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March 21, 2004 - Stop the judges! Send the gay folks somewhere else!

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You know, if you actually read to the end of this I call for certain states to secede from the union and form a new country.  And I ague that this would be fair and make everyone much happier than they are now.


But I get there in steps.


And here we go.


Soon congress could have the power to reverse the decisions of the Supreme Court.  Cool.  And Dayton, Tennessee wants to ban homosexuals from living there?  Indeed they do.


Last week, buried at the end of on Mel Gibson and George Bush - March 14, 2004 - Mel Gibson's movie becomes the film that defines George Bush... - I mentioned there is a new 'Constitution Restoration Act' before congress.  This is a new bill submitted in both houses to limit the jurisdiction the Supreme Court and federal district courts over cases involving any federal, state, or local government official who publicly acknowledges God as the source of law, liberty, or government.  If passed, you cannot stop that official from holding that God’s will trumps the law and the constitution.


But wait!  There’s more.  Soon congress could have the power to reverse the decisions of the Supreme Court.  Cool.

There’s a second bill that actually proposes that congress should be allowed to reverse the decisions of the Supreme Court.

You could look it up.  Here’s the relevant text:



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




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,




This Act may be cited as the Congressional Accountability for Judicial Activism Act of 2004.




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.




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.




This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.


Two of my regular readers are lawyers, and took the usual courses in Constitutional Law.

Can they do this?  I’d guess so.

The congress shall have the power to make null and void what the judicial branch decides?  Why not give the president that power?  Co-equal branches of government in a balance of powers?  How silly.

Legal opinions are welcome here.


Of course no one actually cares about constitutional law.  It’s essentially a silly topic for dilatants.  If you agree, stop reading now…


There was muted reaction in the press.  Dahlia Lithwick, a legal scholar who writes for the general public had a few things to say.


See Not-So Supreme
The dumb new proposal to veto the Supreme Court.
Dahlia Lithwick - SLATE.COM - Posted Wednesday, March 17, 2004, at 3:32 PM PT

Her comments?


So who is HR 3920 really going after? The nine justices on the Supreme Court, who "were not elected and are serving life terms" and who should not have the final word on what "the American people must do and not do."  The bill serves as a warning that the court had better vote for majoritarian values or risk becoming irrelevant.


Professor Erwin Chemerinsky of University of Southern California Law School, in one of the only stories that's been written about the dumb bill, has opined correctly that when Robert Bork tried to terminate judicial review, he at least sought to do so by amending the Constitution.  Lewis wants to pass an act of Congress that the Supreme Court would merely find unconstitutional.  The best evidence that congressmen shouldn't get into the business of interpreting the Constitution?  Ron Lewis pithily arguing that just because Marbury v. Madison is 200 years old and the cornerstone of modern judicial review power, it's not in the Constitution so it's not all that important.


So what? you're thinking. One more dumb bill introduced in Congress by someone more interested in getting his name in the papers than enacting real laws.  It's just an unconstitutional bill that doesn't purport to redress the wrongs it decries.  Why does it make me so cranky?


I've never been one to argue that demagogues on the right are any worse than demagogues on the left.  But this practice of judiciary bashing is misguided.


Lithwick then launches into a discussion of a history of the deferent way folks have decided to construe the constitution.  You might click on the link and read it.


Her conclusion is clear:


Congressman Lewis' bill shouldn't be made into more than it is: a silly little piece of shucking and jiving to polarize voters and get his name in print.  I hereby kick myself for putting it in print.  But this legislation represents the crossing over of a line - from contempt for any judge who doesn't see things Lewis' way - to contempt for the bench as a whole.  And that shouldn't go unnoted.


My own conclusion is that this item, and last week’s item on calling for statutes that say God’s will is more important than the courts and the regular old secular law, while silly, and quite unlikely to go anywhere at all, represent a new front in the culture wars.


The forces that simply know we must move from secular, representative democracy to become a puritanical theocracy are making a whole lot of noise.  These last two weeks have been filled with calls to stop these “activist judges” from mocking God and the people’s will.  Who needs them?  They only protect evil people.


I doubt that we will chuck out the constitution and exile all the gay folks to internment camps in the Mojave, and burn Janet Jackson at the stake for the sake of Jesus, and toss Howard Stern in jail for having a potty mouth, but some days this business – all these calls purify America for the sake of all the oppressed Christians and their sensitive, impressionable, pure children - is just discouraging.


Also discouraging is this:


Tenn. County Wants to Charge Homosexuals
Associated Press - Wed Mar 17, 1:37 PM ET

You probably caught this on the news.


DAYTON, Tenn. - The county that was the site of the Scopes "Monkey Trial" over the teaching of evolution is asking lawmakers to amend state law so the county can charge homosexuals with crimes against nature.

The Rhea County commissioners approved the request 8-0 Tuesday.

Commissioner J.C. Fugate, who introduced the measure, also asked the county attorney to find a way to enact an ordinance banning homosexuals from living in the county.

"We need to keep them out of here," Fugate said.

The vote was denounced by Matt Nevels, president of the Chattanooga chapter of Parents, Family and Friends of Lesbians and Gays.

"That is the most farfetched idea put forth by any kind of public official," Nevels said. "I'm outraged."

… Rhea County is one of the most conservative counties in Tennessee.  It holds an annual festival commemorating the 1925 trial at which John T. Scopes was convicted of teaching evolution.  The verdict was thrown out on a technicality.  The trial became the subject of the play and movie "Inherit the Wind." …


Oh well.

Over at Pandagon Jesse Taylor comments:


Is there some law that says every reactionary moron in America has to do a tour of duty in Dayton, Tennessee?

"Yeah, I was there in '78 when we tried to bar restaurants from serving Jews, man... those were the days."

"That's nothin'!  I was there in '65 when we tried to get black people banned from public schools on account of their not being God's people!"


"Yeah, that's where I got this dent in my head from."


Well, the Rhea County commissioners got a lot of bad national press from all this and late in the week said they really didn’t mean it like it sounded.  They just didn’t like the idea of gay marriages and wanted to make some noise.  I think their claim is that they were misunderstood.  They’re really not bad people.


Well, there are gay people in this world, and people like Janet Jackson who aren’t appropriately ashamed of their sexuality or their bodies, and folks like Howard Stern who like to say whatever comes to mind.  Such people make any number of other people very, very uncomfortable.


The question is what to do about that discomfort. 


Telling those who are uncomfortable to shut up and just deal with it doesn’t seem like such a hot idea.  That only generates anger and deep resentment. 


On the other hand, giving those who are so very uncomfortable the political power to stop these “libertines” from showing off or saying bad words, or giving those so uncomfortable the power to deny rights and benefits to homosexuals, or even outlaw and exile them, seems equally ill-conceived.  A puritanical, theocratic police state keeping social discourse pure and monitoring it all appeals to only one segment of the population.  And anyway, it’s hard work.


Perhaps it’s time to Balkanize the country.  Designate some zones “pure and pious” Christian areas, and others “open and free speech” zones.  Let each develop their own governments and laws, and print their own currencies (with appropriate symbols on the coins and bills), and have each form their own standing armies and own foreign policies and all that.  Make everyone happy.


The South seceded once before, with a key issue being whether slavery should be legal.  Well, that’s no longer an issue.


Now we have a whole constellation of different issues – what do we do about gays and their place in society, what about this evolution business versus creationism, what is appropriate public language, what to do about sexual explicitness in music, art and film, what are the only acceptable religious views (or lack of same), what is the proper role of government in enforcing morality on its citizens – all these things.


We could have a new CSA – but not the old Confederate States of America.  This would be the protestant, evangelical Christian States of America.  They probably wouldn’t want California as part of the new confederacy.  We wouldn’t want Tennessee as part of the other new union states.  But we could work something out.  We wouldn’t need a war or anything.  That last one, in the 1860’s, was unfortunate.


But who would be forced to take North Dakota?  (Only kidding.)


Give up on the United States and evolve in two countries?  It’s a thought.  No one would have to compromise anything.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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