attempting to limit to the Congress could very well come back and haunt the Court in other areas of potential power. Why? >> Consistency. The philosophical concept of a particular degree of sovereign powers lies with our systems ability to exercise its authority; and, if you limit one branch, you limit all.
Another very powerful concept is that of intent, and where do we find intent? We find it within the congressional record. Whenever our high court reviews a law/policy, they too have to review the congressional record to determine the original intent of that law/policy.
Don’t let the rhetoric regarding the separation of powers fool you here either. First, we cannot have a functioning government if the three branches of government were completely independent of each other. Further, each branch originates from a single source—the Constitution. This idea alone lends itself commonsensically to the idea of some degree of mutuality among the branches. Now, read Article III of the Constitution: it creates a singular High Court WITH NO POLICE POWERS. Then, Article III again refers back to the Congress, authorizing them to “ordain and establish” inferior (federal) courts as they (Congress) wishes. Now ask yourself, without the lower fed courts (circuit courts, etc.) among and within the states, what good would the Supreme Court be at all? These nine folks could sit in their hallowed chambers all day long and scream out orders and interpretation, all the while the Congress could neuter every lower federal court, so who would be there to carry out the High Court’s empty demands? Then, with ALL the executive (police) powers instilled in the Executive branch, which of the Legislative (Congress) or Judicial branches, do you think would be able to most influence them? Congress would most certainly be the more intimidating of the two. Heck, neither the Courts nor the Congress can do anything without Executive authority.
All of this is not to say that the current modus operandi of our complete system is proper. It is obvious our Judiciary is in fact, in a round-about way, creating new law. They regularly reinterpret old interpretations with the end result acting often as if a new law was passed. They commonly reinterpret words, giving them entirely new meanings that in effect greatly modify the intent of the Legislature. But this is not an indictment upon our Constitution, but rather it is evidence of corruption in our leadership and apathy (and ignorance) among the people. Congress could easily shut down the Supreme Court by cutting off all of their avenues to the states.
Have you read about early America? Take a look at what the Supreme Court did and where it met in its first two years of existence. It had nothing to do until various executive orders and congressional leniencies gave “it” a job. Today, like democracy, the high court is on steroids, acting like a spoiled rotten step-child. But like any bully, its days are numbered. Their cyclic ruling days are quickly coming to a close, and it will cause some very positive developments, socially, politically, and legally.
Are you internet savvy? Work up some search terms for this issue and you will find an abundance of information that agrees with me on this issue. And, heck, I actually don’t care if there is any other info that agrees with me: I am a reasonably smart guy – I understand the English language – I own several dictionaries including Webster’s 1828 dictionary and Black’s Law dictionary -- ;;; thus, why should I rely on some moronic lawyer, or congresswoman, or a judicially active left leaning judge, to tell me what Jefferson, or Madison or Mason meant when they wrote their respective words of wisdom into our historical documents?
Buy yourself a copy of The Federalist Papers, and a copy of The Essential Anti-federalist book. Read and learn on your own. Only you can figure out where you stand on an issue; if you rely on others to think for you, your level of dedication will be shallow and you will end up on a fence.
You know what a fence sitter is don’t you? You know where that term came from? The Civil War-- and fence sitters where killed by both sides.
Law cannot be hollow and void of moral discretion, which means the Libertarian Party is hoping for a pipe dream. Utopia is not possible when you factor in human nature. We are all a bunch of creeps, and we would all jump at the chance to be King for a day. With that understanding, we all need to be held to some kind of a standard that is out of the reach of man-made institutions. Our founders chose Judeo-Christian values, and further chose to create a republic, AND NOT A DEMOCRACY, that acknowledged the concept of inalienable rights which originated from “the Laws of Nature, and Nature’s God,” as noted in our Declaration.
If only the Congress had balls. But it doesn’t, because we the people are weak, apathetic, stingy, greedy, and most of all—ignorant and afraid, of the Truth.
Does this answer your question? If not, you will have to use a few more words and explain to me what you want. bruceH