# Can Congress Outlaw the Courts? **URL:** \ **Category:** Great Debates\ **Created:** [July 22, 2004, 7:32pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394 "2004-07-22T19:32:50Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 24, 2004, 10:23pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/21 "2004-07-24T22:23:56Z")
The check there, of course, ostensibly being that members of Congress can get voted out if their constituent majority doesn’t like what they’re doing. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 24, 2004, 11:40pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/22 "2004-07-24T23:40:24Z")
> [@Gadarene](#): > > The check there, of course, ostensibly being that members of Congress can get voted out if their constituent majority doesn’t like what they’re doing. But their legislation, immune from judicial review, lives on after their demise, like some kind of Congressional Night of the Living Dead. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 25, 2004, 3:23am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/23 "2004-07-25T03:23:20Z")
> [@Gadarene](#): > > _Marbury_ is surprisingly poorly reasoned and ill-founded in the constitutional text. 95% of pre-Civil War opinions from the Supreme Court are poorly reasoned and ill-founded in the constitutional (or statutory) text. Indeed, I’d argue that it’s not until Holmes that we really see any expectation of well-reasoned opinions that are well-founded in the text of the relevant statutory or constitutional law. The expectations were really quite different back then. Nevertheless, _Marbury_ is an entirely reasonable application of existing legal theory, in no way resembling the power grab that those who hate losing sometimes claim. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [July 25, 2004, 3:34am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/24 "2004-07-25T03:34:51Z")
> [@Gadarene](#): > > The check there, of course, ostensibly being that members of Congress can get voted out if their constituent majority doesn’t like what they’re doing. Absolutely true, at least in theory. However I think we have ample examples, some quite recent, of what political leaders can get away with if people are just frightened enough. Who would have thought that a sophisticated society like Germany would enthusiastically support Hitler? And then there is the mad rush to go to war with Iraq. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 25, 2004, 3:31pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/25 "2004-07-25T15:31:50Z")
_Marbury_ is of little consequence to the question raised by the OP. The most important case regarding the Exceptions Clause is [Ex Parte McCardle](http://laws.findlaw.com/us/74/506.html), in which the Supreme Court disallowed a suit petitioning for a writ of habeas corpus because Congress had taken away from the lower federal courts jurisdiction to hear such cases in certain instances. Exactly how far _McCardle_ reaches is a matter that is often debated in legal academic circles, a topic that launched a thousand law review articles. Anyone who tells you they have the One True Answer to that question is deluding themselves. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [July 25, 2004, 5:13pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/26 "2004-07-25T17:13:58Z")
> [@minty green](#): > > Nevertheless, _Marbury_ is an entirely reasonable application of existing legal theory, in no way resembling the power grab that those who hate losing sometimes claim. There are people that hate that decision? Shit, and I thought it was a good power grab. If someone would do me the favor of sketching a really rough outline of how Marbury could be worded so that it was well-reasoned and showed constitutional or other legal support of the decision (i.e. that it wasn’t a power grab) I’d appreciate it. Really, probably an article exists somewhere that has already done it, but when I last posted about it I couldn’t find it. They all argue that it was a good thing, but I already knew that. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [July 25, 2004, 7:48pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/27 "2004-07-25T19:48:51Z")
The ACLU is arguing that it is unconstitutional because it is an Equal Protection violation. That seems to make a lot of sense to me. Congress may be able to regulate jurisidiction, but it can’t target a specific class of people and arbitrarily deny their right to a day in court. If Congress can deny jurisidction on this subject, couldn’t they effectively legislate the Constitution away? What if they decided the courts shouldn’t hear any civil rights cases involving racism? Could they do that too? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2004, 5:04am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/28 "2004-07-26T05:04:28Z")
This isn’t going to get anywhere. Judicial review might not have any explicit sanction in the Constitution, but it is now a usage hallowed by time – to the point that even trial-level state judges feel they have the authority to rule a statute invalid on the grounds of unconstitutionality, and sometimes exercise that authority – knowing full well that any novel interpretatioon will go up on appeal. That’s how constitutional law is made. Any federal statute purporting to limit the jurisdiction of the Supreme Court, or courts generally, on any question of constitutional import **will** be challenged in court and **will** be overturned, at the trial level or on appeal. And what does Congress do then? The gay marriage issue is not important enough to form the basis for a fundamental challenge to such a basic element of our legal system. Anyone who has a problem with judicial review should agitate for a constitutional amendment – and had better be prepared to answer the question: If we abolish judicial review, what do we replace it with? Who, if not the courts, is to decide when the legislative or executive branch, federal or state, is overstepping the bounds of its constitutional authority? And if the answer is “nobody,” why have a Constitution at all? ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [July 26, 2004, 8:06pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/29 "2004-07-26T20:06:18Z")
> [@Gadarene](#): > > **erislover** is right, though, **M[tg]man**, that _Marbury_ is surprisingly poorly reasoned and ill-founded in the constitutional text. Replace _Marbury_ with pretty much any case in the history of SCotUS Constitutional law and I can probably find someone who agrees with that statement no matter what case you pick. Levels of compelling evidence in support of the assertion vary(as do the standards for “compelling” status of evidence), but many would be at least as strong as yours for _Marbury_. Also, remember that _Marbury_ was decided in 1803. The constitution was finally ratified by all the states in 1790, all of thirteen years before _Marbury_ was decided. Most of the framers were still alive and in fact were still prominent members of the government. The constitution was not the sacrosanct document we think of today, it was a fledgling. Intended to be a living document and a skeleton, fleshed out through ammendments and statutes. The men who made it, so often today venerated as paragons of foresight and wisdom, were still around and known to the Justices as the, often bullheaded and dumbassed, human beings they were. If the framers had a problem with _Marbury_ well, they were still around and kicking, they could have said something about it. The case itself revolved around two of the most prominent framers, Jefferson and Adams. If either of them had fits at the exercise of Judicial Review they both had enough clout to do something about it. That everyone just shrugged and accepted Judicial Review, including the framers themselves when it directly affected them, says far more to me about the roots of this power than the textual basis or lack thereof. Either Jefferson or Adams could have stood up and screamed, “You Motherfuckers! You aren’t supposed to have the power of Judicial Review!” in response to _Marbury_. Given the contentious and strong-willed nature of these particular individuals I find their silent acceptance of the decision compelling evidence that they, and other framers, found the power of Judicial Review within the framework they worked to create. Enjoy, Steven ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2004, 8:31pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/30 "2004-07-26T20:31:23Z")
> [@Mtgman](#): > > The case itself revolved around two of the most prominent framers, Jefferson and Adams. Nitpick: Jefferson was not at the Constitutional Convention, he was in France at the time. But I think he did fight hard to add the Bill of Rights. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 26, 2004, 8:44pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/31 "2004-07-26T20:44:51Z")
> [@Blalron](#): > > The ACLU is arguing that it is unconstitutional because it is an Equal Protection violation. That seems to make a lot of sense to me. Congress may be able to regulate jurisidiction, but it can’t target a specific class of people and arbitrarily deny their right to a day in court. That’s a good argument, but it would fail under existing law because the Equal Protection clause does not, as currently interpreted, apply to discrimination on the basis of sexual orientation. It applies most prominently to racial discrimination, with somewhat less force to gender discrimination, and with hardly any force at all to any other form of government discrimination. (Somewhat infamously, as _Bush v. Gore_ established, the Equal Protection clause also applies quite vigorously to prevent even the slightest appearance of discriminatory effect against Republican presidential candidates. But the Supreme Court says we’re not allowed to cite that case for anything, so I mention it merely for entertainment value.) > [@](#): > > If Congress can deny jurisidction on this subject, couldn’t they effectively legislate the Constitution away? Not quite. Even if the federal courts had no jurisdiction whatsoever to enforce the Constitution, state courts are still bound to enforce it thanks to the Supremacy Clause. But that would certainly eliminate federal judicial oversight of how those states apply the Constitution, which would not be such a terribly good thing to the citizens of the several states. > [@](#): > > What if they decided the courts shouldn’t hear any civil rights cases involving racism? Could they do that too? Presumably not, if you buy the Equal Protection argument, which I think is a good one. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [July 26, 2004, 9:47pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/32 "2004-07-26T21:47:37Z")
> [@Homebrew](#): > > The judicial power shall extend to all cases, in law and equity, arising under this Constitution On the face of it, removing jurisdiction for any case “arising under this Constitution” from **all** federal courts (as opposed to removing it from some **particular** federal court) is impossible to square with this clause. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 4, 2004, 2:20pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/33 "2004-08-04T14:20:42Z")
> [@minty green](#): > > Not quite. Even if the federal courts had no jurisdiction whatsoever to enforce the Constitution, state courts are still bound to enforce it thanks to the Supremacy Clause. But that would certainly eliminate federal judicial oversight of how those states apply the Constitution, which would not be such a terribly good thing to the citizens of the several states. A good point. I can also see a lot of _Ex rel._ cases showing up – States suing in behalf of their residents’ rights. Such cases are pretty limited under current court rules – but those are easily changed by a court angry about having its statutory jurisdiction stripped. It also occurs to me that the methodology of this thread, delimiting discussion to jurisprudential questions, may be invalid – it takes a majority of each house of Congress to pass a law. A nice campaign accusing those who support this bill of running a Congressional power grab contrary to the spirit of the Constitution would have a big impact in two constituencies: marginal seats, where the incumbent barely slid into office; and “traditional” (quasi-libertarian) conservatives, supportive of limited government and individual freedom. Such a threat could remove enough support from the bill to prevent its becoming law. It may also be that this is one of those wonderful political bargains where one house decides to pass a bill so that some of their members can depict it to their constituents as them standing for Truth Justice and the American Way, while the other house agrees to quietly bury it. [Previous page](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394.md?page=1)