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What’s Next for the Imperial Judiciary?

The Welcome Constitutional Crisis Continues

“How much power Congress has to block Supreme Court consideration of the constitutionality of its laws is an open question.”  This, the Washington Post said in a September 23, 2004, editorial, is “somewhat surprising.”  The Post shouldn’t be so astonished, for the real surprise is that judicial supremacy—the doctrine that the Court interprets the Constitution not only to decide the case before it but to establish rules for the other two branches and the country—is quickly moving from cherished folklore to exploded myth.

The House, the Post continued, is scheduled to take up the Republican leadership’s “latest attack on the federal courts.”  In July 2004, the House passed, by a 233-192 vote, H.R. 3313 in reaction to the Massachusetts Supreme Court’s ruling that the state constitution protects “gay marriage.”  Ever since the U.S. Supreme Court found a constitutional right to sodomize in Lawrence and Garner v. Texas, some have come to suspect that it will use the Full Faith and Credit Clause to impose a Massachusetts “gay marriage” on, say, Florida.  Each state, under H.R. 3313, would decide for itself—but not for any other.

Now comes the Pledge of Allegiance.  The Ninth Circuit, two years ago in Newdow, deleted the words “under God”...

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