Both decisions were judicial activism, plain and simple.
Both were lawless.
As Justice Scalia put it regarding Obamacare, “Words no
longer have meaning if an Exchange that is not established by a State is
‘established by the State.’ . . . We should start calling this law SCOTUSCare.”
And as he observed regarding marriage, “Today’s decree says that . . . the
Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers
on the Supreme Court.”
Sadly, the political reaction from the leaders of my party
is all too predictable. They will pretend to be incensed, and then plan to do
absolutely nothing.
That is unacceptable. On the substantive front, I have
already introduced a constitutional amendment to preserve the authority of
elected state legislatures to define marriage as the union of one man and one
woman, and also legislation stripping the federal courts of jurisdiction over
legal assaults on marriage. And the 2016 election has now been transformed into
a referendum on Obamacare; in 2017, I believe, a Republican president will sign
legislation finally repealing that disastrous law.
But there is a broader problem: The Court’s brazen action
undermines its very legitimacy. As Justice Scalia powerfully explained,
Hubris
is sometimes defined as o’erweening pride; and pride, we know, goeth before the
fall. . . . With each decision of ours that takes from the People a question
properly left to them—with each decision that is unabashedly based not on law,
but on the “reasoned judgment” of a bare majority of this Court—we move one
step closer to being reminded of our impotence.
This must stop. Liberty is in the balance.
Not only are the Court’s opinions untethered to reason
and logic, they are also alien to our constitutional system of limited and
divided government. By redefining the meaning of common words, and redesigning
the most basic human institutions, this Court has crossed from the realm of
activism into the arena of oligarchy.
This week’s opinions are but the latest in a long line of
judicial assaults on our Constitution and the common-sense values that have made
America great. During the past 50 years, the Court has condemned millions of
innocent unborn children to death, banished God from our schools and public
squares, extended constitutional protections to prisoners of war on foreign
soil, authorized the confiscation of property from one private owner to
transfer it to another, and has now required all Americans to purchase a
specific product, and to accept the redefinition of an institution ordained by
God and long predating the formation of the Court.
Enough is enough.
Over the last several decades, many attempts have been made
to compel the Court to abide by the Constitution. But, as Justice Alito put it,
“Today’s decision shows that decades of attempts to restrain this Court’s abuse
of its authority have failed.”
In the case of marriage, a majority of states passed laws or
state constitutional amendments to affirm the definition of marriage as between
one man and one woman. At the federal level, the Congress and President Clinton
enacted the Defense of Marriage Act. When it comes to marriage, the Court has
clearly demonstrated an unwillingness to remain constrained by the
Constitution.
Similarly, the Court has now twice engaged in constitutional
contortionism in order to preserve Obamacare. If the Court is unwilling to
abide by the specific language of our laws as written, and if it is unhindered
by the clear intent of the people’s elected representatives, our constitutional
options for reasserting our authority over our government are limited.
The Framers of our Constitution, despite their foresight and
wisdom, did not anticipate judicial tyranny on this scale. The Constitution
explicitly provides that justices “shall hold their Offices during good
Behaviour,” and this is a standard they are not remotely meeting. The Framers
thought Congress’s “power of instituting impeachments,” as Alexander Hamilton
argued in the Federalist Papers, would be an “important
constitutional check” on the judicial branch and would provide “a complete
security” against the justi
But the Framers underestimated the justices’ craving for
legislative power, and they overestimated the Congress’s backbone to curb it.
It was clear even before the end of the founding era that the threat of
impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the
justices. Today, the remedy of impeachment — the only one provided under our
Constitution to cure judicial tyranny — is still no remedy at all. A Senate
that cannot muster 51 votes to block an attorney-general nominee openly committed
to continue an unprecedented course of executive-branch lawlessness can hardly
be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem
lies not with the lawless rulings of individual lawless justices, but with the
lawlessness of the Court itself. The decisions that have deformed our
constitutional order and have debased our culture are but symptoms of the
disease of liberal judicial activism that has infected our judiciary. A remedy
is needed that will restore health to the sick man in our constitutional
system.
Rendering the justices directly accountable to the people
would provide such a remedy. Twenty states have now adopted some form of
judicial retention elections, and the experience of these states demonstrates
that giving the people the regular, periodic power to pass judgment on the
judgments of their judges strikes a proper balance between judicial
independence and judicial accountability. It also restores respect for the rule
of law to courts that have systematically imposed their personal moral values
in the guise of constitutional rulings. The courts in these states have not
been politicized by this check on their power, nor have judges been removed
indiscriminately or wholesale. Americans are a patient, forgiving people. We do
not pass judgment rashly.
Yet we are a people who believe, in the words of our
Declaration of Independence that “when a long train of abuses and usurpations .
. . evinces a design to reduce [the people] under absolute despotism, it is
their right, it is their duty, to throw off such government and to provide new
guards for their future security.” In California, the people said enough is
enough in 1986, and removed from office three activist justices who had
repeatedly contorted the state constitution to effectively outlaw capital
punishment, no matter how savage the crime. The people of Nebraska likewise
removed a justice who had twice disfigured that state’s constitution to
overturn the people’s decision to subject state legislators to term limits. And
in 2010, the voters of Iowa removed three justices who had, like the Supreme
Court in Obergefell, invented a constitutional right to same-sex
marriage.
Judicial retention elections have worked in states across
America; they will work for America. In order to provide the people themselves
with a constitutional remedy to the problem of judicial activism and the means
for throwing off judicial tyrants, I am proposing an amendment to the United
States Constitution that would subject the justices of the Supreme Court to
periodic judicial-retention elections. Every justice, beginning with the second
national election after his or her appointment, will answer to the American
people and the states in a retention election every eight years. Those justices
deemed unfit for retention by both a majority of the American people as a whole
and by majorities of the electorates in at least half of the 50 states will be
removed from office and disqualified from future service on the Court.
As a constitutional conservative, I do not make this
proposal lightly. I began my career as a law clerk to Chief Justice William
Rehnquist — one of our nation’s greatest chief justices — and I have spent over
a decade litigating before the Supreme Court. I revere that institution, and
have no doubt that Rehnquist would be heartbroken at what has befallen our
highest court.
But, sadly, the Court’s hubris and thirst for power have
reached unprecedented levels. And that calls for meaningful action, lest
Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional
amendments needed to correct this lawlessness, then the movement from the
people for an Article V Convention of the States — to propose the amendments
directly — will grow stronger and stronger.
As we prepare to celebrate next week the 239th anniversary
of the birth of our country, our Constitution finds itself under sustained
attack from an arrogant judicial elite. Yet the words of Daniel Webster ring as
true today as they did over 150 years ago: “Hold on, my friends, to the
Constitution and to the Republic for which it stands. Miracles do not cluster
and what has happened once in 6,000 years, may not happen again. Hold on to the
Constitution, for if the American Constitution should fail, there will be
anarchy throughout the world.” We must hold fast to the miracle that is our
Constitution and our republic; we must not submit our constitutional freedoms,
and the promise of our nation, to judicial tyranny.
http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment
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See more at:
http://www.teaparty.org/cruz-amendment-makes-supreme-court-subject-elections-104932/#sthash.se7fwz68.dpuf
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