I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. - MLK
Ex Parte McCardle shows Congress telling the Supreme Court just what it will do, and like it. I don't know of a case that shows any more plainly how just weak the Court really is in a showdown, when Congress is determined to have its way.
In February, 1867, Congress passed a law to help Northerners who were still being detained in former Confederate states. This law authorized anyone who had filed a habeas petition to challenge the lawfulness of his detention, and had a court deny it, to appeal the denial to the Circuit Court for that district (the equivalent of today's federal Courts of Appeal). And the law went even further, providing that anyone who lost in the Circuit Court could appeal right to the Supreme Court of the U.S.
McCardle, a Mississippi newspaper editor, was arrested by the Union Army for publishing articles alleged to be "incendiary and libellous." He was held to await trial by a military commission. He then filed a habeas petition, had it denied, and cleverly took advantage of the new federal law to get his appeal before the Supreme Court. After the Court had already heard oral arguments in his case in March, 1868, an abolitionist-dominated Congress, outraged by having this treasonous rebel use its law in a way it had never intended, finally got fed up. It passed a second law that repealed the one from the year before, removing the Supreme Court's appellate jurisdiction over the case it was just about to decide.
And the Court, having had Congress snatch a case right out from under its nose, knuckled under:
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause . . . judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.
Anthony Kennedy and his fellow philosopher-kings felt as arrogant as they did in Obergefell in part because they know there is enough political support nationally for same-sex marriage that something like this would never happen, where that subject is concerned. That does not make their dictate any less inexcusable, though. We have a federal government, and not a national one. Issues of state law are not decided by national majorities, but by the vote of a majority in that state.
Even if nine out of ten of Americans say in a poll that they favor a thing, it is completely irrelevant to the authority of a state where a majority opposes that thing to prohibit it by law. A constitutional right to do a thing does not suddenly leap into existence just because everyone who's in with the in crowd that years just knows that thing is cool and righteous. Statist drones who think otherwise should go and live in a dictatorship.
When this starts to interfere with the freedom of religion, as it is bound to, the Court may want to get out the old books and remind themselves of McCardle. Religious freedom is so fundamental that most Americans will raise all Hell when it is trampled on in the name of homosexual rights. That had already begun to happen in cases involving state public accommodations laws, and Obergefell will make it much worse. The proponents of the homosexual agenda have been waging war on organized religions for years, but never quite so directly. They had better be ready for a fight, because the religious people they despise are not going to take this lying down.
Last edited by matchlight; 06-29-15 at 05:00 PM.
Why should the Supreme Court be insulated from the will of the very people it is meant to govern? The American People are not idiots or children, we can govern ourselves quote capably.
The safeguards to judicial power you have outlined, while important, represent an emergency brake when what we, the Anerican Public, require, is much more involved oversight.
I think we have a fundamental difference of political philosophy. I understand that the American People will get it wrong from time to time, just as the unelected 9 will get it wrong a lot of the time as well. History has proven both of these statements out.
But when the cards are laid down....I would much rather ride with the Anerican People than with 9 elitist appointees who hide behind their robes and their marble walls.
But, much as we might wish for our Supreme Court to be a King Arthur and the Knights if the round table parallel, they're really just 9 overpaid lawyers with 100 percent job security for life
A Canadian conservative is one who believes in limited government and that the government should stay out of our wallets and out of our bedrooms.
Still, I would rather ride with the will of the people than with the will of 9 unknown, unelected lawyers
"We all of us know down here that politics is a tough game. And I don't think there's any point in being Irish if you don't know that the world is going to break your heart eventually."-Daniel Patrick Moynihan, December 5, 1963