As we begin to celebrate the 200th anniversary of our country, it is well to reflect on the unique checks and balances in our Constitution. The Founding Fathers took great care to prevent either the Executive Branch or the Congress from becoming too powerful. They were made subject to frequent elections so as to be responsive to the people.
But not so the federal judiciary Given lifetime appointments, are federal judges subject to any of the constitutional checks and balances imposed on all other federal officeholders?
The question is important because high federal judges have (1) forbidden prayer and Bible-reading in our public schools, (2) ordered forced busing of our children away from neighborhood schools to distant schools, (3) knocked out New York laws which said that Communists may not teach in public schools, (4) ordered public hospitals to perform abortions on demand, (5) struck down state laws requiring the father’s consent before an abortion may be performed on his child, and (6) decreed that topless dancing is “a harmless form of diversion or entertainment, by way of communication from one human being to another” and may not be prohibited by local communities.
The topless dancing decision by the U.S. Court of Appeals in New York violates the U.S. Supreme Court’s own rule, in somewhat related decisions, that obscenity should be judged on the basis of prevalent community standards. A book or movie is obscene if it violates the standards prevailing in a community that has a law against obscenity. Few might consider topless dancing obscene, but most would find it morally offensive. Should not it be a city’s right to ban topless dancing in order to maintain its community standards?
In the opinion of some scholars and even of dissenting justices themselves, the U.S. Supreme Court has read into the Constitution a bias against religion, unborn children, fathers, morality, and local government which was certainly not put there by the Founding Fathers. The time-tested saying is that power tends to corrupt - and the federal courts are, indeed, very powerful.
The authors of our Constitution did provide a check for absurd decisions rendered by judges with life tenure. Article III of the Constitution gives Congress the power to limit the jurisdiction of the federal courts, a handy means of cutting off the power of the federal courts to persist in their hurtful decisions. During the 1930, Congress used this constitutional provision several times, depriving the federal courts of jurisdiction to enjoin state tax collections, state-fiKed utility rates, and picketing by labor unions.
It is time for Congress again to take action under Article III in order to check the runaway federal courts and thereby restore morality to our local schools, hospitals, and entertainment.