Newt Gingrich correct on subpoenaing judges to appear before Congress.

[johnwk]

During Thursday evening’s debate Gingrich had good cause to suggest eliminating the San Francisco-based 9th U.S. Circuit Court of Appeals and subpoenaing judges to appear before Congress. Gingrich said “The courts have become grotesquely dictatorial, far too powerful and I think frankly arrogant in their misreading of the American people”.

Actually, “misreading” the American people is irrelevant when a court is deciding the constitutionality of a law. What is important is many of our judges and Justices have been “misreading” our Constitution‘s legislative intent, and intentionally pretending it means whatever their personal whims and fancies dictate the Constitution ought to mean. The advantage of subpoenaing judges to appear before Congress cannot be justified to rehash a decision of a court or its judges. But it can be justified to establish whether or not a decision has followed the fundamental rules of constitutional law, especially the primary rule which is stated as follows:

“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”--- numerous citations omitted, Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling.

Let us put this into a workable perspective using the infamous Kelo decision which hinged upon the meaning of “public use“ as the phrase appears in our Constitution.

NOTE: Under the rules of constitutional construction
16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ (my emphasis)

The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by our founding fathers.

As many of you may recall in Kelo v. City of New London 545 U.S. 469 (2005), our Supreme Court upheld the use of eminent domain by city officials to take and transfer privately owned property from its owner to a developer for a profit making business venture. But the argument made against the city was that such taking violated that part of the federal Constitution’s Fifth Amendment restricting a taking to property intended for a “public use”. The question arising was whether or not “public use” as found in our federal Constitution encompassed a taking to advance a “public benefit” .

In the Kelo decision the Court was bound to apply the meaning of “public use” as the words were understood during the time period the Constitution was framed and ratified. The majority opinion in Kelo is most instructive in that it documents the truth of Gingrich’s charge, that “The courts have become grotesquely dictatorial“ and are in fact making the Constitution mean whatever they wish it to mean!

Justice Stevens in delivering the opinion in Kelo writes:

” while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose.”

But the irrefutable fact is, the people did not erode the meaning of “public use” via an appropriate constitutional amendment, the only lawful way to change the meaning of words in a Constitution. The Court took it upon itself to do for the people what they did not willingly and knowingly do for themselves within the framework of our constitutional system, and, the Court brazenly appealed to the “evolving needs of society” to justify what amounted to be judicial tyranny and the Court imposing its will upon the people!

On the other hand, Justice Thomas, in his dissenting opinion, observes the most fundamental rule of constitutional law and carefully documents the meaning of the phrase “public use” as it was understood during the time the Constitution was adopted. He then concludes :

”The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.”

And so, if Mr. Gingrich’s desire to subpoenaing judges to appear before Congress is limited to comparing a written decision of the court to the documented intentions and beliefs under which our Constitution was adopted, and thus insuring that the most fundamental rules of constitutional law were adhered to by the Court when rendering a particular decision, then Mr. Gingrich’s motive would be in total harmony with the most fundamental rule of constitutional law which Jefferson summarized as follows:

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

My only question to Gingrich at this time would be, if his motive is really to defend the legislative intent of our written Constitution, why then did he co-sponsor the Fairness in Broadcasting Act of 1987, which would have allowed folks in government to regulate and abridge freedom of political speech on talk radio shows?

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

[Little-Acorn]

Gingrich is indeed correct that the courts have become grotesquely dictatorial, both through the use of Stare Decicis as opposed to an understanding of what the Constitution meant by language in common use at the time it was ratified, and also through judges trying to see what they could get away with regarding definition of a word or phrase instead of (again) asking what it probably meant according to the language in common usage at the time of ratification.

But I question his solution. What good does it do, exactly, to haul a justice up in front of Congress? Congress can make no laws to affect or change a justice's decision. It basically simply amounts to a temper tantrum by Congress, accomplishing nothing except to show people (and the justice, who probably coun't care less) that Congress isn't happy. If the makeup of Congress is ideologically different from the Justice (imagine the likes of Harry Reid and Nancy Pelosi hauling Clarence Thomas up to criticize him for ruling that Obamacare is unconstitutional - Thomas would simply sit there with that wide, jovial smile on his face that implies, "Well, what are you going to do about it?"), the Justice being criticized, would probably enjoy the sight of Congress whining and caterwauling ineffectually. Which is really all they can do.

Though I don't like the way a number of court decisions have gone, I see no need for any more checks and balances than already exist: imeachment and replacement through attrition. It's the very fact that the Courts ARE independent of the Legislative branch, that gives the Justices the ability to decide dispassionately and without regard to politics. That's whay the Founders set it up that way. The fact that not all Justices take advantage of the opportunity to leave politics out of their decisions, doesn't mean we have to take away their opportunity to do so.

[johnwk]

Gingrich is indeed correct that the courts have become grotesquely dictatorial, both through the use of Stare Decicis as opposed to an understanding of what the Constitution meant by language in common use at the time it was ratified, and also through judges trying to see what they could get away with regarding definition of a word or phrase instead of (again) asking what it probably meant according to the language in common usage at the time of ratification.But I question his solution. What good does it do, exactly, to haul a justice up in front of Congress?

I’m not sure what is in Gingrich’s mind, but subpoenaing judges for the purpose of establishing whether or not a particular decision has followed the fundamental rules of constitutional law, especially the primary rule requiring an enforcement of our Constitution’s legislative intent, would appear to be a legitimate course of action, perhaps in starting articles of impeachment.

Ignoring the fundamental rules of constitutional law in some cases could be viewed as an outright act of malfeasance, misfeasance or nonfeasance, and therefore an impeachable offense!

JWK

The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”(my emphasis) Chancellor James Kent, in his Commentaries on American Law (1858)

[logroller]

I’m not sure what is in Gingrich’s mind, but subpoenaing judges for the purpose of establishing whether or not a particular decision has followed the fundamental rules of constitutional law, especially the primary rule requiring an enforcement of our Constitution’s legislative intent, would appear to be a legitimate course of action, perhaps in starting articles of impeachment.

Ignoring the fundamental rules of constitutional law in some cases could be viewed as an outright act of malfeasance, misfeasance or nonfeasance, and therefore an impeachable offense!

JWK

The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”(my emphasis) Chancellor James Kent, in his Commentaries on American Law (1858)


If there's an issue with a ruling, appeal it to the USSC. If Congress doesn't like their interpretation, they do have the vested Power to change the law to state whatever they wish, up to and including the proposal of an Amendment to the Constitution. That's the way of system of govt works. Fucked up as it may be, its worlds better than the witch hunt you propose.

[Little-Acorn]

I’m not sure what is in Gingrich’s mind, but subpoenaing judges for the purpose of establishing whether or not a particular decision has followed the fundamental rules of constitutional law, especially the primary rule requiring an enforcement of our Constitution’s legislative intent, would appear to be a legitimate course of action, perhaps in starting articles of impeachment.

Ignoring the fundamental rules of constitutional law in some cases could be viewed as an outright act of malfeasance, misfeasance or nonfeasance, and therefore an impeachable offense!

JWK


Yes, it is. But bringing the person up before Congress (House, at least) is what you normally do during an actual impeachment hearing, before discussing and possibly voting out the Articles of Impeachment.

Why do it twice?

Is there anything to be covered in this extra summons, that won't be covered anyway when the House meets to discuss/vote on Articles of Impeachment?

Again, I see no point in what Newt suggests here, outside of giving some Congressmen an extra chance to vent and thump their chests. And they do that plenty enough, already.

[johnwk]

If there's an issue with a ruling, appeal it to the USSC. If Congress doesn't like their interpretation, they do have the vested Power to change the law to state whatever they wish, up to and including the proposal of an Amendment to the Constitution. That's the way of system of govt works. Fucked up as it may be, its worlds better than the witch hunt you propose.

We are talking about all court decisions, including those of the supreme court which I mentioned in the first post in the thread, and I gave an example how Justice Stevens ignored a fundamental rule of constitutional law [enforcing the meaning of “public use” as it was understood during the adoption of our Constitution], while Justice Thomas documented Steven’s expanded meaning of “public use” was “divorced from the text, history, and structure of our founding document”.

We are not talking about “interpretations” but rather documented facts, such as the meaning of “public use” as understood by our founders and which Justice Stevens admitted he was ignoring.

I am shocked you consider a desire to enforce the legislative intent of our Constitution to be a “witch hunt”. Keep in mind our Constitution requires judges and Justices by its very wording to support “this Constitution“ and not one they would create from day to day by ignoring the meaning of words and expressed legislative intent.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

[johnwk]

Yes, it is. But bringing the person up before Congress (House, at least) is what you normally do during an actual impeachment hearing, before discussing and possibly voting out the Articles of Impeachment.Why do it twice?Is there anything to be covered in this extra summons, that won't be covered anyway when the House meets to discuss/vote on Articles of Impeachment?Again, I see no point in what Newt suggests here, outside of giving some Congressmen an extra chance to vent and thump their chests. And they do that plenty enough, already.

You are correct about an “impeachment hearing”, and to avoid such a formality think of Gingrich’s proposal as an informal process to establish whether or not there is probable cause to proceed to an impeachment hearing. The proposal would allow the judge or Justice to provide the documentation to establish the ruling in question is in harmony with the legislative intent of our Constitution and that other fundamental rules of constitutional law were followed which was not the case in Kelo, nor in the Stewart Machine Co. case which upheld the Social Security Act, nor in many other cases I can cite.

It is my opinion that such an informal process would encourage members of the court to hand down written opinions more in line with the documented legislative intent of our Constitution rather than opinions reflecting the unbridled whims and fancies of the Court. The process would also generate a public awareness of the fundamental rules of constitutional law which is lacking in our society and encouraging the court to ignore them.

JWK

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

[revelarts]

The point that everyone is agreed on is that the courts at the fed level have overstepped their bounds Gingrich's suggestion points out how desperate the times are.
However in one sense even hearings or impeachment hearings would be a case of the the pot calling the kettle black.
The courts have allowed congresses unconstitutional regs to fly by as well. I suspect it would become more of a partisan sideshow than a true review of hardcord constitutional questions at best dealing with surface warts. Nothing to the level of what JWK or others here would be looking for.

[johnwk]

The point that everyone is agreed on is that the courts at the fed level have overstepped their bounds Gingrich's suggestion points out how desperate the times are. However in one sense even hearings or impeachment hearings would be a case of the the pot calling the kettle black. The courts have allowed congresses unconstitutional regs to fly by as well. I suspect it would become more of a partisan sideshow than a true review of hardcord constitutional questions at best dealing with surface warts. Nothing to the level of what JWK or others here would be looking for.

Revelarts,

If this were twenty years ago I would have agreed with you 70-75 percent. However, the internet has changed the tightly controlled manner in which information reaches the people, not to mention talk radio shows and the Tea Party movement itself whose birth has been inspired by, among other things, by our federal government’s total disregard in adhering to the intentions and beliefs under which our Constitution was adopted.

Taking these things into consideration, and Tea Party Activists now being in Congress, the opportunity for Congress to call upon a judge to establish his or her decision is in harmony with the legislative intent of our Constitution and that it was made in compliance with the fundamental rules of constitutional law would probably establish a needed interest by the general public to discover the fundamental rules of constitutional law and the documented intentions and beliefs under which our Constitution was adopted, and likewise encourage its enforcement.

Unfortunately, for quite some time now law students have been taught their priority in matters of constitutionality is to follow case law, rather than seek out and document the founder’s legislative intent regarding specific provisions of our Constitution. The relevant good which I see that may occur if Gingrich’s proposal would be to inspire needed public interest as to what our Constitution means as [I]stated during its framing and ratification process rather than a distortion made by an activist judge or Justice seeking to use their office of public trust to impose their will upon the American People.

JWK

The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”(my emphasis) Chancellor James Kent, in his Commentaries on American Law (1858)

[Little-Acorn]

You are correct about an “impeachment hearing”, and to avoid such a formality think of Gingrich’s proposal as an informal process to establish whether or not there is probable cause to proceed to an impeachment hearing. The proposal would allow the judge or Justice to provide the documentation to establish the ruling in question is in harmony with the legislative intent of our Constitution and that other fundamental rules of constitutional law were followed which was not the case in Kelo, nor in the Stewart Machine Co. case which upheld the Social Security Act, nor in many other cases I can cite.

It is my opinion that such an informal process would encourage members of the court to hand down written opinions more in line with the documented legislative intent of our Constitution rather than opinions reflecting the unbridled whims and fancies of the Court. The process would also generate a public awareness of the fundamental rules of constitutional law which is lacking in our society and encouraging the court to ignore them.

JWK

So this would essentially be a "gentler" way to get into the impeachment process?

And/or that the judges who have had a habit of ruling contrary to the Constitution, would somehow be cowed into being less unconstitutional?

I'm starting to wonder if this thread was intended to be some sort of grand joke.

BTW, I still see no point to what Newt suggested, about giving Congress the power to subpoena judges or justices. If Congress were given any more power than just summoning and solemnly lecturing the justices (something they could do without a summons, simply by calling a press conference), then this would be a power horribly open to abuse. But since it is actually a power to do nothing more than talk, I suppose it can't really be "abused".

[logroller]

We are talking about all court decisions, including those of the supreme court which I mentioned in the first post in the thread, and I gave an example how Justice Stevens ignored a fundamental rule of constitutional law [enforcing the meaning of “public use” as it was understood during the adoption of our Constitution], while Justice Thomas documented Steven’s expanded meaning of “public use” was “divorced from the text, history, and structure of our founding document”.

We are not talking about “interpretations” but rather documented facts, such as the meaning of “public use” as understood by our founders and which Justice Stevens admitted he was ignoring.

I am shocked you consider a desire to enforce the legislative intent of our Constitution to be a “witch hunt”. Keep in mind our Constitution requires judges and Justices by its very wording to support “this Constitution“ and not one they would create from day to day by ignoring the meaning of words and expressed legislative intent.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

Perhaps I misunderstood you, but it sounded like you were saying when a Justice rules on something ignorant of the Constitution, it is grounds for impeachment. The Constitution is quite clear regarding removal of civil officers to be for "treason, bribery, or other high crimes and misdemeanors."-- absent such, proceedings would be contrary to the rules by which impeachment is Constitutionally justified. You seem to think that because someone else ignores the Constitution, its OK to to ignore it with them to suit you agenda. My point is simple, as is the fix, Congress makes a law (that's what they do) which clarifies or outright states, in current terminology, what the rule of law is to be. It's been done before, it can be done again.

I find the whole idea of the Congress bringing charges of Constitutional malfeasance, nonfeasance et al, to be hypocritical, if not outright laughable were it not for the perilous nature of utilizing such grounds for removal. Who puts those Justices in the position they are, Congress. A Congress whose members include at least one impeached justice, Rep. Hastings of Florida, who quipped "I wish that I had been there when Thomas Edison made the remark that I think applies here: "There ain't no rules around here, we're trying to accomplish something." And therefore, when the deal goes down, all this talk about rules, we make them up as we go along." -- Not exactly the authority I want removing Justices for how they interpret the Constitution. Take any court ruling you disagree with and 99/100 you'll find a piece of Congressional legislation which was flawed. The Court's not the problem, Congress is--impeach them.

[johnwk]

So this would essentially be a "gentler" way to get into the impeachment process?

And/or that the judges who have had a habit of ruling contrary to the Constitution, would somehow be cowed into being less unconstitutional?

I'm starting to wonder if this thread was intended to be some sort of grand joke.

BTW, I still see no point to what Newt suggested, about giving Congress the power to subpoena judges or justices. If Congress were given any more power than just summoning and solemnly lecturing the justices (something they could do without a summons, simply by calling a press conference), then this would be a power horribly open to abuse. But since it is actually a power to do nothing more than talk, I suppose it can't really be "abused".

I mentioned nothing about a “gentler” way to get into the impeachment process. I take it you did not read POST NO.9 (http://www.debatepolicy.com/showthread.php?33660-Newt-Gingrich-correct-on-subpoenaing-judges-to-appear-before-Congress.&p=510415#post510415) in which I offered my expanded view on this issue. You are free to disagree with my opinion. In addition, Congress has subpoena power, so, this is not about seeking a “new” power. And although such power has rarely been used with reference to sitting judges, it has be used in such a manner, at least twice to the best of my knowledge.

Bottom line is, we have a judiciary which is out of control and ignoring the intentions and beliefs under which our Constitution was adopted. And it is supplanting its personal whims and fancies as law, rather than confining itself to enforcing the legislative intent of our written Constitution.

JWK

[johnwk]

Perhaps I misunderstood you, but it sounded like you were saying when a Justice rules on something ignorant of the Constitution, it is grounds for impeachment.

You did misunderstand me. I never suggested what you indicate above.


The Constitution is quite clear regarding removal of civil officers to be for "treason, bribery, or other high crimes and misdemeanors."-- absent such, proceedings would be contrary to the rules by which impeachment is Constitutionally justified. You seem to think that because someone else ignores the Constitution, its OK to to ignore it with them to suit you agenda.

You forgot to mention that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour“.

I’m not sure what you mean by my agenda? If I did not make myself clear, what I support is abiding by the legislative intent of our Constitution and following the fundamental rules of constitutional law. I even gave a specific case in point in which that was violated, the Kelo decision, in which Justice Stevens gave new meaning to the phrase “public use”, thereby ignoring a fundamental rule of constitutional law, while Justice Thomas documented Steven’s expanded meaning of “public use” was “divorced from the text, history, and structure of our founding document”.

I take it you do not see a problem in which our judicial system is ignoring our written Constitution and imposing what if feels the Constitution ought to mean?

JWK

[logroller]

I mentioned nothing about a “gentler” way to get into the impeachment process. I take it you did not read POST NO.9 (http://www.debatepolicy.com/showthread.php?33660-Newt-Gingrich-correct-on-subpoenaing-judges-to-appear-before-Congress.&p=510415#post510415) in which I offered my expanded view on this issue. You are free to disagree with my opinion. In addition, Congress has subpoena power, so, this is not about seeking a “new” power. And although such power has rarely been used with reference to sitting judges, it has be used in such a manner, at least twice to the best of my knowledge.

Bottom line is, we have a judiciary which is out of control and ignoring the intentions and beliefs under which our Constitution was adopted. And it is supplanting its personal whims and fancies as law, rather than confining itself to enforcing the legislative intent of our written Constitution.

JWK

If what you are saying is Congress has the power to subpoena a justice to evaluate the current rule of law, in an effort to develop/introduce corrective legislation, then I have no problem with this. But you introduced impeachment as a corrective action, and I'd like you to explain why. For it seems as though you are advocating placing political pressure on the justice system to influence their rulings, similar to what was done over New Deal legislation; which is hands down the greatest travesty to befall our Constitution, and I don't see how utilizing similar threats would do anything but further the demise of Constitutional government.

[johnwk]

If what you are saying is Congress has the power to subpoena a justice to evaluate the current rule of law, in an effort to develop/introduce corrective legislation, then I have no problem with this. But you introduced impeachment as a corrective action, and I'd like you to explain why.

You are misconstruing what I have stated with regard to an impeachable offense.

JWK

[logroller]

You are misconstruing what I have stated with regard to an impeachable offense.

JWK
Am I?
You said--

..
Ignoring the fundamental rules of constitutional law in some cases could be viewed as an outright act of malfeasance, misfeasance or nonfeasance, and therefore an impeachable offense!

JWK



...when a Justice rules on something ignorant of the Constitution, it is grounds for impeachment. The Constitution is quite clear regarding removal of civil officers to be for "treason, bribery, or other high crimes and misdemeanors."-

The aforementioned would be "bad behavior". Have we a law which includes "ignoring the fundamental rules of constitutional law" as an impeachable offense?

[johnwk]

Originally Posted by johnwk You are misconstruing what I have stated with regard to an impeachable offense.


Am I?You said--Ignoring the fundamental rules of constitutional law in some cases could be viewed as an outright act of malfeasance, misfeasance or nonfeasance, and therefore an impeachable offense!

And? You wrote But you introduced impeachment as a corrective action, and I'd like you to explain why. Let me repeat. You are misconstruing what I have stated with regard to an impeachable offense. You missed my words “could be”. And you are now ignoring my clarification telling you that you are misconstruing what I have stated with regard to an impeachable offense. Who knows better than I if you have misconstrued what I have stated?

You did forget to include “bad behavior” which is worded in such a way giving broad discretionary power in formulating charges in pursuing articles of impeachment, as was done to Clinton for “perjury” and “obstruction of justice“. I simply pointed to that part of the Constitution which you left out. And, as to your asking Have we a law which includes "ignoring the fundamental rules of constitutional law" as an impeachable offense? What we have is a Constitution, and a command in our Constitution that those who hold an office of public trust shall support and defend “this Constitution”. We also have wording in our Constitution that commands the rules of common law to be observed in federal courts, and those familiar with “common law” are well aware that abiding by “legislative intent” is one on the most fundamental rules of English common law dating back hundreds of years.

I take it you are looking to argue simply for the sake of arguing, I do not have time to engage in “arguing”, nor am I looking to argue with you for the sake of arguing.

I believe I stated my position clearly in POST NO.9 (http://www.debatepolicy.com/showthread.php?33660-Newt-Gingrich-correct-on-subpoenaing-judges-to-appear-before-Congress.&p=510415#post510415) If you disagree with my position. That’s fine with me.

JWK

The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”(my emphasis)___ Chancellor James Kent, in his Commentaries on American Law (1858)

[logroller]

And? You wrote But you introduced impeachment as a corrective action, and I'd like you to explain why. Let me repeat. You are misconstruing what I have stated with regard to an impeachable offense. You missed my words “could be”. And you are now ignoring my clarification telling you that you are misconstruing what I have stated with regard to an impeachable offense. Who knows better than I if you have misconstrued what I have stated?

You did forget to include “bad behavior” which is worded in such a way giving broad discretionary power in formulating charges in pursuing articles of impeachment, as was done to Clinton for “perjury” and “obstruction of justice“. I simply pointed to that part of the Constitution which you left out. And, as to your asking Have we a law which includes "ignoring the fundamental rules of constitutional law" as an impeachable offense? What we have is a Constitution, and a command in our Constitution that those who hold an office of public trust shall support and defend “this Constitution”. We also have wording in our Constitution that commands the rules of common law to be observed in federal courts, and those familiar with “common law” are well aware that abiding by “legislative intent” is one on the most fundamental rules of English common law dating back hundreds of years.

I take it you are looking to argue simply for the sake of arguing, I do not have time to engage in “arguing”, nor am I looking to argue with you for the sake of arguing.

I believe I stated my position clearly in POST NO.9 (http://www.debatepolicy.com/showthread.php?33660-Newt-Gingrich-correct-on-subpoenaing-judges-to-appear-before-Congress.&p=510415#post510415) If you disagree with my position. That’s fine with me.

JWK

The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”(my emphasis)___ Chancellor James Kent, in his Commentaries on American Law (1858)

This is a debate site, not a blog. You made statement which I challenged, offering forth an alternative remedy, so I don't see how you could construe that I am merely arguing for arguments sake. Regarding impeachment, adding the qualifier 'could be' bears little difference, for it could NOT be. I asked to show me where in the Constitution or by Congressional statute it could be, you did not; merely redirected to post 9. Which, if I understand you correctly, is an critique of binding precedence. There certainly is a real risk of precedence creating a 'run-away train.' Yet at times precedence, even landmark USSC cases, has been broken. But far more times a statute or legislative act, when negated by judicial review, has been, forthwith, amended by Congress and/or the States, as I stated in my initial post-- this alone is a sufficient check to judicial power.
Re: Kelo v., the states are, of course, free to implement more stringent definitions regarding eminent domain, and many have. So too are states able to amend the takings clause to clarify to the judicial branch EXACTLY what may or may not be considered; while leaving intact the separate and coequal authority of the Federal judiciary. You are of course free to dissent, but to discount a majority held opinion of the USSC to that of an 'activist judge', is far more than a difference of interpretation, its contempt; if Gingrich were to act in an official capacity in contempt of that opinion, that would be more likely an impeachable offense than any malfeasance of the opinion itself.

[johnwk]

Re: Kelo v., the states are, of course, free to implement more stringent definitions regarding………

What is relevant concerning Kelo in this discussion, and is what Gingrich is addressing with his suggestion is, the Courts are acting in defiance of the legislative intent of our Constitution.

In delivering the majority opinion of the Court in Kelo, Justice Stevens ignored a fundamental rule of constitutional law [enforcing the meaning of “public use” as it was understood during the adoption of our Constitution], while Justice Thomas documented Steven’s expanded meaning of “public use” was“divorced from the text, history, and structure of our founding document”. And this case is not an aberration but reflective of our Supreme Court‘s long history of ignoring the legislative intent of our Constitution.

The fact is, Congress does have authority to remedy the Supreme Court’s repeated decisions which are “divorced from the text, history, and structure of our founding document”, i.e., divorced from the legislative intent of our Constitution. And this is the subject of the thread …dealing with our courts which have, as stated by Gingrich, become grotesquely dictatorial, far too powerful and ….. arrogant

Let me assure you it is within Congress’ powers to subpoena a particular judge or Justice before a Congressional oversight committee which may want to explore whether or not a judge or Justice has been following fundamental rules of constitutional law and the legislative intent of our Constitution in his/her decisions. It is likewise the judge or Justice’s prerogative to decline to answer questions asked by the committee. However, if a judge or Justice refuses to establish to the committee that his/her decisions are in harmony with the fundamental rules of constitutional law and our Constitution’s legislative intent, a remaining option is for articles of impeachment to be draw up which could result in a trial of the facts.

Bottom line is, our federal courts have been acting in defiance of the fundamental rules of constitutional law and the legislative intent of our Constitution for years, and it is time to deal with those on the court who use their power to impose their personal whims and fancies as being within the four corners of our Constitution and in harmony with its legislative intent.

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote.

[logroller]

What is relevant concerning Kelo in this discussion, and is what Gingrich is addressing with his suggestion is, the Courts are acting in defiance of the legislative intent of our Constitution.
What is relevant to you perhaps, but you're ignoring the Constitutional authority of the USSC to determine cases "both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make"-- if a ruling violates the legislative intent, the onus is upon Congress to clarify, not the Court.


In delivering the majority opinion of the Court in Kelo, Justice Stevens ignored a fundamental rule of constitutional law [enforcing the meaning of “public use” as it was understood during the adoption of our Constitution], while Justice Thomas documented Steven’s expanded meaning of “public use” was“divorced from the text, history, and structure of our founding document”. And this case is not an aberration but reflective of our Supreme Court‘s long history of ignoring the legislative intent of our Constitution.
I agree with you, I'd like to see this trend change. Congress can and should pass a law; not subpoena members of the judicial branch to answer before Congress-- the Courts opinion is all they need formulate a law which would regulate the test for "public use" to omit, modify or limit 'private/public benefit' from consideration. That's all it would take.


The fact is, Congress does have authority to remedy the Supreme Court’s repeated decisions which are “divorced from the text, history, and structure of our founding document”, i.e., divorced from the legislative intent of our Constitution. And this is the subject of the thread …dealing with our courts which have, as stated by Gingrich, become grotesquely dictatorial, far too powerful and ….. arrogant

Congress calling the Courts dictatorial, too powerful and arrogant...hmm, besides the pot calling the kettle black, Congress, of course, does have the legitimate power and, to a lesser extent, so does the President. Following Kelo, Bush issued an executive order which placed restrictions on Federal takings power-- separate and coequal branches check each other-- that is the crux of legislative intent regarding checks and balances.


Let me assure you it is within Congress’ powers to subpoena a particular judge or Justice before a Congressional oversight committee which may want to explore whether or not a judge or Justice has been following fundamental rules of constitutional law and the legislative intent of our Constitution in his/her decisions. It is likewise the judge or Justice’s prerogative to decline to answer questions asked by the committee. However, if a judge or Justice refuses to establish to the committee that his/her decisions are in harmony with the fundamental rules of constitutional law and our Constitution’s legislative intent, a remaining option is for articles of impeachment to be draw up which could result in a trial of the facts.
Your assurance means little. The Court's ruling speaks for itself. Show me a law, any sort of precedence, or founding document which allows a federal Supreme Court Justice to be challenged or made to answer, individually, on a ruling of the Court before Congress. You can't, because they can't. It would violate the separation of powers. If, in fact, one Justice risks incriminating themselves for whatever malfeasance you purport, would not the Fifth Amendment protect them from Self-incrimination? As citizens, they too have the right to remain silent, or was Miranda v. against the legislative intent too?

You add these qualifiers, like "may" and "could be". What Congress "may" or "could" be doing is to involve a Justice in a consideration of a particular piece of legislation, which would then require them to be recused from considering any subsequent challenge on any law which may result. -- the Judicial Branch is protected from this.


Bottom line is, our federal courts have been acting in defiance of the fundamental rules of constitutional law and the legislative intent of our Constitution for years, and it is time to deal with those on the court who use their power to impose their personal whims and fancies as being within the four corners of our Constitution and in harmony with its legislative intent.

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote.

Wrong. The bottom line is that legislatures make these laws and executives enforce them; when these laws are flawed and the courts fail to correct this you think we need to hang the Justices out to dry-- that's not only unreasonable, but flat-out ignorant of the powers and mechanisms vested in our government. Congress passed the Healthcare reform bill, it was signed into law by the President. The Supreme Court Justices were nominated by the President, and confirmed by Congress. Whatever tyranny which results belies a two-fold failure of Congress and the President. The Supreme Court's ONLY check upon Congress and the President is judicial review, and quite frankly that's arguably Constitutional; so it cannot be said that they have more political power than the President or Congress, and that the tyranny of progressive reform is less attributable to the Legislatures and Executives through whom the bills have become Law. Let Congress and the President enact their majority opinion of the Federal Government, the States and Local Governments too, and let us not forget the People too, -- these are the four corners, they just aren't square...but that's not the Court's fault. Your and Gingrich's tyrannical supreme court premise, support and conclusion is bunk!!! :bsflag:

[johnwk]

:bsflag:

Your unsubstantiated opinion exactly!

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote.

[fj1200]

Your unsubstantiated opinion exactly!

JWK

Wow, JWK calling out an opinion. :rolleyes:

[johnwk]

What Gingrich’s proposal addresses is in fact our courts ignoring the fundamental rules of constitutional law, ignoring the documented legislative intent of our Constitution, and doing so to impose its whims and fancies upon the people of the united States without their consent. Is this the kind of Supreme Court the America People want?

Kelo v. City of New London 545 U.S. 469 (2005), is an example of the Supreme Court’s majority opinion totally ignoring a fundamental rule of constitutional law which requires the meaning of words in our Constitution to be understood as they were understood when our Constitution was adopted. Justice Stevens gave new meaning to the phrase “public use”, admitted it was a new meaning, and thereby ignored a fundamental rule of constitutional law to permit the taking of private property! Justice Thomas on the other hand documented Steven’s expanded meaning of “public use” was “divorced from the text, history, and structure of our founding document”.

I believe this is the kind of situation Mr. Gingrich seeks to provide a remedy for. And, his remedy is within Congress’ powers, so long as Mr. Gingrich’s idea is to subpoena e.g. Justice Stevens before a Congressional oversight committee for the sole purpose of comparing his written decision to the fundamental rules of constitutional law ___ in this case the meaning of “public use” as found in our Constitution, and to the documented intentions for which private property may be taken by government ___ giving Justice Stevens an opportunity to provide historical evidence supporting his written opinion is within the four walls of our Constitution and avoid a recommendation by the committee to proceed to articles of impeachment.

Our objective, meaning the people of the various united States, ought to be working with each other to insure the documented legislative intent of our Constitution is enforced and observed by our Courts and folks in government. Let us not forget that we have a written Constitution with its legislative intent being documented in such historical records as Madison‘s Notes, The Federalist and ant Federalist papers and Elliot‘s Debates which records some of the State ratification debates during which time the People of the united States gave birth to our Constitution. And, there is a command in our Constitution explicitly stating that that those who hold an office of public trust shall support and defend “this Constitution”.

We also have wording in our Constitution that commands the rules of common law are to be observed in federal courts, and those familiar with “common law” are well aware that abiding by “legislative intent” is one of the most fundamental rules of English common law dating back hundreds of years!

In Hawaii v. Mankichi, 190 U.S. 197 (1903), our Supreme Court articulates the supremacy of legislative intent as follows:

But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."

Either we the people [that’s the People of the united States] have bound those who hold an office of public trust to a written Constitution and a documented ‘legislative intent” that is to be enforced and observed, or, our Constitution is a meaningless piece of paper to be construed as those in power believe it ought to be “interpreted” and without referenced to our intentions when approving it.

I am not a big fan of Gingrich, but he was absolutely correct when he reminded the people that our “courts have become grotesquely dictatorial, far too powerful and…frankly arrogant…” And I provided evidence of the Supreme Court’s arrogance when citing the Kelo decision in which Justice Stevens ignored a fundamental rule of constitutional law [enforcing the meaning of “public use” as it was understood during the adoption of our Constitution], while Justice Thomas documented Steven’s expanded meaning of “public use” was “divorced from the text, history, and structure of our founding document”.

Do we, the People of the united States really believe Justice Stevens should not be asked to explain how his written opinion compares to the documented intentions and beliefs under which our Constitution was adopted, especially when rights associated with property ownership hang in the balance?

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote.

[Little-Acorn]

I see this "discussion" has degenerated into the usual "No, this is really what I meant",l "No, you didn't", "Yes, I did, you misunderstood" tail-chasing.

BTW, Gingrich is doing it too. He was on some TV show yesterday, where he was asked about dragging judges before Congress whenever they made decisions he didn't like as President. He backpedalled like mad, and said that he was only referring to the normal actions held during impeachment hearings described in the Constitution, where of course the judge being impeached appears before Congress and is asked questions. The fact that it didn't sound that way the first few times he brought it up, is our problem, not his.

[logroller]

Do we, the People of the united States really believe Justice Stevens should not be asked to explain how his written opinion compares to the documented intentions and beliefs under which our Constitution was adopted, especially when rights associated with property ownership hang in the balance?


Wouldn't it be easier to just have Congress pass a law which requires the written opinion of the Court to include the documented intentions and beliefs under which our Constitution was adopted?

​It sounds like Gingrich is challenging the Constitutionality of the Supreme Court ruling;a rather blatant encroachment on the Judicial Branches vested authority to do. I would entertain the feasibility of doing so to the lower courts, but only then when the USSC refuses to hear challenges to a lower court's ruling.

[red states rule]

http://media.townhall.com/Townhall/Car/b/cb122011dAPR20111221034545.jpg

[johnwk]

Congressional oversight is a primary function of Congress and subpoenaing witnesses to testify to provide information that will assist committees in preparing legislation is within Congress' powers. See,Mc-Grain v. Daugherty (1927) (http://supreme.justia.com/us/273/135/case.html)

Why is it that so many object to having a Congressional oversight committee subpoenaing a judge or Justice to explain how a particular decision was arrived at (1), in compliance with the fundamental rules of constitutional law; and (2), how it is in harmony with the documented legislative intent of our Constitution?

Is it not in our best interests to agree to follow the fundamental rules of constitutional law and enforce the documented intentions and beliefs under which our Constitution was adopted?

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote

[Toro]

Good idea.

I can't wait to see Nancy Pelosi haul some judge up from the 4th Circuit ...

[johnwk]

Good idea.I can't wait to see Nancy Pelosi haul some judge up from the 4th Circuit ...

And why would they have a problem if, in arriving at their opinion, they followed the fundamental rules of constitutional law; and their opinion was in harmony with the documented legislative intent of our Constitution?

Should they have a problem?

JWK

Health care by consent of the governed (Article 5) our amendment process --- tyranny by a Supreme Court's progressive majority vote [/QUOTE]

[logroller]

Right, because why would you have a problem consenting to the police searching you if you have nothing to hide?

The issue is quite simple, what branch of government is charged with determining if something is Constitutional?

Answer: the judicial branch.

[johnwk]

Right, because why would you have a problem consenting to the police searching you if you have nothing to hide?The issue is quite simple, what branch of government is charged with determining if something is Constitutional? Answer: the judicial branch.

All the more reason to have a judge or Justice appear before a Congressional oversight committee and explain if a particular opinion of the court followed the fundamental rules of constitutional law and is in harmony with the documented legislative intent of our Constitution.

JWK

[logroller]

All the more reason to have a judge or Justice appear before a Congressional oversight committee and explain if a particular opinion of the court followed the fundamental rules of constitutional law and is in harmony with the documented legislative intent of our Constitution.

JWK

They issued an opinion. Was the reasoning unclear?

[logroller]

OK, here's thing. If any Justice appeared and explained their reasoning further, what does Congress do with the information?
Impeachment won't happen, it cant, it would require Congress to ignore the Supreme Court's constitutional authority to decide on matters of the Constitution. But assuming that's not their intention, the issue I see arising is Congress makes a law, that's what they do, and any law which was derived from that information would recuse that Justice from considering any challenges to that law. Which means Congress could stack the Court to gain favorable judgment on a new law. That's a recipe for disaster. I agree something needs to be done, but Congress has the Power to change these things on their own, without judicial consent; why involve them unless you plan on doing something which you fear the justice would find unconstitutional?

I understand your reasoning on the legislative intent being perverted, but the Constitution is a living legislation-- it changes. If the Court has determined something against what is perceived by fundamentally against the Constitution, then make a law/ amendment which clarifies what standard of reasoning is to be used.

[johnwk]

OK, here's thing. If any Justice appeared and explained their reasoning further, what does Congress do with the information?

Impeachment won't happen, it cant, it would require Congress to ignore the Supreme Court's constitutional authority to decide on matters of the Constitution. But assuming that's not their intention, the issue I see arising is Congress makes a law, that's what they do, and any law which was derived from that information would recuse that Justice from considering any challenges to that law. Which means Congress could stack the Court to gain favorable judgment on a new law. That's a recipe for disaster. I agree something needs to be done, but Congress has the Power to change these things on their own, without judicial consent; why involve them unless you plan on doing something which you fear the justice would find unconstitutional?

I understand your reasoning on the legislative intent being perverted, but the Constitution is a living legislation-- it changes. If the Court has determined something against what is perceived by fundamentally against the Constitution, then make a law/ amendment which clarifies what standard of reasoning is to be used.

Our Constitution may only be changed by the prescribed process stated in Article V, and not by an opinion of a judge or Justice which ignores what our Constitution stipulates in clear language.

My reasoning is nothing more than to enforce and follow what our Constitution stipulates!

(1) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(2) judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

(3) The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

(4) The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

At the top of the thread I gave a specific example in which Justice Stevens when writing the majority opinion in Kelo v. City of New London 545 U.S. 469 (2005), ignored (1), a fundamental rule of constitutional law requiring words in our Constitution to be understood as they were when the Constitution was adopted, and (2), ignored enforcing the legislative intent under which the Fifth Amendment was adopted as applied to rights associated with property ownership.

My position, which is in total compliance with our Constitution, is to give an opportunity to a judge or Justice, prior to impeachment, to establish his/her opinion is in harmony with fundamental rules of constitutional law and in harmony with the documented legislative intent of our Constitution.

Why do you object to a remedy which our Constitution allows for dealing with judges and Justices who ignore fundamental rules of constitutional law, and likewise ignore the documented legislative intent of our Constitution?

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.