Editor’s Note: Some of the more interesting and intriguing news at the moment involves the appointment of former Illinois Attorney General Roland Burris to Barack Obama’s former US senate seat. As this week opened, Burris was presenting himself to the Senate to be seated and Senator Majority Leader Harry Reid was refusing to seat him. Reid said the appointment process had been “tainted” because the appointment was made by Illinois Gov. Rod Blagojevich, who is accused of trying to sell the appointment.
Another intriguing and developing story is the effort to stop US Supreme Court Justice John G. Roberts, Jr., from using the phrase “under God” when he swears Obama in as President. The following letter deals with the role of the US Constitution in these stories.
The more I listen to what the “Talking Heads” say on the various “shows” which purport to inform those who listen to them on the issues of the day, the more convinced I become that most of them have never either read the Constitution of the United States or have failed to understand what they have read.
I learned the fundamentals of that document more than 60 years ago from F. D. G. Ribble, a respected authority on that subject and Dean of The School of Law at the University of Virginia. He was neither a liberal nor a conservative. He was a pragmatist.
He said that, with regard to any subject, the Constitution means exactly what a majority of the Justices of the Supreme Court participating in the decision of a case say it means at the time their opinion is rendered.
I was prompted to write this letter because of the large amount of misinformation currently spewing from the mouths of the “Talking Heads” with regard to the political situation in Washington.
First, let us look at the subject of the next President taking the oath of office and the relevance of the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”
Those who would prohibit any reference to God in the inauguration process focus on the first phrase in the language quoted and ignore the next two phrases “ or prohibiting the free exercise thereof, or abridging the freedom of speech...”.
Next, let us look at the powers granted the Judiciary by Article III. Section 2 states, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution…” Where does it give “the judiciary” power to regulate the manner of conducting the inauguration process? Many of the powers of the judiciary exist because of usurpation.
So much for having the Chief Justice of the Supreme Court be able to use the phrase “under God” when he swears in Barack Obama.
That brings us to the subject of the right and power of the Senate to regulate its own affairs and whether or not Seantor Reid or Burris will prevail. Article I, Section 5 states, “Each House shall be the judge of the elections, returns and qualifications of its own members…” There is nothing in the Constitution which grants the Judiciary the right or power to review and rule on the validity of the rules which either house of Congress adopts for its own governance.
A number of years ago, when the House undertook to exercise its powers to regulate its affairs, the Supreme Court usurped this power of the House and directed that Adam Clayton Powell of New York be seated as a Member of that body. The Members of the House thus did a disservice to themselves and the nation by pusillanimously acquiescing. Perhaps the Senate will show more fortitude.
Many members of Congress complain about the encroachment of the Executive branch on their powers. Now may be their time to begin to reclaim some of their lost power. It will be interesting to see how the seating or non-seating of Roland Burris proceeds as the days go on.
By Louis Herrink, King George
Herrink, an attorney, is a graduate of the University of Virginia and a former member of the Virginia General Assembly.
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