After the ratification of the present Constitution of the United States of America, many abolitionists saw it as a "compromise with tyranny" because it didn't outlaw slavery. However, since the American Civil War and the adoption of the thirteenth amendment to the Constitution, the love of Americans for their Constitution has become close to universal.
The Constitution is most often praised for two features:
HR 3920, introduced to the 108th US House of Representatives on March 9, 2004, seems to be an attack on both of these features. Before any further discussion, it seems best to present the actual, complete text of the bill.
[DOCID: f:h3920ih.txt]
108th CONGRESS
2d Session
H. R. 3920
To allow Congress to reverse the judgments of the United States Supreme
Court.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 9, 2004
Mr. Lewis of Kentucky (for himself, Mr. DeMint, Mr. Everett, Mr. Pombo,
Mr. Coble, Mr. Collins, Mr. Goode, Mr. Pitts, Mr. Franks of Arizona,
Mr. Hefley, Mr. Doolittle, and Mr. Kingston) introduced the following
bill; which was referred to the Committee on the Judiciary, and in
addition to the Committee on Rules, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To allow Congress to reverse the judgments of the United States Supreme
Court.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Congressional Accountability for
Judicial Activism Act of 2004''.
SEC. 2. CONGRESSIONAL REVERSAL OF SUPREME COURT JUDGMENTS.
The Congress may, if two thirds of each House agree, reverse a
judgment of the United States Supreme Court--
(1) if that judgment is handed down after the date of the
enactment of this Act; and
(2) to the extent that judgment concerns the
constitutionality of an Act of Congress.
SEC. 3. PROCEDURE.
The procedure for reversing a judgment under section 2 shall be, as
near as may be and consistent with the authority of each House of
Congress to adopt its own rules of proceeding, the same as that used
for considering whether or not to override a veto of legislation by the
President.
SEC. 4. BASIS FOR ENACTMENT.
This Act is enacted pursuant to the power of Congress under article
III, section 2, of the Constitution of the United States.
<all>
Read it for yourself. Here's a link to a copy of the Constitution.
The constitution, itself, seems to provide no way to ensure that the Congress obeys the Constitution. What's to stop Congress from making unconstitutional laws? As one would expect, after the Constitution was ratified, this issue soon came to a head. In the landmark case of Marbury vs. Madison, the principle was established that the Federal Courts could rule an Act of Congress unconstitutional.
Recently this principle of Judicial Review has come under attack. The introduction of HR 3920 is one example of this attack.
Elected officials have a great deal of influence over what is and isn't reported. Reporters depend to a surprising degree on the press releases they receive every day from government officials and other special interests. They don't seem to hire anyone to review every bill that's introduced (though the job could certainly be done by only one person). If this bill had made it out of committee, it might well have been hotly debated and well-reported.
Yes and no. There is nothing to stop the sponsors of this bill from reintroducing it again and again. The attack on Judicial Review is very much alive and well. See The 109th Congress: New Bills Attacking the Constitution below.
That's a good question that's not easy to answer.
Part of the answer may be what's called "cultural conservatism." To many people, the world today seems too strange to bear. The mere knowledge that people are doing things that seem strange and perverse seems to be more than some people can stand.
The issue of homosexual marriage is an example of the problem. People who oppose homosexual marriage aren't really afraid that their spouses will divorce them to marry someone of the same sex. They simply don't think they can bear to live with the knowledge that homosexual marriages are being performed. It doesn't matter at all that, if the practice becomes common, such marriages will go just as unnoticed as heterosexual marrigages. The knowledge that such things may be happening is enough to upset many people.
Related to "cultural conservatism" is the desire for a monocultural society. The United States has always been a multicultural country, and this multiculturalism has always been a social issue. Some glory in multiculturalism, and others dread having to face it.
Racial and ethnic prejudice can no longer be expressed and practiced with impunity, but a kind of monoculturalism can be achieved if everyone can be brought under the umbrella of one religion. This is the dream of what we call the "Islamist Movement," and it is also the dream of many American Christians. Many people today accuse these movements, the Islamic and the Christian, of being "fundamentalists," in other words, extremists. Such name-calling won't really shame anyone, and won't help us begin a national discussion about what kind of future we want to build together for our country.
These speculations about the motivation of those who introduced this bill are based, largely, on the fact that HR 3920 was introduced just five days after HR 3893. (The preceding is a link to the text of this other bill.) This other House bill also cites Article III, Section 2 as the basis for the authority of Congress to limit the jurisdiction of Federal courts. It was introduced, by the way, by Ron Paul and Roscoe Bartlett.
Past generations passed down this Constitution to us. They not only passed it down to us; they strengthed it. They amended the Constitution to abolish slavery, to guarantee the right to vote, and to place a term limit on the office of President. They amended the Constitution to better reflect the highest principles of this country's founders: to limit the power of government, and to ensure that no one of the three branches of government can become dangerously strong.
Judicial Review has interpreted the Constitution in such a way as to guarantee, not just the equal protection of the law, but equality under the law. We have, not just protection against unlawful search and seizure, but a right to privacy (without which human dignity is impossible). We enjoy, not just the freedom to worship in the Christian church of our choice, but the freedom to practice religions completely outside the Judaeo-Christian tradition—and even the freedom not to believe in any sort of supernatural, and to express this lack of belief without fear of punishment.
These gains achieved by Judicial Review are all under threat. Candidates for Federal Court Justice, the ones who call for a "strict interpretation" of the Constitution, want to reverse these judgements that have further limited the power of government and expanded the freedoms of the citizens. Even worse, the very principle of Judicial Review is under threat from legislation like HR 3920 and HR 3893.
Some of us believe that we owe it to future generations of Americans, not to overthrow the Constitution, but to further strengthen it. Let's amend the Constitution to explicitly require Judicial Review of Acts of Congress by the Federal courts. Let's discuss an explicit Constitutional guarantee of privacy. Let's discuss term limits on U.S. Senators and Representatives. Let's, once again, discuss explicitly guaranteeing equal rights for women. Let's ensure that believers in the supernatural don't enjoy rights under the law not enjoyed by non-believers (including tax exemptions and the right to claim consciencious objector status).
Let us not be damned by future generations because we allowed fear of terrorism or our own cultural intolerance to cause us to give up our Constitution.
Here are some of the new bills before the 109th Congress which show that the attack on the Constitution is continuing. The justifications for loosening the limits on government power and restricting the freedoms of the citizens seem, for the most part, the same as last year.
This bill makes belief in the supernatural the official philosophical position of the United States. Indeed, it goes further than that; it makes theism the official philosophy. The implication may be that non-believers have no basis for morality. Some of us have been profoundly and (given our behavior) very unfairly insulted.
This bill has another provision which essentially says that Congress can dishonor treaties entered into in good faith by the United States and other countries and organizations. Doesn't dishonoring treaties dishonor our country?
This bill would exempt a specific law, the "Marriage Protection Act of 2005" from judicial review. This is more evidence that the attack on the Constitution is motivated by so-called cultural conservatism.
This is a resolution virtually identical to the second provision of HR 1070.
This seems to be a copy of HR 1070 introduced into the Senate.
The Constitution of the United States
of America
U.S. Congress Home Page
U.S. Senate Home Page
U.S. House of Representatives Home Page
Congressional Record
House and Senate Bills
J. David Sexton
April 4, 2005