Constitutional Law,
Letters
Feb. 9, 2012
Congress: Reining in the federal courts
A reader comments on "Newt Gingrich and the evisceration of the rule of law."
Richard A. Nixon
Email: pres37th@aol.com
San Fernando Valley College of Law
Richard, a practicing attorney in Los Angeles County and a Vietnam-era veteran, is the author of "America: An Illusion of Freedom."
I read with interest the article entitled, "Newt Gingrich and the evisceration of the rule of law," (Jan. 26) by Professor Rodney K. Smith Bringing the law within the confines of the Constitution is a laudable goal; a goal certainly shared by a self-proclaimed, conservative scholar.
However, it is submitted that Smith confuses "the law" with the necessity of the judiciary's blessing "the law." Law can, and does, exist without judicial interference. Laws enacted by Congress are valid, extant laws until such time as the federal courts decide to exercise authority, not given them by the Constitution they purport to uphold, and declare such law unconstitutional.
Smith quotes Alexander Hamilton for the proposition that the judiciary's function is to protect us from the big, bad Legislature. The Framers intended quite the opposite. Article III of the Constitution specifically grants power to Congress to rein in the federal courts, including the U.S. Supreme Court by expressly granting "appellate Jurisdiction ... with such Exceptions, and under such Regulations as the Congress shall make." This is the authority about which Gingrich speaks: the authority of Congress to withhold jurisdiction from the federal courts to hear a particular matter.It is interesting that Smith quotes Hamilton, a known federalist, who along with the author of Marbury v. Madison, Chief Justice John Marshall, believed in a strong federal government, to the detriment of the states and their people. Hamilton's judgment was apparently impaired as history teaches that he died in a duel, fought against the inclusion of the Bill of Rights into the Constitution and argued for a national bank. That national bank was the precursor to the Federal Reserve - another entity needing reining in.
It is indeed ironic that Smith quotes Hamilton rather than Thomas Jefferson. Of course the reason is clear - Jefferson, as president in 1803, quite correctly argued that Marbury was incorrectly decided as the Constitution nowhere grants the Supreme Court the authority to declare acts of Congress void.
Additional authority in support of Jefferson's position is found in Federalist No. 48, which states that "none of the three branches of government 'ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers' ..."
The propriety of this position rests with one word - accountability. Stripped of all hyperbole, the judiciary is essentially not accountable to the people. The Legislature is indeed accountable, as the Framers intended. It's up to the people to demand Congress rein in the federal courts including the Supreme Court. If this be done, the law will not be eviscerated but will more nearly reflect the will of the people. After all, this country belongs to the people, not the government.
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