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March 31, 2005

Catty Courts: The Law of Nellie-Olsen Dynamics

 

 

 

-Martin Kite-Powell

 

 

Another day, another appeal rejected. The Schindler-Shiavo case seems to be never-ending and all for worse for human rights. Meanwhile Judge Birch, who argued that Congress’ law regulating Article III courts as per…well, Article III, is really unconstitutional. Apparently the Constitution is living and breathing and uttering different words than it did when the Framers penned the thing 226 years ago. Just think, if a conservative judge were believed to have disregarded constitutionally superior governmental authority what some just might call him. I don’t know but you can ask Roy Moore.

 

But why is the court so flippantly rejecting the Shiavo appeals? (In today’s installment Birch was the only one, as Hugh Hewitt pointed out, who even wrote anything – other judges today and at other points have sat in silence like a weathered recitation of Stonehenge.) But is there another reason beyond their otherwise usual left-leaning extra-constitutional activist ideals? I think so. I think ever since Congress passed the law last week requiring federal courts to at least review cases such as this, the courts have seen nothing but red over the new resistance to their absolute dominance over really all branches of power. Because of this, if it were not out of the question that Terri get a de novo examination by one of the courts before this I think there would be no way they would budge now even though it means certain loss of life for an innocent woman.

 

So if my guess is right, we learn two things:

 

1. To Activist courts power is more sacred than the lives of innocent citizens.   2. Activist judges are recoiling in fear that Congress has actually begun exercising its power as granted by Article III in limiting the scope of federal courts with this as well as other recent items to reach the House Floor, such as the Defense of Marriage Act.

 

 

But they have a lot more to fear than this. As history has been our guide, both the President and Congress can do a lot to make things uncomfortable for such judges, not the least of which is handing them each a pink slip.

 

It can be argued in some sense the activist judges are victims of their own success. In the past year alone they have done more to prove a personal adage of mine than with anything. Their lack of rhyme or reason, consistency or adherence to any set of laws, principles or historically guiding morals outlined for them to adhere to by the Constitution and relevant historical context-bearing documents shows that judgments based on an abstract and dynamic interpretation of static law (e.g. the Constitution itself) makes for nothing more than the dictates of a tyrant. The belief the Constitution is a “living, breathing document” is a recipe for corruption and amounts to nothing more than legal heresy for the orthodox Constitutionalist and opression for the citizen.

 

Or as Thomas Jefferson once put it, "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy." For being a deist, Jefferson was a pretty good prophet.

 

The courts are beginning to see that house of cards built odiously high on Marbury beginning to crumble, and with it their power to legislate free from accountability.

 

Although Mark Levin in Men in Black was discussing the Defense of Marriage Act and the constitutionality of limiting or preventing legally-recognized homosexual marriages, certainly the matter surrounding the Shiavo case also “will determine whether Congress has the will finally to defend its constitutional role as the public’s federal representative body.”

 

 

Related:

 

Christopher Cross at Legal XXX hits another homer as he delves into today’s chicanery by the court in his post, “Why 28 USC 2254 is a Winner”

 

Of Judge Birch Hugh Hewitt had this to say, “He is the only judge of the 22 federal judges reviewing the matter to announce such a conclusion, but I have already heard three commentators on television attach great importance to this assertion.”

 

Coming to an America near you: HR1070 - The Constitution Restoration Act of 2005

 

 

Posted by Martin at March 31, 2005 12:39 AM

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