Newt Gingrich correct on subpoenaing judges to appear before Congress.

[pegwinn]

Newt has bigger problems than trying to subpoena judges.

The 80's called.... newt a liar that is.

Newly recovered court files cast doubt on Gingrich version of first divorce - CNN.com

Edit: Missed the thread on this. Sorry.

 

[NYcarbineer]

[Let me remind you that our Constitution is the “precedent”, and decisions which violate the documented intentions and beliefs under which our Constitution was adopted, and/or ignore the fundamental rules of constitutional law in arriving at an opinion are transgressions of our constitutionally limited system of government.

.

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

 

[pegwinn]

[Let me remind you that our Constitution is the “precedent”, and decisions which violate the documented intentions and beliefs under which our Constitution was adopted, and/or ignore the fundamental rules of constitutional law in arriving at an opinion are transgressions of our constitutionally limited system of government.

.

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

If the legislature were sufficiently ticked off at the judges actions, they could ram through legislation that goes their way and includes a non-jurisdictional proviso that keeps the USSC from ruling on it.

 

[johnwk]

[Let me remind you that our Constitution is the “precedent”, and decisions which violate the documented intentions and beliefs under which our Constitution was adopted, and/or ignore the fundamental rules of constitutional law in arriving at an opinion are transgressions of our constitutionally limited system of government.

.

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

Huh? What is “nonsensically wrong”? I don’t think anyone in the thread suggested the legislature may declare a judicial decision ‘unconstitutional’.

I appreciate your thoughts but our Constitution, by its very wording, limits the tenure of Judges, both of the supreme and inferior Courts, to a standard of “good Behaviour“, and our federal Constitution further declares they shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. In consequence of these provisions, a number of questions are immediately raised pertinent to the discussion in this thread:

Would repeated opinions handed down by a judge which ignore fundamental rules of constitutional law, thus exhibiting incompetence, be within the definition of bad behavior as mentioned in our Constitution? How about decisions which are not in harmony with the documented intentions under which our Constitution was adopted and exhibit malfeasance misfeasance and/or nonfeasance? Certainly such charges have long been considered as impeachable offenses under our judicial system. And who is the decider in such cases? Our Constitution places this power in the hands of Congress and may be applied to “Judges, both of the supreme and inferior Courts”.

The fact is, Congress also has broad authority under its power to legislate, including subpoenaing witnesses, such as public officials, to appear before it or one of its committees and give testimony needed to further its legislative functions see:Mc-Grain v. Daugherty (1927). And this could include legislation as may be applied to impeachment proceedings, the codification of the definition of words as they appear in our Constitution, or even legislation to enforce fundamental rules of constitutional law!

And so, although our founders intended a separation of powers, that separation was never intended to stifle the legitimate functions of any one branch of government.

JWK



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

 

[Quantum Windbag]

I also gave a specific example, the Kelo case…

Of which you clearly don’t understand.

Kelo had nothing to do with not being in ‘harmony with the intentions for which the Fifth Amendment was adopted with respect to rights associated with property ownership.’ At issue only was the definition of ‘public use,’ and if the City’s development plan met the public use requirement, as established per precedent. Indeed, Ms. Kelo was requesting the Court make her case an exception to the established definition:

…this is not a case in which the City is planning to open the condemned land--at least not in its entirety--to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this "Court long ago rejected any literal requirement that condemned property be put into use for the general public." Id., at 244. Indeed, 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." See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896). Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed "the inadequacy of use by the general public as a universal test." Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906).9 We have repeatedly and consistently rejected that narrow test ever since.

The majority, therefore, merely followed the precedent established in Fallbrook and rejected the petitioners’ argument for a literal requirement.

Consequently:

The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

KELO V. NEW LONDON

Clearly you know more about Kelo than the various lawyers that have studied the case.

New London, Connecticut - Whitepaper | The Institute for Justice

 

[NYcarbineer]

[Let me remind you that our Constitution is the “precedent”, and decisions which violate the documented intentions and beliefs under which our Constitution was adopted, and/or ignore the fundamental rules of constitutional law in arriving at an opinion are transgressions of our constitutionally limited system of government.

.

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

Huh? What is “nonsensically wrong”? I don’t think anyone in the thread suggested the legislature may declare a judicial decision ‘unconstitutional’.

]

Oh for Christ's sake, that is exactly what you've been saying. You're calling for the impeachment of judges for making rulings that you think are unconstitutional.

That is nonsensical.

 

[NYcarbineer]

[Let me remind you that our Constitution is the “precedent”, and decisions which violate the documented intentions and beliefs under which our Constitution was adopted, and/or ignore the fundamental rules of constitutional law in arriving at an opinion are transgressions of our constitutionally limited system of government.

.

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

If the legislature were sufficiently ticked off at the judges actions, they could ram through legislation that goes their way and includes a non-jurisdictional proviso that keeps the USSC from ruling on it.

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

 

[Quantum Windbag]

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

Huh? What is “nonsensically wrong”? I don’t think anyone in the thread suggested the legislature may declare a judicial decision ‘unconstitutional’.

]

Oh for Christ's sake, that is exactly what you've been saying. You're calling for the impeachment of judges for making rulings that you think are unconstitutional.

That is nonsensical.

It also happens to be historical, which is the only thing that Newt got right.

 

[johnwk]

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

Huh? What is “nonsensically wrong”? I don’t think anyone in the thread suggested the legislature may declare a judicial decision ‘unconstitutional’.

]

Oh for Christ's sake, that is exactly what you've been saying. You're calling for the impeachment of judges for making rulings that you think are unconstitutional.

That is nonsensical.

Nowhere in the thread have I suggested the impeachment of judges for making rulings that I think are unconstitutional. What I have repeatedly referred to are decisions which do not following the fundamental rules of constitutional law, and/or are not in harmony with the documented legislative intent of our Constitution. I even gave a specific example, the Kelo decision and wrote:

In Kelo, Justice Sevens admitted the meaning of “public use” as understood by our founding fathers was being ignored, and thus, his decision violates a fundamental rule of constitutional law!

”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) See: 16 Am Jur 2d Constitutional law, constitutional construction, meaning of Language

Additionally, Justice Stevens’ written opinion is not in harmony with the very intentions for which the Fifth Amendment was adopted as applied to rights associated with property ownership.

On the other hand Justice Thomas, in his dissenting opinion, documents the meaning of the phrase “public use” as it was understood during the time the Constitution was adopted, and is far different from that given by Stevens’ precedent setting definitions which are far different than that understood by our founders. Justice Thomas then rightfully 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.”

There is a vast difference in calling for a judges’ impeachment for a ruling I think is unconstitutional, from thinking it is within Congress’ powers to impeach a judge for issuing rulings which do not following the fundamental rules of constitutional law, and are not in harmony with the documented intentions under which our Constitution was adopted. Why do you mischaracterize what I have posted?

JWK

“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

 

[pegwinn]

That is nonsensically wrong. In order for the legislature to declare a judicial decision 'unconstitutional' the legislature would have to take upon itself the role and authority of the judiciary,

which, for starters, would be a flagrant violation of the separation of powers.

Besides, the legislature along with the People have a constitutional recourse to deal with a SCOTUS decision that enough of them dispute. They can amend the Constitution.

If the legislature were sufficiently ticked off at the judges actions, they could ram through legislation that goes their way and includes a non-jurisdictional proviso that keeps the USSC from ruling on it.

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

Sure thing. Be glad to.

For Starters there is Article III, Sec 2 of our own Constitution: "...In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.."

That allows the Congress to remove the USSC from the appeals process.

Article I, sec 8 allows Congress to establish inferior tribunals and in that process establish jurisdiction.

Here is a good laymans article that discusses the process. It also provides case law for those that place importance on that sort of thing. Jurisdiction stripping - Wikipedia, the free encyclopedia

Hope this helps.

 

[candycorn]

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

deleted

cut short per our policy. LINK UP to your post.
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.

Just when you thought Newt had a chance....

Next!

 

[C_Clayton_Jones]

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

I’d like to see that as well.

Otherwise the notion of dragging ‘liberal’ judges before a republican House committee remains a delusional – and un-Constitutional – fantasy.

 

[pegwinn]

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

I’d like to see that as well.

Otherwise the notion of dragging ‘liberal’ judges before a republican House committee remains a delusional – and un-Constitutional – fantasy.

Scroll up a few posts to #130

Hope it helps.

 

[johnwk]

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

I’d like to see that as well.

Otherwise the notion of dragging ‘liberal’ judges before a republican House committee remains a delusional – and un-Constitutional – fantasy.

This has nothing to do with dragging ‘liberal’ judges before a republican House committee. But it does have plenty to do with Congress’ authorized powers which is explained in POST 124. And I suggest you follow the link to Mc-Grain v. Daugherty (1927), in which the court explains in detail Congressional oversight powers with reference to subpoenaing witnesses to testify to aid in Congress‘ legislative powers.

Hope that helps.

JWK

 

[candycorn]

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

I’d like to see that as well.

Otherwise the notion of dragging ‘liberal’ judges before a republican House committee remains a delusional – and un-Constitutional – fantasy.

This has nothing to do with dragging ‘liberal’ judges before a republican House committee. But it does have plenty to do with Congress’ authorized powers which is explained in POST 124. And I suggest you follow the link to Mc-Grain v. Daugherty (1927), in which the court explains in detail Congressional oversight powers with reference to subpoenaing witnesses to testify to aid in Congress‘ legislative powers.

Hope that helps.

JWK

Lord you're full of shit.

Just out of curiosity...what if the President was to be subpoenaed to appear before Congress to explain why he vetoed a bill or made some other decision that Congress wishes to question....would that be okay?

 

[American Horse]

'Gingrich would arrest judges," scream the headlines. You'd think he'd proposed some crazy, unconstitutional crackdown on federal judges. Instead,

Newt Gingrich's position paper, "Bringing the Courts Back Under the Constitution," has a set of controversial but thoughtful proposals including:

1. calling judges before Congress to explain their decisions,

2. impeaching judges or

3. eliminating courts that consistently get the Constitution wrong, and

4. limiting the applicability of Supreme Court decisions that distort the Constitution.

Congress routinely asks executive branch officials outside the White House to testify about their decisions.

Congress can compel the appearance of a cabinet secretary before it.

It occasionally subpoenas them to do that, and arrest would be a last, if they refuse, not the first resort.

It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals.

Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.

Mr. Gingrich discusses the possibility of abolishing individual judgeships or lower federal courts, while acknowledging that this would be "warranted only in the most extreme of circumstances."

The Constitution gives Congress the authority to "ordain and establish" lower courts. That includes the power to eliminate courts and judgeships, as Congress has occasionally done. Nonetheless, Mr. Gingrich concedes that "Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary." Stubborn disregard for the Constitution falls short of the "good behavior" required of judges and may justify impeachment.

Another controversial proposal: limiting the applicability of Supreme Court decisions. Mr. Gingrich proposes what Abraham Lincoln outlined in his First Inaugural Address, that "in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard."

Accordingly, Lincoln refused to treat the high court's Dred Scott decision—now recognized as outrageous judicial activism—as binding on the executive branch. If Lincoln's position seems extreme today, it only reinforces Mr. Gingrich's point that the balance of power has shifted too much toward the judiciary.

Among those contributions is a clear identification of the problem: "The power of the American judiciary has increased exponentially at the expense of elected representatives" such that "the Supreme Court has become a permanent constitutional convention." Mr. Gingrich understands that "judicial supremacy only survives due to the passivity of the executive and legislative branches." He acknowledges the importance of an independent judiciary but points out that "judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded."

Instead, he argues that the other two branches have the power and the obligation to push back. "The President and each member of Congress takes an oath to defend the Constitution," he notes; "if they believe that the judicial branch is acting contrary to the Constitution, then they have an obligation . . . to check and balance the judicial branch."

There's always the risk of overreach. But unlike the judiciary, democratic constraints provide a check [to the legislative and executive branches. for instance] Even the popular FDR couldn't get a heavily Democratic Congress to approve his court-packing scheme.

Gingrich offers several possible ways to push back while acknowledging that the best remedy for judicial activism is a president and Senate that will nominate and confirm constitutionalist judges. Beyond that, he describes his specific proposals as "constitutional steps that the legislative and executive branches . . . can take to check and balance the judiciary" he noted "these powers should be used sparingly."

His goals are modest; he hopes to begin "a national conversation" about "formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges."

While it's easy to criticize anyone who sticks his neck out with specific reform proposals, the alternative is to allow the federal courts to remain unaccountable. Mr. Gingrich's ideas deserve serious consideration, warts and all.


The above are excerpted and praphrased comments by Curt Levey, an attorney, and director of the Committee for Justice, and printed in the WSJ Dec 23, 2011 in an article titled 'Gingrich Vs. Judicial Activism'

 

[konradv]

Seriously? The Congress can pass federal laws and exempt them from judicial scrutiny if the law is challenged in court?

Can you reference that, please?

I’d like to see that as well.

Otherwise the notion of dragging ‘liberal’ judges before a republican House committee remains a delusional – and un-Constitutional – fantasy.

This has nothing to do with dragging ‘liberal’ judges before a republican House committee. But it does have plenty to do with Congress’ authorized powers which is explained in POST 124. And I suggest you follow the link to Mc-Grain v. Daugherty (1927), in which the court explains in detail Congressional oversight powers with reference to subpoenaing witnesses to testify to aid in Congress‘ legislative powers.

Newt wasn't talking about witnesses testifying about legislation, but about a kind of semi-legal, grand jury-type setting to determine "political guilt". There's also the problem of any legislation coming out of such a hearing being an unconstitutional breach of "Seperation of Powers". Since it's the courts that decide that sort of thing, it'd be an exercise in futility!

 

[NYcarbineer]

'Gingrich would arrest judges," scream the headlines. You'd think he'd proposed some crazy, unconstitutional crackdown on federal judges. Instead,

Newt Gingrich's position paper, "Bringing the Courts Back Under the Constitution," has a set of controversial but thoughtful proposals including:

1. calling judges before Congress to explain their decisions,

2. impeaching judges or

3. eliminating courts that consistently get the Constitution wrong, and

4. limiting the applicability of Supreme Court decisions that distort the Constitution.

]

The above absurdities are all based on the necessity of accepting the absolute premise that a particular conservative interpretation of the Constitution is the 'right' interpretation.

Very convenient if you're in that particular group of conservatives who agree with that premise.

 

[Inthemiddle]

If the legislature were sufficiently ticked off at the judges actions, they could ram through legislation that goes their way and includes a non-jurisdictional proviso that keeps the USSC from ruling on it.

If you're trying to suggest that Congress could pass a bill, and include a clause that said the courts cannot consider the constitutionality of the bill, you are completely wrong.

 

[JakeStarkey]

JohnWK is as wrong as Newt, without anymore debate.

Former Senator Bennett clearly explains why in the linked article.

Newt Gingrich's position on courts wrong | Deseret News