Abolish the Usurped Power of Judicial Review

Posted on November 17, 2017 by Greg Penglis

Introduction:

Sponsor legislation to remove the power and practice of Judicial Review, to bring the Federal Judiciary back into constitutional compliance with Article III. Impeach and remove all judges including the Supreme Court who have practiced Judicial Review, and place Juries and State Courts back at the head of any constitutional challenge. Put all Legislatures back in charge of reviewing jury nullified law for possible rewrite or repeal. Empower and educate the citizenry that the Constitution is easily read and understood, and doesn’t need to be explained by lawyers, nor interpreted (changed) by judges, including Supreme Court Judges.

Judicial Review:

The power to “interpret” the Constitution was specifically left out of the Constitution, because the States who ratified the Constitution would never give over to the Judiciary, the power to overrule the State Legislatures, Courts, and Executives, by “interpreting” and therefore “controlling” the Constitution and all the issues surrounding it.  Judicial Review makes the dangerous extension from “interpretation,” to “reparation.”  If the Courts control the interpretations, why shouldn’t they also control the remedies?  It is that logic by which the Federal Judiciary has further usurped and granted to themselves, more power than they can have if we are to remain a Republic.  This artificially created remedy power is expressed in injunctions, where some tiny District Judge stops a law, regulation or policy of the entire Executive and the President; or issues orders, like requiring a President to maintain the unconstitutional powers of a previous President as in DACA: or they write national policies like Roe v Wade, which are pure legislation.  

No government entity can give “themselves” power.  No power not specifically delegated to the Federal Government by the States through the Constitution – exists.  Therefore Judicial Review does not exist.  All such Federal Court or Judicial actions based on Judicial Review are moot, as the authority to make them never existed.

Interpreting vs. Using the Constitution:

There is a fine line for all Courts -- Federal, State and Local -- between “interpreting” the Constitution, and “using” it.  It is not the intention of this legislation to remove any legitimate, delegated power to any court.  Rather, it is to remove any power the Courts have created for themselves, deemed permissible to create by themselves, and practiced as if such non-delegated powers were legal, which they are not.  For example, Article III of the Constitution delegates to the Supreme Court the judicial power over all cases arising “under” the Constitution, which means the Courts are restricted in their authority to “only” the cases themselves.  

Any power exercised beyond the cases before them using what is commonly defined as Judicial Review, is an extra-constitutional power and therefore illegal.  In other words, the Supreme Court may rule in a case that a law, regulation or policy under dispute by parties to a case is unconstitutional, and use that as a basis for their rulings, but they may go no further.  They can not strike down or abolish any law, regulation or policy.  The repeal of any law, as with the creation of any law, is solely a legislative function, and therefore only for Congress to do.

The Judiciary can not create rights, make up rights, propose or implement remedies, rules, policies, nor require any action of any kind upon any other entity of government in the opinion of any particular case as they are limited by the Constitution to only the parties of that case.  The State and Local Courts per the 14th Amendment shall be bound by this same Constitutional limitation for cases arising under the Constitution for State and Local jurisdictions.

The Tenth Amendment:

If this message were not clear enough, the Tenth Amendment explicitly declares that ANY power, NOT SPECIFICALLY delegated to the Federal Government by the Constitution, is reserved to the States, or to the People.  Therefore, any issue of constitutionality resulting from any Federal Government law, regulation or policy, should also be judged by the State Governments, individually, whether they are in fact under Federal Jurisdiction, whether they are Constitutional, and if not, whether the individual States will comply, or not. There is no duty or obligation to comply with unconstitutional acts of the Federal Government.  There is however a duty to resist such acts so that the States maintain their superior position over the limited powers of the Federal Government.

Juries:

The other great reservoir of power superior to all Judiciaries, are JURIES.  Juries are the representatives of the People, in a judicial system which is administered by the government.  Since the government operates with the consent of the People, the Courts operate with the consent of Juries.  All Juries shall be instructed that it is their duty to judge the fairness, efficacy, constitutionality, practicality, and any other criteria they choose, of any law, policy or regulation, that becomes part of their case.  All Juries shall be instructed as to their power of Jury Nullification, whereby they can rule or nullify the law or laws applied or in question, and find not guilty or for the defendant, or for any party in a civil case, on that basis alone — and not deal only with the facts, which is the common yet criminal practice of the current Judiciary.  Congress may want to expand the Federal Judiciary to include “constitutional juries” of the people to review policies, laws, and regulations which is their power under Article I, in lieu of Judicial Review.

Judicial Review Exclusions:

The Congress shall attach a rider to every new bill: “This Legislation shall not be subject to Judicial Review by any member of the Federal Judiciary, as this power was never delegated to the Judiciary by Article III of the Constitution.”

The President should do the same for executive orders with this statement: “This Executive Order shall not be subject to Judicial Review as this was never a delegated power under Article III of the Constitution.”

This statement can be added to any bill or executive order: “All such challenges to the constitutionality of any federal law or action of Congress shall reside with the States as the creators of the Constitution, and Juries as representatives of the People.”

This statement could also be added to either legislation and/or executive orders.  “Only through cases, in Law and Equity, arising under the Constitution, shall the Judiciary have any jurisdiction, and only to the boundaries of the parties involved in the case, as prescribed in Article III, Section 2.  No law, suspension, injunction, or order of any kind shall be made through any Judicial action resulting from any interpretation of the Constitution, nor shall any opinion extend beyond the case itself.”

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