Separation of powers

by Ted on June 17, 2005

(via Carpetbagger Report.) So, there was a state-sponsored display of the Ten Commandments in front of the Gibson County Courthouse in Princeton, Indiana. Some citizens brought it to court, arguing that it was unconstitutional, and won.

Indiana Republican Representative John Hostettler introduced an amendment to a spending bill that would “prohibit funds in the Act from being used to enforce the judgment of the United States District Court for the Southern District of Indiana in the case of Russelburg v. Gibson County.” Says Benen, “In other words, Hostettler would prevent the federal judiciary from enforcing its own court order. Gibson County could refuse to comply with the law and the judge couldn’t send marshals to resolve the problem.”


“John, I’m sorry. I agree with you on the merits; that Ten Commandments display isn’t hurting anyone. But this amendment isn’t the way to deal with it. We can’t micromanage in this way, picking court orders that we don’t want enforced. Everyone in this room could point to a court order that they wished had gone another way, but we’re not allowed to make those decisions. It’s a blatant violation of the separation of powers, and a terrible precedent to set. I’m sorry, but I can’t support this.”



Yes, the amendment passed. 91% of voting Republican representatives supported the amendment, versus 19% of voting Democratic representatives. I really don’t believe that 91% of the House Republican caucus didn’t know better. I don’t understand these people.



Otto 06.17.05 at 3:38 pm

Roe has driven them mad. And mad they are.


theCoach 06.17.05 at 3:39 pm

what is with the 19%?

This is a no brainer. The Republic obviously ends with whimper.


Ted 06.17.05 at 3:45 pm

Fair point, thecoach; I cannot imagine why you’d vote against your own party on this.


Billings 06.17.05 at 3:47 pm

More conservative judges might put out the fire.


Edward S. 06.17.05 at 3:47 pm

I didn’t realize that politicians voting for meaningless symbolism that has broad appeal to their base was a Republican thing. Thanks for the clarification about how “these people” think.


abb1 06.17.05 at 3:52 pm

Could someone explain how something like is possible? Shouldn’t the feds federalize the National Guard to enforce the law? Like in Alabama in the 60s.


Ted 06.17.05 at 4:09 pm


Voting to build the Ten Commandments display- that could be categorized as meaningless symbolism.

Voting to withhold funds necessary to carry out a specific court order is neither meaningless nor symbolic. It’s a serious overreach and a breach of the court’s authority. This isn’t Jesus Day.


Uncle Kvetch 06.17.05 at 4:16 pm

In John Hostettler’s world, every day is Jesus Day!


SomeCallMeTim 06.17.05 at 4:18 pm

So Old Hickory is back from the dead. Great.


Frank Emesis 06.17.05 at 4:25 pm

Can we start our own secular country yet?


roger 06.17.05 at 4:44 pm

Really, instead of defending the autonomy of a court system that is being filled with the worst right wing appartchiks, perhaps the left should pitch in where evangelicals have evidently not feared to tread Where is the proposal annulling spending on the Court order stealing the pension fund benefits from United Air workers to ‘save’ the company? An order forbidding federal agents from enforcing the outrageous violation of the constitution in the Medical Marijuana case might be nice, too. However, I actually see no need, under the Delay doctrine, for even legislative action. A little IWW action on the United air case would be just the ticket, and completely in line with Chairman Delay’s sayings. Lefty Randall Terrys defending the laboring class’ rights through the tactics so well employed by the antiabortion people — hmm. Maybe it is time to take advantage of the window of Anarchy.

I can think of a nice long list.


Another Damned Medievalist 06.17.05 at 4:45 pm

I ssay, “Ay,ay,ay, ay!” Or maybe just “oy”



Russell Arben Fox 06.17.05 at 4:48 pm

This is just insane. It’s Schiavo all over again. There are many principled arguments which can be made over whether or not the jurisprudence which has interpreted the liberal order so as to forbid public displays of the Ten Commandments is defensible or right. There are, on the other hand, no principled arguments which can be made for, rather than critiquing liberal jurisprudence, simply deciding to selectively bankrupt it through partisan force. The irresponsibility of some of these people to even their own principles is sometimes astounding.


Dan Simon 06.17.05 at 4:49 pm

Okay, I’m curious. Suppose that the federal court had done something really, really nutty–something so utterly beyond its legitimate powers, so obviously unrelated to any reasonably plausible reading of the actual US Constitution, so staggeringly unpopular–that even diehard American constitutionalists would have to wonder what they were thinking. (In other words, imagine that the court had ruled exactly the way it just did in this case, only fifty years ago or so. Or, if that era is just too alien to grasp, then go back a couple of decades further, to a more politically congenial time, and imagine the court striking down your favorite government economic program as unconstitutional.)

What should an elected government do in such a circumstance? Franklin Roosevelt knew–he threatened to “pack the court” to fix the problem. Granted, he was rebelling against the federal court on behalf of the federal executive, whereas this is a state court. Still, if an overreaching judiciary is to be resisted, I’d rather see it done with the explicit approval of the legislature, than by executive fiat.

No doubt everyone here at Crooked Timber will be shocked at my impertinence. I wonder how many Bush Supreme Court appointments it will take for that attitude to fade….


Edward S. 06.17.05 at 5:11 pm

Ted writes:

“Voting to withhold funds necessary to carry out a specific court order is neither meaningless nor symbolic. It’s a serious overreach and a breach of the court’s authority. This isn’t Jesus Day.”

You’re missing how Congress actually works, Ted. No one actually thinks that the Senate will go along with this, or that it will become law. On Capitol Hill this is considered a freebie: individual GOP Congressmen get to satisfy their base, but this gets taken out of the legislation at the later conference stage.


trotsky 06.17.05 at 6:35 pm

Why is this any more a “violation” of the separation of powers than a court’s review of the Executive’s wartime acts (such as, say, the detentions at Guantanamo) or a court’s overturning of a law duly enacted by the Congress, or Congress’ subpoenaing Executive branch decision-making documents.

A large part of the point of the separation of powers is not to neatly divide authority into easy categories but to have the various branches of government check and balance one another.

You may think the representatives are wrong and unwise on the merits (I’d agree), but to suggest that they are tearing up the Constitution is ahistorical.

This is the point where we get to bust out Andy Jackson’s quote: “John Marshall has made his decision, now let him enforce it.”


paperwight 06.17.05 at 7:26 pm

You’re missing how Congress actually works, Ted. No one actually thinks that the Senate will go along with this, or that it will become law. On Capitol Hill this is considered a freebie: individual GOP Congressmen get to satisfy their base, but this gets taken out of the legislation at the later conference stage.

That should pretty much all be written in the past tense. (a) The Republicans running the show now need to bow down before the Republican Fundamentalist crowd to prove their bonafides. (b) There’s a strong strain of “because we can, so fuck you” in the Republican Party of today. See, e.g., ANWR.


Keith M Ellis 06.17.05 at 9:46 pm

There was a lot of informed debate on this matter (the constitutional validity of legistlative countering of judicial review) a while ago. I’m stupid today, so I can’t even remember the context. Perhaps someone else does and can link to the best of that discussion?


jet 06.17.05 at 10:30 pm

Heh, I finally gave up hope when the Supreme Court ruled the way they did on the medical marjuana case. But really, has anything the .gov done been surprising since a three ring circus posed as the US government in the 30’s?


Hellbilly 06.18.05 at 10:55 am

The ignorance of the Constitution displayed here is appalling.

Article III clearly says:
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.

The reality is the Constitution gives Congress a tremendous amount of power over the Judiciary. In fact, Congress has the power to dissolve all federal courts except the Supreme Court. Article III again:

Section 1. 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.


bi 06.18.05 at 11:05 am

Dan Simon, stop smoking crack already.


EKR 06.18.05 at 11:34 am

In the American system, there’s actually a very straightforward answer to your question: pass a constitutional amendment. Indeed, a number of amendments (at least the 16th and IIRC the 18th) are th result of exactly this process. So, in the face of a truly overwhelming consensus it’s easy to override the court.


Dan Simon 06.18.05 at 12:46 pm

EKR, that may or may not solve the problem. The court has repeatedly shown itself willing to invent interpretations of the current constitution that have nothing to do with its plain text, and even some that appear, to the insufficiently legally subtle mind, to be in direct contradiction to its plain text. It’s therefore not clear that passing a constitutional amendment would necessarily deter the courts from sticking with a constitutional interpretation that appears to directly contradict it.

For example, the court could rule the amended version of the constitution to be self-contradictory, since part of it (the new amendment) contradicts the rest of it (as previously interpreted by the court). They might then “resolve” the contradiction by interpreting the new amendment as applying only to cases which are not already “determined” according to the rest of the constitution, as previously interpreted. What then?


abb1 06.18.05 at 4:53 pm

Federal courts have litle to do with the constitution; constitution is just a set of fairly broad guidelines.

The function of high courts (and especially the US supreme court) is to be an entity, comprised of un-elected and un-accountable wise-men of the elite, having the power to block any dangerous foolishness initiated by unruly representatives of unwashed masses. They adjudicate, they use constitution as a fig leaf.


Billings 06.18.05 at 10:01 pm

#10: It already exists north of the border.


bi 06.19.05 at 12:07 am

Billings: Finland?


melior 06.19.05 at 9:03 am

Posting the 10 Commandments is the first step to bringing miracles like the one the Romanian woman Maricica Irina Cornici was just blessed with to America!

“God has performed a miracle for her, finally Irina is delivered from evil,” AFP quoted the priest as saying.


Billings 06.19.05 at 12:38 pm

Bi-guy: The Land o’ the North and one-party state, Oh Canada.


urizon 06.19.05 at 3:40 pm

“I really don’t believe that 91% of the House Republican caucus didn’t know better.”

Come on, Ted, let’s call a spade a spade. These idiots do know better, but it doesn’t matter. The house is no longer a deliberative body; it is a rubber-stamp apparatus for a crypto-fascist agenda. These idiots have been hand-picked for they’re personal disdain for due process, dissent, and democracy.

This isn’t ignorance, this a is willful attempt to subvert constitutional government.


Billings 06.19.05 at 4:58 pm

Liberal judges subverted constitutional government a long time ago. If you didn’t complain then, you shouldn’t now.


engels 06.19.05 at 5:34 pm

billings – What are you talking about?


jonathan 06.19.05 at 8:03 pm

I seemed to have miss this issue in the news, but why would someone be offended by the ten commandements? they are central in all the religions that consider them central, and irrelevant in those who dont bother. I just don’t get the motivation of one person to feel abused or mistreated.

I understand there is 1st amendement on this issue from the late 18th century. Why would an amendement agreed upon then be valid now?
Prof. Jaques from the University of Indiana held a lecture in Oxford this last yesterday and he explained to us that the 1st amendement is like it is because the people that made it loved religion, but did not want to talk about it, pay for it and critisize it.
At the same series prof. Buskens from Leiden explained to us how religion is a part of culture, it must be studied and critisized etc.

But somehow I understand it is not an easy topic for americans.


worldcitizen 06.19.05 at 11:26 pm

I seemed to have miss this issue in the news, but why would someone be offended by the ten commandements?

“1. I am YHWH your god. You shall have no other god before me.”

Fuck that. We can have any god we want (or none) in this country.


abb1 06.20.05 at 5:32 am

As an American Patriot and active duty marine I object to absurd anti-American commandment “Thou Shall Not Kill”. We don’t need this liberal socialist communist crap in our courthouses.


jonathan 06.20.05 at 2:44 pm

yes, its totally an insult to your freedom. right.

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