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Separation of Powers- checks and balances on the judiciary & current update

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  • Andrew Jackson
    Hello, There has long been a controversy about the respective roles of the three branches of government, especially the judiciary. Matters came to a head in
    Message 1 of 1 , Jul 8, 2006
      There has long been a controversy about the respective roles of the three branches of government, especially the judiciary.  Matters came to a head in Marbury v. Madison (1803) where Congress by statute expanded the Supreme Court's jurisdiction beyond that granted by the Constitution in Article III, and the Supreme Court declared the statute unconstitutional.  Instead of being  viewed as declining an added  grant of power, the decision was viewed adversely as judicial nullification.
      Despite having the last word on constitutional issues and substantial federal questions, the Supreme Court knew of its limitations and vulnerability, offset in part by tenure under good behavior as opposed to seeking reelection. Congress would from time to time make its displeasure known by requiring "circuit riding" whereby the justices would have to preside in lower federal courts, traveling by stagecoach and horseback when the court was not in session. The Great Hero of American Democracy ((Andrew Jackson)) would comment that Mr. Marshall made his decision, now let him enforce it. The guns of Ft. Sumter would increasingly render the fugitive slave law (1850) and Dred Scott v. Sanford (1857) dead letters before the Emancipation Proclamation and the 13th Amendment. Father Abraham had other concerns.
      We "fast forward" threescore years and ten when the Court too slowly understood that the Constitution did not incorporate laissez faire and Spencer's Social Statics but still struck down New Deal legislation during the Depression.  St. Franklin's  ((F D R's)) threat to pack the Court was rendered moot by some retirements and new appointments. Fast forward an equal time interval and the concern is no longer judicial vulnerability.
      The problem now becomes concern over activist judges legislating their personal philosophies with a gavel and enacting social engineering from the bench.  Aside from public outcry and congressional action over the Teri Schiavo caper, there was Kelo v. New London (2005) a 5-4 decision allowing local zoning boards to condemn private property for economic development alone.   The potential for abuse is very readily apparent. There is also a perception of judicial misconduct at many levels and  that judicial self-policing doesn't work. For various reasons, some in Congress decided to take action, which takes us to current history.
      S. 2678 and H. R. 5219, largely similar bills in the Senate and House respectively, would for the first time establish an Inspector General over the federal courts with authority to monitor various aspects of the courts.  HR 4379 would withdraw jurisdiction for federal courts to hear certain types of cases, and the currently unintroduced H R ----an act "to establish standards of impeachment for justices and judges of the United States" generates interest.  All sound some warning or promise some relief.  These bills with abstracts and brief commentary can be accessed on the new website www.wespeakup.org  which also invites participation and input.  Check the Action Page.
      Some of these bills, whether enacted into law or not,  will be mentioned in tomorrow's history books and political science texts.  You may want to view current history in the making, participate, and refer others you know to the website as well.

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