House Majority Leader Tom DeLay, R-Texas, is correct in assigning some of the blame to Congress' "constitutional cowardice" in failing to "set the parameters" of the federal courts' jurisdiction. Article III gives Congress the power to decide what kinds of cases the federal courts may hear and not hear, and Congress should do its duty in putting limits on the areas where we don't trust activist judges, starting with the Pledge of Allegiance, the Ten Commandments, the definition of marriage, and the Boy Scouts.
Liberals falsely claim we need an "independent" judiciary to protect our rights. But those rallying to defend the courts against any criticism are stuck with the classic 1857 judicial supremacy decision: Dred Scott v. Sanford, wherein the court mandated slavery in the territories (and thus laid the groundwork for the Civil War).
Alexander Hamilton in Federalist 78 made clear that the power of judicial review does not "by any means suppose a superiority of the judicial to the legislative power." Instead, our written Constitution is superior to all branches of government, and the judicial branch is merely the agent of the Constitution, not its master.
As explained further in the famous 1803 Marbury v. Madison decision, the Constitution is "a rule for the government of courts, as well as the legislature," and "courts, as well as other departments, are bound by that instrument."
Abraham Lincoln had it exactly right in arguing for limiting the impact of the Dred Scott decision. He said it should be binding only on the parties to "that particular case," that it must be "overruled, and never become a precedent for other cases."
Continuing, Lincoln warned: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Precisely. In repudiating the supremacy of "that eminent tribunal," Lincoln would have felt right at home with DeLay's remarks at the conference of the Judeo-Christian Council for Constitutional Restoration.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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