Monday, October 6, 2003

Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal system of three branches, Executive, Legislative and Judicial.

On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear that, of the three branches of government which were created, the one he feared the most was the federal judiciary in these words:

“The federal judiciary is ?working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one (i.e., federalization).”

Decisions of the federal judiciary over the last half century have resulted in the theft of our Judeo-Christian heritage, a brief sampling is as follows:

• Enacting “a wall of separation between church and state”

• Banning nondenominational prayer from public schools

• Removing the Ten Commandments from public school walls

• Removing God from the Pledge of Allegiance

Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading “Jurisdiction of Supreme and Appellate Courts,” the clause 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 the 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.”

Over the last 200 years, Congress has exercised this authority to except certain areas from the jurisdiction of the federal court system. In Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799)),the Supreme Court concluded that the federal courts derive their judicial power from Congress, not the Constitution.

In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made final the decision of the secretary of the Treasury in certain tax deductions. The statute was challenged as an unconstitutional deprivation of the judicial power of the courts. The Supreme Court concluded that the jurisdiction of the federal courts (inferior to the Supreme Court) was in the sole power of Congress.

In Sheldon vs. Sill 8 How (49 U.S. 441 (1850)), involved the validity of the assignee clause of the Judicial Act of 1789 restricting such action to establish federal court jurisdictions. The Supreme Court sustained the power of Congress to limit the jurisdiction of the inferior federal courts.

In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1868), the Supreme Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court. Congress, fearful the Supreme Court would honor the writ, passed a law repealing the act which authorized the appeal. The Supreme Court dismissed the case for lack of jurisdiction.

In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the Supreme Court upheld the power of Congress to define and limit the jurisdiction of the inferior courts of the United States in the form restrictions on the issuance of injunctions in labor disputes under the Norris-La Guardia Act of 1932.

In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for a special court to appeal price control decisions under the Emergency Price Control Act of 1942. The Supreme Court sustained this restriction.

One of the outstanding Constitutional scholars in the Senate is Robert Byrd, West Virginia Democrat. In 1979, in order to once again allow voluntary prayer in public schools, he introduced a law to except this subject from the federal court system under Article III, 2.2. Unfortunately, it was not enacted into law.

In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III, 2.2 in order to cut some timber in South Dakota.

Congress responds to pressure from the public. Call, write, e-mail or fax your senator or member of the House to enact S1558 by Sen. Allard, Colorado Republcican, and HR 3190 by Rep. Pickering Mississippi Republican. These bills allow the Ten Commandments to be displayed and retain God in the Pledge of Allegiance and use Article III, Sec. 2.2.

Former Rep. William E. Dannemeyer is co-chairman of Americans For Voluntary School Prayer.

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