The Entire Cornyn Speech (in context)
By Thorley Winston Posted in User Blogs — Comments (18) / Email this page » / Leave a comment »
Which took me about a minute to find since Senate floor speeches routinely posted on the Senator's official website. Why Josh Trevino chose not to do this, I don't know but IMO it seems the sort of thing that a fair-minded person would want to do before excoriating someone for their supposed remarks.
Here is the entire text of Senator John Cornyn's floor speech on the judiciary that he made yesterday submitted without comment as to whether I agree or disagree with his remarks. I'm presenting it to you in its entirety unedited except that I have taken the liberty of providing links to the cases, resolutions, treaty, brief, and articles he cites so that you can judge for yourself. All I ask is that people read the entire thing before commenting.
The ACTING PRESIDENT pro tempore. The Senator from Texas.Mr. CORNYN. Mr. President, I wanted to talk a little bit about our courts, and specifically our Federal courts, and even more specifically the United States Supreme Court.
Before I start, let me just say I have the greatest respect for our judiciary, the men and women who wear black robes -- whether it is on a municipal court or a county court or a district court like I served on in San Antonio, Bexar County, TX, for 6 years, or those who work on appellate courts, whether State or Federal, like I did on the Texas Supreme Court for 7 years.
For 13 years of my professional life, I have worn a black robe, judging cases, first presiding over the jury trials, and coming to have a great deal of respect not just for those judges but for men and women who serve on juries and decide hard cases, cases which, perhaps, they would prefer not have to sit in judgment of, some involving even the death penalty.
I don't want anyone to misunderstood what I am going to say as being a blanket criticism of either the judiciary or the U.S. Supreme Court, in particular. From my own experience, judges, although they have important jobs to do, are no different than you and me. What I mean is they are mere mortals, subject to the same flashes of mediocrity, sometimes making mistakes, and sometimes displaying flights of brilliance. These are not, as some people have suggested, high priests able to discern great truths that you and I are unable to figure out. They are generally very intelligent, with outstanding educational pedigrees, but none of us have agreed that judges, particularly Federal judges, can be or should be a law unto themselves.
Federal judges are appointed subject to advice and consent provisions of the Constitution for a lifetime. They do not run for election. They do not have to raise money as do other politicians. I know those who do envy them that. But the idea is they are supposed to use that independence in order to be impartial umpires of the law -- it is called balls and strikes -- and they should use that independence that has been given to them in order to resist politics, in order to resist those who would suggest that in order to be popular you must subscribe to a particular way of thinking or a particular social or political or ideological agenda.
Given that framework that the Founding Fathers agreed was so important and that I know we all agree is important today to preserve that independence so as to preserve that judicial function, it causes a lot of people, including me, great distress to see judges use the authority they have been given to make raw political or ideological decisions. No one, including those judges, including the judges on the U.S. Supreme Court, should be surprised if one of us stands up and objects.
I make clear I object to some of the decision making process that is occurring at the U.S. Supreme Court today and now. I believe insofar as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it has led to increasing divisiveness and bitterness of our confirmation fights that is a very current problem this body faces today. It has generated a lack of respect for judges generally. Why should people respect a judge for making a policy decision born out of an ideological conviction any more than they would respect or deny themselves the opportunity to disagree if that decision were made by an elected representative? Of course the difference is they can throw the rascal out and we are sometimes perceived as the rascal if they do not like the decisions made, but they cannot vote against a judge, because judges are not elected. They serve for a lifetime on the Federal bench.
I believe the increasing politicization of the judicial decision making process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy.
Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country -- certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share.
We all are students of history in this Senate, we all have been elected to other bodies and other offices, and we are all familiar with the founding documents, the Declaration of Independence, the Constitution itself. We are familiar with the Federalist Papers that were written in an effort to get the Constitution ratified in New York State. Alexander Hamilton, apropos of what I want to talk about, authored a series of essays in the Federalist Papers that opine that the judicial branch would be what he called the "least dangerous" branch of government. He pointed out that the judiciary lacked the power of the executive branch, the White House, for example, in the Federal Government and the political passions of the legislature. In other words, the Congress. Its sole purpose -- that is, the Federal judiciary's sole purpose -- was to objectively interpret and apply the laws of the land and in such a role its job would be limited.
Let me explain perhaps in a little greater detail why I stand up here and take my colleagues' time to criticize some of the decision making process being made by some Federal courts in some cases. This is not a blanket condemnation. I hope I have made it clear that I respect the men and women who wear the robe, but having been a judge myself I can state that part of the job of a judge is to criticize the reasoning and the justification for a particular judgment. I certainly did that daily as a state supreme court justice. And I might add that people felt free to criticize my decisions, my reasoning and justification for the judgments I would render. That is part of the give and take that goes into this. I make clear my respect generally for the Federal judiciary, including the U.S. Supreme Court.
I am troubled when I read decisions such as Roper v. Simmons. This is a recent decision from March 1, 2005. Let me state what that case was about. This was a case involving Christopher Simmons. Christopher Simmons was seven months shy of his 18th birthday when he murdered Shirley Crook. This is a murder that he planned to commit. He told his coconspirators before committing the crime, this 17-year-old who was 7 months shy of his 18th birthday, he encouraged his friends to join him, assuring them that they could "get away with it," because they were minors. Christopher Simmons and his cohorts broke into the home of an innocent woman, bound her with duct tape and electrical wire, and then threw her off a bridge, alive and conscious, resulting in her subsequent death.
Those facts led a jury in Missouri, using the law in Missouri that the people of Missouri had chosen for themselves through their elected representatives, to convict him of capital murder and to sentence him to death.
Well, this 17-year-old boy, or young man I guess is what I would call him, Christopher Simmons, challenged that jury verdict and that conviction all the way through the State courts of Missouri and all the way to the U.S. Supreme Court. And the United States Supreme Court, on March 1, 2005, held that Christopher Simmons or any other person in the United States of America who is under the age of 18 who commits such a heinous and premeditated and calculated murder, cannot be given the death penalty because it violates the U.S. Constitution.
In so holding, the U.S. Supreme Court said: We are no longer going to leave this in the hands of jurors. We do not trust jurors. We are no longer going to leave this up to the elected representatives of the people of the respective States, even though 20 States, including Missouri, have the possibility at least of the death penalty being assessed in the most aggravated types of cases, involving the most heinous crimes, against someone who is not yet 18.
This is how the Court decided to do that. First, it might be of interest to my colleagues that 15 years earlier the same U.S. Supreme Court, sitting in Washington, across the street from this Capitol where we are standing here today, held just the opposite. Fifteen years ago, the U.S. Supreme Court held that under appropriate circumstances, given the proper safeguards, in the worst cases involving the most depraved and premeditated conduct, a jury could constitutionally convict someone of capital murder and sentence them to the death penalty. But, 15 years later, on March 1, they said what was constitutional the day before was no longer constitutional, wiping 20 States' laws off the books and reversing this death penalty conviction for Christopher Simmons.
What I want to focus on now is the reasoning that Justice Anthony Kennedy, writing for the U.S. Supreme Court, in a 5-to-4 decision, used to reach that conclusion.
First, Justice Kennedy adopted a test for determining whether this death penalty conviction was constitutional. The test -- this ought to give you some indication of the problems we have with the Supreme Court as a policymaker with no fixed standards or objective standards by which to determine its decisions to make its judgments. The Court embraced a test that it had adopted earlier referring to the "evolving standards of decency that mark the progress of a maturing society." Let me repeat that. The test they used was the "evolving standards of decency that mark the progress of a maturing society."
I would think any person of reasonable intelligence, listening to what I am saying, would say: What was that? How do you determine those "evolving standards"? And if they are one way on one day, how do they evolve to be something different the next day? And what is a "maturing society"? How do we determine whether society has matured or not? I think people would be justified in asking: Isn't that fancy window dressing for a preordained conclusion? I will let them decide.
Well, it does not get much better because then the Court, in order to determine whether the facts met that standard, such as that this death penalty could not stand, or these laws in 20 States cannot stand, looked to what they called an "emerging consensus." Well, any student of high school civics knows we have a Federal system, and the national Government does not dictate to the State governments all aspects of criminal law. In fact, most criminal law is decided in State courts in the first place. But, nevertheless, the Supreme Court of the United States, in a 5-to-4 decision, looked for an "emerging consensus," and in the process wiped 20 States' laws off the books. I will not go into the details of how they found a consensus, but suffice it to say it ought to be that in a nation comprised of 50 separate sovereign State governments, where 20 States disagree with the Court on its decision that wipes those 20 States' courts laws off the books, it can hardly be called a consensus, if language is to have any meaning.
Secondly, the Court said: We will also look to our own decisions, our own judgment over the propriety of this law. In other words, they are going to decide because they can, because basically their decisions are not appealable, and there is nowhere else to go if they decide this law is unconstitutional. The American people, the people of Missouri, the people who support, under limited circumstances, under appropriate checks and balances, the death penalty for people who commit heinous crimes under the age of 18 are simply out of luck; this is the end of the line.
Well, finally -- and this is the part I want to conclude on and speak on for a few minutes -- the Court demonstrated a disconcerting tendency to rely on the laws of foreign governments and even treaties in the application and enforcement of U.S. law. This is a trend that did not start with the Roper case, but I did want to mention it in that connection.
But if the U.S. Supreme Court is not going to look to the laws of the United States, including the fundamental law of the United States which is the Constitution, but interpreting what is and is not constitutional under the U.S. Constitution by looking at what foreign governments and foreign laws have to say about that same issue, I fear that bit by bit and case by case the American people are slowly losing control over the meaning of our laws and the Constitution itself. If this trend continues, foreign governments may have a say in what our laws and our Constitution mean and what our policies in America should be.
Let me digress a second to say this is as current as the daily news. As a matter of fact, I saw in the New York Times on April 2 an article concerning Justice Ginsburg, a member of that five-member majority in the Roper case. The headline is: "Justice Ginsburg Backs Value of Foreign Law." Reading from this story, written by Anne Kornblut, it says:
In her speech, Justice Ginsburg criticized the resolutions in Congress and the spirit in which they were written.
She is referring to a resolution I have filed, and I sent out a "dear colleague" today expressing concerns about this issue. But she said:Although I doubt the resolutions will pass this Congress --
I don't know where she gets her information. I think there is a lot of positive sentiment in favor of what the resolution says, and I will talk about that in a minute.Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support.
I am a little surprised that a sitting U.S. Supreme Court Justice would engage in a debate about a current matter, which has yet to be decided by the Senate, which is a resolution expressing concern about the use of foreign laws and treaties to interpret what the U.S. Constitution should mean. I am a little surprised by it.In a series of cases over the past few years our courts have begun to tell us that our criminal laws and our criminal policies are informed not just by our Constitution and by the policy preferences and legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts. I understand it is hard to believe, and most people listening to what I am saying are asking themselves: Could this be true? Is it possible? I know it is hard to believe, but in a series of recent cases, including the Roper case, the U.S. Supreme Court has actually rejected its own prior decisions in part because a foreign government or court has expressed disagreement with the conclusion they had reached.
Until recently the U.S. Supreme Court had long held that under appropriate safeguards and procedures, the death penalty may be imposed by the States regardless of the IQ of the perpetrator. The Court had traditionally left this issue untouched as a matter for the American people and each of their States to decide, as the Court said in a case called Penry V. Lynaugh in 1989. Yet because some foreign governments had frowned upon that ruling, the U.S. has now seen fit to take that issue away from the American people entirely. In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the Commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder because of the testimony that the defendant was mildly mentally retarded. The reason given for this reversal of the Court's position that it had taken in 1989 to 2002? In part it was because the Court was concerned about "the world community" and the views of the European Union.
Take another example. The U.S. Supreme Court had long held that the American people in each of the States have the discretion to decide what kinds of conduct that have long been considered immoral under longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick in 1986, the Court held that it is up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again because foreign governments have frowned upon that ruling, the U.S. Supreme Court saw fit in 2003, in Lawrence v. Texas, to hold that no State's criminal justice system or its criminal justice laws could be written in a way to reflect the moral convictions and judgments of their people.
The reason given for this reversal from 1986 to 2002? This time the Court explained that it was concerned about the European Court of Human Rights and the European Convention on Human Rights.
I have already mentioned the case of Roper v. Simmons. But most recently, on March 28, the U.S. Supreme Court heard oral arguments in a case that will consider whether foreign nationals duly convicted of the most heinous crimes will nevertheless be entitled to a new trial for reasons that those individuals did not even bother to bring up during their trial. As in the previous examples, the Supreme Court has already answered this issue but decided to revisit it once again. In 1998, in Breard v. Green, the Court made clear that criminal defendants, like all parties in lawsuits, may not sit on their rights and must bring them up at the time the case is going on or be prohibited from raising those issues later on, perhaps even years later. That is a basic principle of our legal system. In this case, the Court has decided to revisit whether an accused who happens to be a foreign national, subject to the Vienna Convention on Consular Relations, should be treated differently from any other litigant in our civil litigation systems and in State and Federal courts or in the Federal system reviewing State criminal justice provisions.
Even this basic principle of American law may soon be reversed. Many legal experts predict that in the upcoming case of Medellin v. Dretke the Court may overturn itself again for no other reason than that the International Court of Justice happens to disagree with our longstanding laws and legal principles. This particular case involves the State of Texas. I have filed an amicus brief, a friend of the court brief, in that decision, asking the Court to allow the people of Texas to determine their own criminal laws and policies consistent with the U.S. States Constitution and not subject to the veto of the Vienna Convention on Consular Rights or the decision of some international court.
There is a serious risk, however, that the Court will ignore Texas law, will ignore U.S. law, will reverse itself, and decide in effect that the decisions of the U.S.
Supreme Court can be overruled by the International Court of Justice.
I won't dwell on this any longer, but suffice it to say there are other examples and other decisions where we see Supreme Court Justices citing legal opinions from foreign courts across the globe as part of the justification for their decisions interpreting the U.S. Constitution. These decisions, these legal opinions from foreign courts range from countries such as India, Jamaica, Zimbabwe, and the list goes on and on.
I am concerned about this trend. Step by step, with each case where this occurs, the American people may be losing their ability to determine what their laws should be, losing control in part due to the opinions of foreign courts and foreign governments. If this happens to criminal law, it can also spread to other areas of our Government and our sovereignty. How about our economic policy, foreign policy? How about our decisions about our own security?
Most Americans would be disturbed if we gave foreign governments the power to tell us what our Constitution means. Our Founding Fathers fought the Revolutionary War precisely to stop foreign governments -- in this case, Great Britain -- from telling us what our laws should be or what the rules should be by which we would be governed. In fact, ending foreign control over American law was one of the very reasons given for our War of Independence.
The Declaration of Independence itself specifically complains that the American Revolution was justified in part because King George "has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws."
After a long and bloody revolution, we earned the right at last to be free of such foreign control. Rather, it was we the people of the United States who then ordained and established a Constitution of the United States and our predecessors, our forefathers, specifically included a mechanism by which we the people of the United States could change it by amendment, if necessary.Of course, every judge who serves on a Federal court swears to an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States, so help me God."
As you can tell, I am concerned about this trend. I am concerned that this trend may reflect a growing distrust amongst legal elites -- not only a distrust of our constitutional democracy, but a distrust of the American people and America itself.
As every high school civics student knows, the job of a judge is pretty straightforward. Judges are supposed to follow the law, not rewrite it. Judges are supposed to enforce and apply political decisions that are made in Congress and that are signed into law by the President of the United States. Judges are not supposed to make those decisions or substitute their own judgments or those political judgments hashed out in the legislative process in this body and this Capitol. The job of a judge is to read and obey the words contained in our laws and in our judicial precedents -- not the laws and precedents of foreign governments, which have no authority over our Nation or the American people.
I am concerned that some judges who simply don't like our laws -- and they don't like the decisions made by Americans through their elected representatives here about what those laws should be -- are using this as another way to justify their decision to overreach. So it appears they would rather rewrite the law from the bench. What is especially disconcerting is that some judges today may be departing so far from American law, from American principles, and from American traditions that the only way they can justify their rulings is to cite the law of foreign countries, foreign governments, and foreign cultures, because there is nothing left for them to cite for support in this country.
Citing foreign law in order to overrule U.S. policy offends our democracy because foreign lawmaking is obviously in no way accountable to the American people. Here again -- and I started out by saying I am not condemning all Federal judges; I have great respect for the Federal judiciary -- I am not condemning international law. Obviously, there is a way by which international law can apply to the United States, and that is through the treaty process, which is, of course, subject to ratification by the U.S. Congress.
There is an important role for international law to play in our system, but it is a role that belongs to the American people through the political branches -- the Congress and the President -- to decide what that role should be and indeed what that law should be; it is not a role given to our courts. Article I of the U.S. Constitution gives the Congress, not the courts, the authority to enact laws punishing "Offenses against the Law of Nations," and Article II of the Constitution gives the President the power to ratify treaties, subject to the advice and consent and the approval of two-thirds of the Senate. Yet our courts appear to be, in some instances, overruling U.S. law by citing foreign law decisions in which the U.S. Congress had no role and citing treaties that the President and the U.S. Senate have refused to approve.
To those who might say there is nothing wrong with simply trying to bring U.S. laws into consistency with other nations, I say this: This is not a good faith attempt to bring U.S. law into global harmony. I fear that, in some instances, it is simply an effort to further a political or ideological agenda, because the record suggests that this sudden interest in foreign law is more ideological than legal; it seems selective, not principled.
U.S. courts are following foreign law, it seems, inconsistently -- only when needed to achieve a particular outcome that a judge or justice happens to desire but that is flatly inconsistent with U.S. law and precedent. Many countries, for example, have no exclusionary rule to suppress evidence that is otherwise useful and necessary in a criminal case. Yet our courts have not abandoned the exclusionary rule in the United States, relying upon the greater wisdom and insight of foreign courts and foreign nations. I might add that very few countries provide abortion on demand. Yet our courts have not abandoned our Nation's constitutional jurisprudence on that subject. Four Justices of the Supreme Court believe that school choice programs that benefit poor urban communities are unconstitutional if parochial schools are eligible, even though other countries directly fund religious schools.
Even more disconcerting than the distrust of our constitutional democracy is the distrust of America itself. I would hope that no American -- and certainly no judge -- would ever believe that the citizens of foreign countries are always right and that America is always wrong. Yet I worry that some judges become more and more interested in impressing their peers in foreign judiciaries and foreign governments and less interested in simply following the U.S. Constitution and American laws. At least one U.S. Supreme Court Justice mentioned publicly -- and Justice Ginsburg's comments were reported on April 2 in the New York Times. A Justice has stated that following foreign rulings rather than U.S. rulings "may create that all important good impression," and therefore, "over time, we will rely increasingly...on international and foreign courts in examining domestic issues."
Well, let me conclude by saying I find this attitude and these expressions of support for foreign laws and treaties that we have not ratified disturbing, particularly when they are used to interpret what the U.S. Constitution means. The brave men and women of our Armed Forces are putting their lives on the line in order to champion freedom and democracy, not just for the American people but for people all around the world. America today is the world's leading champion of freedom and democracy. I raise this issue, and I have filed a resolution for the consideration of my colleagues on this issue. I speak about it today at some length because I believe this is an important matter for the American people to know about and to have a chance to speak out on.
I believe the American people -- certainly the people in Texas -- do not want their courts to make political decisions. They want their courts to follow and apply the law as written. I believe the American people do not want their courts to follow the precedents of foreign courts. They want their courts to follow U.S. laws and U.S. precedents. The American people do not want their laws controlled by foreign governments. They want their laws controlled by the American Government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts.
So I have introduced a resolution to give this body the opportunity to state for the record that this trend in our courts is wrong and that American law should never be reversed or rejected simply because a foreign government or a foreign court may disagree with it. This resolution is nearly identical to one that has been introduced by my colleague in the House, Congressman Tom Feeney. I applaud his leadership and efforts in this area, and I hope both the House and Senate will come together and follow the footsteps of our Founding Fathers, to once again defend our rights as Americans to dictate the policies of our Government -- informed but never dictated by the preferences of any foreign government or tribunal.
Mr. President, I yield the floor.
Though we have more in common than I usually let on, and though we've exchanged words more than a couple of times, I do have to say this is yeoman's work. And give credit where due. Bravo.
Why Josh Trevino chose not to do this, I don't know....
They weren't posted on the Senator's website back when I posted late last night, man.
Thorely, this is a great example of how a blog can provide real information to citizens who want to know what some tempest in a teacup is all about.
Thanks.
...with the Senator's sentiment or not -- and I do -- his speech was certainly more thoughtful than the single graph hatcheted from the whole.
The signle quotation deserves examination on its own, though not as declarative statement. Aside from the seeming claim that the specific attacks may have been instigated by activism, that such things may be possible in a general sense in the future is a valid point.
Good call on posting the transcript Thorley. Furthermore, for using a very direct topical title, you're #3 on the Google News search for Cornyn right now. The rank will change over time, but a well done is in order.
While I appreciate the entire speech, the quote was never really taken out of context. Sure it is always somewhat unfair to focus on one paragraph, or two words.
However, the meaning of the extracted statement doesn't seem to be enlightened by the rest of the speech. Sure it shows that he is not completely evil, or crazy. But I don't think anyone really thought that anyway.
I'm sure the majority of Trent Lott's famous Strom Thurmond tribute is perfectly fine. However, when you are a U.S. Senator and you are speaking on the record, you have to be aware that your words are going to be heard and noted.
And even the most strident conservative must admit that the two recent attempted/actual judge shootings had nothing to do with judicial activism. If anything, it was the opposite.
*please don't ban me for citing to media matters. :)
One part of his speech suggests just how little Cornryn and his allies understand about separation of powers in American government.
"...Given that framework that the Founding Fathers agreed was so important and that I know we all agree is important today to preserve that independence so as to preserve that judicial function, it causes a lot of people, including me, great distress to see judges use the authority they have been given to make raw political or ideological decisions. No one, including those judges, including the judges on the U.S. Supreme Court, should be surprised if one of us stands up and objects. I make clear I object to some of the decision making process that is occurring at the U.S. Supreme Court today and now. I believe insofar as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it has led to increasing divisiveness and bitterness of our confirmation fights that is a very current problem this body faces today..."
Apparently, the good Senator believes that the "independence" of the Judicial Branch involves "enforce(ment) of political decisions made by elected representatives of the people."
It doesn't take a law degree or a graduate course in Constitutional Law to see the problem with this view; a high school history or civics course should suffice. The role of the Judiciary is not to "(enforce) political decisions made by elected representatives." That's the job of the Executive Branch.
Not at all sure what Senator Cornryn did as a Supreme Court Justice in Texas, but someone should tell him that the "independence" of the judiciary involves determining the legality of "poltical decisions made by elected representatives of the people," not "enforcing" them.
Independence doesn't also mean invalidating hitherto Constitutionally acceptable laws due to no discernable legal principles but simply because they want to impress French sophisticates.
That's what Cornyn was talking about. Not some semantic-based straw man about wanting the courts to lose their independence.
Apparently you missed your "high school history or civics course" or it was taught by a Marxist, or a teacher who sat as a student at the knee of a Marxist.
The constitution is the result of "political decisions made by elected representatives", and yes the founders intended that the constitution be upheld, by all courts, not abrogated. In that sense, Cornyn is completely on target in acknowledging that the courts abrogate the power they've been given when they write a constitution out of whole cloth and reject the democratic will of the people - as expressed through the acts of their democratically elected representatives.
Law, including federal law, is the result of "political decisions made by elected representatives", and yes the founders intended that any law made in conformance with the constitution must be upheld, not abrogated, not ignored. Senator Cornyn is completely on target in expressing his discouragement when judges presume that their "independence" means they are a law unto themselves.
It is not the job, mandate or American constitutional principal for judges to take the role of "determining the legality" of something. The constitution and the law - the clear intent of the constitution and the law - determines the legality of something. The role of judges is to determine if the enforcement of law was carried out in conformance with the intent of the law - end of story; not whether or not the law was "legal". It is not for judges to decide what actions of ours are legal or not legal. The constitution and the law do that.
They, the courts, are to, more than anything else, see to it that law is upheld; not invent the law from the bench. End of story all the way up to the constitution. It is not for judges to decide whether or not a law or the constitution fits their opinion of what the law or the constitution ought to say. The "democratic acts of elected representatives" have already done that. The court is supposed to uphold the law, not make it.
"We the people" not "we the court" write our constitution through our democratic actions by way of the "political decisions of elected officials". It's called a constitutional democratic republic, as opposed to a judicial oligarchy.
try
"Apparently you missed your "high school history or civics course" or it was taught by a Marxist, or a teacher who sat as a student at the knee of a Marxist."
<chuckle> Hate to disappoint you, but from the content of your post, I suspect you wouldn't know a Marxist if one bit you.
"The constitution is the result of "political decisions made by elected representatives", and yes the founders intended that the constitution be upheld, by all courts, not abrogated."
You'll note that Sen. Cornryn didn't say "uphold." He said "enforce." And he didn't say the "Constitution." He referred to "political decisions (of)"elected representatives," presumably referring to Congress and the President, and by implication to acts of state legislatures.
The distinction between "uphold" and "enforce" is not merely symantic, and someone who served as a Texas Supreme Court justice presumably knows the difference.
"Upholding" the Constitution refers to affirming its meaning, often in contradiction to state or federal law. "Enforcing" such laws is the responsibility of the executive branches of the respective levels of government in the American Federal system.
The distinction was made clear in Cherokee Nation v Georgia in 1831. The SC found in an opinion written by John Marshall that the Federal Government was obligated to protect the Cherokees' from encroachment by the state of Georgia. President Andrew Jackson is reputed to have said, "Justice Marshall has made his decision. Now let him ENFORCE it." (Hint: He couldn't and didn't.)
Furthermore, you are apparently under the impression that laws passed by Congress (and presumably by the states) are part of the Constitution. I'm not sure where to start to repair such a misconception but suffice to say that such a view might apply to Great Britain where no single Constitutional document exists, but it does not refer to the American form of government. There is a thing called the US Constitution and the laws passed by Congress (unless they are amendments to the Constitution are not part of it.)
"In that sense, Cornyn is completely on target in acknowledging that the courts abrogate the power they've been given when they write a constitution out of whole cloth and reject the democratic will of the people - as expressed through the acts of their democratically elected representatives."
Again, an apparent misunderstanding of what the Constitution is. And, frankly, a perspective that appears more "Marxist" than any I can imagine since it presumes a "democratic will" constitutes the Constitution.
"...Senator Cornyn is completely on target in expressing his discouragement when judges presume that their "independence" means they are a law unto themselves."
I'm sure any judge would agree with you. You might try reading Judge Birch's concurring opinion refusing to hear the Schiavo case in the US Court of Appeals to understand that the role of the courts is to prevent the legislative and judicial branch from presuming "they are a law unto themselves." (Birch, btw, is a conservative Republican appointed to the bench by GB, Sr.)
"It is not the job, mandate or American constitutional principal for judges to take the role of "determining the legality" of something. ... The role of judges is to determine if the enforcement of law was carried out in conformance with the intent of the law - end of story; not whether or not the law was "legal". It is not for judges to decide what actions of ours are legal or not legal. The constitution and the law do that."
Not sure where to start, but you might want to reference a decision of the Supreme Court, Marbury v. Madison, in 1803 establishing the principle of judicial review. It shouldn't be hard to find; it's the most famous Supreme Court decision in American history. You'll find that the principle of "determining the legality" of actions by the other Federal branches is precisely what the case was about.
"'We the people' not 'we the court' write our constitution through our democratic actions by way of the "political decisions of elected officials". It's called a constitutional democratic republic, as opposed to a judicial oligarchy."
Bumper sticker level political philosophy. Try reading (a) The Federalist Papers, (b) any Constitutional Law textbook, (c) any college level American history text.
...but the statement that "the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people..." appears to be a fairly clear misunderstanding of the separation of powers and the nature of judicial review.
Oddly enough, I would have thought that conservatives would understand the risk associated with turning to the Courts as "enforcers of political decisions." They certainly did when the "elected reprsentatives" tilted to the left.
It clears up a lot.
I can't help but comment, though, that Congress brought this onto themselves (I say Congress because some Democrats supported the various bills in question) with their multitude of IP and trade laws 'bringing us in step with the rest of the world'.
Granted, a number of these were proposed here, but still.
Personally, I have no problem with leaving step with the rest of the world, but Congress has for nearly the past decade been making these laws, and the Senator no doubt voted for a few of them. The Justice department, when so tried, has used this argument before the Supreme Court.
They were in a no-win situation here.
Though I don't really care for party affilliation, it's nice to see some of these people get bit for their fascist tendancies. Hopefully the trend will continue and America will grow for it.
Do you even know what that first word means?
As to your comment:
"You'll note that Sen. Cornryn didn't say 'uphold.' He said "enforce." And he didn't say the "Constitution." He referred to "political decisions (of)"elected representatives," presumably referring to Congress and the President, and by implication to acts of state legislatures"
Your point only works if you take Cornyn's words out of context, which is what you did. When you do you fail to apply the judicial "enforcement" power he is speaking of in its context. While your simple concept is that legislatures write laws, executives "enforce" laws and judges prosecute or adjudicate cases based on the law; you fail to put enforcement power in all its contexts. The language of law will often refer to various judicial actions as an enforcement actions; as when a court, through its legitimate powers gives force to, constrains or compels, or carries out effectively the requirements of the laws, it thereby performs an enforcement action. In context, it is not misunderstood as a judicial use of executive "enforcement" powers.
Senator Cornyn uses some form of "enforce" in two instances in his speech. They are as follows:
"I make clear I object to some of the decision making process that is occurring at the U.S. Supreme Court today and now. I believe insofar as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it...."
He is at this point, to all who know what he is talking about, referring to the Supreme Court writing its own constitution, by legislating policy from the bench when the policy view they are mandating cannot be found to be grounded in the clear and accepted intent of the constitution. That constitution and the intent that was placed in it are the products of "political decisions made by elected representatives of the people". When the Supreme Court "gives force to" that constitution, by "compelling" adherence to the terms of the constitution and "carries out effectively" the requirements of the constitution, it enforces the mandates of the constitution on the litigants before it. I prefer the term uphold, as a more inclusive umbrella for all that the courts must do, with regard to the constitution, but Senator Cornyn was not in error in the context he used the term "enforcer".
Cornyn's next use of "enforce" was:
"Well, finally -- and this is the part I want to conclude on and speak on for a few minutes -- the Court demonstrated a disconcerting tendency to rely on the laws of foreign governments and even treaties in the application and enforcement of U.S. law. This is a trend that did not start with the Roper case, but I did want to mention it in that connection."
Again, in context, Cornyn is speaking of the judicial powers of enforcement that courts carryout in the conduct of their legitimate functions; he is not talking about executive powers and anyone with legal experience listening to him knew he was not talking about executive powers.
As to your comment:
"Upholding" the Constitution refers to affirming its meaning, often in contradiction to state or federal law. "Enforcing" such laws is the responsibility of the executive branches of the respective levels of government in the American Federal system."
Two points. Nothing I said, and nothing Senator Cornyn said conflicts with you idea of "Upholding the constitution refers to.....". However, "enforcing such laws" is performed, and is required to be performed, by all branches of the government to the extent that the particular law requires a particular enforcement action with respect to the law. The "arrest" or the "prosecution" or the "indictment" etc, as with executive powers, is not the sum of "enforcement" powers with respect to the law. For instance, a court enforces the law when it compels testimony, when it issues a subpoena, when it sets a contempt charge; just as, in general how it (should) compels the enforcement of the terms of the law on the litigants brought before it. When it does enforce (compel) the terms of the law on the litigants before it, does it "uphold" the law? Yes, it does, through the particular enforcement powers that courts are given - in general and in particular to the law in question. When a law has been broken and the court is asked to apply its powers to the adjudication of the case against whomever it is claimed broke the law, it participates in the enforcement of the law within the extent of its enforcement powers. That is not an implication that it is using executive powers.
You again fail to put things in context. An action that a branch of government fails to take does not define the meaning that action.
You said:
"The distinction was made clear in Cherokee Nation v Georgia in 1831. The SC found in an opinion written by John Marshall that the Federal Government was obligated to protect the Cherokees' from encroachment by the state of Georgia. President Andrew Jackson is reputed to have said, "Justice Marshall has made his decision. Now let him ENFORCE it."
Did justice Marshall have "enforcement" powers he could have used (to who knows what affect)? Yes. Does the fact that he did not try to use those powers determine the meaning of them? No. He could have tried to apply the enforcement powers of issuing subpoenas, arrest warrants, restraint orders, etc. The Chief Justice of the Supreme Court is not just the head of that court he/she is the head of the Judiciary - the Chief Judge of the Judiciary. That gives him/her certain powers of assignment of judicial action via lower courts. Whether or not he would have obtained respect for those enforcement actions is not known - depending on to whom and in what jurisdiction he may have issued them. The answer is not a question of "enforcement" or not, the answer is in whether or not Marshall had political support to carryout what enforcement powers he had. He seemed to have concluded he did not.
You seem to have misread something I wrote when you say: "Furthermore, you are apparently under the impression that laws passed by Congress (and presumably by the states) are part of the Constitution." Reread my original post.
To my coment: "In that sense, Cornyn is completely on target in acknowledging that the courts abrogate the power they've been given when they write a constitution out of whole cloth and reject the democratic will of the people - as expressed through the acts of their democratically elected representatives."
You wrote: "Again, an apparent misunderstanding of what the Constitution is. And, frankly, a perspective that appears more "Marxist" than any I can imagine since it presumes a "democratic will" constitutes the Constitution".
I assure you, you have failed to understand the "democratic" basis of the constitution. A democratic process by democratically elected representatives of the people wrote the constitution. Through that action of the people's elected representatives, the constitution came to have the substance and the intentions of those actions that defined it. The constitution had to be, and was, ratified by legislative actions of the democratically elected representatives of people of the states. Amending the constitution requires legislative actions by the people's democratically elected representatives in the federal congress and in the legislatures of a majority of the states. The constitution did not mandate or limit some power or right because some elitist group of judges said: "well you know, we're going to require the constitution to say", whatever. The "democratic" nature is apparent in the opening line of "we the people". It is "we the people" through the legislative actions of our democratically elected representatives that wrote, and it is "we the people", through the actions of our democratically elected representatives who are supposed to amend, the constitution - not the courts, by judicial fiat.
As to your reference to Judge Birch's concurrence with refusing to hear the Schiavo case, I also read the dissent, which more clearly put the intent of the law passed by congress in the context of the powers granted to congress - whether or not the exercise of those powers is liked by the courts or not. The law that sent the case to the court did not interfere with the independence of the court. It did not mandate that judicial review of the case produce a particular result. It sent the review jurisdiction of the case to that court (constitutional) with the mandate for that court to simply perform that review (constitutional), hold the litigants in status quo until it did and, upon proper completion of adjudication hearings in that review process, render its independent judgement. Rarely done? Yes. Constitutionally sound? Yes. Mandating a particular ruling to result from a proper review? No. Birch was wrong.
If you want to understand "Marbury v. Madison" read the book "Men In Black". Mark lays it out pretty clearly.
As far as a need to read the Federalist Papers - been there, done that, love 'em and respect 'em. Try rereading them yourself.
As to your comment:
"You'll note that Sen. Cornryn didn't say 'uphold.' He said "enforce." And he didn't say the "Constitution." He referred to "political decisions (of)"elected representatives," presumably referring to Congress and the President, and by implication to acts of state legislatures"
Your point only works if you take Cornyn's words out of context, which is what you did. When you do you fail to apply the judicial "enforcement" power he is speaking of in its context. While your simple concept is that legislatures write laws, executives "enforce" laws and judges prosecute or adjudicate cases based on the law; you fail to put enforcement power in all its contexts. The language of law will often refer to various judicial actions as an enforcement actions; as when a court, through its legitimate powers gives force to, constrains or compels, or carries out effectively the requirements of the laws, it thereby performs an enforcement action. In context, it is not misunderstood as a judicial use of executive "enforcement" powers.
Senator Cornyn uses some form of "enforce" in two instances in his speech. They are as follows:
"I make clear I object to some of the decision making process that is occurring at the U.S. Supreme Court today and now. I believe insofar as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it...."
He is at this point, to all who know what he is talking about, referring to the Supreme Court writing its own constitution, by legislating policy from the bench when the policy view they are mandating cannot be found to be grounded in the clear and accepted intent of the constitution. That constitution and the intent that was placed in it are the products of "political decisions made by elected representatives of the people". When the Supreme Court "gives force to" that constitution, by "compelling" adherence to the terms of the constitution and "carries out effectively" the requirements of the constitution, it enforces the mandates of the constitution on the litigants before it. I prefer the term uphold, as a more inclusive umbrella for all that the courts must do, with regard to the constitution, but Senator Cornyn was not in error in the context he used the term "enforcer".
Cornyn's next use of "enforce" was:
"Well, finally -- and this is the part I want to conclude on and speak on for a few minutes -- the Court demonstrated a disconcerting tendency to rely on the laws of foreign governments and even treaties in the application and enforcement of U.S. law. This is a trend that did not start with the Roper case, but I did want to mention it in that connection."
Again, in context, Cornyn is speaking of the judicial powers of enforcement that courts carryout in the conduct of their legitimate functions; he is not talking about executive powers and anyone with legal experience listening to him knew he was not talking about executive powers.
As to your comment:
"Upholding" the Constitution refers to affirming its meaning, often in contradiction to state or federal law. "Enforcing" such laws is the responsibility of the executive branches of the respective levels of government in the American Federal system."
Two points. Nothing I said, and nothing Senator Cornyn said conflicts with you idea of "Upholding the constitution refers to.....". However, "enforcing such laws" is performed, and is required to be performed, by all branches of the government to the extent that the particular law requires a particular enforcement action with respect to the law. The "arrest" or the "prosecution" or the "indictment" etc, as with executive powers, is not the sum of "enforcement" powers with respect to the law. For instance, a court enforces the law when it compels testimony, when it issues a subpoena, when it sets a contempt charge; just as, in general how it (should) compels the enforcement of the terms of the law on the litigants brought before it. When it does enforce (compel) the terms of the law on the litigants before it, does it "uphold" the law? Yes, it does, through the particular enforcement powers that courts are given - in general and in particular to the law in question. When a law has been broken and the court is asked to apply its powers to the adjudication of the case against whomever it is claimed broke the law, it participates in the enforcement of the law within the extent of its enforcement powers. That is not an implication that it is using executive powers.
You again fail to put things in context. An action that a branch of government fails to take does not define the meaning that action.
You said:
"The distinction was made clear in Cherokee Nation v Georgia in 1831. The SC found in an opinion written by John Marshall that the Federal Government was obligated to protect the Cherokees' from encroachment by the state of Georgia. President Andrew Jackson is reputed to have said, "Justice Marshall has made his decision. Now let him ENFORCE it."
Did justice Marshall have "enforcement" powers he could have used (to who knows what affect)? Yes. Does the fact that he did not try to use those powers determine the meaning of them? No. He could have tried to apply the enforcement powers of issuing subpoenas, arrest warrants, restraint orders, etc. The Chief Justice of the Supreme Court is not just the head of that court he/she is the head of the Judiciary - the Chief Judge of the Judiciary. That gives him/her certain powers of assignment of judicial action via lower courts. Whether or not he would have obtained respect for those enforcement actions is not known - depending on to whom and in what jurisdiction he may have issued them. The answer is not a question of "enforcement" or not, the answer is in whether or not Marshall had political support to carryout what enforcement powers he had. He seemed to have concluded he did not.
You seem to have misread something I wrote when you say: "Furthermore, you are apparently under the impression that laws passed by Congress (and presumably by the states) are part of the Constitution." Reread my original post.
To my coment: "In that sense, Cornyn is completely on target in acknowledging that the courts abrogate the power they've been given when they write a constitution out of whole cloth and reject the democratic will of the people - as expressed through the acts of their democratically elected representatives."
You wrote: "Again, an apparent misunderstanding of what the Constitution is. And, frankly, a perspective that appears more "Marxist" than any I can imagine since it presumes a "democratic will" constitutes the Constitution".
I assure you, you have failed to understand the "democratic" basis of the constitution. A democratic process by democratically elected representatives of the people wrote the constitution. Through that action of the people's elected representatives, the constitution came to have the substance and the intentions of those actions that defined it. The constitution had to be, and was, ratified by legislative actions of the democratically elected representatives of people of the states. Amending the constitution requires legislative actions by the people's democratically elected representatives in the federal congress and in the legislatures of a majority of the states. The constitution did not mandate or limit some power or right because some elitist group of judges said: "well you know, we're going to require the constitution to say", whatever. The "democratic" nature is apparent in the opening line of "we the people". It is "we the people" through the legislative actions of our democratically elected representatives that wrote, and it is "we the people", through the actions of our democratically elected representatives who are supposed to amend, the constitution - not the courts, by judicial fiat.
As to your reference to Judge Birch's concurrence with refusing to hear the Schiavo case, I also read the dissent, which more clearly put the intent of the law passed by congress in the context of the powers granted to congress - whether or not the exercise of those powers is liked by the courts or not. The law that sent the case to the court did not interfere with the independence of the court. It did not mandate that judicial review of the case produce a particular result. It sent the review jurisdiction of the case to that court (constitutional) with the mandate for that court to simply perform that review (constitutional), hold the litigants in status quo until it did and, upon proper completion of adjudication hearings in that review process, render its independent judgement. Rarely done? Yes. Constitutionally sound? Yes. Mandating a particular ruling to result from a proper review? No. Birch was wrong.
If you want to understand "Marbury v. Madison" read the book "Men In Black". Mark lays it out pretty clearly.
As far as a need to read the Federalist Papers - been there, done that, love 'em and respect 'em. Try rereading them yourself.
By definition from its founder. I tend to consider politicians who try to grant companies more tax breaks, give them more immunities and other pork barrel items to fall in that category.
However, it also carries a strong sense of 'doing whatever is necessary to obtain power'. I've seen many republicans actually mention things along these lines, to say nothing of the gerrymandering they do (seriously, Louisiana's districts look more like a fractal diagram...)
Jingoism too. "With us or against us." "My country right or wrong." And so on.
The first feature is just the definition. The second gets attributed to fascism because of the means by which they gained power in Italy, Germany, and Spain.
Most helpful.