# S.520; Does this Say What I Think it Does? **URL:** \ **Category:** Great Debates\ **Created:** [June 4, 2005, 12:49pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869 "2005-06-04T12:49:44Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![bizzwire](https://avatars.discourse-cdn.com/v4/letter/b/958977/32.png) [@bizzwire](https://boards.straightdope.com/u/bizzwire)\ **Post date:** [June 4, 2005, 12:49pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/1 "2005-06-04T12:49:44Z")
Thanks to the good people at Fark, I came across [this beauty](http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.00520:) : > [@](#): > > S. 520 > > To limit the jurisdiction of Federal courts in certain cases and promote federalism. > > IN THE SENATE OF THE UNITED STATES > March 3, 2005 > > Mr. SHELBY (for himself, Mr. BROWNBACK, and Mr. BURR) introduced the following bill; which was read twice and referred to the Committee on the Judiciary > > * * * > > A BILL > > To limit the jurisdiction of Federal courts in certain cases and promote federalism. > Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, > SECTION 1. SHORT TITLE. > This Act may be cited as the `Constitution Restoration Act of 2005'. TITLE I--JURISDICTION SEC. 101. APPELLATE JURISDICTION. (a) Amendment to Title 28- Chapter 81 of title 28, United States Code, is amended by adding at the end the following: `Sec. 1260. Matters not reviewable > `Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity’s, officer’s, or agent’s acknowledgment of God as the sovereign source of law, liberty, or government.’. > (b) Table of Sections- The table of sections at the beginning of chapter 81 of title 28, United States Code, is amended by adding at the end the following: > > `1260. Matters not reviewable.'. SEC. 102. LIMITATIONS ON JURISDICTION. (a) Amendment to Title 28- Chapter 85 of title 28, United States Code, is amended by adding at the end of the following: `Sec. 1370. Matters that the Supreme Court lacks jurisdiction to review > `Notwithstanding any other provision of law, the district courts shall not have jurisdiction of a matter if the Supreme Court does not have jurisdiction to review that matter by reason of section 1260 of this title.’. > (b) Table of Sections- The table of sections at the beginning of chapter 85 of title 28, United States Code, is amended by adding at the end the following: > > `1370. Matters that the Supreme Court lacks jurisdiction to review.’. > TITLE II–INTERPRETATION > 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 English constitutional and common law up to the time of the adoption of the Constitution of the United States. > TITLE III–ENFORCEMENT > SEC. 301. EXTRAJURISDICTIONAL CASES NOT BINDING ON STATES. > Any decision of a Federal court which has been made prior to, on, or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court. > SEC. 302. IMPEACHMENT, CONVICTION, AND REMOVAL OF JUDGES FOR CERTAIN EXTRAJURISDICTIONAL ACTIVITIES. > To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of– > > (1) an offense for which the judge may be removed upon impeachment and conviction; and > > (2) a breach of the standard of good behavior required by article III, section 1 of the Constitution. I get all confused when people talk fancy, but to me it sounds like an attempt to immunize the courts and federal agencies from any legal challenges were they to, say demand that you accept Jesus Christ as your savior if you wanted to apply for a federal college loan. I understand that the Constitution says that all of life’s goodies come from God. Well and fine, says I, but why the need to pre-emptively prevent Federal courts from hearing any challenges? Sounds like the opening salvo of an assault against separation of Church and State. Or am I just being paranoid? Bricker, you’re a legal-minded young fella; what’s your take on this? Anyone? ---
**Author:** ![bizzwire](https://avatars.discourse-cdn.com/v4/letter/b/958977/32.png) [@bizzwire](https://boards.straightdope.com/u/bizzwire)\ **Post date:** [June 4, 2005, 2:17pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/2 "2005-06-04T14:17:45Z")
gratuitous bump since this is sinking like a stone in **GQ**. Could a kind moderator please move this to **GD**? (for some reason, there’s no link to the mod.) Thanks ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [June 4, 2005, 3:00pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/3 "2005-06-04T15:00:21Z")
**Moderator’s Note:** Moving to Great Debates. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [June 4, 2005, 3:01pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/4 "2005-06-04T15:01:45Z")
> [@bizzwire](#): > > I understand that the Constitution says that all of life’s goodies come from God. I think you mean the Declaration of Independence, not the Constitution. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 4, 2005, 3:17pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/5 "2005-06-04T15:17:41Z")
I wonder what would happen if the Court strikes it down as unconstitutional. It looks like an attempt to neuter the Supreme Court, or at least it’s the opening salvo. ---
**Author:** ![spingears](https://avatars.discourse-cdn.com/v4/letter/s/ebca7d/32.png) [@spingears](https://boards.straightdope.com/u/spingears)\ **Post date:** [June 4, 2005, 4:36pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/6 "2005-06-04T16:36:36Z")
> [@bizzwire](#): > > Sounds like the opening salvo of an assault against separation of Church and State. There is NOTHING in the constitution regarding the “separation of Church and State.” That is a red herring to permit assaults on any or all religions, of choice at the moment, by those who would have NO religion at all. The Constitution simply states, "Congress shall make no law regarding the establishment of (a) religion. Here again, those who would have no religion for themselves or others distort the meaning to serve their own perverted purposes. > [@](#): > > Or am I just being paranoid? Bricker, you’re a legal-minded young fella; what’s your take on this? Anyone? As I did NOT find any references pointed out to sustain your suspiscions, I’ll leave the rabbit chasing to others. ---
**Author:** ![bizzwire](https://avatars.discourse-cdn.com/v4/letter/b/958977/32.png) [@bizzwire](https://boards.straightdope.com/u/bizzwire)\ **Post date:** [June 4, 2005, 5:17pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/7 "2005-06-04T17:17:17Z")
Ok, Ok… in light of the fact that I don’t know the difference between the Constitution and the Declaration of independence, and I’m not too clear on the concept of Separation of Church and State, I more than likely have totally misunderstood the whole point of this bill. Could someone 'splain what the point of it is? ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [June 4, 2005, 6:17pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/8 "2005-06-04T18:17:18Z")
> [@spingears](#): > > The Constitution simply states, "Congress shall make no law regarding the establishment of (a) religion. Interesting that the drafters of the Bill of Rights left out that “a”: > [@](#): > > [The First Amendment](http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. I guess they just needed you to come along and correct that little typo for them. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 4, 2005, 6:26pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/9 "2005-06-04T18:26:43Z")
From my reading of the bill (admittedly not in depth), it appears to attempt three things: (1) divest the federal courts of jurisdiction over claims that a public entity or public agency claims that God is the source of law (think Roy Moore and the Ten Commandments); (2) overturn all previous federal law relating to point number 1 above so that the states are no longer bound to follow it in interpreting the Constitution; and (3) make it an impeachable offense for a federal court judge to “rely upon” any tenet of international law. **spingears** is correct that the First Amendment to the Constitution is the provision commonly considered to be the “separation of Church and State” provision. It does not mean that the government shall have no interaction with religion; instead, it means that the government cannot prefer one religion over another. This is a pretty thick area of the law, with lots of interesting tidbits in it. [Here is an article about Ten Commandments displays](http://slate.msn.com/id/2108280) that lays out a bit of the legal test. But if the federal courts no longer are permitted to hear these cases, then the state courts will hear them. And if the state courts are no longer bound by federal court precedent, they can create their own tests to determine when such displays are acceptable. Theoretically, at least, certain states would be quite comfortable with displays that the federal courts have thus far found unconstitutional. The issue is one of [federalism](http://slate.msn.com/id/2104207); that is, reserving to the states those powers not explicitly granted to the federal government. [Here’s a blog entry that analyzes the proposed statute](http://blogs.salon.com/0002762/stories/2005/04/17/constitutionRestorationAct.html) in the context of the “war on drugs.” As for the international law brouhaha, that’s a slap in the face of SCOTUS, and in particular Stevens and O’Connor. [Here is another slate article about SCOTUS citing international law](http://slate.msn.com/id/2098559), an issue that apparently really rankled in the wake of _Lawrence v. Texas_. Me personally, I think it’s a tempest in a teapot. There’s nothing wrong with looking to see how other jurisdictions have handled the same issue, as long as you understand the differences in their laws and ours, and remain aware that their law isn’t binding on us. At the end of the day, I trust the judiciary far more than I trust the legislative and executive (an irony, considering that I have a direct hand in electing the latter, but really no say in selecting the former). So I think this is a bad idea; but it’s a bad idea that has at least been around for a while. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [June 4, 2005, 7:08pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/10 "2005-06-04T19:08:11Z")
> [@Campion](#): > > There’s nothing wrong with looking to see how other jurisdictions have handled the same issue, as long as you understand the differences in their laws and ours, and remain aware that their law isn’t binding on us. I completely agree that this is true, but I must point out that, if a foreign law would be well applied here, it is properly the place of the legislative branch to make it happen, by passing a domestic law or ratifying a treaty. A judge imposing a foreign law on the American population is an impermissable overreach, IMHO. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 4, 2005, 7:14pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/11 "2005-06-04T19:14:39Z")
> [@Mr. Moto](#): > > A judge imposing a foreign law on the American population is an impermissable overreach, IMHO. What about, say, a Texas court looking at how a New York court handled a similar issue? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 4, 2005, 7:24pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/12 "2005-06-04T19:24:12Z")
More specifically, say the Texas Supreme Court, in interpreting a provision of the Texas Constitution, looked at how the highest court of the State of New York interpreted a similar provision of the New York State Constitution. Would that be unacceptable? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [June 4, 2005, 7:48pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/13 "2005-06-04T19:48:49Z")
American case law is acceptable, as is English common law up to the adoption of the Constitution, after which we have our own legal tradition. A special case can be made for Louisiana, which still relies on certain aspects of French law. Apart from that, it is only acceptable to consider the legal traditions of other countries when legislation is being written, at which time it is then properly also American law. ---
**Author:** ![ReuvenB](https://avatars.discourse-cdn.com/v4/letter/r/9fc348/32.png) [@ReuvenB](https://boards.straightdope.com/u/ReuvenB)\ **Post date:** [June 4, 2005, 7:55pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/14 "2005-06-04T19:55:38Z")
Would this include consideration of treaties to which the United States is a party? ---
**Author:** ![ReuvenB](https://avatars.discourse-cdn.com/v4/letter/r/9fc348/32.png) [@ReuvenB](https://boards.straightdope.com/u/ReuvenB)\ **Post date:** [June 4, 2005, 7:56pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/15 "2005-06-04T19:56:58Z")
Oops. Asking **Mr. Moto** about his latest post. I hit Show your signature instead of Quote message in reply. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 4, 2005, 7:59pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/16 "2005-06-04T19:59:02Z")
> [@Mr. Moto](#): > > American case law is acceptable, as is English common law up to the adoption of the Constitution, after which we have our own legal tradition. Why does it matter that they’re both American jurisdictions? For the purposes of interpreting their own constitutions when no federal issue is implicated, the fact that they are both in the United States is of no more relevance than the fact that the U.S. and Canada are both in the United Nations. They’re completely separate and sovereign jursidictions. If the federal govenment shouldn’t be doing it, why do states get a pass in looking at the constitution of another sovereign? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2005, 8:30pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/17 "2005-06-04T20:30:31Z")
> [@](#): > > There is NOTHING in the constitution regarding the “separation of Church and State.” That is a red herring to permit assaults on any or all religions, of choice at the moment, by those who would have NO religion at all. On the contrary, as an historically aware Catholic\*, I am firmly in favor of the principle of the Separation of Church and State and I oppose any of those people who wish to destory or weaken it so that they are more free to impose their particular religious values on their fellow citizens. \*(As opposed to those Catholics who, having finally gotten out from under the first 150 years or so of varying levels of persecution, have decided that they are part of the majority and can dispense with rules protecting minority rights.) ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 4, 2005, 11:29pm UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/18 "2005-06-04T23:29:42Z")
> [@Mr. Moto](#): > > I completely agree that this is true, but I must point out that, if a foreign law would be well applied here, it is properly the place of the legislative branch to make it happen, by passing a domestic law or ratifying a treaty. > > A judge imposing a foreign law on the American population is an impermissable overreach, IMHO. Absolutely true. Also, 100% irrelevant and not germane to this discussion. The issue is not “judges imposing foreign laws on Americans” but “whether a jurisdiction, encountering a similar problem, has reached a solution that is compatible with our law.” Forgive me: I do not know whether you have a legal background or any familiarity with how a court will decide an issue of first impression. Because that’s what we’re talking about here – issues of first impression. Obviously, if there is binding precedent on point, there is no need to consider other jurisdictions, foreign or domestic. But, frankly, there is no qualitative difference, as **pravnik** suggests, between considering the law of another _state_ and considering the law of another sovereign. (If, as I pointed out, the systems are similar, etc.) It is hubristic to assume that all smart people are American and that we can learn nothing from foreigners. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [June 5, 2005, 12:59am UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/19 "2005-06-05T00:59:49Z")
> [@Campion](#): > > Absolutely true. Also, 100% irrelevant and not germane to this discussion. Sorry, I thought that was the subject of the OP. Wasn’t it? > [@](#): > > 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 English constitutional and common law up to the time of the adoption of the Constitution of the United States. Obviously, I agree with this section. Now, treaties which the United States has duly ratified don’t count toward this, as they have the force of law here. This is right and proper, since the ratification was done throught the legislative branch. I would consider it hubris to think that we could learn nothing from foreigners. However, once we learn these lessons, properly applying them to our law is done by the legislature. If a judge were to consider foreign law in interpreting American cases - that, to me, would be hubris. It would be a judge justifying his decisions on whatwever he saw fit, instead of being bound by American law and its traditions. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [June 5, 2005, 1:01am UTC](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869/20 "2005-06-05T01:01:21Z")
BTW, I am not a lawyer. I wasn’t aware that I had to be one to have an opinion on the law and judicial issues. :rolleyes: [Next page](https://boards.straightdope.com/t/s-520-does-this-say-what-i-think-it-does/306869.md?page=2)