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Article published Nov 23, 2003
Ten
Commandments: New bill in House lacks teeth to accomplish its
intent
CHRISTINA FAWCETT JEFFREY
For the
Herald-Journal
Is the United States becoming a Kritarchy -- that
is, a nation ruled by judges? Are the Democrats filibustering Republican
judicial nominees because those nominees are about to join the real ruling
class? Do they know that the only way to really influence the law of the land is
by influencing who becomes a judge?Because Democrats favor an activist court,
their actions are consistent with their beliefs. But Republicans say they are
opposed to activist judging. So why don't the Republicans use their
constitutionally given powers to weaken the power of the judicial branch and
thus take away a big incentive for the Democrats to filibuster?I think everyone
in Washington realizes that America has become a Kritarchy. The three branches
of government are working together to support a system that allows judges to
rule without the hindrance of checks and balances. Once a judge is confirmed by
the U.S. Senate, he or she becomes an un-elected ruler for life.This would be a
problem for a representative republic no matter the views of the judges, but it
is exacerbated by the fact that the values of these un-elected rulers have moved
further and further away from the values of ordinary Americans.The Republican
majority in Congress could introduce legislation to remove this judicial threat
to representative government and to American core values. Examples of the latter
include support for the Ten Commandments in public places and the words "under
God" in the Pledge of Allegiance. I've never seen a poll where a majority of
Americans didn't support prayer in school. But Congress has never acted in these
areas. It has the power under Article III, Section II, to restrain the appellate
jurisdiction of the Supreme Court, but it doesn't use it.I think the
congressional Republicans are afraid of The New York Times, the Los Angeles
Times and the Washington Post and the elite opinion represented on those
esteemed pages. Elite opinion favors judicial activism.So instead of offering
legislation that may really restrain judicial activism, such as the legislation
proposed by Franklin Delano Roosevelt when he was faced with an activist court,
our members propose constitutional amendments they know will never pass and weak
bills like H.R. 2045, the so-called Ten Commandments Defense Act.People all over
the country are upset about Federal Judge Myron Thompson's order to remove a
monument containing the Ten Commandments and other religious and legal sources
from the rotunda of the Alabama Judicial Building. Judge Thompson said he had to
order the monument removed because the state of Alabama does not have the right
to acknowledge God.H.R. 2045, a bill with 90 co-sponsors, is designed to prevent
Judge Thompson from doing this again, however, it will not prevent the Supreme
Court from banning the Ten Commandments, and so it is nothing but "boob bait for
the bubbas." Forgive the crude expression, but it is so apt that this writer
couldn't resist. James Carville actually is responsible for bringing it to my
attention when, in 1992, he was asked to explain Bill Clinton's use of
pro-family values ads in the American South. Aw, shucks, folks, Carville told
us, that was just "boob bait for the bubbas." So is H.R. 2045.As written, H.R.
2045 will temporarily serve to take the heat off Congress to "do something"
about judicial tyranny. But the effects will be short-lived because 2045 omits
the Supreme Court among the courts that it says must permit the display of the
Ten Commandments.Since H.R. 2045 does not attempt to bind the Supreme Court, the
Supreme Court simply can overrule any lower court's ruling when that ruling is
appealed to the highest level.A serious bill to defend the Ten Commandments
would be carefully and constitutionally crafted to create a legal hedge of
protection for state and local public officials who, in the ordinary course of
their official duties, and in concordance with their own constitutional and
legal obligations, have discretion in the design and decoration of public
places.Furthermore, such a bill would have a clause stating that any federal
judge, not to exclude members of the Supreme Court, who rules contrary to the
statute will be removed for cause -- that is, lack of "good behavior" -- if the
judge refuses to follow the law. Now that would be a law with genuine teeth.Many
of the people who have signed onto H.R. 2045 are lawyers. But one need not be a
lawyer to see that this bill will not defend the Ten Commandments. Its
supporters need to go back to the drawing board and come up with a real bill to
defend the Ten Commandments, and then they should rally around it and pass
it.They know what powers they have to keep the judicial branch of government in
check. They should use them. If they don't, then the people should use its power
at the ballot box to replace them.Christina Fawcett Jeffreylives in Spartanburg.
She is a former historian of the U.S. House of Representatives.