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Old October 2, 2005, 09:13 PM   #1
SIGSHR
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A Proposed Constitutional Amendment

Amidst all the news coverage over the death of William Rehnquist, the retirement of Sandra Day O'Connor and now the confirmation of John Roberts to be Chief Justice, I quote the words of noted liberal advocate Hodding Carter III, who, at the time of the Bork Confirmation Battle in 1987 said "For
30 years, liberals have been relying on the least democratic branch of government to get their agenda through.",and the Princeton University professor who said of the Court's 1996 decision Romer vs. Evans, in which the
Court struck an amendment to the Colorado constitution passed by the voters of Colorado that would have barred gay rights laws "the social liberals contempt for democracy, so long a matter of practice, has been elevetaed to the status of theory." And I propose an amendment to the U.S. Constitution
whose time is long overdue-to provide for popular control of the Federal
Judiciary, allowing the voters to recall Federal Judges and Supreme Court
Justices.
In the summer of 2003, much of the nation's attention was focused on California, where less than a year after he barely won re-election, then Governor Gray Davis was recalled by many of the same people who voted for him-exit polls revealed 25% of Democrats voted to recall him. Those familiar
with California's recent history know that Gray Davis was not the first California official to be recalled. In 1986 the voters of California recalled then
Chief Justice Rose Bird and two other kustices from their state supreme court.
Their offense was that they had been too lenient with criminals, Rose Bird voted to reverse in every death penalty case despite the fact that capital punishment had been reinstated by the voters of California in 1978, and there
were complaints about legislating from the bench, complaints from the business community about badly written decisions that muddied the waters in
such critical fields as contract law and product liability. And former Governor
Jerry Brown, who had initially appointed Rose Bird, has publicly said he regrets
doing so. (Cf Eisenhower's comment that he made two big mistakes as President, and they were both sitting on the Supreme Court.
In 1996 the voters of Tennessee recalled on Penny White from their Supreme Court. As an appeals and then Supreme Court Justice, Penny White was likewise to concerned with the criminal and not with the victims or society as a whole. One of the active in the No on Penny White movement was a man named Jack Collins. He was the father of a young woman Marine who was brutally raped and killed outside the Memphis Naval Air Station, Penny White voted to overturn the death penalty imposed on her killer. is what he had to say:
"We got the message out and the people got aroused. Those folks, they get life tenure, they get all academic and theoretical about life, they don't
feel the grief,they don't taste the blood, they don't whiff the sulfur, they say it's not part of their, I say not....you don't have to be part of the struggle but you have to understand it."
I don't think Thomas Jefferson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, John F. Kennedy of Ronald Reagon could have said it
better.
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Old October 2, 2005, 09:18 PM   #2
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Old October 3, 2005, 07:57 AM   #3
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Quote:
And I propose an amendment to the U.S. Constitution
whose time is long overdue-to provide for popular control of the Federal
Judiciary, allowing the voters to recall Federal Judges and Supreme Court
Justices.
Why not use the constitution as originally penned. Article III, Section 2 gives congress the power to remove the right of appeal from SCOTUS. Regarding all there levels of federal courts, congress created it, congress can kill it, change it at its will. Congress can't do anything about SCOTUS justices short of impeachment.

I don't buy the argument we as a society are helpless in the face of an omnipotent and all powerful supreme court. We have the tools to control it. Congress has failed to exercise control.
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Old October 3, 2005, 08:41 AM   #4
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"they get all academic and theoretical about life"

That's exactly what the Supremes are suppose to do.
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Old October 3, 2005, 09:19 AM   #5
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What we need in all branches of government are more thinkers, less feelers.

Making SCOTUS subject to majority consent is a really, really, really bad idea. When you make the judiciary dependent on mob whim, there's no point to the SCOTUS other than to rubber-stamp the laws supported by the biggest and most influential pack of loudmouths. Then don't be surprised when the wind blows the other way one day, and a liberal population majority decides to override a SCOTUS decision which you favor, and you'll be the first in line to scream "Checks and Balances!"
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Old October 3, 2005, 11:01 AM   #6
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The winds of social change are always blowing. Question is, "Do you want those winds blowing 9 people around who have no accountability to the population over which they have dominion (let's not get into the debate of whether or not that is the way it should be), or do you want the winds blowing around 536 people (IIRC) of which only 67 do not face election every two years."

I'd rather trust the collective wisdom of 469 who face the voter every two years than the good intentions of a panel of nine. Combine the small size of the panel with the nature of the confirmation process whereby the ruling class specifically chooses people for which there is no identifiable record and you have all the seed of tyranny you'll ever need.

The constitution provides for legislative override of some of the courts most boneheaded decisions. It's well past time for congress to grow a pair and act.
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Old October 3, 2005, 11:03 AM   #7
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How about an amendment requiring the federal government to actually read and follow the U.S. Constitution?
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Old October 3, 2005, 11:54 AM   #8
shootinstudent
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I'm with Marko Kloos on this one. When it comes to my rights, even if I don't like what the court says about them all the time, I like the fact that they aren't subject to regular legislative functions.

Quote:
Combine the small size of the panel with the nature of the confirmation process whereby the ruling class specifically chooses people for which there is no identifiable record and you have all the seed of tyranny you'll ever need.
I disagree. The Supreme Court has authority solely via the legitimacy with which the rest of the government views its decisions. The 9 justices can't suit up in SWAT gear and go enforcing their decisions, so I think their role as a check on Congressional action is actually pretty good. If the Supreme Court gets blatantly unconstitutional, there's no reason why everyone else has to comply with its rulings...which is a counter-balance to judicial authority.

The only sure way around a Supreme Court decision is a constitutional amendment...and that is a good thing. It's tough to pass one, so Congress can't turn the Supreme Court into a paper tiger by legislative fiat. I like that. I can only imagine what my first amendment freedoms would look like after a new McCarthy era run on them without any effective Supreme Court check. And if the Supreme Court goes with the 5th circuit individual rights interpretation on the Second Amendment...I'll be pleased as punch to have that decision rendered in such a way that no anti-gun congress can erase it.
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Old October 3, 2005, 12:39 PM   #9
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I'm always surprised at those who are perfectly willing to re-write the constitution before they understand the reasons it's written the way it is.
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Old October 3, 2005, 12:44 PM   #10
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....and it is particularly ironic in that many if not most of them take a strict-constructionist view of the 2nd......
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Old October 3, 2005, 12:55 PM   #11
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Yup. That made MY day...
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Old October 3, 2005, 02:19 PM   #12
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Again, it was Eisenhower who said that he made two big mistakes as President and they were both sitting on the Supreme Court (Brennan and Warren), and former Governor Jerry Brown of California has publicly said he regrets appointing Rose Bird. My personal philosophy is summed up in the words of the late John Connally who said "Why should we let the Supreme Court decide everything?" and Judge Roy Bean, "The Law West of the Pecos".
When he has reprimanded by a higher court for granting divorces they said we
re outside his authority, he replied "I reckon I have the right to rectify my own errors."
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Old October 3, 2005, 05:11 PM   #13
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Quote:
Originally Posted by sendec
....and it is particularly ironic in that many if not most of them take a strict-constructionist view of the 2nd......

You take such a dim view of them, yet you congregate here with them...


-blackmind
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Old October 3, 2005, 05:36 PM   #14
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Quote:
I'd rather trust the collective wisdom of 469 who face the voter every two years than the good intentions of a panel of nine.
You mean the same ones that brought us the NFA, the GCA, and the Patriot Act?
Quote:
The constitution provides for legislative override of some of the courts most boneheaded decisions. It's well past time for congress to grow a pair and act.
True, but the level of boneheadiosity should be wwwwaaaayyyy out there for an overturning of a ruling. Otherwise, we might as well not have a Supreme Court, if Congress will legislate their way out of an unfavorable (well, to Congress, at least) ruling like a child who takes his toys and goes home. That's why their recourse is to pass a Constitutional amendment, it's tough to do on purpose.
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Old October 3, 2005, 06:09 PM   #15
sendec
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It's all about checks and balances, dude
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Old October 3, 2005, 07:09 PM   #16
Jammer Six
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Quote:
You take such a dim view of them, yet you congregate here with them...
Well, no.

He was talking ABOUT them, not with them.
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Old October 3, 2005, 10:50 PM   #17
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Actually Article III, Section 2 of the constitution merely allows the legislature to remove appellate jurisdiction from SCOTUS.
Quote:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
I find it remarkable that some of those who loudly support constitutional provisions such as the second amendment and part of the first amendment are ignorant of potentially explosive provisions of the constitution. Then when confronted with such provisions, express doubts as to the wisdom of implementing the questioned provisions. Remarkable.
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Old October 3, 2005, 11:07 PM   #18
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Waitone,

The meaning and intent of that text is hotly disputed. It seems odd that the "judicial power" would extend to the cases listed in section 1, if Congress could remove them so easily from its jurisdiction. No one really knows what the answer is, because Congress has rarely tried...but one potential problem for jurisdiction stripping as a method of keeping things out of the Supreme Court is due process. That one should be clear enough....imagine what kinds of due process arguments might be made when you can't get your case reviewed because Congress doesn't want you to be able to challenge its laws in court.
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Old October 4, 2005, 06:17 AM   #19
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That one should be clear enough....imagine what kinds of due process arguments might be made when you can't get your case reviewed because Congress doesn't want you to be able to challenge its laws in court.
If Congress makes a subject immune to SCOTUS jurisdiction per Article III, they have that power. There is no due process argument. The process defined by the law, and authorized by the Constitution, has been followed.

Of course, Congress (and the President, who would have to be involved) had best be prepared to take quite a bit of heat over such an action. The elected branches of government can pull the rug from under the judiciary if they see the need.
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Old October 4, 2005, 02:03 PM   #20
shootinstudent
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Quote:
If Congress makes a subject immune to SCOTUS jurisdiction per Article III, they have that power.
That's exactly what is disputed. There is no general agreement that Article III section 2 grants jurisdiction stripping power. It could also be that it only protects the fact findings of juries.

Quote:
The process defined by the law, and authorized by the Constitution, has been followed.
It's well established that due process can be violated by an otherwise valid legislative act. The 14th amendment due process guarantee changes quite a bit, it turns out.
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Old October 4, 2005, 02:22 PM   #21
SIGSHR
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After the Civil War, Congress established the Federal Court for the Indian
Territory (Oklahoma) under the "Hanging Judge" Isaac Parker, and appeals to
the Supreme Court were disallowed. The result, if you were a bad guy and you were tried in Judge Parker's court, found guilty, and sentenced to hang, you hung, unless you recieved Executive Clemency, something hard to come by back then since 1. It had to be paid for 2. Back then, it seen as being
Soft on Crime. And I wonder how much of the crime surge of the 1960s and
70s was due to the Warren Court's overexpansion of the rights of criminals.
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Old October 4, 2005, 02:38 PM   #22
shootinstudent
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Quote:
And I wonder how much of the crime surge of the 1960s and
70s was due to the Warren Court's overexpansion of the rights of criminals.
You mean like requiring that they be tried by juries???

I'm not happy with unrestricted commerce clause power...but what rights do criminals have after the Warren court that are unreasonable? Protecting the integrity of criminal proceedings is a perfect example of why we need independent courts. There are some issues that shouldn't be up to a majority vote after every term.
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Old October 4, 2005, 03:04 PM   #23
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The way I understand it, the SCOTUS already has limited jurisdiction. I think the States intended the 11th Amendment to clarify that affairs between a Citizen and a State were just that, affairs between a Citizen and a State, and not a federal affair at all. Of course, since the Civil War, and the 14th "Amendment", the US assumes they have the power to define their own jurisdiction.

We are not going to get the US Congress to check the SCOTUS, or vice versa. The US cannot check itself. The intended check on the US is the States. That is why we are the United States and not just the one big State of America ... the US (thirteen States at the time) was considered too vast an area for a simple republican form of government. It was deemed by our Founders and Framers that such a vast area needs a further separation of powers - a separation of State and federal powers.

I know a lot of y'all here see things a certain way, like for instance you might have a lot of emotional investment in what the phrase "all men are created equal" means ... but I think what it means is that, rather than have one man or a few men rule over the others, "all men are created equal" means that it is right to have the majority rule (at the State level). So when the SCOTUS, for instance, tells Texans that they cannot pass laws against people committing homosexual acts ... how can nine judges outweigh a whole State full of people if everyone is equal? The SCOTUS is not the Texas Government, they were not elected by Texans as their reps ... where is the republican form of government that the US Constitution guarantees to Texas?

The US has no business saying they have jurisdiction over all matters ... that is why we had a revolution was because King George declared he had jurisdiction over the Colonies in all matters. And that is why the South fought the Civil War, to try to keep the US from claiming that it has jurisdiction over the internal affairs of the States.
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Old October 4, 2005, 04:16 PM   #24
SIGSHR
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The right to trial by jury is well established, I am referring to decisons such as Miranda and Gideon vs. Wainwright. I recall learning in the 1950s that
you had the right to remain silent and could not be forced to be a witness
against yourself, and as far as Gideon vs. Wainwright goes, an assistant
prosecutor told me some years ago "The taxpayer shouldn't have to pay for
the bad guy's lawyer."
My main point is that is that voters in many states have the right to recall
judges, to get rid of judges who are arrogant and power hungry and want to be the public's master, not its servant. I think that Federal voters deserve the same right.
I also note that in many of its recent decisions such as the pro-homosexual decision
of 2003 the liberals have engaged in the obnoxious practice of citing foreign
law, in that case, decisions of the British Parliament. Not only has SCOTUS repealed the Constitution of the United States, it has also repealed the Declaration of Independence.
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Old October 4, 2005, 08:40 PM   #25
Jammer Six
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Quote:
My main point is that is that voters in many states have the right to recall
judges, to get rid of judges who are arrogant and power hungry and want to be the public's master, not its servant. I think that Federal voters deserve the same right.
There are significant differences between federal judges and state judges.

There are judges who are subject to political pressure, and judges who aren't.

Both are necessary.

My suggestion is to learn the theory of the existing system before jettisoning it.
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