Friday, December 16, 2011

The Tea Party View of our Judicial System

After several months of debates on several different forums taking place on every news network known to mankind, I finally understand the Republican Presidential candidates' position on the role of our judicial branch of government.  If there was any confusion on what role the Courts should play in our society, the GOP presidential candidates finally cleared it up last night during their Iowa debate.  They finally spoke right down to Earth in a language that we can all easily understand.  Their message was simple and straight forward.  There's only one problem:

Nothing they said lines up with reality, let alone the Constitution of the United States.

According to the Republican presidential candidates last night, there are 3 branches of government:  (1) The Legislative (Congress); (2) The Executive (President) and (3) The Tea Party.  If that's not exactly how you remember your middle school civics class explaining our 3 branches of government then don't worry because you're not alone.

As we ALL (hopefully) learned when we were kids, the federal government is divided between 3 separate and equal branches: 

  • Article I of the Constitution establishes the Legislative Branch (Congress) which makes the laws after allegedly listening to the concerns of their constituents (We the People); 
  • Article II of the Constitution establishes the Executive Branch (The President) who carries out the laws drafted by Congress using his or her various executive agencies such as the DOJ, FBI, CIA, HUD, SSA, U.S. Military, etc.;
  • Article III of the Constitution establishes the Judicial Branch (The Federal Courts) who interpret the laws drafted by Congress and the actions carried out by the President to see if all of the above comport with the Constitution - in other words, they are, by design of the Constitution, the FINAL ARBITERS of what is, and what isn't "constitutional."
It's this last part (Article III of the Constitution) that causes Tea Party Republican heads to explode.  For them, its very existence creates a situation where they are stuck between a rock and a hard place.  On the one hand, the legendary and most righteous "Founding Fathers" wrote Article III into the Constitution, and, according to Tea Party logic, anything that the Founding Fathers did is beyond contestation.  But on the other hand, acknowledging that the Judicial Branch is a separate and EQUAL branch of government means that Conservatives cannot control it like they do with the other two branches of government.  And, as the Republican Candidates expressed in unequivocal terms during last night's debate, anything that Conservatives can't control must be abolished:
"When the 9th Circuit Court said that 'One Nation under God is unconstitutional in the pledge of allegiance' and I decided if you have judges who were so radically anti-American that they thought 'One Nation under God' was wrong, they shouldn't be on the Court." - Newt Gingrich, Iowa Debate, December 15, 2011.

Newt went on to talk about how President Thomas Jefferson abolished 18 out of 35 federal judges in his day, which, according to Newt, was not criticized by anybody in power in 1802 even though that claim is factually incorrect.

But perhaps the strongest and most factually bankrupt claim came from none other than Michelle "I swear I have my facts right" Bachmann who had this to say:

"What we need to do about it is have both the President and the United States Congress take their authority back.  And I would agree with Newt Gingrich, that I think that the Congress and the President of the United States have failed to take their authority.  Because now we've gotten to the point where we think the final arbiter of law is the court system.  It isn't.  The intention of the founders was that the courts would be the least powerful system of government and if we give to the courts the right to make law then the people will have lost their representation.  They need to hold onto their representation.  That's why I commend Iowans because they chose not to retain 3 judges that decided that marriage would be in their likeness, and Iowans decided to take their constitution back.  And that's what the American people need to do - take the constitution back.  And as President of the United States, I would only appoint judges to the Supreme Court who believe in the original intent of the Constitution."  - Michelle Bachmann, Iowa Debate, December 15, 2011.
During my final 2 years of law school I was a teaching assistant ("TA") for my professor's Constitutional Law class for the first year law students.  One of my duties as a TA was to help grade exams.  Lots of exams.  In my two years of grading exams written by first year law students who barely knew shit from shinola, I never witnessed a more fundamentally flawed and fatally inaccurate misunderstanding of how our 3 branches of government work than what Michelle Bachmann (who literally graduated from Pat Robertson's Law School, Oral Roberts, before the school was accredited by the ABA) said up above.  If a student had turned that kind of work product in on a final exam my professor would have had no choice but to make them repeat the course.

For starters, the Courts ARE the final arbiters of what the law is.  Maybe they didn't teach this at Pat Robertson's law school, but this has been established since the landmark case Marbury v. Madison which was decided by the Supreme Court way back in 1803.  So when Bachmann says that "now we've gotten to the point where the final arbiter of law is the court system," unless she was somehow broadcasting last night's debate from the year 1803, she's about 200 years late on all that "now" talk.

Next she says "And that's what the American people need to do - take the constitution back. "  When you say "take the Constitution back" from the courts, do you mean the United States Constitution?  Because the U.S. Constitution that I read a few minutes ago has this little annoying provision called Article III that established the Courts that you so hate as a branch of government that is actually EQUAL to the President and the Congress.  So there is no such thing as the Legislative or the Executive branches "taking back" their power from the Judicial branch.  They never lost it in the first place.  The Constitution gives the Courts the right to decide whether an Act written by Congress or an Action taken by the President is Constitutional or not. That's how it works.  Don't like it?  Write an Amendment to the Constitution and change it.  Until then, I would urge you to actually read the Constitution before you speak.

1. How are the Republicans able to get away with this level of incompetence and revisionist history at every debate?
2. Is it important for a candidate running for POTUS to know the Constitution?
3. Although the Constitution does allow it, should the President and/or Congress be in the business of abolishing Courts/Judges who don't agree with their philosophy?
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