John Whitehead's Commentary
Stripping the Courts Means Stripping Our Rights
Recently, the U.S. House of Representatives voted along party lines to strip the power of the federal courts--including the U. S. Supreme Court--to hear cases relating to the Pledge of Allegiance. This highly charged legislation stems from the controversy over the Pledge, which was fueled by the U. S. Court of Appeals for the Ninth Circuit's 2002 ruling that held that the words "under God" made the Pledge unconstitutional.
This court-stripping law is being ramrodded through Congress by conservatives who have long been vocal against "activist" federal judges. Religious conservatives, in particular, have endorsed the Pledge of Allegiance bill. These include the Southern Baptist Coalition, Eagle Forum, Family Research Council and the American Center for Law and Justice, among others. The general public has also voiced its support for keeping the Pledge in its entirety. For instance, a survey conducted this summer by the First Amendment Center found that at least 70 percent of Americans believed that the words "one nation, under God" in the Pledge did not violate the First Amendment.
There have also been attempts to limit the court's jurisdiction in other areas (e.g., cases dealing with same-sex marriage). Indeed, seldom has the power of the federal courts been under such attack. But is stripping the federal courts of their power to hear certain cases a wise course of action?
Those who drafted the United States Constitution provided for a federal judiciary that has served us well for more than 200 years. However, the judicial nomination process has become such a tangled political briar patch that getting qualified judges through the system is nearly impossible. Thus, it is not the system that is the problem. Rather, the problem lies with the judges who have been appointed and approved by Congress--and with Congress itself.
It could be argued that what Congress does to the American people on a daily basis is worse than any court has ever done. The very fact that Congress is attempting to "correct" the federal courts creates a political mess. Not only has Congress been consistently weak and ineffective, but it is filled with politicians who keep their jobs by appealing to whatever whimsy will gain them votes. That is why the political hot wind coming out of Washington, D.C., is often filled with meaningless noise--and why rhetoric such as limiting the "evil" courts works for many politicians.
Such rhetoric, however, misses the point of what the courts are all about. The Constitution established the courts as an independent, co-equal branch of the federal government. As a reciprocal check on this power, our founding fathers also included provisions in the Constitution that make the judiciary accountable to the other two branches of government by giving them the power to nominate and confirm federal judges, impeach and remove federal judges for high crimes and misdemeanors, constitute the lower federal courts, regulate court jurisdiction and make laws necessary and proper for the exercise of the foregoing powers, including the power to fund and oversee court operations. This system of checks and balances purposely creates a tension between judicial independence and accountability that makes some inter-branch friction inevitable. Such tension, if maintained within manageable limits, is a sign that the Constitution is functioning as intended, rather than a cause for concern.
Judicial independence exists for the benefit of the people. Article III, Section I, of the Constitution establishes judicial independence by giving federal judges life tenure for good behavior. This means that judges are independent of politics and should only be swayed by the Constitution and what it has to say. Thus, it is important to separate dissatisfaction with a judge's performance in individual cases from the proper role of courts in general. This makes it possible for judges to protect and enforce individual rights--even when doing so is contrary to popular opinion. This not only helps preserve the Bill of Rights but holds the executive and legislative branches in check.
We must not forget that it is the courts, not Congress, that have protected the rights of American citizens over time. Consider the historic struggle of African-Americans for equal rights. As originally written and later amended, our Constitution did not expressly treat blacks as equal with whites. The founders of this nation (many of whom owned slaves) and those who drafted the post-Civil War Fourteenth Amendment (almost none of whom would have had a black person as a social guest) did not actually intend economic and social equality for all races. To the contrary, it took a U.S. Supreme Court decision in 1954 to begin the process of granting all citizens, no matter their race, the right to participate equally in our democracy.
Therefore, if Congress succeeds in stripping the courts of their right to hear, let alone decide, certain constitutional issues such as the Pledge, then our rights as citizens to petition the courts to hear our grievances against the government could also be severely curtailed. In fact, if Congress by statute is allowed to "end run" the Bill of Rights, then no rights guaranteed under the Constitution--to liberty, due process, equality under the law or property--will ever be safe.
Future Congresses could enact restrictions on speech or religious freedoms, infringe on powers reserved to the states, enact uncompensated takings of private property or restrict voting rights and simply bar federal courts from hearing challenges to such patently unconstitutional acts.
In that instance, the one thing that stands between the citizens and tyranny--our Constitution--will be destroyed.
This court-stripping law is being ramrodded through Congress by conservatives who have long been vocal against "activist" federal judges. Religious conservatives, in particular, have endorsed the Pledge of Allegiance bill. These include the Southern Baptist Coalition, Eagle Forum, Family Research Council and the American Center for Law and Justice, among others. The general public has also voiced its support for keeping the Pledge in its entirety. For instance, a survey conducted this summer by the First Amendment Center found that at least 70 percent of Americans believed that the words "one nation, under God" in the Pledge did not violate the First Amendment.
There have also been attempts to limit the court's jurisdiction in other areas (e.g., cases dealing with same-sex marriage). Indeed, seldom has the power of the federal courts been under such attack. But is stripping the federal courts of their power to hear certain cases a wise course of action?
Those who drafted the United States Constitution provided for a federal judiciary that has served us well for more than 200 years. However, the judicial nomination process has become such a tangled political briar patch that getting qualified judges through the system is nearly impossible. Thus, it is not the system that is the problem. Rather, the problem lies with the judges who have been appointed and approved by Congress--and with Congress itself.
It could be argued that what Congress does to the American people on a daily basis is worse than any court has ever done. The very fact that Congress is attempting to "correct" the federal courts creates a political mess. Not only has Congress been consistently weak and ineffective, but it is filled with politicians who keep their jobs by appealing to whatever whimsy will gain them votes. That is why the political hot wind coming out of Washington, D.C., is often filled with meaningless noise--and why rhetoric such as limiting the "evil" courts works for many politicians.
Such rhetoric, however, misses the point of what the courts are all about. The Constitution established the courts as an independent, co-equal branch of the federal government. As a reciprocal check on this power, our founding fathers also included provisions in the Constitution that make the judiciary accountable to the other two branches of government by giving them the power to nominate and confirm federal judges, impeach and remove federal judges for high crimes and misdemeanors, constitute the lower federal courts, regulate court jurisdiction and make laws necessary and proper for the exercise of the foregoing powers, including the power to fund and oversee court operations. This system of checks and balances purposely creates a tension between judicial independence and accountability that makes some inter-branch friction inevitable. Such tension, if maintained within manageable limits, is a sign that the Constitution is functioning as intended, rather than a cause for concern.
Judicial independence exists for the benefit of the people. Article III, Section I, of the Constitution establishes judicial independence by giving federal judges life tenure for good behavior. This means that judges are independent of politics and should only be swayed by the Constitution and what it has to say. Thus, it is important to separate dissatisfaction with a judge's performance in individual cases from the proper role of courts in general. This makes it possible for judges to protect and enforce individual rights--even when doing so is contrary to popular opinion. This not only helps preserve the Bill of Rights but holds the executive and legislative branches in check.
We must not forget that it is the courts, not Congress, that have protected the rights of American citizens over time. Consider the historic struggle of African-Americans for equal rights. As originally written and later amended, our Constitution did not expressly treat blacks as equal with whites. The founders of this nation (many of whom owned slaves) and those who drafted the post-Civil War Fourteenth Amendment (almost none of whom would have had a black person as a social guest) did not actually intend economic and social equality for all races. To the contrary, it took a U.S. Supreme Court decision in 1954 to begin the process of granting all citizens, no matter their race, the right to participate equally in our democracy.
Therefore, if Congress succeeds in stripping the courts of their right to hear, let alone decide, certain constitutional issues such as the Pledge, then our rights as citizens to petition the courts to hear our grievances against the government could also be severely curtailed. In fact, if Congress by statute is allowed to "end run" the Bill of Rights, then no rights guaranteed under the Constitution--to liberty, due process, equality under the law or property--will ever be safe.
Future Congresses could enact restrictions on speech or religious freedoms, infringe on powers reserved to the states, enact uncompensated takings of private property or restrict voting rights and simply bar federal courts from hearing challenges to such patently unconstitutional acts.
In that instance, the one thing that stands between the citizens and tyranny--our Constitution--will be destroyed.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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