H.R. 3799..let's take SCOTUS out of the Church/State debate..

Great Debates
21

The problem with this new argument, davidm, is that the Constitution clearly gives Congress the power to do just that. It’s for Congress to define and regulate the jurisdiction of the inferior federal courts, except when jurisdiction is specifically conferred by the Constitution.

There is no basis to declare that Congress can’t do such a thing when the plain text of the Constitution permits them to. This is not an argument about penumbras, or what sort of interpretative technique you favor - this is a discussion of black-letter law.

The only thing that might not pass muster is the “Supreme Court may not delegate to any other party this jurisdiction, the power to find facts or draw conclusions of law” clause. The Court may find that it alone has the right to determine how it collects facts. But even that argument is weak – the Court can craft rules of evidence for itself and for inferior federal courts, it’s true, but only absent a Congressional law. (OF course, such rules of evidence must themselves be consistent with the Constitution).

  • Rick
22

Okay, by trying to argue law I’m admittedly treading on territory outside of my expertise but I’m finding this interesting so…

It seems to me that if the plain text you’re referring to allows them to do what you say then it allows them to intentionally interfere with the Bill of Rights. What happens when the plain text in one part of the Constitution contradicts the plain text of another part? Don’t amendments supercede earlier amendments and articles? (I’m pretty sure that they do but please correct me if I’m mistaken). By what you’re saying it seems to me that Congress could, for example, pass a law which limits jurisdiction for any cases involving the Bill of Rights to the Supreme Court. This would result in the large majority of cases involving free speech, trial by jury, etc., taking possibly decades to be heard or perhaps never being heard within the lifetime of the parties involved. This would effectively nullify, or at least greatly weaken, the Bill of Rights. Surely this can’t be correct, can it? I know that the Constitution doesn’t prohibit Congress from acting unwisely, but this is about more than that. Aren’t these amendments explicit limitations on Congress? Aren’t they saying that Congress can’t arbitrarily interfere with free speech, trial by jury, etc? And, since they come later than article II, don’t they place limitations on how the powers in article II can be exercised? Don’t they imply that those powers can’t be intentionally used to limit the enumerated rights?

Of course, an implication of this is that the courts can dictate to some extent how Congress sets up the lower courts and decides jurisdictions, and that doesn’t sound right either. But surely they can prevent blatant attempts to limit our basic enumerated rights, can’t they?

23

The rule in interpreting conflicting statutes of law is that they must be read together, in pari materia, making every effort to harmonize both and give effect to each.

In this case, reading them together yields the result that Congress may not interfere with freedom of the press, or of religion, but may set up the courts as it pleases. If that has the incidental effect of limiting the courts’ ability to handle a particular kind of case, it’s still not prohibited. If Congressional action made it impossible for the court to function at all, then that would, indeed, tread upon the separation of powers.

But you could just as well argue that forcing the Court to exercise original jurisdiction in disputes between states - which is already the case - unfairly limits those sorts of actions. How have we lived with the injustice of limiting cases affecting ambassadors, and ministers and other counsels? All those limitations already exist.

I’m sorry, but that’s simply the way it is. The Congress has the power to control the way the inferior courts are set up. If they wished to eliminate the Eleventh Circuit, they could. Of course, the judges of the Eleventh Circuit would need to be paid and reassigned, because Congress doesn’t have the power to simpy fire a confirmed federal judge. (They may, of course, impeach a federal judge).

In fact, if you need another example to hone your outrage, consider this example: Congress decides that the federal judge that overturned Virginia’s partial-birth abortion ban needs to be taught a lesson, so they impeach and convict him.

What’s to stop them? Nothing. The House has the sole power of impeachment. There is no judicial review. If the House votes to impeach a judge, he’s impeached. Period. The Senate has the sole power to try impeachments. If two-thirds of the Senators vote to convict, he’s gone. Period, end of story, that’s it.

So if you’re going to get worked up about Congress and the President potentially (and unreviewably) changing the Supreme Court’s original jurisdiction in First Amendment cases, consider that the same Congress could, without the President, impeach and remove every dissenting Supreme Court justice in a case they don’t like.

  • Rick
24

I’m beginning to realize that I think I’m more of the front runner of Constitutional understanding here, but that I would agree I’m not a front runner on Jurice Prudence.

I bolded the most important part.

There is nothing in the US Constitution giving the power of Judicial Review to the Supreme Court, that was entirely Marbury vs. Madison.

Which means, and I used to wonder why it hadn’t happend, the legislature can tell the courts to just “F— off!” and legislate what they want.

Precedents is of course more powerful than that, and I can’t think of what situation would cause such a ‘ground shaking’ event, but it is a possibility as it is NOT Unconstitutional. I’m not saying that’s what they would do or should do, but just correcting your misinformation that it [Judicial Review] is a Constitutional Power given to the Courts.

But this is just saying that the courts should not be able to declare that you can’t express your religion within government. Thus preventing us from becoming like France.

At least that’s how I see it if anyone else thinks the legislation would be taken further…go ahead.

25

Here’s what the bill is about.

To limit the jurisdiction of Federal courts in certain cases and promote federalism.

Sounds great to me, just because you want to enforce your crappy opinion on all of us doesn’t mean we’re gonna allow it. Back to the good ol’ days of true Federalism.

26

**SEC. 201. INTERPRETATION OF THE CONSTITUTION.

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.**

That’s also a very good part.

This bill is awesome…it’s about time to clean the dirt all the centralists left over from decades past.

27

Personally, I think that either (a) Bricker suffered an acute brain cramp, or (b) he’s perpetrated a masterful whoosh on everyone.

Does anybody recall the reason why Marbury v. Madison instituted judicial review – what was the reason that a section of law was found unconstitutional in it?

The answer to your middle paragraph is that Congressmen as a group have a much more healthy respect for stable government and for their fellow man than you do.

The answer to your other point, insofar as it deserves one, is that the Constitution does in fact award the judicial review power to the Supreme Court, though not in so many words. Article 3, Section 2 (see DSYoung’s post, supra) defines the jurisdiction of the Supreme Court, dividing it into original jurisdiction (where it is obviously the judge of the law, being court of first instance as well as last resort), and appellate jurisdiction, where it is given the task of reviewing both the law and the fact. And Article VI sets up the Constitution, together with all laws and treaties made pursuant to it, as the Supreme Law of the Land.

Now if a court is supposed to judge based on the law, and one of the laws which it is to take into consideration is defined as the supreme law of the land, to which all other valid laws shall conform, what is your proper course when there is in fact a contradiction between that law and another law?

28

And what, then, would prevent the passage and enforcement of un-Constitutional laws?

Not that your answer will have any validity. You’ll just call me stupid and blather about with “points” that are as far removed from the topic as they are from reality.

29

Bricker,
You’re attributing some emotions to me that aren’t there. I have no particular outrage to hone nor am I feeling “worked up” about this. I simply find this interesting to discuss and I’m still not sure that I agree with you. You’re saying that Congress has the power to change or limit jurisdiction and that’s true. But I’m saying that I don’t believe that they are allowed to use that power to intentionally achieve things that the Constitution otherwise forbids them to do. You yourself say that it would be a problem if they did things which made it impossible for the courts to function. Are you saying that there’s only a problem if it becomes completely impossible to function at all for any types of cases? What about if it becomes merely “nearly impossible”? Would that be a problem? What if it only becomes “nearly impossible” for certain types of cases? Is that a problem or not? What if those cases involve constitutionally protected rights and what if Congress intentionally interferes with it’s functioning in those types of cases. Does that really count as “making every effort to harmonize both and give effect to each”?

I don’t think that cases between the states or involving ambassadors, etc. have the same problems because there probably aren’t enough of them to clog the system and make them not worth pursuing. Plus, I don’t think those jurisdictions were decided with the intent to limit otherwise constitutional rights. I’m assuming, however, that there are large numbers of cases involving individual rights (Am I wrong about that?) and that if all of them had to be heard by the Supreme Court they would clog the system and therefore become not worth pursuing.

30

I’m not sure why you think this. Bricker, pravnik and DSYoungEsq have each stated things quite accurately. Indeed, DSYE’s post is an excellent brief summary of the law on this point.

31

You know, that scenario has just made my list of cool hypothetical constitutional crises.

32

I think it was in eleventh grade, about 40 years ago, when I learned that the Supreme Court’s original jurisdiction was spelled out in detail in the Constitution, and that Marbury v. Madison as a matter of law (as opposed to setting the precedent for judicial review of Congressional acts) was founded on the Judiciary Act of 1789 having added to the specified original jurisdiction, contrary to the specifics of the Constitution.

Hence, I thought that Bricker’s “advice” was slyly intended to make the proposed bill unconstitutional on its face.

33

I agree with Polycarp. Marbury is usually cited for the establishment of judicial review, but the actual point in issue in the case was the constitutionality of the closing words of Section 13 of the Judiciary Act, 1789 which gave the Supreme Court jurisdiction to issue mandamus to "persons holding office under the authority of the United States. "

Marshall C.J. concluded that it was not constitutional. Mandamus against an official is a form of original jurisdiction. Article III of the Constitution defines the original jurisidiction of the Court. Marshall C.J. held that Congress could not expand on that original jurisdiction, and therefore the provision was unconstitutional.

Bricker’s proposal does not appear to come within the Court’s original jurisdiction, as defined by Article III, § 2, para. 2, which reads:

34

Northern Piper,
If I correctly understand what you’re saying, then it appears that you’ve made my argument unnecessary. I rest my case! :smiley:

35

After re-reading Marbury v. Madison I agree with Polycarp. The Original Jurisdiction of the U.S. Supreme Court is established by Article III and evidently cannot be enlarged by legislative acts of Congress. Chief Justice Marshall observed and held:

When an instrument organizing fundamentally, a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them, as to define jursidiction of the supreme court, by declaring cases in which it shall take original jurisdiction, and in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases, its jurisdiction is original, and not appellate; in the other it is appellate and not original…To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jursidiction…It has been argued at the bar, that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original…The authority therefore, given to the supreme court by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution;

So original jurisdiction of the U.S. Supreme Court is apparently fixed by the Constitution.

Bricker, although I agree you perhaps have the best and strongest interpretation of the Exceptions Clause of Article III regarding whether or not Congress can remove from the supreme court appellate jurisdiction to decide cases involving the Free Exercise or Establishment Clause there are some commentators who disagree. In his book Constitutional Interpretation: Powers of Government on page 25 of the Sixth edition, Craig R. Ducat believed Senator Jesse Helms’ attempts to withdraw court authority to hear voluntary school prayer, busing, and abortion cases would be constitutional. *However much one might disagree that such efforts are unwise, it cannot be contended that they are unconstitutional. *

However, he is careful to warn that If the diminution of appellate jurisdiction amounted to putting the Supreme Court out of business, perhaps a case could be made that Congress went too far, for that portion of Article III, section 2 quoted above does appear to grant some appellate jurisdiction and speaks of Congress making “exceptions” rather than granting full control.

36

I might also add that it appears that Congress can’t restrict the methods the Court uses to exercise its original jurisdiction. See for this proposition originally Chisholm v. Georgia, 2 U.S. ( Dall.) 419 (1793). , which may be better known for prompting the passage of the Eleventh Amendment. Chief Justice Taney was able to say in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861)that where the Constitution gives the Court original jurisdiction, the Court has the power

I won’t attempt to discuss the possibility that Section 5 of Amendment 14 provides Congress with the power to extend the Court’s original jurisdiction to cover actions brought under the situations described in the OP. The concept has been raised before, though not with quite the same end in mind, most notably by opponents of abortion. Let me just say that there have been justices of the Supreme Court for whom such an attempt would not have posed a problem; Justice Scalia is not one of them. :wink:

37

I’m not sure how when the 10th Amendments states that any power not enumerated to the Federal Government is reserved for the States and the people, and Article III does NOT enumerate any Judicial Review, that you could consider it does because it vaguely hints it.

The Federalist Papers argues the Judiciary and (I’ll look it up for exact quotes when I get home), argues that the Judiciary SHOULD be the final say in Judicial Review because the Executive and Legislative would be too powerful if either of them had such a responsibility, and because it only is natural that the Judiciary has such a responsibility.

It however, is not in the Constitution, therefore up for grabs, because it was established by precedent and arguement does not make it final. How can you expect me to follow your interpretation of a vague Section of the Constitution?

Also I never once said that the Judiciary should not have such a power, but that being that this power was not just a balance, but an ends, it was never put into the Constitution.

Look at what it has the ability to do.

If the US Supreme Court decided that outlawing Atheism was not “Unconstitutional”…and the power of Judicial Review was not a precedent but an enumerated power, this nation would be screwed to have no method of recourse.

Just because a too weak Judiciary decided to excersise what the Founding Fathers agreed with, doesn’t mean that the nation agreed with it fully…compromises were made such that it was NOT a power given the Courts by the US Constitution.

Or wait wait…I guess all those Political Scientists who say other wise are wrong? :rolleyes:

I don’t know about if any State Courts enumerate Judicial Review to their Judiciary or not…

38

I do. Every court in the nation, be it federal, state, municipal or otherwise, has the power of judicial review, because every court is bound to uphold the Constitution. If an unconstitutional law is brought before any court, the court cannot enforce it and must declare it unconstitutional.

39

It’s Federalist 78 by Alexander Hamilton. Regardless of opinion over the strength of its origin, judicial review is here to stay. 200 years of precedence and hundreds upon hundreds of cases built on the principle have made it a cornerstone of American constitutional law. As it should be; without judicial review, the Constitution ceases to be fundamental law and becomes a series of guidelines. What happens when Congress passes a law doing away with the warrant requirement or a jury trial for criminal defendants? Without judicial review, the court has no recourse against blatantly unconstitutional legislation. One may feel judicial review has been abused in certain cases, but that’s no argument to do away with it entirely.

Turn that around: what would you do if Congress passed a law declaring atheism to be the national belief system and required you to swear an oath to it before you could vote? Without judicial review you’d have no recourse in the courts, despite the law’s obvious unconstitutionality. Further, it’s not true that the nation has no recourse over what it believes to be an unconstitutional ruling. See, e.g., the Chisolm v. Georgia case cited by DSYoungEsq.

40

Public officials do not have the authority to recognize a God, because that authority lies exclusively with the private citizens who happen hold those officies. :slight_smile: