Now that the Federal Marriage Amendment has resoundingly failed in the Senate, Republicans in the House are devising a new strategy to get their way. It involves stripping. Jurisdiction stripping, that is:
Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue. …
Rep. John Hostettler’s (R-Ind.) “jurisdiction stripping” bill… would bar federal courts from hearing lawsuits related to gay sex and marriage. …
Majority Leader Tom DeLay (R-Texas) told reporters yesterday that he plans to use “jurisdiction stripping” measures to achieve other social policy goals as well.
For example, he will push legislation to stop federal courts from hearing lawsuits related to the words “under God” in the Pledge of Allegiance.
DeLay said the time is “not quite ripe” to apply the GOP’s new legislative tactics to the issue of abortion.
Sorry, but this concept is relatively new to me, and since I’m not an expert in the history of the authority of federal courts, I feel really unqualified to support or oppose these tactics. Perhaps the more imminent law-bound experts can shed some light on the subject for us instead of expecting that we’re supposed to automatically know it’s a good or bad thing because it’s the House Republicans who are pushing it to help stop gay marriage?
Alright, I’m no law expert either, but I must admit that the kind of thinking that this bill implies scares me. Doesn’t the thought of passing laws that make the courts unable to hear cases about a certain subject matter defeat the whole checks and balances notion of our government? I find the idea abhorrent, and I like to think that this is due to the nature of the idea itself, not merely a reflection of my views on the subject matter of the proposed bills. If you allow the legislature to declare certain arenas out of bounds for the courts, without requiring those arenas to be spelled out in constitutional ammendments, then what’s the point of allowing the courts the power to determine the constitutionality of laws? The linked article says that this wouldn’t apply to the Supreme Court, but the example of legislative text indicates that it would. And, frankly, one needs to appeal decisions up to the level of the Supreme Court. If the lower courts aren’t allowed to hear the cases in the first place, how can that happen?
The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to “ordain and establish� the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts’ jurisdiction.
I fear it may be a little stronger than just “arguably”.
Article 1 Section 8 of the US Constitution provides in part that
“The Congress shall have Power… To constitute Tribunals inferior to the supreme Court…”
[US Senate website commentary on this provision says, “The Constitution provides only for a Supreme Court, and left it to Congress to create lower (“inferiorâ€?) courts, and to set their jurisdictions and duties.”]
Additionally — as regards the appellate juisdictiopn of SCOTUS itself — Article 3 Section 2 provides in part:
“….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 Jurisdiction. 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.”
I recall that Back in the Day, when SCOTUS was deemed the Activist Liberal Enemy (”Impeach Earl Warren” & so forth :), there were various conservative efforts, unsuccessful, to limit its appellate jurisdiction, pursuant to the Constitutional clause cited in my previous, re various hotbutton-issue types of cases.
I’ve tried to locate US Code Chapter 99 Article 28 Section 1632 — which I infer from the linked article pertains to present limits on the jurisdiction of the “inferior” federal courts as per the other Constitutional provision previously cited — but I can’t find it.
Anyways — we do recall that the Founders did set up the Legislative branch as (at least :) First among equals.
July 15th, 2004 at 1:43:45 pm
Sorry, but this concept is relatively new to me, and since I’m not an expert in the history of the authority of federal courts, I feel really unqualified to support or oppose these tactics. Perhaps the more imminent law-bound experts can shed some light on the subject for us instead of expecting that we’re supposed to automatically know it’s a good or bad thing because it’s the House Republicans who are pushing it to help stop gay marriage?
July 15th, 2004 at 9:49:03 pm
Alright, I’m no law expert either, but I must admit that the kind of thinking that this bill implies scares me. Doesn’t the thought of passing laws that make the courts unable to hear cases about a certain subject matter defeat the whole checks and balances notion of our government? I find the idea abhorrent, and I like to think that this is due to the nature of the idea itself, not merely a reflection of my views on the subject matter of the proposed bills. If you allow the legislature to declare certain arenas out of bounds for the courts, without requiring those arenas to be spelled out in constitutional ammendments, then what’s the point of allowing the courts the power to determine the constitutionality of laws? The linked article says that this wouldn’t apply to the Supreme Court, but the example of legislative text indicates that it would. And, frankly, one needs to appeal decisions up to the level of the Supreme Court. If the lower courts aren’t allowed to hear the cases in the first place, how can that happen?
July 16th, 2004 at 12:08:49 am
The linked article says:
The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to “ordain and establish� the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts’ jurisdiction.
I fear it may be a little stronger than just “arguably”.
Article 1 Section 8 of the US Constitution provides in part that
“The Congress shall have Power… To constitute Tribunals inferior to the supreme Court…”
[US Senate website commentary on this provision says, “The Constitution provides only for a Supreme Court, and left it to Congress to create lower (“inferiorâ€?) courts, and to set their jurisdictions and duties.”]
Additionally — as regards the appellate juisdictiopn of SCOTUS itself — Article 3 Section 2 provides in part:
“….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 Jurisdiction. 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.”
July 16th, 2004 at 12:33:15 am
I recall that Back in the Day, when SCOTUS was deemed the Activist Liberal Enemy (”Impeach Earl Warren” & so forth :), there were various conservative efforts, unsuccessful, to limit its appellate jurisdiction, pursuant to the Constitutional clause cited in my previous, re various hotbutton-issue types of cases.
I’ve tried to locate US Code Chapter 99 Article 28 Section 1632 — which I infer from the linked article pertains to present limits on the jurisdiction of the “inferior” federal courts as per the other Constitutional provision previously cited — but I can’t find it.
Anyways — we do recall that the Founders did set up the Legislative branch as (at least :) First among equals.
July 16th, 2004 at 7:40:30 am
I remember separation of powers. I’ll miss it.