Archive for Tuesday, April 27, 2004

Powers should stay separate

April 27, 2004


Article I, Section 2 of the Constitution sets minimal qualifications to sit in Congress: 25 years of age, seven years of U.S. citizenship, residence in the electing state.

Alas, nowhere does the Constitution require an understanding of itself, passage of a basic civics course or the ability to comprehend simple logic.

If it did, bytes wouldn't be gobbled needlessly nor would trees have to die for the kind of simple-minded nonsense that some obscure elected representatives try to perpetrate in the guise of earning their salaries.

Take HR 3920.


And put it out of our misery.

The bill provides that any time Congress balks at a Supreme Court ruling that a federal law is unconstitutional, members would be able to reverse the ruling by a two-thirds' vote of the House and Senate.

Rep. Ron Lewis, the Kentucky Republican behind the bill, came to the revelation of this legislation's necessity thusly:

Rulings of the Massachusetts Supreme Judicial Court on same-sex marriage signal that judicial activists are running amok and are "disconnected from the values of everyday Americans;" therefore Congress must wrest power from the U.S. Supreme Court before "those" radicals render our nation unrecognizable.

The sheer inanity of this reasoning boggles the brain.

But keep in mind that, if you trust his Web site, this same honorable representative managed to move "one" item through the House last year: a resolution honoring the Hilltoppers of Western Kentucky University in Bowling Green for winning the 2002 NCAA Division I-AA football championship.

So, in practical terms, this brazen piece of pandering most likely will wither for want of a hearing, as it should.

Still, 22 House members have signed on as co-sponsors, including lawyers who ought to know that citing Article III, Section 2 (which discusses Supreme Court jurisdiction) does not save this measure from being an unconstitutional disruption of the separation of powers.

To thwart any momentum this overreaching rubbish might gain, let's elucidate some of its many deficiencies.

The notion that shaking a legislative fist at the U.S. Supreme Court would have any impact whatsoever on a state Supreme Court's interpretation of its own state's constitution, no matter how incendiary, demonstrates a fundamental misunderstanding of the distinction between the state and federal systems.

The notion that any court decision upsetting to the sensibilities of a segment of the population must be illegitimate threatens the independence of the judiciary. The Founding Fathers settled on lifetime appointments for federal judges for just that reason.

Members of Congress might be beholden to vote the popular will, but judges should not be so easily swayed. They must be able to rule that the law abhors racial discrimination in education and housing, that it demands protections for criminal defendants, that it expects government to favor no religion but respect the practice of all faiths -- and not fear that a mob will throw them out of office for staying true to the law.

The notion that "as judicial power expands, congressional power contracts" -- Lewis' complaint -- may well be valid. But where was this sense of urgency to restore the balance of powers when, over the last decade, the Rehnquist court repeatedly restricted Congress' ability to enforce laws and safeguard rights?

When the court said Congress couldn't ban handguns around schools?

When the court said Congress couldn't allow state workers to sue their employers for violating federal labor laws?

When the court said Congress couldn't allow suits against the states under federal laws barring age discrimination or bias against the disabled?

To name a few examples.

Now we're to believe that -- the 1803 Supreme Court ruling in Marbury v. Madison notwithstanding -- Congress should have the last word on what acts of Congress are constitutional. There's a reassuring check and balance for you.

If Congress wanted to dictate to federal judges in a meaningful way that really empowers the people, it would authorize televised court hearings.

Reasonable people can and will differ over judicial interpretations of state and federal constitutions. But this legislation isn't about good-faith disagreements. At its core, it's about slapping around the courts for not homogenizing the multidimensional, sometimes objectionable and often messy gumbo that is American society.

I suppose life might seem simpler and safer if everyone lived in the same stable, husband-and-wife households with the same number of exemplary cookie-cutter children, parking their two cars in every garage next to their perfectly coiffed lawns, worshipping alike, reading the same sanitized books, eating the same unimaginative food, watching the same inoffensive entertainment, voting only for the candidate who most effectively wraps himself in the flag.

But that wouldn't be freedom.

It should be frightening.

Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.

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