abstract: Not being constitutionally required, congress may, simply by majority vote, abolish all or part of these inferior courts. Congress and the judiciary are not equal. Congress is the judiciary's master. It holds over the lower United States courts the power of life and death; the power to create them, the power to abolish them, the power to limit them.

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by Louis Sette

God blessed America with a constitutional government of checks and balances.1 The design of the system was to prohibit any branch of the United States government from exceeding its authority, at least not for long. But congress' shameful charades in recent decades have permitted the power of the United States courts to grow virtually without restraint. Congress has pretended that it is powerless to check the courts' persistence in issuing unlawful rulings. This is not so.2 The result of this pretense has been that the United States courts have seized and wielded illegitimate power, power far beyond the limits provided by the Constitution. The influence of the courts has thus become unduly great and government unbalanced. Today, in practice, we have a government of charades and imbalances instead of one of checks and balances.

Actually, in the constitutional arrangement, congress holds a fearsome authority over the United States judiciary. This authority is more than sufficient for checking the aggressiveness of the courts and forcing judges back into their constitutional places. However, congress has shied away from exercising its authority in order to stay out of the controversies that would surely arise if it asserted its disciplinary role.

Congressmen know that the United States courts have festooned the humanist agenda with garlands of favorable rulings. In exchange for these favors, the media and academia have created for the courts the fa7ade of prestige. Powerful constituencies, such as feminists and homosexuals, stand ready to unleash torrents of castigation and criticism, amplified by the major news outlets, against anyone who would suggest that the power of the courts could and should be curbed.

Congressmen, for the most part, fearing such powerful and committed opponents, have chosen to let the courts run constitutionally wild. They have shamefully pretended, by an abiding and deferential silence, that when the courts speak, there is not anything congress can do. The judiciary, preening and strutting, plays the cock of the governmental yard, puffed with confidence, effectively unrivaled.3 This little show has gone on for so long that few know the true, constitutional state of affairs. When it comes to a test of power between congress and the United States courts, it is congress, constitutionally speaking, that rules the roost.

The Consequence of Constitutional Ignorance

Christians, by refusing to learn even their constitutional ABCs, appear to have assumed that congress' inaction in the face of judicial power grabbing was an unavoidable consequence of constitutional life. The thinking appears to have been that congress has not acted because, by law, it could not. Surely congress would have done something by now if it could have! Unbeknownst to Christians, congress has held the power all along to restrain the courts anytime it wanted to. Of course congressmen, by and large, kept this embarrassing fact to themselves, even as they raised money and sought votes from God's people.

Being ignorant of the constitutional basics is not merely a civic failing. It is also a failing of faith. God, after all, not the Founders, ordained the blessing of constitutional government for us in this day. Many Christians around the world, even at this hour, labor under governments that know few if any legal limits to their claim of power over church, family, property, and even life. In some cases, challenging these governments brings quick imprisonment and sometimes death. Here, however, Christians can hold in their hands the very document that secures their many freedoms, including religious freedom. In it, Christians can find the basic law that represents the historical culmination to date of God's deliverance of the faithful from governmental oppression. From Pharaoh and Babylon, from pope and cruel kings, God's people and His church have been progressively delivered. In this time and place, the Constitution explicitly guarantees that congress shall not prohibit the "free exercise" of religion. The document's few pages4 would reveal to Christians the actual contours of God's manifold blessing among the constitutional provisions. But God's people--even in their Christian and home schools--have been unwilling to invest time in reading the constitutional protections that God has put in their hands.5 By this, Christians may be revealing how little they really care about the freedoms God has given them.

United States courts have smashed nativity scenes and caused the silent screams of infants being torn from wombs. They have told local communities that they could not keep out obscenity and near naked, bar top dancing on the ridiculous premise that it was an "expression" protected by the First Amendment. Most recently the United States courts invaded an Alabama state courthouse, blackjacked the state's chief justice with a constitutional lie, and stole away with the Ten Commandments. In the face of all this, Christians turned to radio talk show hosts for advice and stroking.6 Meanwhile, there remains no evidence that Christians, in any measurable number, have been moved to actually read the Constitution. As a consequence, they still do not know that God has given them significant legal tools, ones they might wield to protect His church, themselves and the country they profess to love from judicial attacks. But those tools lie there, unknown and unused, within the pages of a Constitution rarely read.

Legal Tool Number One: Congress Can Take Power Away from the Supreme Court.

Art. III, Section. 1 provides that "(T)he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." After setting forth the kinds of cases to which this "judicial power" shall apply, Section 2 says:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make (emphasis added).

The Supreme Court only has the absolute, constitutional right to hear those cases to which "ambassadors, other public ministers and consuls, and (any)...state" are parties. In all other cases, according to Section 2, the power of the Supreme Court shall be limited by "such exceptions, and under such regulations as the Congress shall make." In other words, regarding most kinds of cases, congress can remove the Supreme Court's right to hear them or limit the kinds of remedies the Supreme Court can order. It can do this by legislating "exceptions" to the Supreme Court's jurisdiction and "regulations" regarding its actions.7

Legal Tool Number Two: Congress Can Totally Abolish the United States Lower Courts.

Article I, generally, sets forth the powers of congress. Among the particular powers set forth in Section 8 is this: "To constitute tribunals inferior to the Supreme Court." The meaning of this is quite evident, but so alien to what Americans have been led to believe, that it may be hard for some to grasp. Put most plainly, there need not be any United States courts beneath the Supreme Court. Lest there seem to be some mistake about this, let us return to Article III, Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish (emphasis added).

There are two levels of Federal courts beneath the Supreme Court: the United States District Courts, where trials are held, and U.S. Courts of Appeals, to which decisions of the trial courts can be appealed. These are the "inferior courts." The Constitution does not require these courts to exist.8 The states, by their ratification of the Constitution, did not establish any court other than the Supreme Court. Instead, the states granted to congress the discretionary power to create "inferior courts," if it chose to do so.

Congress, nearly from the outset, chose to exercise that discretionary power and did indeed create United States "inferior courts."9 Nevertheless, these courts exist only because congress created them by law. To borrow the constitutional language, congress did "ordain and establish" them. Not being constitutionally required, congress may, simply by majority vote, abolish all or part of these "inferior courts."10 It may also limit their reach.11 This is a constitutional fact. It reduces to myth the grade school rubric about "three equal branches of government." Congress and the judiciary are not equal. Congress is the judiciary's master. It holds over the lower United States courts the power of life and death; the power to create them, the power to abolish them, the power to limit them.12

Legal Tool Number Three: Congress Can Impeach Judges of the United States Supreme and Inferior Courts.

In the constitutional mythology of our day, one of the prevailing myths is that judges of the United States courts are "appointed for life." A casual reading of Art. III, Section 1, would show this is false. The pertinent section says, "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior...." There is a continuing contingency inherent in each judicial appointment. If congress is moved to act, the appointment will not out live the judge's "good behavior." And, in reviewing behavior, it is congress which judges the judges. The House has "the sole power of impeachment" (Art. I. Sec. 2.) and the Senate "the sole power to try all impeachments" (Art. I. Sec. 3.). This means the House can vote a Bill of Impeachment, which would be the format for making a charge against a judge for failing to meet the standard of "good behavior." The Senate would then conduct a trial on the charge. If it found the charge to be true, then the judge would be removed from office.

Interestingly, congress has greater leeway in removing judges than it has for removing the president and vice president. Art. II, Sec. 4., specifies that congress, by the impeachment process, can remove the president and vice president only for "treason, bribery, or other high crimes and misdemeanors." Judges, however, can be removed for merely failing to meet the "good behavior" standard. This is a broad enough standard to include behavior in and out of office, behavior which may or may not violate the law.13 It would also appear wide enough to include rendering decisions that are clearly contrary to the plain text of the Constitution. The members of the judicial branch are much less insulated from congressional discipline than the members of the executive branch.

A Current Application

In October, 2003, Rep. John Hostettler (R.- Ind.) introduced legislation designed to remove jurisdiction from the Supreme Court and United States inferior courts over key provisions of the Defense of Marriage Act (DOMA) passed in 1996.14 DOMA had been passed as an attempt to block homosexual marriages from spreading among the states. The act provided that no state was required to honor marriages licensed by another state between people of the same sex. Congress, reflecting the concern of many people, feared the United States courts would twist the plain meaning of DOMA and render it useless as a bulwark against the spread of homosexual marriages. Congressman Hostettler was attempting to activate congress' power to keep the courts' hands off this legislation.15

Put Them To the Test

In this political season, congressmen will be asking Christians to help re-elect them. Challengers shall ask God's people for support in trying to unseat incumbents. They will seek to win over Christians by making certain conservative noises about family values and being pro-life and the like. The constitutionally informed Christian, holding his copy of the Constitution in his hand, might ask such candidates at some public meeting a few frank questions--

"Sir, would you support removing from United States courts jurisdiction over issues they have abused?"

Or, "Sir, would you support putting limits on certain inferior courts, or even abolishing them, for a pattern of abusive decisions?"

Or, "Sir, would you support the impeachment of United States judges for their arrogant behavior in rendering obviously unconstitutional rulings?"

Or, "Sir, in light of the arsenal of weapons at congress' disposal, if elected, which ones would you use to discipline judges who have ruled that abortion is a constitutional right and that the Ten Commandments must be removed from that Alabama courthouse?" (Please allow sufficient time for the candidate to recover his equilibrium.)

Follow up with letters to the editor, reporting the candidates' responses, or their unwillingness to respond at all. This would surely liven up the campaign season as well as enlighten other Christian voters. It would also be a means of rightly dividing the candidates' true positions from their campaign claims. It would be a means of revealing the congressional charlatans and correcting the governmental imbalances.

Louis Sette is retired from the practice of law, living in Forest, Virginia, with his wife and two sons. He is a member of the Grace Orthodox Presbyterian Church. He may be reached at l.f.sette@worldnet.att.net.

Endnotes

1. Grade schools teach that the executive, legislature, and judiciary are the "three equal branches of government," each checking the power of the other. They fail to teach the more fundamental fact that the states, which infused these branches with power, reserved most to themselves. So, the power of the United States is not merely divided among the branches, it is limited by the meagerness of the infusion of authority. Further, the three branches of government are not equal. The judiciary is the weakest, and primarily is dependent on congress.

2. Of course, not every congressman participates in this charade. Each reader, however, is invited to recall when his congressman told him that congress can reign in the courts.

3. The Supreme Court and its supporters have gone so far as to label its decisions "the law of the land." This is farce. If its decisions were the law of the land, they would effectively and systematically supplant the Constitution. To the contrary, Art. VI says, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The underhanded little game played by the courts and their supporters is to say that the Constitution means what the Supreme Court says it means. This is premised on the fallacy that the Constitution does not have objective, fixed meaning, but only a meaning the court can divine. Unfortunately, many sons and daughters of the Reformation appear to have accepted this, thinking they need a priesthood of interpreters to expound the true meaning of the constitutional word.

4. To be precise, the Constitution consists of a mere 210 sentences. The Exhaustive Concordance To The United States Constitution, Bizzoco, Dennis, Ed. (Chattanooga, Tn.: Firm Foundation Press, 1994), p. xi.

5. "No special legal training is necessary to be able to pinpoint any thought or precept in the Constitution. Only a desire to inquire and an ability to read is[sic] necessary to know with confidence 'The Law of the Land'...The bedrock upon which all conclusions rest is the text of the Constitution." Ibid., p. xii. Among the best constitutional expositors known to this writer, who is a lawyer, are Don Fotheringham of the John Birch Society, Congressman Ron Paul, Howard Phillips, and Joseph Sobran, the columnist. None are lawyers.

6. Those who listen to Rush Limbaugh and Sean Hannity may consider when, if ever, either of these Republican auxiliaries explained to their dutiful listeners that the congress, both houses of which are controlled by their favorite party, could take action to discipline the United States courts by means set forth in this article. If they have, this writer must tune in more often.

7. In 1974, after United States courts had ordered students bussed to distant school districts to achieve racial mixing, congress responded to the groundswell of complaints from many enraged parents by passing a law to prohibit any further court orders requiring such bussing. The Supreme Court was included in this discipline. "No court...of the United States shall...order the implementation of a plan that would require the transportation of any student to a school district other than the school closest or next closest to his place of residence...." 20 USCA 1714.

8. There are also the United States Tax Court and the United States Bankruptcy Court, which are special creatures of the judicial branch. They are not constitutionally required either.

9. "A Federal Judiciary Act was passed on September 24, 1789...Three circuit courts were authorized...Thirteen district courts were also authorized. This was a decisive move by the Congress. While the Constitution gave the power to set up such courts, the Congress did not have to exert it." Clarence B. Carson The Beginning of the Republic 1775-1825, (Wadley, AL: American Textbook Committee, 1984), pp. 126, 127.

10. Of course, there is the practical imperative of needing inferior courts for the government to function. The point being made, however, is the purely legal authority congress has over these courts. An actual plan for abolishing any of them, perhaps in a mix or restructuring the overall arrangement of the inferior courts, is a topic well beyond this article.

11. The law congress passed in 1974 to limit the power of the United States courts to order school bussing is an example of this. See footnote 7.

12. This writer's report is that congress' authority over the United States courts rests on the plain meaning of the Constitution and is evident simply from reading it. Therefore, the following excerpt from a Supreme Court decision is not offered as the authority for this fact. It is offered merely to demonstrate that the Supreme Court has conceded this fact. "Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion..." Kline v. Burke Construction Company, 43 S. Ct. 79,82 (1922).

13. "The standard of good behaviour[sic] for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government... And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws." Federalist Paper 78, Hamilton, Alexander, The Federalist Papers (Bantam Books, 1982), p. 393. But when Congress is unwilling to take action against judges, no standard can be helpful.

14. Specifically, the act would remove jurisdiction from all United States courts over the provisions in DOMA regarding the Constitution's full faith and credit clause and the act's definition of marriage.

15. The Howard Phillips Issues and Strategies Bulletin, No. 735, Feb. 15, 2004, pp. 2-3.

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