But the new process would involve frankly political people and in many cases would still be split almost 50-50. And if both Houses had to approve, which I assume, they might be divided 50-50.
I don’t believe the congressional proposal for “changing the law” but rather a scheme that the congress would act as a final-final appeals court and overturn the Supreme Court decision. And if it is only a process for “changing the law” the legislature already has the power to change the law to meet the Court’s objections.
I’m afraid I didn’t make myself clear, David Simmons. I am using the word “law” as Poly used it. That is- not just a specific statute but the entire body of law that underpins our society. I am asking why he feels maintaining our current legal process is so important. The congressional proposal from the OP would only change the process. That is- it would only change the manner in which that body of law can be changed. The bill wouldn’t eliminate the body of law itself. I am wondering why he feels that “everything regarding our common life depends on that process.”
And so am I using “law” in that sense. What I am saying is that changing the people who decide what the law means isn’t going to change the fact that the new people are no different on the average from the old and they will split narrowly just as often.
I hope this isn’t a hijack. Maybe it should even go in GQ. Nonetheless -
Bolding mine.
What prevents Congress from simply passing a bill that says, for instance, “Resolved: The Supreme Court shall have no appellate Jurisdiction over cases of the United States of America regarding the right of a woman to seek or obtain an abortion.”
Regards,
Shodan
Nothing prevents Congress from passing any law. However, such a law would be subject to challenge in the courts and its constitutionality would be decided by the Supreme Court.
Here are the powers that the Constitution gives the legislature:
*"Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."*
I don’t see anything in there that gives Congress the power to decide the jurisdictional limits of the courts.
On the other hand the Constitution gives the courts power to try all cases arising under the constitution or the laws passed pursuant to it.
A case challenging the contitutionality of such a law passed by Congress would be a “case arising under the constitution” wouldn’t it?
I’m lost. What has this to do with my questioning why Polycarp believes that "“everything regarding our common life depends on that process”? So the process for making changes to the body of law changes. So what? The body of law is still there supporting our society.
Article III, Section 2, Clause 2 of the Constitution - “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.”
Yes, “with such Exceptions and under…” etc.
What I am asking is, why can’t the Congress do exactly what the Constitution says, and make Exceptions?
Yes, the Court would doubtless immediately find it un-Constitutional. But wouldn’t they be wrong, in the sense that they are contradicting the plain sense of the text?
Certainly the Court could apply an interpretation such that the clause becomes meaningless. But they can do this with anything in the Constitution, including amendments. Does this mean that there is no check at all on what the Court can do?
Regards,
Shodan
There are certainly checks on what the courts can do, as discussed in this thread. Granted, the methods of executing checks and balances on the court have pretty high standards, but assuming for the sake of argument that the court does its job and interprets the Constitution without regard for political interests, then there SHOULD be a high standard for overriding them.
That said, I’d say that the problem with the proposed legislation is that it affects the separation of powers among the branches of the government. Just as the legislative branch can’t delegate its powers to the courts (references to “activist judges who make law” aside), it can’t give itself the judiciary’s powers (which it would be doing by giving itself final say over the constitutionality of an act, which is an issue that “belongs” to the judicial branch).
As a side note, it seems to me that by referencing the presidential veto process in Section 2, the legislation is framed to make it seem like Congress is simply duplicating powers it has with regard to checks imposed by the executive branch. That’s misleading, imo, because the presidential veto deals with implementing executive powers - that is, by vetoing a bill, the President is saying that he’s unwilling to enforce the law. There are “soft” policy issues involved, as opposed to the relatively hard constitutional issues decided by the Supreme Court. I don’t know of any form of stare decisis that applies to the presidential veto, but constitutional decisions are, in theory at least, supposed to be consistent and contribute to a line of legal reasoning.
2sense: “The primary rule of the SDMB is ‘Don’t be a jerk.’” Now, a variety of people who are members here would consider the behavior of certain other people as “being a jerk.” However, their decision is not what counts.
The power to interpret that rule – that is, to decide how it should apply in a given circumstance, as referenced to given questionable statement A by poster X – is given to the moderators. They and only they have the right to say that poster X is or is not being a jerk in making statement A. This is, intriguingly, subject to appeal – in the event that poster X has the view that Moderator M is not adjudging fairly but allowing his personal disagreement against X to influence him, he can contact Tubadiva or Lynn, or in particular cases Ed, to raise that objection.
By a parallel, deciding what constitutes “cruel and unusual punishment” or being “deprived of life, liberty, or property without due process of law” or any of the other generalized statements in the Constitution, is given to the judges of this land, with a final review available through SCOTUS if they decide to grant it certiorari.
Legislators legislate. Judges judge – the law and the facts. In doing so, they construe laws, including the Supreme Law of the Land. That’s their job. There are ways in which to change a ruling with which one does not agree – and they’re intentionally made fairly difficult, the idea that a stable body of law on which people can depend for guidance as to what they may or may not do should exist, being considered a valuable common intellectual property of the people.
To enable the legislature to reverse the courts, not by passing a general law applicable to all the people, but in particular and specific cases, is to give them a power that is not properly theirs, and which would tend to the excesses of the Lancastrian and Tudor periods of English history.
It would cure the infestation of the California redwood beetle to H-bomb the State of California into vitrified glassy oblivion. But that is not a reasonable fix. IMO, the proposal to give Congress the power to reverse specific Supreme Court decisions, not by general laws but by supersession, would be equally destructive to our system of government under law. He who thinks that “activist judges legislating” is bad has seen nothing compared to “activist Congressmen acting as a super-court.”
David Simmons: The enumeration in Article I is the powers given Congress in general legislation. There are a number of other powers scattered throughout the Constitution (including Amendments) which are also valid Congressional powers. The appellate jurisdiction provision which Shodan raises, found in Article III, is one of these.
And yes, Shodan, they could indeed do precisely that. And the results, as you might expect, would be that every circuit would become a law unto itself. The Ninth Circuit would legalize abortion in California and the other states in its jurisdiction; the Fourth Circuit would declare it illegal – and there would be no uniform standard applicable nationally.
On the other hand, contemplate the idea of a citizen of a given state suing that state, which has made abortion illegal, based on the precedent of *Roe v. Wade, with the jurisdiction-restricting statute which you have suggested in place. SCOTUS could, if it so chose (and it would, I think, be irked by having its appellate jurisdiction restricted by such a law), grant a hearing to such a suit directly by a simple matter of revising its rules of procedure, appointing a special master to hear the suit and approving or reversing his findings – and Congress could say not one word on this short of a Constitutional amendment – because SCOTUS’s original jurisdiction is spelled out in the Constitution, and includes suits in which a state is a party. Since SCOTUS functions much better as an appellate body than as a trial court, it has chosen to hear appeals on such cases from lower courts – but if its appellate jurisdiction is lifted, it would be quite within its Constitutional powers to grant hearings to any cases that qualify using its Constitutional grant of original jurisdiction.
And yes, the Supreme Court could place an absurdly strained interpretation on a given clause – just as Congress has used the “interstate commerce” clause to legislate on everything its little heart desires. However, men who survive in politics to become the heads of Congressional committees, Supreme Court justices, etc., generally have an ability to act rationally and calmly and not go to the extremes of people hypothesizing extreme situations on Internet message boards. Hence the Hon. Joe Fundypleaser (R.-Miss.) introduces a bill stating that the Ten Commandments shall be the foundation of American jurisprudence, sends out press releases to his constituents showing how he is taking steps to restore true Amurrican values to this country, etc., the ACLU and People for the American Way send out press releases decrying this bill – and the Chairman of the House Judiciary Committee permits it to die a quiet death in committee. Mr. Justice William O. Douglas used to write concurrences and dissents based on, e.g., the rights of trees – and his fellow justices would ignore them and rule on the basis of their (more rational) interpretation of the laws in question.
Ah yes. Thanks for the clarification. Now all that is needed is any history of legislation and court rulings along this line to see if what Shodan proposed is included.
The more I think about this the worse the idea gets. Such a law would deny the Supreme Court the power to settle differences among the various lower court rulings, as you said, and might very well be attacked on grounds of denying ‘equal protection of the laws.’
I’ll bet such a law wouldn’t last long even if it could be passed.
First off, the idea that the legislative branch legislates, the judicial branch judges, and the executive branch executes is the type of tripe they teach in public schools. Schools should be prevented from deceiving kids that way. To legislate is to create law. Legislators legislate. So do judges. Hell, even the executive branch legislates; think of the veto or the FCC rule changes to allow media consolidation. When law is made even if construed by judges rather than enacted by legislators that constitutes legislating. We have plenty of judge-made law in America and always have.
But ignore that. Even if we accept the oversimplified civics class view as gospel it is still arbitrary. That is, it is the sole responsibility of the legislators to legislate only because that is the way the system is set up. The congressional bill proposes to change the system. You can’t argue against it by claiming that it’s not the legislators job to judge because, as I say so often here, the existence of a status quo does not justify the status quo. If we adopt the congressional proposal then it would be the job of legislators to judge in some cases.
Again, the determination that the power to judge does not properly belong to legislators is arbitrary. If you have reason to argue against it then by all means, do so. If your reference to English history is an attempt to then it fails. Correlation is not causation. The reference is convenient though as the current British judicial process provides an excellent example of a system where the legislature does judge. Parliament can overturn any decision by any court. Has this led to the kind of excess the American system has allowed us to avoid? I don’t think so. Perhaps, probably even, its that I’m viewing it from a distance but to me things seem more stable over there. But less stable?
Thanks for your response. ISTM to lead to even more complications.
AFAICT, the Supreme Court has “original jurisdiction” in cases where a state is a party. Thus, as you say, the Supremes could easily be justified in ruling on some citizen suing her state because it made abortion illegal.
On the other hand, the Supreme Court could be deprived of jurisdiction in any case where Congress outlawed abortion nationally. Since no individual state can be sued for what Congress does, the Supreme Court is therefore out of the picture.
Hmm. Not sure if this is a good idea or a bad one, just wondering about the implications.
Regards,
Shodan
That was, effectively, my point.
But Congress would be hard put to justify such a law under its constitutional grant of powers. What, the child who would be aborted would purchase goods shipped across state lines, so having an abortion curtails the potential for interstate commerce?
And if a Federal anti-abortion law was challenged as having been passed in violation of the Article I grant of powers and the Tenth Amendment, the Supreme Court would be freed from that hypothetical statute restricting its jurisdiction, since it would not be the regulation of abortion per se which was challenged but rather the right of Congress to pass such a law on States Rights grounds.
Hahahahahahahahahaha!
Good joke, Poly, suggesting that the commerce clause represents a meaningful restriction on federal power. You really had me going there for a minute.
Consider this: if buying a house or staying in a hotel represents involvement in interstate commerce sufficient to justify a federal law preventing racial discrimination in housing and hotel accomodations, I don’t think Congress would have any problem finding an interstate commerce basis for acting in the area of abortion.
Most of the discussion has focused on the problems with this proposal from a separation of powers perspective. I think the proposal would be equally vulnerable to being struck down on federalism grounds, to wit, it allows Congress to do an end-run around the amending formula in Article V, which provides that the Constitution can only be changed by Congress and the states acting together.
Here’s an example. In United State v. Lopez, the Court by a 5-4 majority struck down the federal Gun-Free Schools Act of 1990, which prohibited anyone from possessing a firearm in a school zone. The majority, per Rehnquist C.J., held that the statute could not be supported under the commerce clause. (I know. Dewey - a rare example! 
) He held that the Act was purely a criminal statute, beyond federal competance - intruding on an area reserved for the states.
So, under this proposal Congress can overturn the decision in Lopez, if they can muster two-thirds support in each House. And then the Gun-Free Schools Act of 1990 is back in force, and everyone’s happy, right?
Well, no. The states could legitimately argue that the Supreme Court’s decision protected states’ jurisdiction, and recognised that the Constitution places limits on Congress, preventing it from usurping state powers. If Congress wants to overturn that decision, it can only do so by following the procedure set out in Article V, and ask the states to surrender that jurisdiction to Congress. That will only happen if three-fourths of the states agree to that change.
Since the proposal would allow Congress to expand its constitutional authority without regard to the states, it violates Article V.
The Gun-Free School Zones Act of 1990 is already back in force.
Lopez, although a fractured opinion, did not deny that Congress had the power under the commerce clause to regulate firearms in school zones; it only held that Congress had not made any findings of an effect on interstate commerce, and that such findings were necessary in order for Congress to act under its commerce clause powers.
Congress quickly remedied that purported defect, and in the revised statute (the relevant portions begin at subsection (q)) passed in the wake of Lopez it made precisely those findings in order to make the act constitutional.
In the post-New Deal era, the court has struck down a law purportedly authorized by the commerce clause only twice (Lopez was one, and Morrison, striking down portions of the Violence Against Women Act, is the other). Think about the magnitude of that statement for a moment. And as we’ve seen, Lopez was hardly a barrier to repassage of the GFSZA. The simple fact is there is no meaningful barrier to congressional power under the commerce clause. It is silly and naive to pretend otherwise.
It is doubly silly coming from Polycarp, who favors all manner of Congressional power when it suits his purposes, yet suddenly discovers a great love of federalism when it dealing with federal legislation he disfavors policywise. It all depends on whose ox is being gored, I suppose.
I for one would love to see a return to strong federalism, but cannot see a legitimate way for such a thing to be resolved by the judiciary. I think effectively the power to regulate interstate commerce is tantamount to all power, and can think of no judicial test to distinguish between what is or isn’t interstate commerce. The Supreme Court should thus get out of the commerce clause business entirely – treat it as a political question to be determined by Congress without interference. That way, Congress would have to at least answer why a given act is constitutional on its own, rather than just punting that question to the courts.
With all due respect, my friend (and I do consider you friend despite some strong differences on Constitutional interpretation), this is tantamount to the unjust Pitting you got for holding that Lawrence was improperly decided, based on your principles.
I believe that the guarantees of rights in the Constitution mean what they mean, including the idea that not all rights enjoyed by U.S. citizens are enumerated (are you saying there is no right to marry? To travel? Those are a couple of clearly “court-legislated” rights, and you know the cases that ruled them better than I.)
I personally believe that Sections 1 and 5 of the Fourteenth Amendment give the Federal government power to intervene when the rights of American citizens are violated by any government act. I believe that several things that Madison & Co. would have listed in the Bill of Rights if they’d thought of them were not so listed, and that the courts can presume them to be rights from the context of the language used to define other rights. Freedom of association is an obvious one – nobody disagrees with that right, but it’s inferred from freedom to assemble and petition. We could go on at length about privacy, but I think the Fourth and Fifth Amendments make clear an underlying assumption that people have some privileges to keep their personal lives free of governmental intrusion. The degree to which this may be the case is one to be ironed out by cases testing the limits, in the absence of a “Right to Privacy Amendment.”
On the other hand, I believe that using the power to regulate interstate commerce as a second “elastic clause” to legislate as Congress’s collective little pink hearts desire, is a violation of Federalism. I’ve felt that way since high school. And that it was used as a pretext for some laws that I happen to feel were morally worthwhile does not make it right to use it that way.
If it’s your wish to be pitted for accusations of venal intent, I can cooperate. Rather, I’d like to see us discuss our quite distinct positions on Constitutional law with mutual respect here in GD.
Yes, it is always possible that the Court could interpret the Constitution to say whatever it wants to say. No matter what.
And therefore, there is essentially no check on the power of the Court. None at all.
No, apparently they don’t. They mean whatever the Court wants them to.
Regards,
Shodan