You hit on a lot of stuff here. I won't hit on most of it, but I will take a shot at the part that interests me most. We can cycle back to some of the other stuff at another time if you wish.

First, I don't see Andrew Sullivan as a conservative. Maybe he is in part, but he seems to be first and foremost a gay activist. That is fine. He is a bright guy and I wish him well, but conservatism is way down his list of principals.

Second, at least as far as the US Constitution is concerned, Bennett is absolutely correct that the courts do not have the ultimate say as to what is constitutional. The Courts are the Article III guy. Congress is Article I.

Article III, Section I says that "The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Thus, with the exception of the Supreme Court, all the other federal courts are a creation of Congress who could reorganize and reshuffle them at their whim. If you go back to your FDR days, they can reorganize the Supreme Court as well.

More importantly, in Section III, the Constitution goes on to say that "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."

Thus, if Congress wanted to take jurisdiction of the abortion issue away from the courts all together, they have the power to do that. In the Shavio case, they had the power to pass a law that would save her life, but they chose not to pass that law.

The Supreme Court has had the power to interpret the Constitution only because they grabbed that power in Marbury v. Madison, and because Congress has allowed them to do it.

This is just basic civics, but I will wager no teacher ever taught you that in school.

What follows assumes that the Florida Constitution works the same way, though I do not know that for a fact.

Bush could do exactly as Bennett suggests. A Constitutional crisis would follow and Bush might very well lose that battle. In the right context I might even support such a battle, but this is not that context.

Disagree with Bennett if you want, and in this case I do, but his analysis is 100% correct.

"Second, at least as far as the US Constitution is concerned, Bennett is absolutely correct that the courts do not have the ultimate say as to what is constitutional. The Courts are the Article III guy. Congress is Article I"

I don't understand what you're saying here. Nothing in Article 1 says Congress has the last say in interpreting the Constitution, and Article 3 says the Judiciary shall have power over all cases arising under the laws and Constitution. Sure Article 3 could easily be interpreted to mean that Congress could take jurisdiction of a cse from the SC, but that doesn't make Congress the arbiter of what is Constitutional.

Also, Marbury v. Madison was in 1803, so it's not like this equality of the Judiciary is a new thing. And the reason it has survived is because Marshall wrote a pretty convincing argument. If the courts are supposed to rule in all cases brought before them, and they are sworn to uphold the Constitution, then they can't very well allow punishments meted out under laws that are passed in violation of the Constitution. Therefore, part of their job is to determine if laws are Constitutional. No such power is vested in the Congress.

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Slowguy

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That is the way the system works, but it is very important to understand that it works that way only because Congress lets it work that way. They can make exceptions and apply regulations to the Supreme Court, if they so choose.

They could, for example, provide that the Supreme Court interpret cruel and unusual punishment to exclude executions of minors. They could require that the Court interpret the Constitution to not allow it to interfere with state abortion laws. They could get rid of the Ninth Circus Court of Appeals tomorrow and reorganize its responsibilities.

Congress has chosen for 200 years to do none of these things, but they do have the power. Bennett is completely right about that.

The idea that the Founders organized a government with checks and balances on everything but the Supreme Court is just silly.

The bulk of the power in the federal government ultimately resides in Congress. It was specifically organized as to be so divided with its power so diffused so that it couldn't get out of its own way to use that power most of the time.

The Founders were just absolute geniuses.

"They could, for example, provide that the Supreme Court interpret cruel and unusual punishment to exclude executions of minors. They could require that the Court interpret the Constitution to not allow it to interfere with state abortion laws. They could get rid of the Ninth Circus Court of Appeals tomorrow and reorganize its responsibilities"

I don't agree completely. Nothing says that Congress can tell the SC how to interpret anything. As for abortion laws, I absolutely don't agree, if the State itself is a party to the case. Article 3 pretty clearly states that any case in which a State is a party, the SC shall be the original jurisdiction. The exceptions and regulations Congress may make only apply to the other cases in which the SC is only the appellate. I do agree that they could reorganize the courts if they wanted, although that isn't explicitly stated.

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Slowguy

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The SC has original jurisdiction in matters in which one state is suing another. You are confused on this point.

Section 3 just couldn't be any more clear. Congress can make exceptions and write regulations in which appellete jurisdiction is involved. That is essentially every case. Brown v. Board of Education, Roe v. Wade, Lawrence, Schiavo, you name it.

They could pass a bill that says henceforth the federal courts shall have no power to adjudicate state abortion, marriage, capital punishment or sodomy laws.

You would have a constitutional crisis, but Congress would win, if it were united (now that is an oxymoron), at least until the next election.

"The SC has original jurisdiction in matters in which one state is suing another. You are confused on this point."

Show me where that is stated. My copy says this:

"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 jursidiction."

That pretty clearly does not limit the original jurisdiction to suits between States.

"They could pass a bill that says henceforth the federal courts shall have no power to adjudicate state abortion, marriage, capital punishment or sodomy laws. "

They could pass any law they wanted to, but since that law would clearly not be in concert with the Constitution, I don't believe the Supreme Court would be bound by it. As for other federal courts, I don't know. Nothing in Article 3 clearly states that Congress can make regulations regarding any of the other courts except for the SC. Article 3 says that Congress can establish and ordain courts, that they can pass regulations and exceptions with regard to the SC's appellate powers, and that Congress can have the power to declare the punishment of treason. That's all it says. It does not say that Congress has the power to tell any other courts anything.

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Slowguy

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"Again, the demands of the religious right pre-empt constitutionalism, federalism, and even the integrity of the family. When conservatism means breaking up the civil bond between a man and his wife, you know it has ceased to be conservative."

Interesting. Seems that both our major parties are suffering from a dichotomy of sorts. Certainly the Reps are in conflict and similar conflicts exist amongs the Dems. Maybe neither of our major political groups are being guided buy the flags they fly, "liberalism" and "conservitism", but alterior motives are their guidance.

~Matt

I believe I have the meaning of the clause right. I don't think there has been an original jurisdiction case in my life time. Original jurisdiction means they hear a case. They have witnesses. No inferior courts are involved.

The Supreme Court would absolutely be bound by a law such as I described. Congress' enforcement mechanism in the impeachment power.

They can create or disband the lower courts at their whim. Any exceptions or regulations they apply to the Supreme Court, they can apply to the inferior courts.

You have to realize that Congress is the 800 pound gorilla. The Supreme Court can't put toilet paper in the stalls unless Congress gives permission.

Funny how Robert Byrd calls changing an internal Senate rule on fillibusters a nuclear option despite the fact that he did exactly that during his tenure. He knows the real nuclear option is what I have described.

You may be right that that is how the Constitution is interpreted, but none of what you claim is explicityly stated in the document. Nowhere does it say that Congress has any authority over any courts besides the SC. Nowhere does it explicitly state that Congress can impeach judges. Nowhere does it state explicitly that Congress can determine how a court interprets the law.

I understand that the majority of the power is placed in the Congress as a body representative of the people. However, it is not the single branch capable of tellign the other two to do whatever it wants them to.

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Slowguy

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As to interpreting laws, "such Exceptions and under such regulations as Congress shall make" just couldn't be any more clear.

"Pursuant to Article III, Section 3, Congress hereby removes jurisdiction over matters involving state laws about abortion from the federal courts." That is a simple enough regulation.

Congress determines the jurisdiction of the federal courts. That is exactly what they did in the Schiavo case. They expanded the jurisdiction of the federal courts to include that particular case. They have that power.

As to impeachment, that is very obvious. Our distinguished Congressman from Florida, Alceye (sp?) Hastings was elected based on his credentials as an impeached Federal Judge.

Article III Section 1: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour .... Failure to exhibit good Behaviour is punishable by impeachment, Article I, Section 3. A 2/3rds vote of the Senate is required.

All the Courts other than the Supreme Court are creations of Congress, Article III Section 1 quoted above.

Everything here played out during the Andrew Johnson presidency. Congress passed a horrible law that Andrew Johnson was forced to disobey or essentially cede the powers of the presidency to Congress. He chose the former. Congress impeached him, but, at the last minute, one Senator blinked and the Senate fell one vote short of conviction.

I do not argue that these are powers the Congress should use, or even threaten to use, but it is indisputable that Congress has that power.

Ultimately some branch has to make the final call. The Founders organized the government such that the branch with that power was so organized as to be almost completely unable to go about using it. They are also the branch organized so as to be most vulnerable to the shifting will of the People.

It all hangs together.

"As to interpreting laws, "such Exceptions and under such regulations as Congress shall make" just couldn't be any more clear.

"Pursuant to Article III, Section 3, Congress hereby removes jurisdiction over matters involving state laws about abortion from the federal courts." That is a simple enough regulation. "

Except that you just conveniently left off the first part of that paragraph that says "...the Supreme Court shall have appellate jurisdiction, both as to law and as to fact,.."

It's not as clear as you would like to make it seem. Do the exceptions and regulations apply to the "law and fact" or to which cases the SC has jurisdiction over, or to which cases any court has jurisdiction over? It isn't clearly stated, and just saying it is doesn't make it so.

"As to impeachment, that is very obvious. Our distinguished Congressman from Florida, Alceye (sp?) Hastings was elected based on his credentials as an impeached Federal Judge.

Article III Section 1: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour .... Failure to exhibit good Behaviour is punishable by impeachment, Article I, Section 3. A 2/3rds vote of the Senate is required"

Again, not so obvious. The Consitituion doesn't specifically state that a judge is impeached for bad behaviour. Nor does it state that the Senate does the impeachment. If you look at section 2, it ends with the House having the sole power of impeachment. The Senate can't impeach anyone. They try the impeachment after the House impeaches someone.

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Slowguy

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Alright Art, I'll give you the benefit of the doubt (thanks for the history lesson btw--not my area of expertise (much less familiarity--the Gentlemen's C in history was evidence of that)) that you didn't intentionally deflect my original query: Are conservatives the new democrats & the coming battle is not with the left, but with the religious right/Christian fundamentalists which are the base of the Republican party?

This is the point that I would prefer to focus on rather than digressing into the minutia of Constitutional intrepretation.

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"There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs." John Rogers

You are correct about impeachment. Both houses of Congress are in the loop. A majority is needed in the House, and 2/3 of the Senate. It works pretty much the same for judges as it does for the President. That is how my good buddy Congressman Hastings got kicked out, for bribery in his case.

The SC has appellate jurisdiction over the inferior courts as set up by Congress. The Congress can remove the Courts jurisdiction over matters just as they expanded jurisdiction in the Schiavo case.

Congress can impeach a judge just as they can impeach a president. It is a political matter, not a criminal matter. There is no appeal to this process.

The text of the Constitution is very clear. Congress doesn't use this power because, absent the right context, it might well trigger a revolt along the lines of the Ukraine.

No where in the Constitution does it say the SC does the final interpretation. All branches are in on the act. That is part of the oath the president and all Members of Congress take.

Art, i would probably argee with you if you didn't keep saying things like "The text is very clear." Show me one sentence in the Constitution that says that judges are subject to impeachment. Show me one sentence in which the document says that Congress can fire judges, or disintegrate any federal courts.

"No where in the Constitution does it say the SC does the final interpretation. All branches are in on the act. That is part of the oath the president and all Members of Congress take"

Nowhere in the document does it say one single word about legal interpretation. Nothing in the oaths of office say anything about interpretation either. They just swear to protect, defend and preserve it.

The fact is that it isn't clearly written, and it's a couple hundred years old, which is why interpretation is necessary. Having separate bodies interpret the law with equal status could lead to two branches interpreting differently, which wouldn't be a good thing, so it makes sense that some branch have the final say. Although the powers aren't all equally distributed, it seems pretty fair to say that Congress writes the laws, the courts interpret them, and the executive enforces them.

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Slowguy

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About the only insight I can offer (assuming it rises to the level of insight) is that I really don't think so. Certainly there are conflicts within different groups within the Republican Party. I view this is as a good thing. No homogeneous group can come close to mustering a majority of vote in a national election.

I have a bunch of problems with Bush, but there is a reason why he was elected and the Gingrichs and the like do not get elected.

The MSM loves to jump on any perceived fissure in the Republican party. Witness the lionizing of any Republican that attacks other Republicans like McCain or Hagle. They are presented as wise and as having grown.

There are far worse splits in the Democratic Party which the MSM basically ignores. I really fear for their existence as a national party. The Republicans definitely need better competition in order to stay in tune with their principals. Gee, I remember when the Republicans were the part of smaller government. Seems like a long time ago.

I don't know what to say about impeachment. The process is well established with precedent. Just ask Congressman Hastings. Article I, Section 3.

The inferior courts are a creation of Congress. They are the ones who set up the Ninth Circus for example. There are discussions aimed a breaking it in two because it just covers too much of the country. All that would be required is an act of Congress.

The Congress can only impeach judges. They can not fire them. They can not reduce their pay, Article III section 1.

I don't see how defending, protecting and preserving the Constitution doesn't sweep in interpreting it. One of the early presidents, Washington I think, would only veto legislation if he thought it was unconstitutional. It is on this basis I fault Bush for not vetoing campaign finance reform. It is blatantly unconstitutional. Bush shirked his duty, signed it, and left it to the SC to strike it down. Surprise. That is what you get when you don't do the right thing.