Judicial Accountability Act

By Bruce Walker
web posted July 8, 2002

Two recent federal court decisions demonstrate how regal and arrogant these creatures of Congress and servants of the people have become. Removing as unconstitutional "under God" from the Pledge of Allegiance generated the most heat. It was a clear slap in the face of the people on an issue simply irrelevant to any practical problems our nation faces today. How cavalier of these old men to reach back almost fifty years and to remove by fiat text that the overwhelming majority of Americans had treasured!

Separation of religion and government, as almost every conservative knows, was not included in the state governments of the early American Republic (six of the thirteen states, in fact, had established churches) and it was the peoples of these states in subsequent decades who they chose to end established churches. The Bill of Rights had no legal impact on that disestablishment, and the federal bench recognized no right to prevent state governments from formally adopting any faith as the state religion.

Another federal judge has decided that the federal death penalty - which was recently and carefully crafted by liberal legislators to pass constitutional muster with a keen eye for what federal judges might say about the matter - is unconstitutional on the grounds that innocent people could be executed. Using this goofy reasoning, no one should be sent to prison, because convicts certainly suffer from what lawyers would call "irreparable harm" and often die in prison.

Surely this federal judge understands that the American legal system has built in countless safeguards against the innocent suffering any penal sanction. Guilt of the accused must be proven beyond any reasonable doubt. The accused has the right to free legal counsel, if he cannot afford an attorney. He cannot be made to testify against himself or even have his failure to testify mentioned during a trial. Completely reliable evidence that proves guilt cannot be used at trial if it was obtained improperly. And, of course, anyone given the death penalty has years of appeals and reviews by other courts before the convicted is executed.

Before these two recent decisions, the Supreme Court decided that mentally retarded people could not be executed, which opens a Pandora's Box of future silly litigation. Why, for example, should a retarded person be sent to prison at all? Why should retarded people be punished at all for crimes? Should retarded people not be treated as we treat children? Should we not have a Retarded Person Justice System to parallel the Juvenile Justice System? Why stop there? Why not an Oppressed Women Justice System? Or an Oppressed Person of Color Justice System?

Yet another federal judge is playing havoc with our attempts to fight a war for the survival of western civilization using the Marquess of Queensberry rules, quite literally risking our survival for the sake of arcane interpretations of hypothetical and implied rights.

How far can the envelope of judicial imperialism be pressed? The answer is that it can - and it will - be pushed as far as the American people let it be pushed. Will it hamper our ability to wage war against terrorism? Of course! Will it be used to systematically deconstruct the Constitution until nothing remains but leftist rhetoric? Oh, we are already so close to that!
Vainly, conservatives and other sensible people have waited for conservative presidents to appoint enough federal judges to begin to slowing create conservative clout on the federal bench. The trench warfare of Senate Democrats against Bush nominees makes it clear that this battle will be long, victory dependant upon an underlying string of electoral victories, and littered with the well-intended decisions of moderate federal judges who truly believe in the Divine Right of Judges.

The partisan nature of the Florida Supreme Court in Election 2000, along with oddball decisions from state supreme courts across the nation, who are fashioning new ideological edicts out of whole cloth every day, also makes it clear that the problem is with all judges in our American legal system, and not only federal judges.

The cure will not come from resolutions passed by the United States Senate, from harsh words by the President of the United States, from impeachment by the House of Representatives or even from overwhelming public opinion polls. The cure is to reassert in unambiguous terms the moral and political superiority of Congress, the President, state governments and the people over judges and courts. The time to act is right now, while America is still fuming over the Ninth Circuit decision and while people immediately understand the great dangers that renegade federal judges create in our war for national survival.

This action should be taken directly, without the general muttering about the need for "strict constructionists" or "conservative judges." The President should propose the Judicial Accountability Act. The President could begin his address before Congress and the American people by noting that since the early days of the Republic, the Supreme Court has been the worst violator of our liberties.

When the Alien & Sedition Acts were passed, not only did the Supreme Court not throw out these manifestly unconstitutional laws, but Supreme Court justices went around the nation enforcing these odious laws, even throwing a Congressman in prison for criticizing the federal government.

The Supreme Court's decision in Dred Scott made a bloody Civil War almost inevitable by removing the power of free states to emancipate runaway slaves. After the Civil War, when Republican Congresses passed the Ku Klux Klan Act and several federal civil rights laws to protect the political and legal rights of blacks in the South, it was the Supreme Court that struck down these laws as unconstitutional, leaving blacks in the South at the mercy of embittered Confederate war veterans.

During the 1930s, the Supreme Court struck down laws passed by Congress to prevent gerrymandering and to require that congressional districts be "compact, contiguous and as nearly as practicable equal in population." The consequence of these horrific rules has been that congressional districts are drawn for crass political reasons and have become almost entirely uncompetitive.

During the Second World War, when Japanese-Americans desperately needed a protector, the Supreme Court twice upheld Franklin Roosevelt's crude racist policies toward Japanese. This was the penultimate example of why we need a Supreme Court to stand above the people: protecting innocent men, women and children from the wrath of the mob. The Supreme Court utterly failed.

The President should recite how the Supreme Court has frustrated reforms rather than champion reforms. He should note that abortion became an issue which tore America apart not because Roe v. Wade legalized abortions, but because that wretched legal "opinion" removed from state governments the power to legalize, criminalize or regulate abortion. Three states had legalized abortion at the time of Roe v. Wade. Had the Supreme Court ruled those three state laws unconstitutional and created a federal injunction against abortion, the harm to our system of government would have been just as great.

Then the President should describe what the Judicial Accountability Act would do. First, it would establish as a matter of federal law that the final power to interpret the Constitution rests in a concurrence opinion signed by a majority of the Senate, a majority of the House of Representatives, and by the president of the United States. The virtue of an opinion signed by these elected officials is that it completely circumvents the machinations of congressional committees, filibustering and other dilatory tactics. Any congressman and any senator can sign an opinion, whether Congress is in session or not.

Second, the federal statute should provide that under Article Four of the Constitution, which insures each state a republican form of government, that the final power to interpret state constitutions, state laws, and to make state interpretations of federal laws and the United States Constitution resides in concurrence opinions by a majority of both houses of the state legislature and by the governor of the state.

Third, this new law could allow - but not require - the executive and legislative branches of the federal and state governments can establish, on a case by case basis, higher standards for these opinions, such as to: (1) require that sixty percent of the members of both houses of the legislature involved sign the opinion; (2) require that the people vote to approve the opinion.

These safeguards would create almost impossible situations for leftists trying to rule by judicial edict, who would effectively be saying "We don't trust the opinion of the President, of a majority of the Senate, a majority of the House of Representatives, and a majority of the American people. We don't even trust a super-majority of the Senate and House, endorsed by the President and ratified by the American people - but we do trust federal judges and we do trust a divided five to four ruling by the Supreme Court." Yes, let leftists make that argument.

Fourth, the federal statute would direct all federal employees whether in the civil service, in independent regulatory agencies, or any other part of the federal government, to obey the expressed opinion of the federal and executive branches as superior to that of the courts, and it could provide for specific sanctions (e.g. demotion, transfer to another agency, etc.) for anyone who did not comply with the executive-legislative opinion.

Fifth, the federal statute could explicitly deny all courts subject matter jurisdiction over the constitutionality of the Judicial Accountability Act, and it could provide that any judge or justice who did so would be operating outside the scope of his duties and subject to administrative penalties and sanctions described in the act. This could include suspension from office, as well as grounds for impeachment.

The President could make a compelling case to the American people and ask the Senate and the House of Representatives to at least vote up or down on this measure before the November elections. Sen. Tom Daschle, of course, will not allow this. Perfect: make this an issue in the November campaigns. Do we want to rule our courts or for the courts to rule us?

Beyond that, if the results of November do not provide President Bush with enough muscle to push this statute through Congress, then President Bush should do precisely what Andrew Jackson did and what Franklin Roosevelt did. He should address again the American people and say that Congress has proven incapable of handling the problem of judges run wild, and therefore he will issue an Executive Order incorporating all the features of this statute unless Congress is willing to pass a bill for him to sign that makes courts accountable to the people again.

This could and should become the start of a lively debate on the role of courts in our governmental system. That is a debate that conservatives will win. Like spoiled brats, liberals hide behind the heavy, black skirts of judges. Liberals cannot win real policy arguments anymore, and they do not even try. They have, instead, been playing a game of bluff - threatening to accuse conservatives of unraveling the Constitution if we have our way. Now is the time to ask the American people who owns the Constitution: judges or the people?

Bruce Walker is a senior writer with Enter Stage Right. He is also a contributor to Citizens View, The Common Conservative, Conservative Truth and Port of Call.

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