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WHAT MUST BE DONE
By William D. D'OnofrioNANS National President
We need to take a careful look at the role the federal courts have played. We need also to take a careful look at the role our elected representatives have taken which allowed the courts to "make law," to amend the Constitution by "interpretation" and formulate "judicial review." This illegitimate role of the federal courts is what brought about the decades of racial and ethnic control of public school assignment. It is long past time to consider seriously the role our representatives should have played in limiting the assumed power of the courts.
CONSIDER THE FOLLOWING:
(1) FORCED BUSING IS STILL GOING ON.
(2). Race and ethnic origin are still being unconstitutionally used as factors in school assignment in hundreds of school districts.
(3) Even though the Supreme Court has ruled that districts once desegregated are not obligated to continue assignment that would provide a prescribed racial or ethnic mix, many districts continue the unconstitutional practice. Some have signed Consent Decrees or agreements to continue the practice. Some are still under control of a judge or oversight of the U.S. Justice Dept.
(4) The use of race and ethnic origin as factors in school assignment and acceptance have been ruled unconstitutional in some lower courts. To avoid a challenge to what might likely be ruled an unconstitutional practice, many districts are now using socio-economic status as a proxy for race and ethnic origin.
(5) Additionally, many states have laws or policies requiring certain levels of racial and ethnic balance ("diversity") Many individual school boards, largely unchallenged by others running for the board, require such "diversity" on their own by unconstitutionally making race and ethnic origin factors in school assignment.
(6) In spite of the rising cost of fuel, the waste of this resource and the unnecessary contribution to environmental pollution, school children continue to be transported far from their homes for programs that could be provided in neighborhood schools.
(7) Specialty schools that were created, not for educational purpose but expressly to lure students from neighborhood schools, remain in place. The very term "magnet" for these schools is proof of the reason for their creation. At the same time neighborhood schools have been allowed to remain or become inferior to the "magnets."The parental and community involvement and support vital to effective education and discipline has thus been destroyed.
The need for judges and Justices who respect the integrity of our Constitution becomes more and more obvious daily. Yet there are many senators determined to keep such judges off the bench to allow an illegitimate role of the federal courts that has developed to continue.
First off, let us briefly discuss the filibuster, a mere rule within the Senate itself that Democrats and a handful of left-of-center "Republicans" have abused so as to effectively require a three-fifths majority in approving some of President Bush's nominations to the courts, a gambit such as the absurd Sen. Charles Schumer (D-NY) intimates is a "constitutional right" of his ilk and necessary to protect the minority viewpoint.
The Constitution (the real one) requires supermajorities only for Senate ratification of treaties, for congressional override of a presidential veto of proposed legislation, and for congressional and state approval of a proposed constitutional amendment. Everything else, including the Senate's role of "advice and consent," requirements for supermajorities not being stipulated, is simple majority.
Indeed, the vote of the Vice President in breaking a tie vote in the Senate sends fully half that body into a minority under the Constitution.
Ask a judicial supremacist how the courts came by the power to "make law," to amend the Constitution by "interpretation" and formulate "judicial review," and you will be referred to the 1803 case of Marbury vs. Madison in which the Court correctly declined to exercise original jurisdiction that Congress attempted to give it in a matter in which the Constitution limited it to appellate jurisdiction.
In his (in)famous obiter dictum in Marbury, a mere aside that had nothing to do with the judgment itself, Chief Justice John Marshall proclaimed, "It is emphatically the province and duty of the judicial department to say what the law is."
Consider the words of James Madison, the recognized "father of the Constitution," who said, "To allow (judges) to stamp a law with its final character would make the judicial branch paramount in fact to the legislature, which was never intended and can never be proper."
It took some 150 years before the Supreme Court, beginning with the "Warren Court," moved to effectively establish a mere doctrine, accepted though it may be, that made the Supreme Court the ultimate authority in our government
NANS friend and anti-busing colleague Prof. Lino A. Graglia, calls all this "the quasi-religion of judicial supremacy."
"Is it any wonder," Graglia observes, "that they wear black robes and hold sway in a building that looks like a temple?"
Adds Graglia, a professor of constitutional law, "There's all the difference in the world between the Constitution and constitutional law (as the latter is enunciated by the courts)."
Federal Courts have no power to legislate under our Constitution. That power is given exclusively to Congress in Article I, section 8, clause 18, "The Congress shall have the power to make all laws (emphasis added) necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." And, under the Constitution, the Court is a "department," and judges are "officers."
The power to legislate is also given exclusively to Congress in the enabling sections of certain amendments (e.g. Section 5 of the 14th: "The Congress shall have power to enforce this article by appropriate legislation."). Courts are excluded by omission.
Nowhere in the Constitution can be found the awesome power of judicial review.
In his ambitious book extolling the 1954 Brown decision,
MUST READING:
Government by Judiciary, The Transformation of the Fourteenth Amendment, by Raoul Berger (Harvard Univ. Press, 1977), in which Berger describes the escapades of the Supreme Court as "usurpation, the exercise of powers not granted is not legitimized in repetition"
THE 1964 CIVIL RIGHTS ACT:
Under Title IV of the 1964 Civil Rights Act, Section 401, "desegregation" is defined as follows: "Desegregation means the assignment of students to public schools and within such schools without regard to their race, color, religion or national origin; but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
This limitation of "desegregation" to nonracial assignment reappears as a proviso to section 407, "Nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance."
However, with the Congress sitting by watching, the Supreme Court, beginning with its 1969 decision, Swann v. Charlotte Mecklenberg, began upholding racial balance busing orders.
In 1974 a liberal and pro-busing Congress dutifully gutted the 1964 Act's anti-busing language, which they had allowed the Court to ignore anyway, by passing the "Scott-Mansfield" amendment to the 1974 Equal Educational Opportunities Act, which stated that the Court could ignore any anti-busing language in the legislation when "remedying" purported violations of the 5th and 14th Amendments to the Constitution.
Article 6, Clause 2 of the U.S. Constitution says: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The power to amend the Constitution is given, by way of supermajorities and a drawn-out process, to Congress and the state legislatures in Article V. Again, courts are excluded by omission.
Article I, section 8, clause 9 of the Constitution gives Congress the power "to constitute tribunals inferior to the Supreme Court" and Article III, section 1 gives Congress the power "to ordain and establish" such inferior courts.
In Lockerty vs. Phillips, 319 U.S. 182 (1943) the Supreme Court admitted "...The Congressional power to ordain and establish inferior courts includes the power of investing them with jurisdiction...and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."
Retiring Supreme Court Justice Potter Stewart, speaking before the Washington Press Club, of his own volition stated that Congress could stop the lower federal courts on issues such as school busing.
In 1982 Sen. Bennett Johnston (D-LA) introduced an amendment to a Justice Department bill providing that "Subject to congressional powers under Article III, Section 1 of the Constitution and Section 5 of the 14th Amendment," inferior courts could not order the transportation of children more than ten miles or thirty minutes round trip from their residences and provided that any child being bused beyond those perimeters could seek relief in court. President Reagan announced on national television that he was looking forward to the bill reaching his desk, and Atty. General William French Smith supported its constitutionality. After a filibuster was defeated, the bill passed in the U.S. Senate by an overwhelming 60-39 but then never made it to the House floor under Speaker Tip O'Neill. The bill would have gutted just about every significant busing order in the nation.
HERE IS WHAT THE CONSTITUTION SAYS: (Article III, Section 2, Clause 2) 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.
When Justice Sandra Day O'Connor was having her Supreme Court confirmation hearings before the Senate Judiciary Committee, NANS' then-Washington lobbyist prevailed upon the late Sen. John East (R-NC), chairman of the Subcommittee on the Separation of Powers (which a Democrat majority subsequently abolished), to ask Judge O'Connor an important busing issue question. Sen. East then asked Judge O'Connor if Congress had the power to limit the Court's jurisdiction on issues such as busing. Answered O'Connor, "The Constitution answers that question by express words."
After I had helped Sen. Orrin Hatch's Subcommittee on the Constitution write a strong anti-busing bill in 1982, the subcommittee's General Counsel called me down to DC to look at the bill as it would be reported out of the subcommittee to the full Judiciary Committee (which it would for four straight Congresses without ever making it to the Senate floor).
I examined the measure and then remarked, "This is a good bill, but it only affects the jurisdiction of the inferior courts to order (racial busing) as a remedy but does not do so with the Supreme Court."
Said the counsel, looking me straight in the eye, " A political decision has been made to not affect the jurisdiction of the Supreme Court at this time." (emphasis added)
As you read the following citations, don't be swayed by their vintage. Know that the Constitution hasn't changed with respect to their truth, and bear in mind the remarks of Justice O'Connor and the Subcommittee Counsel as quoted above.
The same Chief Justice John Marshall who, in his ruling in Marbury vs. Madison in 1803 helped invent the prevailing doctrine of judicial supremacy that has brought about the situation we are in today, so broadly interpreted the provision of Article III, Section 2 in other decisions that the Court was held to have no jurisdiction on any matter unless that jurisdiction was expressly granted by Congress.
(1) In the 1805 case of United States vs. More, 7 U.S. (3 Cranch), 159 170-171, the Marshall Court said: "When the Constitution has given Congress the power to limit the exercise of our jurisdiction and to make regulations respecting its exercise, and Congress under that power has proceeded to erect inferior courts, and has said in what cases a writ or error or appeal shall be, an exception of all other cases is implied,. And this court is as much bound by an implied as an expressed exception."
(2) In the 1810 case of Durousseau vs. United States, 10 U.S. (6 Cranch) 307, 314, the Court said, "The appellate powers of this Court are not given by the Judicial Act; they are given by the Constitution. But they are limited and regulated by the Judicial Act and by such other acts as have been passed on the subject."
(3) In the case of Exparte McCardle, 74 U.S. (7 Wall) 514, the Supreme Court promptly dismissed the case for want of jurisdiction which had been removed when Congress deliberately repealed the Act giving the Court jurisdiction to hear McCardle's case on appeal.
Speaking for a unanimous Court, Chief Justice Chase declared in 1868, "We are not at liberty to inquire into the motives of the legislature. We can only examine its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this Court is given by express words. Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law; and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the case.
(4.) In the case of Francis Wright, 105 U.S. 381 (1882), the Court observed in plain language, "While the appellate power of this Court extends to all cases within the judicial power of the United States, actual jurisdiction is confined within such limits as Congress sees fit to describe. What these powers shall be and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control."
(5.) And of even more recent vintage, just prior to the time the Supreme Court moved stridently to completely take over our government, in the case of National Mutual Ins. Co. v. Tidewater Transfer Co 377 U.S. 582, 655 (1948), the Court said, "Congress need not give this Court any appellate power. It may withdraw appellate jurisdiction once conferred; and it may do so while a case is subjudice (that is, after hearings have begun and even before a judgment has been handed down! ).
Note here, as an example, that the U.S. House has recently passed legislation stripping the Supreme Court of jurisdiction to hear cases on "gay marriage." The Senate has not considered the measure. Thus it is obvious, however, that Congress knows its authority to strip the Supreme Court of jurisdiction
(1.) Copy this page. Send it to your senators and representatives with the note that you know what they have the power to do.
(2) Congress must repeal the 1974 Scott-Mansfield language (discusssed earlier) that gutted the anti-busing provisions of the 1964 Civil Rights Act.
(3.) Congress must strip all federal courts of jurisdiction to issue orders which require busing as a "remedy" or to continue it in cases still in effect.
(4) Congress must then pass legislation granting relief to all children still under busing orders.
IMPORTANT: NANS WILL GLADLY WORK WITH ANY SENATOR OR CONGRESSPERSON WHO INDICATES A WILLINGNESS TO DRAFT AND/OR SUPPORT THE NEEDED LEGISLATION WE SEEK.
It is correctly argued that short of a constitutional amendment, acts of Congress to limit or remove federal jurisdiction to order "remedies" that require busing will not stop state and local authorities from embarking on their own racial balancing schemes, backed by activist state judges emulating their federal brethren.
We submit, however, that with the threat of federal court action removed, the people, working through their state legislatures and state constitutions, can stop busing brought on by such state and local authorities.
It is, therefore, extremely important that each reader work with his state legislators, the governor, local school board members, and other elected and non-elected local and state leaders to achieve state law and/or a state constitutional amendment forbidding the use of race and/or ethnicity as a factor in school assignment.
Some states actually have state laws requiring school assignment to achieve degrees of diversity. Many school districts, seeing that some federal courts have ruled against use of race or ethnic origin as unconstitutional, have turned to assignment based on socioeconomic status as a proxy for assignment based on race or national origin. Therefore, in the opinion of NANS, the practice of using socioeconomic status as a factor in school assignment should also be illegal according to state and local law.
It is important to pay close attention to local school board members. Those who are not committed to a true neighborhood school assignment plan should be ousted either in the voting booth at the next election or by recall, if state law permits such action.
It is important to attend school board meetings and to speak up.
Readers must learn the position on this issue of elected officials and of those running for the various offices.
The voting public must be made aware of these positions to enable them to vote intelligently for those who will help bring an end to school assignment practices which use race and national origin as factors in assignment and which then undermine the neighborhood school concept, a vital environment for learning and for safe, stable communities.
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