What Fresh Hell Is This?

February 4, 2011

Rick Santorum - Constitutional Scholar

Lil' Ricky's running for President and recently our very own ex-Senator was courting the tea party in South Carolina:
Santorum said he believes in a strict reading of the Constitution and that the federal government has "overstepped its bounds."

He also said he believes the courts have too much power.

"The courts were supposed to be the most insignificant branch of the government," he said. Congress has the power and the right to declare what is constitutional or not, he said, and added that since Congress created all of the courts, other than the Supreme Court, it has the power to disband them.

"I would sign a bill tomorrow to eliminate the 9th Circuit [Court of Appeals]. That court is rogue. It's a pox on the western part of our country," Santorum said.
Really? The Congress has the power to disband any court but the Supreme Court?

Article III of the Constitution talks about how Congress "may from time to time ordain and establish" courts below the Supreme Court, but nothing about disbanding them.

Here's the text:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Anyone see the word "disband" in there? Or anything like it relating to "dis-establishing" an inferior court?

Looks like Lil' Ricky's giving a power to the Congress not specifically outlined in the Constitution. Isn't that a bad thing? I thought conservative/federalist society legal types didn't like that sort of thing.

In fact what does the Federalist Papers say about an independent judiciary? Because that's what Rick's talking about here. He doesn't like the 9th Circuit Court so he wants the Congress to disband it. Hardly a recipe for judicial independence.

From Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing
And who declares laws unconstitutional? The Congress? Really?

Federalist 78, again:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
The Courts are put in place by the Constitution as a limit on, among other things, the power of the legislature (and Rick should know this). Maybe Rick should reread the Federalist papers.

Other than that, I am SO HAPPY Rick's thinking of running. He's the blogger gift that keeps on giving. Never fails.

5 comments:

spork_incident said...

Repeal the Judiciary Act of 1789 and the circuit courts go *poof*.

Sorry, but this isn't even controversial.

That said, we all know that conservatives are intent on eliminating an independent judiciary.


A Spork in the Drawer

Pgh_Knight said...

Spork is correct. It's not like once something is created there is not way to ever undo it.

Also, no where in the constitution does it say that the SCOTUS has the power to declare a law of congress unconstitutional. It was Marbury v. Madison... and they didn't do it again for a long time (I can't remember exactly how long... but it was real long)

Dayvoe said...

Yes, SPORK WAS RIGHT about "poofing" the circuit courts. I can't see the Congress ever doing that but that's not the same as saying they can't.

Still means I was wrong about that, though.

Pgh_Knight said...

Like you, I never really gave it much thought. Could save us one heck of a lot of money. Being the federal courts are courts of limited jurisdiction (only able to hear certain types of cases) and state courts are of general jurisdiction (can hear anything), the state courts could absorb the case load. Interesting idea... I will have to think about it.

Fake Rick said...

Thanks for calling me a constitutional scholar! I need all the help I can get! :-)

Yours truly,
Fake Rick Santorum
Now online at twitter.com/FakeSantorum