There is no comment I can make that can serve as an appropriate repsonse to what DeLay said in this interview. Tom DeLay is, once again, deficient in both scholarship and intent.? The right of judicial review dates back more than 200 years (not 50 or 100) to Marbury v. Madison in 1803.? The separation of church and state is part of the first amendment (Congress shall pass no law regarding establishment of religion).
DeLay in a panel discussion with the Moonie Times editorial board:
Mr. Dinan: You’ve been talking about going after activist judges since at least 1997. The [Terri] Schiavo case gives you a chance to do that, but you’ve recently said you blame Congress for not being zealous in oversight.
Mr. DeLay: Not zealous. I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them.
Mr. Dinan: How can Congress stop them?
Mr. DeLay: There’s all kinds of ways available to them.
Mr. Dinan: You tried two last year on the Defense of Marriage Act and the Pledge of Allegiance, and the Senate didn’t go along with those.
Mr. DeLay: We’re having to change a whole culture in this – a culture created by law schools. People really believe that these are nine gods, and that all wisdom is vested in them. This means it’s a slow, long-term process. I mean, we passed six bills out of the House limiting jurisdiction. We passed an amendment last September breaking up the Ninth Circuit. These are all things that have passed the House of Representatives.
Mr. Dinan: Are you going to pursue impeaching judges?
Mr. DeLay: I’m not going to answer that. I have asked the Judiciary Committee to look at this. They’re going to start holding hearings on different issues. They are more capable than me to look at this issue and take responsibility, given the, whatever, the Constitution.
Some argue that judicial review to protect individual rights goes back even further than Marbury.?James Madison himself had Tom DeLay in mind as an evildoer of the future:
Statement of Madison on June 8, 1789, introducing the Bill of Rights in the First Congress:
If they [the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
And as for protection of unenumerated rights like the right to privacy: while Madison says "rights expressly stipulated for" in the Bill of Rights, he also introduced the 9th Amendment specifically as a savings clause for unenumerated rights:
…it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This…may be guarded against. I have attempted it…[referring to the 9th Amendment]
DeLay represents the very kind of buffoonish tyrany that led to these restrictions against absolute government. He either failed high school history or forgot it. But I think he?neither failed it nor forgot it.? He’s no dummy.? He knows that if he says separation of church and state is not in the Constitution and Congress has the power to divest the Supreme Court of jurisdiction over constitutional questions, then a good deal of people in America will believe him.? Why?? Because they wouldn’t know the Bill of Rights from toilet paper.? To them, Article III is a Gap ad or something in a newspaper (not that they read newspapers).
That’s what were up against.