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Public Statements

Constitutional Guidelines for Supreme Court Decisions

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Location: Washington, DC


CONSTITUTIONAL GUIDELINES FOR SUPREME COURT DECISIONS -- (House of Representatives - May 10, 2005)

I yield to the gentleman from Iowa (Mr. King) such time as he must desire to speak on this very issue.

Mr. KING of Iowa. Mr. Speaker, I thank the gentleman from Texas (Mr. Poe), the judge, for the opportunity to say a few words about the future of this country, the history of this country and our beloved Constitution, and appreciate this opportunity to be here on this floor tonight.

As I watched the development here and the transition of history, and I am 55 years into this life, a little over a half a century, and I was raised with a deep and abiding love and respect for our Constitution and for the rule of law, the fact that a law existed meant that the judgment of the people had spoken. And according to the strong directive of my father, I was to then adhere to that law and adhere to that Constitution. And if I did not like the language that was there and the intent of the Constitution or the law, it was my job to step forward as a citizen of the United States and seek to change it; not to ignore it, not to amend it in a fashion that did not have the will of the people in support of it.

And so, today, Mr. Speaker, we have gone to this point where I look back upon this transition, this transition that has taken place over the 55 years of my life and the 45 or so years that I have paid attention to what is going on in the United States of America, and I have watched a dramatic transition take place within the judicial branch of government.

And I want to acknowledge at the beginning of this discussion, the gentleman from Texas (Mr. Poe) will know this, that I had the privilege to sit down and have lunch with a group of Supreme Court justices today, and I very much appreciate them and the other justices that joined them. It was a very, very good gesture on their part to reach out and open up a dialogue and give us an opportunity to speak about and discuss the disagreements that we have between the legislative branch and the judicial branch of government.

It is a natural tension that exists between these three branches of government, and this legislative branch of government, which clearly has its duties to write the laws; the executive branch of government which has its duties to execute those laws, enforce those laws; and the judicial branch of government whose job it is to interpret the laws, interpret the Constitution. It is a natural tension that exists, and it will go on as long as this is a great country. And it is a great country.

And I want to compliment the justices of the Supreme Court for being part of this effort to open the dialogue and give us an opportunity to discuss our differences. And I look forward to those opportunities to continue to sit down and have those discussions, and I will take advantage of that.

But I have to say here tonight that I have watched a transition over the last 55 years or so of my lifetime.
And I would go back to a case that would be about 1963, Murray v. Curlett, and that was the case when Madeline Murray O'Hare became the most hated woman in America, and she successfully went to the United States Supreme Court and removed prayer from the public schools.

That, Mr. Speaker, I believe started us down the path, down the path of bowing to the judicial branch of government, maybe the last time that the American public really questioned and challenged the decisions that were made over across the street in the Supreme Court building.

This country has accepted those decisions because they believe that they do not understand the Constitution well enough to second guess a judge, and they do not understand the letter or the congressional intent of the law well enough to second guess a judge's decision to overturn the clear directive and intent of Congress. That has happened time after time after time.
And we have seen justice after justice reach out into foreign law, reach into foreign law to find a conclusion that suits their intent and their belief of how this country ought to be shaped and how it ought to be formed. Murray v. Curlett, prayer out of the public, schools started us down a slippery slope, a fast and slippery slide down into an abyss which I do not know how we swim out of it.

And I asked this question, and I have asked it of the Chief Justice directly, and that is, in case after case after case, we have seen decisions made by which we cannot recognize the Constitution any longer. One of those cases would be the affirmative action cases that were before the Supreme Court I believe it was a year ago last April 19. And in those cases, I sat and listened to that. I went to hear profound constitutional arguments. And where would you go in the world to hear profound constitutional arguments except in the chambers of the United States Supreme Court? There is no higher calling and no higher standard for constitutional arguments.

And yet as I listened that day, I heard one, one constitutional argument, actually relatively profound. The case had to do with affirmative action. Chief Justice Scalia asked the question of the Michigan attorneys: If we rule against you and it results in one minority in your school, 100 percent minorities in your school or no minorities in your school, what possible constitutional difference can that make?

Now, the answer was long. But it was not clear. The question is clear to me. He directed that question directly back to the Constitution, which is where the entire oral argument should have focused. And yet it happens less and less as I hear these arguments before the Supreme Court because there is an entire industry that has been built up on trying to analyze the particular personal viewpoints of each of the justices. There is quite a history there to analyze, and quite an industry that has been built up around that.

But the arguments that go to the Constitution itself are ever diminished year by year, case by case, to the point where I believe that the courts have, because of stare decisis, because of the belief that once a decision is made, they should honor that decision of the previous court, not overturn the decision of the previous court. I could name you exceptions.

Stare decisis says that the Supreme Court is painting themselves into a legal corner. And on the other side of that room is the doorway back to the Constitution. But unless that paint dries, they cannot get back out the door. And as long as they respect stare decisis, this respect for a decision that is made by the previous decision of the court, the paint never dries, and they are trapped further and further into a corner that prohibits them from going back to the Constitution.

And so if you cannot get back to the Constitution, on what do you base your decisions? Well, foreign law. Foreign law is a nice and convenient decision that can be made. I have a list of some of these here, Mr. Speaker, and it is quite an interesting list. Justice Breyer, in his dissent, and I always give credit for dissent, Knight v. Florida 1999, A growing number of courts outside the United States courts that accept or assume the lawfulness of the death penalty have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading or unusually cruel.

Sounds a lot like some of the language in our Constitution. But how could a lengthy delay in administering a death penalty change the ultimate result of that?

If locking someone up in prison for an extended period of time is cruel and inhuman, then would we not have to then release everyone that is in our prisons?

And in the case of Pratt v. Attorney General of Jamaica, for example, the privy council considered whether Jamaica lawfully could execute two prisoners held for 14 years after sentencing. The council noted that Jamaican law authorized the death penalty, and the United Nations Committee on Human Rights has written that capital punishment is not, per se, unlawful under the human rights covenant; Jamaican law, the United Nation's Committee on Human Rights.

And then the Supreme Court of India has held that an appellate court which itself has authority to sentence must take account of delay when deciding whether to impose the death penalty. This cited by the Supreme Court of the United States, Jamaican law, European, United Nations Committee on Human Rights, Indian law, the Supreme Court of Zimbabwe, and I quote, the Supreme Court of Zimbabwe, after surveying holdings of many foreign courts concluded that delays of 5 and 6 years were inordinate and constituted torture or inhumane or degrading punishment or other such treatment. Reference to the Zimbabwe law.

This proclivity for citing foreign law, when there is a clear directive to adhere to the Constitution and we have nothing else that directs us as Members of Congress as Members, of the executive branch who are sworn in or as Members of the United States Supreme Court, we take the same oath to the Constitution of the United States. And this Constitution is written and drafted and ratified by the people of this country. We shall never have another.

There is not another circumstance in history that could be reconstructed by anyone in this Chamber, by anyone in this city or anyone in this country that I know that could go back and say, well, if we lost this Constitution, we would just construct another one. We would find a way to get together in the blue zones and in the red zones of America, and we would draft up a Constitution that was living and breathing, and it would be a document that better fit the day of our age, and it would be something that would protect the interests of the minority against the tyranny of the majority, or the rights of the minority against the will of the majority. By the way, what protects the constitutional rights of the majority against the whims of the court?

And so, today, we have gone in my lifetime from a belief that this foundational document of the Constitution, which I carry in my pocket every single day, this Constitution that I believe is our covenant with our Founding Fathers, our guarantee of rights and our guarantee of freedom, that clearly spells out the responsibilities of each branch of government.

And, by the way, you can read this document through and through and through again. There is nothing in there that says separate but equal branches of government. It clearly lays out the responsibilities of each branch of government and, when read, gives the Congress the responsibility to be the final decision-maker on the courts themselves.

And so, Mr. Speaker, I propose that we, as a Congress, have an obligation, an obligation to defend this Constitution, an obligation to speak our minds when we disagree with the decisions of the court, but make a logical and a rational and a constitutional argument for our side, and call upon the Chief Justice and the Supreme Court to adhere to this Constitution, to adhere to their oath of office, to adhere to the laws of this land and to reject the directive that they might think they get when they travel to other lands, that intercedes with other ideas, other concepts, other cultures.

We separated ourselves from Great Britain for a good reason 200 and some years ago, and it was because we did not want to be Western Europe, and we did not want to be Jamaica, and we did not want to be Zimbabwe. We want to be a nation of free people, free people governed by a Constitution that a free people have ratified, not governed by foreign law.

And what is predictable about this foreign law? How can a citizen of this country aspire to move forward and invest capital and invest time and effort and build this future and be a good citizen of the United States of America when they do not know when a decision might come down from the Supreme Court that says, oops, there was a law over here in Zimbabwe; maybe there was a law in Ghana. Maybe there was a law in Costa Rica. Maybe there was a law in Russia, Israel, Belarus, anywhere.

How can we have predictability in our Constitution and our law if the courts can cite whatever, as the judge from Texas said, whatever might suit their whim of the moment?

So I believe we have to adhere back to this Constitution because we have migrated from its meaning. And even though the courts found in Murray v. Curlett that there was this separation of the church and State that was created there, took prayer out of the public schools. And by the way, I do not believe the Constitution calls for that for a minute. Once that decision was made and the letter of the Constitution and the intent of the Founding Fathers was ignored and we began to migrate away from the Constitution itself, we started down that slippery slope.

So is this Constitution what our Founding Fathers believed it should be? Did the Framers draft this Constitution to protect the rights of the minority against the will of the majority, protect the rights of humanity against all forces whatsoever? They believed that this constitutional framework was for the gentleman and for me and for everyone in this country. But it has changed. And there are a number of people, in fact, I believe a growing number of people, that believe this Constitution no longer means what it says; that it is a living, breathing document, that nine Justices, a majority of nine Justices, five of them unaccountable to the people, should direct this society and this civilization.

But it is the vision of our Founding Fathers that those elected by the people should direct this examination and that the Judges should be ruling upon the letter and the intent of the Constitution, the letter and the intent of the law. And that is as far as it goes.

If this Constitution does not mean what it says, then what purpose does it have? It is either a living, breathing document that is flexible and can be malleable and can be shaped by any Justice that happens to have the good fortune to be appointed to the bench, or those words written on this document in my jacket are sacred and they are meant to be amended only by the people then whose description is in the Constitution itself.

It is a living, breathing document or we are originalists that believe in the original intent of this Constitution. If it is changed, if it is not, what it says, it means, then what does, Mr. Speaker, protect the rights of the minority against the will of the majority? What protects all of our rights as citizens? What preserves this great country if it can be shaped by the whim of the Judges?

http://thomas.loc.gov

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