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Wednesday, May 24, 2017

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Article Three -- It's Time to use it fully


Article Three of the Constitution of the United States of America gives the Congress of the United States the power to determine the composition and jurisdiction of the courts of the United States.  When the Congress decided to give Federal Courts jurisdiction over Terri Schiavoís case, they were attempting to exercise their constitutional control over the courts.  The judge in Florida ignored the Congressí order to give a de novo review of the case, which means that the court gives no deference to any previous courtís findings of fact or law.  The Federal courtsí refusal to follow this law prompts my discussion here today.

I previously wrote that we needed to amend the Constitution to implement a Congressional "veto" of the courts when approved by a supermajority of both houses.  I now believe that Article Three gives the Congress to implement a solution nearly identical to that proposed by me in the previous article.  Thanks to Rush Limbaugh for pointing this fact out.  As per usual, he is astute and right in the center of the target.


"The Congress can pass a statute giving itself the right to reverse any decision of any court."


The Congress can pass a statute giving itself the right to reverse any decision of any court.  In order to prevent the abuse of this right, it must be exerciseable only by a supermajority of the Congress, probably a two-thirds majority.  I also now think that the President should have to sign off on the override.  A wrinkle is what happens if the President vetoes the bill; the Constitution provides for a two-thirds override for a veto but my proposal already suggests a two-thirds majority.  Perhaps the majority to override the courts should be three-fifths, with the two-thirds veto override by the President still possible.

This solution would allow for the Congress to rein in any judicial abuses.  Of course, one problem we face is that the courts will inevitably declare this check "unconstitutional."  They will hold that the law overturns Marbury v. Madison, and eliminates the courtsí ability to declare a statute to be repugnant to the Constitution.  However, our President is trying to get judicial tyrants off the bench via attrition. and replace them with judicial restrainers.  The founders envisioned a court that interpreted the law, not made the law.  For example, Judge Greer in Florida has in essence made a law that the uncorroborated hearsay testimony of a person is an adequate substitute for a written living will.

Congress needs to use its Article Three power to its fullest extent to rein in an out-of-control judiciary.