High court remedy is impeachment

Sunday, July 11, 2004

By Steve Casey

On June 29, the U.S. Supreme Court struck down the Child Online Protection Act, which was signed into law in 1998 as an attempt to shield children from online pornography. This decision is yet another victory at the high court for pornographers at the expense of America's children.

Besides being a violation of good sense, this act on the part of the Supreme Court is also a direct violation of the Constitution. In no way does the Constitution give the court the power to override the legislature.

The United States is no longer a democracy or a republic. We are an oligarchy, a nation where a small, elite council makes the decisions for everyone. The Supreme Court has been allowed to become such an unconstitutional yet all-powerful council.

During the time of the writing of the Constitution and the Bill of Rights, Thomas Jefferson was our nation's minister to France and was therefore not directly involved in the writing of either of these documents. Upon returning and studying these documents, he became concerned that there was a great danger that the judicial branch might become too powerful. He wrote:

"Nothing in the Constitution has given them [federal judges] a right to decide for the Executive, more than to the Executive for them. ... But the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves, ... but for the legislative and the executive also, … would make the judiciary a despotic branch. ...

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, … and would place us under the despotism of an oligarchy. ... The Constitution has erected no such tribunal."

In his inaugural address, President Abraham Lincoln took a direct stand on the issue of the Supreme Court's having final authority on political issues. In reference to the Supreme Court ruling in Dred Scott v. Sanford -- which stated that blacks were property and therefore not fully human and, as such, could not become citizens -- Lincoln stated the following:

"If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having … resigned their Government into the hands of the eminent tribunal."

Did the Founding Fathers have the insight to give us a method of protection against such judicial tyranny?


Six clauses in the Constitution deal with that safeguard: judicial impeachment. When judges consistently violate their oath of office to defend the Constitution and take on power for themselves that the Constitution does not give them, the Constitutional remedy is impeachment.

The Founding Fathers gave us that protection. The question is, do our present legislators have the backbone to use it?

Steve Casey of Stonewall, La., is a freelance writer.

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