Power of The Courts

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Our current President made some startling comments about the Supreme Court lately. Does he think we the American people are stupid, that we don’t know how our judicial system works?

Judicial System Power

Article III of the Constitution pertains to the POWER of the Supreme Court and any inferior courts that congress establishes. The power of these courts is limited to federal judicial power and not to the people of ordinary matters in the states. It is limited power extending only in areas peculiarly appropriate to federal jurisdiction. This limits the federal judicial power and creates a separation of authority of states and federal powers. Local or state systems are intended to be separate from the powers of the federal systems. This separation into federal and state or local areas of authority was intended as part of the system of separation of powers and checks and balances.

From this understanding we can see the separation of powers and the ability of the states to have power over judicial rights in their states. The separation of powers between federal authority on one hand and state and local authority on the other is evident and forms our governmental system into four groups. The Executive, Legislative, Judicial and the State sovereign governments becomes very clear. The selection of federal judges is subject to mutual agreement of the three groups of the Federal government. The president’s authority over selection of federal judges was exercised by limiting the choices to those nominated by him. The authority of the legislative branch of the federal government was exercised by the senate. The authority of the states governments was exercised by the fact that the senators were the representatives of the states not the people.

In 1913 the constitution was amended by vote to elect the senators by the people, this became a popular vote. This has caused our legal system to give more power to the federal government than to the states. This amendment needs to be changed again. It deprives the states of their previous constitutional control over the selection of federal judges. Changing it back would give back to the people the basic power to control who is appointed as federal Judges. If the states have no power to those nominated by the president then they become subject to federal rule. Why do we desire the government this great power? When we realize what and how the states gave away this power it really doesn’t make sense.

In 1913 Woodrow Wilson was President and not only did this happen under his approval but the changing of the basic organization of political law. This was done by law schools changing criteria of law studies from constitutional law to case law or common law. This is the system of law that governs our courts now. If we are ever going to return to the framers original ideas of this great system we should start right here. The Seventeenth Amendment was voted upon by three fourths majority and made law meaning it became the constitutional law.

The people can change it back.

The Federalist papers contain this from Alexander Hamilton.

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority.

…Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

Alexander Hamilton again in the Federalist papers:

“Nor does this conclusion by any means suppose a superiority of judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in statutes, stands in opposition to that of the people, declared in the Constitution, judges ought to be governed by the latter rather than the former. .”

Congress has the power to make just decisions pertaining to the Supreme Court. The Supreme Court has power over all cases except those involving representatives of forgiven countries and the states of the United States, is subject to the control of Congress. This is handled in the Constitution by making the appellate jurisdiction of the Supreme Court subject to such exceptions and regulations as Congress shall make. This means since most cases heard by the Supreme Court are on the appeal, this gives power to Congress to deprive the Supreme Court of the right to hear most of the cases now decided by it. We probably won’t see Congress to modify any cases decided by the Supreme Court but it gives them the right to do just that. This is part of the checks and balances designed in the Constitution.

It also gives the legislative branch the power to make laws that the Supreme Court can judge but nowhere does it give the Supreme Court the power to make laws.

Thomas Jefferson On Creeping Judiciary


“It has long been my opinion, and I have never shrunk from its expression, that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body ( for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and a little tomorrow and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all shall be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

Sounds like Jefferson saw a world government. Does anyone want that?

Mr. President we do understand probably more than you.

No one can harm the man who does himself no wrong.

Credit:

Jerome Horowitz; The Constitution of USA,

Federalist Papers, A lawyer friend.

Robert D. Ashford was a Marine during the cold war and is now retired, after 50 years of construction management. He is a keen genealogist and loves humor. He watches the political horizons and likes to write commentary on what’s next.