COMMENTARY FROM CONGRESSMAN JOE PITTS

For Immediate Release\
July 17, 2002

# Time to Rein In the Courts

By Congressman Joe Pitts

A large part of the federal judiciary is out of control and needs to be
reined in. The Founders established three co-equal branches of
government designed to "check and balance" each other so that no single
branch becomes too powerful. It is time for the Executive and
Legislative branches (the President and Congress) to do their jobs and
bring the courts back down to earth.

Only Congress can make law. The first words in the Constitution
following the Preamble are: "All legislative Power herein granted shall
be vested in a Congress of the United States."

But wasn't the Supreme Court making law when it threw out state laws
against flag burning? Wasn't the Supreme Court making law when it told
states they had to permit abortion? Wasn't the 9^th^ U.S. Circuit Court
of Appeals making law last month when it told nine western states that
school students couldn't recite the Pledge of Allegiance anymore? The
answer, of course, is, "Yes."

Any time the courts move even an inch beyond careful interpretation of
law based exclusively on easily established principles taken directly
from a commonsense reading of the Constitution, they are themselves
violating Article I of the Constitution by legislating.

The most vivid illustration of how the Judicial branch has attempted to
usurp the powers of the Legislative branch is also the most
controversial. In 1868, Thaddeus Stevens introduced the 14^th^ Amendment
to the Constitution to guarantee the rights of citizenship to former
slaves by denying states the power to "deprive any person of life,
liberty, or property, without due process of law." Fast forward to 1965.
Estelle Griswold, the executive director of Planned Parenthood of
Connecticut, got in trouble for illegally advising the use of
contraception to a married couple. She appealed her case to the Supreme
Court and won. The Supreme Court ruled that Thaddeus Stevens' amendment
implied a right to privacy. Mrs. Griswold, they ruled, was innocent
because Connecticut law violated that right.

Fast-forward again to 1973. A woman named Norma McCorvey challenged
Texas' anti-abortion law in court under the pseudonym of Jane Roe. In
*Roe v. Wade*, the Supreme Court ruled that Thaddeus Stevens' amendment
which was designed to guarantee the rights of former slaves implied a
right to privacy and that a right to privacy implied the right to an
abortion.

Fast-forward again to 2000. Nebraska had a law banning partial-birth
abortion. Dr. LeRoy Carhart, a physician from Lincoln, Nebraska,
challenged it in court and won. The court ruled that since Thaddeus
Stevens' amendment to guarantee the rights of former slaves implied a
right to privacy, and since that right to privacy implied a right to
abortion, doctors should also have the right to partially deliver a
baby, stab it through the head with a pair of scissors, vacuum out its
brain, and extract its corpse from its mother's birth canal.

How did this happen? Did Thaddeus Stevens, in 1868, ever imagine that
his language to protect African-Americans would be used to defend one of
the most barbaric and violent acts imaginable? Did James Madison, the
author of the First Amendment, ever imagine that his words would be used
to strip the Ten Commandments from public places and bar schoolchildren
from reciting the Pledge of Allegiance? No, they didn't.

In 1788, Alexander Hamilton argued that the Judicial branch would always
be the weakest and least dangerous branch of government because "it has
no influence over either the sword or the purse." I hate to say it, but
Hamilton was wrong. The fault lies, however, with the other two branches
of government.

It's time for the President (the sword) and Congress (the purse) to
reassert themselves and check the power of the Judiciary.

The Constitution explicitly grants Congress the power to define the
courts' power to hear appeals. Article I, Section 2 says, "\[T\]he
Supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make."

Not once in American history has Congress used this power to limit the
courts' jurisdiction. It's time. Nine men and women elected by no one,
answerable to no one, and serving for life should not have so much
power. Not in a democracy.

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