Constitution Restoration Act of 2005 A couple of weeks ago, I wrote an article -- Protecting an Independent Judiciary -- where I talked about my concerns regarding the attacks by DeLay, Cornyn et al on the Judiciary, and as part of that, I mentioned by opposition to Senate Bill 520 - The Constitution Restoration Act. That prompted a letter from reader mushroom blue. With his permission, I'm sharing his letter and giving my response. hi. I'm a long-time reader of the site, finally felt compelled to write you, though. I don't see why you have a problem with the Constitution Restoration Act of 2005, and moreso, why you're using this act as some sort of example of the bad things congress is doing. if anything, someone who is an anti-federalist (which is what those that promote federalism are called. seriously.) would be nothing but happy for what the bill provides. Well, let me start off with some general comments, and then we'll get into the specifics of the proposed Act. I see the Constitution Restoration Act as, at least partially, an attack on the Judiciary. As a drug policy reformer, the Judiciary is generally my friend -- maybe not a best friend, but certainly a better friend than the executive or legislative branches. Certainly, there are judicial decisions with which I have vehemently disagreed. I've felt all along that the courts have allowed the destruction of the fourth amendment to go way too far. But it wasn't the courts that conducted the offensive searches or passed the bad laws -- the courts simply didn't go far enough in stopping the Executive and Legislative branches who were violating our rights. The courts have not passed a single law that restricts our rights, nor have they conducted a search of our cars or locked us up for possessing a plant. Those things have been done by our elected representatives. All the Judiciary is able to do is act to restrict laws or actions initiated by another branch. They cannot really create. (I know some people talk about courts doing "active" things like levying school taxes, but you'll inevitably find that in each case it's because the legislature or executive branch were failing to follow their own laws or Constitution -- not because the judges decided to be active.) Another reason I like the courts is because they are independent. It makes them sometimes annoyingly unpredictable, but it also means that there is additional protection against tyranny. And the drug war is a prime example of tyrannous activity by the government. Elected officials have used the drug war for a variety of political and social reasons that completely ignore the rights of the individual, while a cowed public has been too timid to hold them to account. It is in situations like this that you hope for an independent judiciary that can, at least some times, have the balls to act as a balance. Note that Raich v. Ashcroft wouldn't even be in front of the Supreme Court if the Executive branch wasn't a bunch of assholes who send DEA agents to harass sick people, or if the Legislature wasn't a bunch of idiots who voted down the Hinchey amendment two years in a row. While I would welcome a discussion about what constitutes a proper approach to interpreting the Constitution, I don't think the Constitution Restoration Act serves that purpose. It seems to me to be, at least in part, an attempt to reduce the power of the Judiciary in comparison to the Legislative branch. It wants to restrict what the Judiciary can review and how it can review it, while letting the Legislature and Executive branches continue without any additional restrictions. That is unacceptable. So let's take a closer look at the Act (mushroom blue's comments in blue, the Act in red) Mushroom blue: perhaps I should explain a little better. the first part of the bill, though verbose, simply states that the court doesn't have jurisdiction to review any civil case involving a state official or state agency (or federal, for that matter) and their view on god. religion should be a personal thing anyway. it does set wording aside for future limitations to the judicial branch, which I'm not exactly fond of. the second section states that if the supreme court doesn't have jurisdiction, neither do the district courts. this doesn't say anything about the states, which is a definite plus. The Act: SEC. 101. APPELLATE JURISDICTION. `Sec. 1260. Matters not reviewable `Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.'. `Notwithstanding any other provision of law, the district courts shall not have jurisdiction of a matter if the Supreme Court does not have jurisdiction to review that matter by reason of section 1260 of this title.'. This section to me is just a lot of trouble. First, I think it's vague and poorly worded. "...not have jurisdiction to review... any matter ...concerning [their] acknowledgment of God as the sovereign source of law, liberty, or government." Any matter? Concerning? Whoa! Open the doors for a flood of court cases to determine whether or not the courts can review the cases! Plus, I don't see why the courts shouldn't review such cases. Both to protect religious expression, and to prevent the government from promoting one religion over another. If a school principal starts each day over the intercom with "Allah Akbar, Ashhadu alla ilaaha illallah" (God is the greatest, I bear witness that there is no God except the one God), should that be unreviewable? What if a city manager requires everyone who does business with the city to respond to such a chant in kind? Would review of that be allowable under the new Act? What if a government manager believed that God considers drug use to be unclean and therefore refused to hire anyone who had ever used drugs in the past? And if God is the sovereign source of law, liberty and government, can't any action be considered outside our government's jurisdiction if claimed to be of God's law? I've got enough problems with Congress' laws regarding drug policy, without complicating it further. [And yes, I know that it does not extend to the states, so that presumably state courts could still rule, but that leaves federal officials exempt from any review. Unacceptable.] Mushroom blue: my favorite section is the interpretation of the constitution. this is the most vital addition to the united states code. This section stipulates that the only tools the court has on interpreting the constitution are english constitutional and common law up to the time of the adoption of the constitution. note that there weren't any drug laws at this time. this won't exactly help Raich v. Ashcroft (unchecked legislative powers harken back to the 14th amendment), but it'll certainly be used in interesting ways in the future. The Act: SEC. 201. INTERPRETATION OF THE CONSTITUTION. In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States. I'm aware that there's a lot of interest in this section right now -- particularly after the recent case that prevents the execution of minors, since the decision made reference to international standards. There's a lot of people, like Phyllis Schlafly, who wanted to keep killing children and found this decision to be a violation of their religious principles (apparently she belongs to a religion that advocates killing children, I'm not sure.) [Sorry, I'm being flip, but I sometimes find her hypocrisy astonishing.] I understand the impulse. Why look to foreigners for interpretation of our law? And yet we cannot deny that we are not isolated. We inject ourselves into the international community in every aspect of our society. We have laws that are very specific ("Congress shall make no law...") and that lend themselves to a specific interpretation (although I wish the Judiciary had held Congress to a more literal interpretation of the 1st Amendment -- Congress breaks that practically every day they're in session.) We also have laws that are dependent upon a changeable definition of words that are in their very nature dependent upon current trends for their meaning. Such as "excessive," "cruel," "unusual." You cannot define "cruel and unusual" from English common law or the Constitution. Nor can you let the fox guard the henhouse (ie., let Congress define it). There must be an independent guard to protect the rights of the minority under the Constitution. Sometimes the courts get their guidance in defining such words from prevailing trends in the United States -- what the other states are doing. But I can also see appropriate times for them to look at the larger international community. And the drug war is one of those. U.N. treaties were invoked by the government in Raich v. Ashcroft as a reason to give the Congress power to stomp on Angel Raich. The Courts certainly have to be able to consider that, so their jurisdiction has to involve the interaction of the United States with other countries. And the drug war has extraordinary international repercussions. But even taking it out of the larger picture of international treaties and such, let's take a look at a potential future definition issue: cruel and unusual punishment for marijuana use. Look at two scenarios: All the developed nations legalize marijuana use, except the U.S. It causes no hardship in those countries and in a short time becomes a standard part of society (less damaging than alcohol use). In the U.S., Congressman Sensenbrenner gets bills passed that provide for minimum of 10 years in federal prison for possessing a joint. A case goes to the Supreme Court claiming the law is cruel and unusual punishment. The Court looks at other countries and says, "Damn right that's cruel and unusual!" (they probably use different wording). Law gets thrown out. All the developed nations increase penalties for marijuana use, including adding the death penalty for possession of two or more joints. U.S. decriminalizes marijuana. Well guess what? There's no way the Supreme Court can review laws for "being too lenient" so it doesn't matter. I'm sure you can come up with other examples of possible ways for the Supreme Court to use international examples in a negative way, but in reality, as it relates to the drug war, the scenarios, if anything, will tilt toward reform when allowing the Supreme Court to look at more options. Mushroom blue: the next section (302) has a very important impact on Raich v. Ashcroft (and Morrison and Lopez before it). Any decision that'd be later categorized under the two empty "out of jurisdiction" sections are promptly nullified, and deferred back to the state to make the final decision. Raich v. Ashcroft would have never existed, as California had deemed her needs legal. The Act: SEC. 301. EXTRAJURISDICTIONAL CASES NOT BINDING ON STATES. Any decision of a Federal court which has been made prior to, on, or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court. [Note: I'm assuming you meant Section 301, since section 302 covers impeachment of judges.] Here you're just misreading the Act. This provision would not have nullified the federal drug laws. It would only nullify Federal court decisions that had: Reviewed acknowledgement of God as supreme, etc. or Used foreign decisions as a reason for the interpretation Federal drug laws were passed by Congress and allowed by the Supreme Court in a gradual weakening of the interpretation of the Commerce Clause over the years, but that came from a (possibly misguided) interpretation of our own Constitution, which is not in any way prohibited in this Act. In fact, this act does not invalidate a single act, law, or provision of Congress. What it does is revoke some moderating influences on Congress. Mushroom blue: Admittedly, all this has come at an inopportune time. With the current "Activist Judges" red herring being thrown about, it's possible that this bill could have just seemed like another chance to destroy the constitution, but I really don't think it is. I was worried that this bill would be put on the backburner last year (when it was first drafted), but it seems the bill is getting the attention it deserves. I'd say delegating legislative and judicial authority to the states is exactly what needs to be done to promote federalism. Seriously, can you honestly think of any way this could be abused? I'd like to think you spent some time forming your opinion over this bill, and it wasn't some sort of kneejerk reaction. The problem, mushroom blue, is that you are mistaken when you say it is "delegating legislative and judicial authority to the states." There is absolutely no delegating of legislative authority at all -- they're free to operate without any changes, and in fact, without having to worry about as much pesky review of their bad laws by the Supreme Court. And there's very little delegating of judicial authority to the states -- it reduces the power of the federal judiciary to review Congress without really giving state courts much additional power. I hope you understand that I have spent considerable time forming my opinion about this bill. It's a bad Act. Bad for our country, and bad for drug policy reform. But I also want to say to mushroom blue -- thanks for reading Drug WarRant, thanks for writing and thanks for bringing up this important topic. I welcome comments as always from anyone -- and if anyone's got a longer rant on the subject, Guest Drug WarRants is always available.