Congress Has Power to Restrain Federal Courts

article top

Aristotle once defined politics as the process by which we determine how we shall order our lives together. And though ages old, his classic definition is at the heart of representative government: it is people working together to enact just laws to govern their communities in a peaceful and orderly fashion.

Since our founding, Americans’ right to representative government has been the backbone of our governing process. But in case you haven’t caught on to it yet, this right is steadily eroding away. A series of federal appeals court and U.S. Supreme Court decisions over the last 40 years have been slowly but surely undermining the rights of Americans to govern themselves. Last year, people all over America were outraged by the 9th U.S. Circuit Court of Appeals’ ban on the Pledge of Allegiance because of the phase “under God.” This year they are railing against the U.S. Supreme Court for overturning all state sodomy laws in the Lawrence v. Texas case.


But the fact of the matter is that these particular cases are not the real problem; they are only symptoms of what is really wrong: a federal judiciary that is now denying us the ability to govern ourselves. Nationwide, citizens are witnessing federal courts interfere with legitimate governing by overturning state laws with which unelected federal judges disagree.

Over the years the federal courts have expanded their reach well beyond the jurisdiction of the courts as intended by the framers of the Constitution. It was never intended for the courts to become a policy-making or legislating body, but that is exactly what they have become.

Unfortunately, many federal judges have become the liberals “last best hope” for social engineering. With the general public becoming increasingly conservative it is becoming increasingly necessary for liberals to impose their agenda on the American people through the courts because they cannot achieve many of their objectives through the state legislatures and Congress.

This is a serious threat to the balance of powers enumerated in the U.S. Constitution. Just take note of how politicized the nomination of federal circuit court judges has become as Senate Democrats continually demand that nominees adhere to a certain “judicial ideology.” In other words, they are consistently refusing to allow a nominee to come up for a vote unless the nominee can convince them that they will vote in favor of their positions rather than rule based on the law.

The filibustering of nominees to the federal circuit courts is in itself an unprecedented attack on the constitutional balance of powers in respect to the right of the president to appoint federal judges. In fact, the Democrat leadership in the U.S. Senate has even taken a public position that the Senate should have an equal role in nominating judges and that nominees should be selected based on their views on certain issues, rather than on their commitment to constitutional law.

Moreover, Sen. Charles Schumer of New York has taken a public position that there should be an ideological balance on the federal judiciary that applies to issues such as race, religion and most notably, abortion. In an article in Engage, law professor Stephen B. Presser points out that choosing judges based on their ideology would have been unthinkable for the Founding Fathers. Presser wrote that for the federal judiciary to work properly and in order to maintain a proper separation of powers, federal judges must be selected based on their ability “to decide cases according to a neutral interpretation of the Constitution and the law.”

When federal judges lose their neutrality and begin to inject their personal social and political views into their decisions they are in fact violating the very Constitution that they are sworn to uphold and defend. The fact that not only are federal judges clearly operating well outside of their constitutional limits but that in addition Senate Democrats are attempting to rewrite the Constitution’s provisions for appointing federal judges should cause every American citizen great alarm.

To curb this abuse of power, there has been a strong push for federal judges to exercise “judicial restraint,” that is, to stop making new laws or establishing new rights that do not exist in the Constitution. But calls for “judicial restraint” by judges that hold lifetime appointments have fallen predominantly on deaf ears.

There is, however, another means of restoring the balance of powers.

According to a number of legal scholars, Congress has the authority to limit the jurisdiction of the federal courts. Congress could set clear limits on the reach of the federal courts by prohibiting federal courts from meddling in state and local law except to ensure that their laws do not violate the U.S. Constitution.

Unfortunately, Congress does not presently have the political courage to deal with this situation. As is the case with so many things, it will take a grass-roots movement of unprecedented scope to force Congress to limit the jurisdiction of the courts. In other words, concerned voters should make restraining the federal judiciary a key issue in the 2004 elections.

”’Gary Palmer is president of the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society. For information or comments contact: Gary Palmer, Alabama Policy Institute, 402 Office Park Drive, Suite 300, Birmingham, Alabama 35223, (205) 870-9900, email at:”’