The Constitutional Restoration Act of 2004

[Cablemender]

Time for another poll.

This one has to do with proposed legislation in both the House and the Senate, bills known as “The Constitutional Restoration Act of 2004.” Here is a link to the Thomas legislative site, where you can search for HR3799 for the House version, or search for S2082 for the Senate version. Both versions are currently identical, and are in “review” by the applicable judiciary committees.

thomas.loc.gov/

The gist of it is this:

• It prohibits the Supreme Court and Federal Courts from hearing any cases related to actions on behalf of government officials related in any way to their expressed belief in a Supreme Being
  
• It prohibits the courts, esp. the Supreme Court, from using anything other than the US Constitution and English Common Law as a basis for any decision (i.e- no foreign court decisions)
  
• It negates all previous decisions/precedents set by decisions not in accordance with this act
  
• It provides for removal of judges by impeachment proceedings for any judge who does not comply with this act.
  

So the poll question is, do you support or oppose this bill? The posting area is open aplenty for reasons why to, or not. I’d like to know how y’all feel about this issue.

[RetNavySuppo]

Tom,

I am surprised you did not vote in your own survey. So I guess I will cast the first vote.

I'll give my reasons for my vote later when I have more time.

[Cablemender]

Yeah, I didn't vote in it because I was trying to stand on the sidelines and watch. I favor passing one like it, but I don't like the way the current one is worded.

I'll explain later after the votes come in.

[Grug - American Neanderthal]

On principal I don't think its such a bad thing, but I don't like laws that have a blanket rewrite of existing one when it covers so many issues.

I voted plain no, it would have to be better drafted legislation.

[RetNavySuppo]

Tom,

Sorry to take so long to answer.

I gave it some thought and I have to admit that I am confused as to exactly what the first item means. Conservative politicians routinely display their religious beliefs to the electorate like Pharisee peacocks. Yet I don't see any Supreme or Federal courts going after them because of that. I suspect that this might be a reaction to the prosecution of that Judge Moore fellow. However, he wasn't prosecuted because of his "expressed belief in a Supreme Being". He was prosecuted because he blew off a higher court order. Incidentally, I found much irony in his case because this allegedly persecuted Christian was trying to claim persecution while engaging in a non-Christian act, i.e., disobedience of established civil authority (a violation of a New Testament admonition). So maybe one of our legal scholars can explain to me exactly what this clause means.

As for the second clause, if the Constitution was so crystal clear and perfect, the original framers would not have felt the need to include a mechanism therein for amendment and judicial interpretation. As for English common law, is there a clause in the Constitution that restricts us to English common law? Judicial interpretation, IMHO, understandably goes to sources outside the Constitution for consideration. Again, if everything was IN the Constitution, interpretation wouldn't be an issue. Then there is the thorny question of who is to determine whether the judiciary is making the right court decisions? The Congress - which can be liberal or conservative from election to election? No, the Constitution gives the power to make laws to the Legislative Branch and the power to interpret these laws to the Judicial branch. It seems like the drafters of this Act are trying to change the Constitution themselves.

With regard to the the third clause, I mostly agree with Eric-K about blanket retroactive revocations.

As to the fourth clause, it is redundant. Legal mechanisms already exist to deal with judges who aren't doing their jobs. The problem arises from the fact that, regardless of the judge, and in the absence of an overtly criminal act, there will always be some that say he is doing a good job while there will be some that say he isn't. Who's right and who's wrong?

[stetto]

The retroactive clause bugs me as well...How many thousands of cans of worms are waiting in the wings for that one??

As far as judicial interpretation goes, I believe that it is a mechanism that has become a tool of political bias, ie. the complaints that liberal judges are not interpreting, they are manipulating law to suit their agenda, and vice-versa. The first reaction to an interpretation of law is to determine the political alignment of those who did the interpreting, no? To the exclusion of the merits of that interpretation....Best example in this country's history; the 2000 Presidential election. Even in those cases that may not be politically motivated the judges are held under intense political scrutiny. I have to wonder how the founders would view how the process is undertaken today...(Though I wasn't there and perhaps it was always this way)

I didn't vote--couldn't find a category that addressed my concerns...

[Grug - American Neanderthal]

Well there was some good things in it. I for one like the idea that we will be govenered by ourselves without influence of foreign foreign law, specifically treaties like the Kyoto Protocal and international criminal courts to name a couple.

I generally agree that judges are increasingly making up law as they go rather than ruling on its implentation. I am not sure that making yet another law is the best way to do that. Maybe it would be better to end life time apointment of judges instead.

As for barring the courts from hearing cases about govt officials expressing their belief in a supreme being, I think there is already ways to decide those issues, and legislation to ban courts from such decisions leaves no recourse to issue of thes as they come up. It seems a whole lot like sour grapes becasue the SC came down against the framers of this bill.

Since the things comes as a package deal I would rather have no law than a bad one.

[stetto]

Heh heh, if such legislation were passed, can you just imagine how the courts (esp. the Supreme Court) would "interpret" it? "Threaten me with ursurption of my power, will you..." ;D ;D

[Cablemender]

Well, here's my thoughts on it.

It's too vague.

The intent of this legislation, obviously, is to curb the Federal Circuit Courts, like the 9th Circuit, from coming up with these bizarre rulings that AREN'T based on constitutional information that exists, but invented "rights" where none are otherwise stated. It's there to stop 3 judges from telling the rest of the country how to live, and to return to a more traditional system of laws coming from the legislature rather than from the courts. This will also apply to the Supreme Court as well.

The issues about "based on religious beliefs" and all that is there to negate a local government from being sued by the ACLU or other such group because they put up a star or a nativity scene in the center of town to decorate for the holiday. The intent is to reverse the current policy of "you can't because it doesn't represent EVERYONE," back to one where "EVERYONE can if they want to." So if a small town happens to have a predominant Jewish citizenship, they are free to put up a Menorah or a Star of David if they, as a group, wish to, without the threat of a long and expensive lawsuit all because they are trying to display something representative of THEIR community's values. Likewise for nativitys, Santa Clauses, or whatever the case may be. It would also extend to such things as prohibiting annoying lawsuits because a government official wishes to have a benediction, or prayer, at his/her swearing in ceremony. And it would allow a prayer to be said before a school sporting event if that's what the school wanted to do, without some local activist, representing ONE soul, to put the kabosh on the rest of the community.

I look at this like smoker's rights in reverse. If ONE person in a stadium wanted to smoke a cigarette, should we overturn all the no-smoking rules just to please them, and to hell with everyone else? No. So I don't think we should do that with things like prayer or with the display of a symbol that is religious. No one is forced, and if they want a different one, get organized and get one, and it should get equal display.

This law means that, but doesn't say it. It's going to force all those cases to be redone, one by one, and the courts don't have the time or the inclination to do that, and I doubt very much that judges are going to suddenly reverse them all because this law passed.

As to using documents other than the US Constitution and English Common Law, there has been a tendency in the last 3 years or so for the Supreme Court and some Federal Circuit courts to do just that. Justices Ginsberg and O'Connor are notorious for backing some of their opinions with references to European constitutions and laws, and when I read them it looks clear to me they are saying, "Europe does it this way, so we should too." I'm totally against that. We aren't Europe.. we don't work like them, live like them, our economies are a world apart, our health care is radically different, so it doesn't make sense all our laws should mesh. OF course, if you are trying to justify more liberal stances on issues, Europe is the place to go because they are more liberal on many things, legalized drugs for example. But I'm not against a total ban, because there are times when the Supremes have to take those laws into consideration. They are the court charged with resolving issues of national maritime laws, so for them to be prohibited in those cases from knowing what another country's laws were regarding maritime shipping, for example, might handcuff us in a way we don't want. So I'd allow it for things like that, but NOT as a basis to settle internal questions of constitutionality, which MUST be the US Constitution, not Canada's or Mexico's or Denmark's.

I am 100% for the part about making it a problem for those judges if they continue to use their person viewpoints to legislate new laws where there weren't any yesterday. Without this kind of specific law that makes doing that against the law, they are free to make up all the rights they want under the cloak of judicial decision, even when we all know that's not what is going on. So you put them on the spot, and make it easy to call them before a reviewing body when they go way out there on a limb. If they are way overboard, like the 9th Circuit has been shown to be MANY times, you get rid of them and seat some judges who will be judges, not activists for causes.

To fix it, I would undo the language about dissolving all previous cases, and just make it the plain law of the land that you can't be sued over things like religious expression, especially when its what your majority wants. They could leave it at that, and let the people trying to gain that freedom challenge the existing decisions, rather than a blanket negation of them all.

The rest I could live with.

I predict it will pass the House, the Senate won't put it on the table to a vote. Maybe things will change after next election.

[ctdahle]

This is also known as the Lawyers Full Employment act of 2004. Example, under the act as summarized above,

if a judge based a decision on his religious belief in the Koran and applied Islamic principles of justice rather than the American, or English common law, should he really be allowed to avoid an appeal of his decision, which would in fact be styled as an proceeding related to his religious belief?

That question would be good for $2-300,000 in legal fees.

I thought the conservatives were trying to put lawyers out of work...

[Cablemender]

Well, that's a good question.

I don't think the proposed law was meant to go quite that far, that is, to protect people from conducting their jobs behind religious beliefs. I think it was more to cut down on cases where something like, say, a local school system has to revise all their pamphlets, planners, and schedules because they listed the school break at the end of December as a "Christmas break," and then is force to redo everything because one crusader for the ACLU can't get past the word, and threatens expensive legal action that the already burdened system cannot afford. So they comply with a policy none of them like, which is nothing sort of coersion, which is anathema to freedom and the democratic principles upon which we were founded.
So Judge Moore cannot get away with dis'ing the Supreme Court because of his religious beliefs, but the ACLU shouldn't be able to keep a nativity set off the town common if that's what the elected representatives of government vote for.

As far as the Repubs trying to put lawyers on the enemployment line, I don't think so. They are too handy to them right now as a scapegoat for the high price of medical care. This is another of my pet peeves with the Bush campaign, that they are not being straight with the people about this entire issue.

Last year, here in FL, we passed a law that limits damage awards to $250,000. The law was made and sold as a cure-all for the rising cost of medical fees, which was tied directly to the doctor's cost of malpractice insurance, which was tied directly to frivolous injury lawsuits and greedy lawyers trying to milk juries into huge awards. That was their version of the truth, and how they crowed it would fix all that's wrong with the system if we could just put the clamp on those greedy lawyers.

Here are some facts. Florida had to close over 20 emergency rooms because of a law that requires any hospital with an ER to have a neurosurgeon on staff (i.e. on call). They are one of the highest risk breeds of doctors come insurance rates. So, several couldn't afford it, and their hospitals didn't or couldn't, so they shut down their ERs. It was all the lawyers fault.

Now, a year after we voted in "the fix," not a one of those 20+ ERs is back open. My wife works for two doctors, and both of their malpractice insurance premiums went UP, not down, and they tell her that it's like that all over. The "fix" didn't do a damn thing except save some insurance companies a lot of money. Who got screwed? The citizens.

The Bush campaign is making this same false case about the high cost of medical care being the fault of personal injury lawyers and runaway juries. They want to provide the same "fix." I just got yet another in a string of Ed Gillespie (RNC Chairman) letters asking for money, and in this latest one he repeats this nonsense about stopping frivolous lawsuits to reduce health care costs. So, I did some checking with two of perhaps the best personal injury lawyers in the area. They both told me it is a fallacy to believe that frivolous lawsuits are even an issue. They tell me the judges in this area don't look kindly on that sort of activity, and it would cost them more in the long run by ticking off those judges than would be gained by any wacko lawsuit. They told me to ask the judges for myself, and I did, but to that in a minute.

One of them showed me a graph which I didn't understand all of, but what I did glean was that jury awards in lawsuits are NOT the runaway train we (not in the profession) might think they are. One thing he pointed out was that when a jury awards money, the insurance company, who has already paid for all that medical care, must be paid back. So it isn't always a case of the "lucky" injured party just hit the lotto. By the time the lawyer is paid, and the fees and insurance company get paid back, there isn't such a windfall anymore, especially if you consider the person might require life-long care or treatment. He told me that enormous jury awards might seem good in the headlines, but it almost guarantees the insurance company will appeal - they have nothing to lose at that point. Are there some cases like that? No doubt there are some, but they are extremely rare, and he assured me none are happening here in NW Florida. Hmmm.

I was trying to figure out a way to get some of a judges valuable time to ask him about this, and it happened one of them was speaking at a dinner locally and I went. When he opened for questions, I asked him if the picture we have in the news of frivolous PI cases fought for megabucks is a true picture, and he said it absolutely is not, that it is a gross mischaracterization of the system. He also gave his view, personally, of what he thought of cases like that, and he went on to say that if you sat in his courtroom and read all the documentation he had to, it was pretty clear the astronomical prices of medical care were already existent long before any attorneys touched a case. He said the cost of the legal representation and the cost of trial were "chickenfeed" compared to the multi-hundred-thousand dollar bills some of these injured people racked up along the way.

So if these guys are waving the B.S flag, should I believe them, guys who work in the field every day, or shoudl I take Ed Gillespie's word? I wrote Mr. Gillespie and my Governor, the President's brother, and I asked them both to provide me the data they base their claims on. Been 3 weeks now.. no answer. I got an email from the Gov's office saying they recieved my letter, that's about it.

Now if the President's own brother can't figure out that a law he passed a year ago had no effect, I have no idea how the President is going to. What I DO know is that they are proposing this "fix" nationally, and I see no reason it would have any different effect. Who will get screwed? The citizens. Who will pay for it? Go look in the mirror.

As long as some attorneys still carry the stigma of ambulance chasers, the Repubs will keep them around as a scapegoat to get the measures they want passed. I don't know that they want them unemployed, just keeping their hands out of the insurance companies coffers. All I can say is those insurers have one helluva PAC and great congressional access.

And, for the record, counsellor... my "guts" remark in the other thread was out of line. My apologies. Some days you just wish you could have sat on your keyboard instead of pounding on it with your fingers.

[ctdahle]

Cablemender said:

... my "guts" remark in the other thread was out of line. My apologies. Some days you just wish you could have sat on your keyboard instead of pounding on it with your fingers.

Not even a problem. I figure we all get a bit out of line at times. I do. So when it gets a bit hot, I figure it's time to "PLEASE step AWAY from the COMPUTER".

Anyway, I agree that the intent of the law is probably as you suggest. The problem is that when someone is assigned the task of enforcing a law, they have an obligation to push it as far as it will go. Thus an impeachment panel would be obligated to pursue a complaint that the judge used a basis other than the English Common Law or American Common Law (maybe the Bible, Koran, or Grimm's Fairy Tales) to make his decision.

To the contrary, the person defending the judge would be failing his duty if he did not assert a defense based on the other part of the proposed law that protects public officials who act on their religious beliefs. (Though, one might question if faith in Dr. Suess is a religious belief!)

These would be unintended consequences of a well intentioned law, exemplary of the problems we face in the American legal system.

Every law passed interacts with all of the other laws already on the books and thus the permutations are nearly infinite.

Here is an example that I ran into recently:

Colorado Law provides that when someone files for a divorce, both parties are automatically restrained from dissipating marital assets by, for example selling the family home, cleaning out the bank account and so forth. They are also restrained from removing minor children from the state until the court has an opportunity to review the matter and make an appropriate custody decision.

If a parent, served with divorce papers races to the school or to the daycare center, grabs the kids and races for the state line (or the UK as happened in one prominant case), the automatic restraining order gives the police the ability to stop this and return the children to Colorado.

Formerly, this also applied to any action brought to determine custody, support, and parenting time for children, even if the parties were not married, because there was not a specific statute, other than the general divorce statute that covered non marital custody cases.

Then the legislature decided that it would be a good housekeeping measure to clarify the procedure for determining the allocation of parental responsibilities for children of non- marital relationships, and in doing so, neglected to incorporate the automatic restraining order.

Thus, arguably, an unmarried parent is not enjoined from removing the children from the state.

This was not an intended result, but given the wording and the purpose of the two statutes, it is not an easy one to correct either, and thus the well intentioned effort at housekeeping has created a much larger problem unrelated to the original intent of the statute.

I need to get back to work, but the $250,000 cap you speak of in Florida was enacted in other states as well, and it has had some really nasty ramifications that actually INCREASE the likelihood of malpractice claims, among other unintended consequences.

We will have to talk about that one later though.

[Cablemender]

if a judge based a decision on his religious belief in the Koran and applied Islamic principles of justice rather than the American, or English common law, should he really be allowed to avoid an appeal of his decision, which would in fact be styled as an proceeding related to his religious belief?

That question would be good for $2-300,000 in legal fees.

WOW! Talk about calling it right on the money! Sounds like a member of the Orlando judiciary could use a good lawyer about now.

www.local6.com/news/3682551/detail.html