Constitutional Guidelines for Supreme Court Decisions
CONSTITUTIONAL GUIDELINES FOR SUPREME COURT DECISIONS -- (House of Representatives - May 10, 2005)
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Mr. GOHMERT. Mr. Speaker, I thank the gentleman from Texas (Mr. Poe), the former judge from Houston.
I thank the gentleman from Iowa (Mr. King). I thought those were very profound comments.
Mr. Speaker, I heard the gentleman from Texas (Mr. Poe) mention something earlier and this was also touched on by the gentleman from Iowa (Mr. King), but regarding the beginning of this Nation and how we had separated ourselves from Europe, particularly in the War For Independence that began with the 1776 Declaration of Independence and how we won that war and we separated ourselves. And then of course the Articles of Confederation did not work, and then 1789 we did have this wonderful Constitution.
I had also heard the gentleman say we won yet again, the battle with the British in the War of 1812. As the gentleman mentioned, here where we are standing and actually back in Statuary Hall as it is now, that was the old House Chamber and the British came up and they burned it, and actually the middle part burned. It was wooden.
And the gentleman mentioned that we had defeated them. We ran them out after they burned much of Washington. I would like to expand on that.
I had thought, an old history major like me, I thought our American forces rallied and drove the British out in 1814 after they burned much of the town. But apparently the American forces were in such disarray they were in no situation where they could have allied and defeated the British at that time. We had some help at that point.
It turns out the night they set what is now Statuary Hall and the old Senate Chamber on fire, there was a big rain storm that came that put out the fire that kept the fire from completely destroying the building which left enough that they could work from afterward.
It was not American troops the next day and after that drove the British troops out. But as it turns out there was an incredible wind storm that arose. And it was of such force and such magnitude, it is given credit for killing 30 British troops. It knocked British cannons off their mounts. It created a great deal of confusion. It played a part in the accidental explosion of the British gunpowder statutes. It created such chaos the British fled on their own because of those acts of nature.
Well, as you know, insurance companies would call those acts of God, and I would tend to agree with them. Those were acts of God. I would like to think the Americans rallied. They could not do it. There was a higher power involved. But when we look at this issue, the gentleman took the oath to the Constitution. I took an oath to support and defend the Constitution. I took that same oath when I went into the United States Army. I spent 4 years on active duty.
It is worth noting in a letter to Abigail Adams dated September 11, 1804, Thomas Jefferson was very concerned after the decision in Marbury v. Madison; he cautioned that judicial review would lead to a form of despotism. Judicial review is not a power explicitly granted in the U.S. Constitution. But in Marbury v. Madison, the court inferred this power based on the fact that Constitution is the supreme law of the land. But judges should always remember that the Constitution itself is the supreme law of this land and that each judge should never forget their oath to uphold the supreme law of the land and not be citing the law from other jurisdictions, from other lands that have nothing to do with our Constitution.
I tell you that Justice Scalia is an amazing intellect. In the Roper v. Simmons case, I do not take issue here with the outcome of the case, but for our purposes I would like to take issue and I think it is critical we take issue with the methodology in arriving at their opinion. And Justice Scalia did that in his dissent on behalf of himself and Chief Justice Rehnquist and also Justice Thomas.
He said this, this is just an excerpt, "In urging approval of a Constitution that gave life tenured judges the power to nullify laws enacted by the people's representative, Alexander Hamilton assured the citizens of New York that there was little risk in this since 'the judiciary has neither force nor will but merely judgment.' "
That is from the Federalist No. 78, page 465.
Hamilton had in mind a traditional judiciary "bound down by strict rules and precedents which served to define and point their duty in every particular case that comes before them."
Bound down indeed, says Scalia. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years. Not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.
The Court reaches this implausible result by purporting to revert not to the original meaning of either amendment, but to "the evolved standards of decency" of our national society.
It then finds, and this is Scalia still talking, it then finds on a flimsiest of grounds that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worst still, the Court says in so many words that what our people's laws say about the issue does not in the last analysis matter. This is Scalia still quoting:
"In the end our own judgment will be brought to bear on the question of acceptability of the death penalty under the eighth amendment."
Now, the Court has thus proclaimed itself the sole arbiter of our Nation's moral standards, and in the course of discharging that awesome responsibility, purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our eighth amendment, any more than the meaning of other provisions of our Constitution should be determined by the subjective views of five members of this Court and like-minded foreigners, I dissent.
This is Justice Scalia.
Similarly, in Roper, Justice O'Connor called on the Court to substitute basically its own moral judgment for "the judgment of the nations' legislatures."
The majority, however, persists in imposing its will on the States and backs its decision up by citing the mandates of foreign legislatures.
The usurpation of the voice of the people began roughly with New York v. Lochner, and the word Lochnerization has since been used to describe cases in which the judiciary overrides the democratic law-making authority and imposes its own morality, or in some cases lack of morality, on the people.
Lochner was a 1905 case that has since been overruled; but in this case, the Supreme Court told the New York legislature it could not regulate certain items.
So this usurpation continued with Roe v. Wade and again most recently in Lawrence v. Texas.
Now, as the gentleman from Iowa (Mr. King) had mentioned, there was a very nice lunch today. And the Supreme Court was very gracious in reaching out and having members of the Committee on the Judiciary. There were Senators. There were some of us from the House Committee on the Judiciary. There was a few staff members. And we heard from Justice Stevens, Justice O'Connor, Justice Breyer, Justice Kennedy and Justice Souter.
I would say those are very, very hard-working, well-meaning Justices. But good intentions are not enough. We know from history itself when we think about the words "this means peace in our time," Chamberlain had the best of intentions. He meant well. He thought he was doing what was best for the world, and what he was doing was giving homage and helping a tyrant like Hitler. And so good intentions simply are not enough.
That oath must be upheld. So that is why I do take issue with the rationale in these cases. These are fine judges, but they have gone astray when they venture out beyond their oath and neglect that from which they have sworn to uphold.
If I might, one of the most frustrating things in this body has been the way people can play fast and loose with what is real, absolute truth. The Constitution is truth. The Constitution does not change. It should not just go flittering here and there, depending on the whims of the Court.
Just like I heard prior to us coming in, the prior presentation about Social Security, and I could not help but note when there was talk of, well, in 2017 these old Republicans, they are talking about it is going bankrupt, and that is just all a facade of sorts, basically paraphrasing. Then the words were said, but it is actually in 2017 when there is more cash going out than comes in. We fall back on these trillions of dollars that are in cash bonds that will continue to earn interest. Cash sounds like there is cash there. There is nothing there. There are IOUs. There are Federal IOUs, and to say they will continue to draw interest, they stick more IOUs in there and say there is your interest. That is just so disingenuous. It is so misleading, and even though I really believe those people saying those things have the best of intentions, they are doing great harm to the Nation by misleading.
In the same way, the Court has the best of intentions. They mean well. They think they are doing this great service. They go to the different seminars and they speak in different places, and they hear these different things from other people who maybe look down on our laws for this or our laws for that. That has nothing to do with our Constitution.
I really appreciate the gentleman from Texas (Mr. Poe) yielding to me to say some of these things that are so overwhelming in my heart and soul, as I look to the days ahead. I know they trouble my colleague greatly and I know that both of us came from the same school, if you are going to legislate, by golly, take off the robe, come off the bench, run for the legislature and if, God willing, you get elected, then you can come legislate. I agreed with you on that. We did the same thing. We are here, and hopefully America will help bring the justices back to reality, and the reality is they took an oath to support and defend the Constitution.
So I appreciate that time, and let me just say, there has been a lot of misleading information saying that some people, by their comments, they are doing great harm and inciting violence. I tell you what, as a judge I know you were tough and I was, too. Anybody that threatens, attempts to use force, attempts to use violence of any kind, they need to go to prison when it comes to our courts.
That is why we are pushing the bill to make the sentences even tougher for anybody that is involved in that, but by golly, our Constitution promised us that First Amendment right to freedom of speech. Neither the Supreme Court nor anybody else should restrict what the Constitution and the Bill of Rights has granted to us. God willing, they will not and America will not let them do it in a nonviolent way.
I thank the gentleman for yielding.
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