# What does this provision of the US Constitution mean? **URL:** \ **Category:** Factual Questions\ **Created:** [November 5, 2016, 12:02am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661 "2016-11-05T00:02:10Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 6, 2016, 3:33pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/21 "2016-11-06T15:33:12Z")
> [@AK84](#): > > . > > If the hypothetical where the Supreme Court is stripped of all Appellate Jurisdiction by An Act of Congress, would that not be \*ex facie \* unconstitutional? Since the text talks of exceptions and regulations, not whether Congress so chooses to give jurisdiction? > > If say Congress decreed that henceforth, Appeals from State Supreme Courts would be heard by the Court of Appeals for that Circuit, that would be a regulation hence Constitutional. If the Act said, there could be no Appeal to Supreme Court at all from State Supreme Courts? I tend to agree with this, but as is noted it has never been tested. Barring all appellate jurisdiction for the Supreme Court seems to go well beyond “regulations and exceptions.” It would be like if a local youth soccer league saw some disputes crop up from time to time so it appointed me as a commissioner to make “regulations and exceptions” to make things run better. If the next day I make a regulation that says “no more youth soccer” then it is not very difficult to see that I far exceeded the power I was given. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 6, 2016, 4:11pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/22 "2016-11-06T16:11:30Z")
> [@Vicsage](#): > > It doesn’t matter what the constitution says, all that matters is what the court says the constitution says I agree. If Congress tried to limit the powers of the Supreme Court and the Supreme Court opposed those limitations, it would come down to how the text of Article III should be interpreted. And the Supreme Court if the entity which officially interprets the Constitution. The only recourse Congress has after the Supreme Court issues its decision is to amend the Constitution. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 6, 2016, 7:42pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/23 "2016-11-06T19:42:49Z")
> [@Tom\_Tildrum](#): > > The case law on this clause is a doctrinal mess, so predictions are especially difficult. To the best of my knowledge, however, all of the reasonably modern cases acknowledging jurisdiction-stripping have done so in the context of federal statutory law. My guess, unsupported by any scholarly evidence, is that an attempt by Congress to strip the Court of appellate jurisdiction over constitutional claims (including those arising from state court decisions) would somehow be found to violate the separation of powers. > > Note too that stripping the federal courts of jurisdiction to hear cases arising under a federal statute does not necessarily bar those claims from being raised elsewhere, such as state court. Congress has stripped the federal courts of appellate jurisdiction in a number of areas. As they are allowed to do by the language under consideration here. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 6, 2016, 10:57pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/24 "2016-11-06T22:57:03Z")
> [@Little\_Nemo](#): > > I agree. If Congress tried to limit the powers of the Supreme Court and the Supreme Court opposed those limitations, it would come down to how the text of Article III should be interpreted. And the Supreme Court if the entity which officially interprets the Constitution. The only recourse Congress has after the Supreme Court issues its decision is to amend the Constitution. They could also impeach/convict all of the Justices that ruled against them. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [November 7, 2016, 12:00am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/25 "2016-11-07T00:00:21Z")
> [@Lumpy](#): > > The legislature of the federal government of the United States of America, as opposed to any of the states’ legislatures. Are any of the states’ legislatures called a Congress? ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [November 7, 2016, 12:23am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/26 "2016-11-07T00:23:25Z")
> [@D\_Anconia](#): > > Are any of the states’ legislatures called a Congress? No. But there once was a [Continental Congress.](http://www.history.com/topics/american-revolution/the-continental-congress) ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [November 7, 2016, 12:33am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/27 "2016-11-07T00:33:56Z")
> [@Alley\_Dweller](#): > > No. But there once was a [Continental Congress.](http://www.history.com/topics/american-revolution/the-continental-congress) Right, but “federal Congress” is redundant. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 7, 2016, 1:10am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/28 "2016-11-07T01:10:21Z")
> [@DSYoungEsq](#): > > Congress has stripped the federal courts of appellate jurisdiction in a number of areas. As they are allowed to do by the language under consideration here. We may be talking past each other in some way. My post indicated that several modern cases had found jurisdiction-stripping to have occurred in the context of federal statutory law, but I didn’t think there were any cases finding jurisdiction over constitutional claims to have been stripped. Are you saying that there have been such cases? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 7, 2016, 1:12am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/29 "2016-11-07T01:12:30Z")
> [@Tom\_Tildrum](#): > > We may be talking past each other in some way. My post indicated that several modern cases had found jurisdiction-stripping to have occurred in the context of federal statutory law, but I didn’t think there were any cases finding jurisdiction over constitutional claims to have been stripped. Are you saying that there have been such cases? I’m sorry, what do you mean “over constitutional claims?” ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [November 7, 2016, 3:03am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/30 "2016-11-07T03:03:14Z")
> [@Tom\_Tildrum](#): > > We may be talking past each other in some way. My post indicated that several modern cases had found jurisdiction-stripping to have occurred in the context of federal statutory law, but I didn’t think there were any cases finding jurisdiction over constitutional claims to have been stripped. Are you saying that there have been such cases? > [@DSYoungEsq](#): > > I’m sorry, what do you mean “over constitutional claims?” Cases in which a citizen of a state claims that a state law is in contradiction to the US Constitution. FWIW, here’s Hamilton and the Federalist #80 again: > [@](#): > > But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. > > It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.‘’ And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. Decades before the 14th amendment, Hamilton was claiming that the Supreme Court had the authority to defend the “privileges and immunities” of citizens of the Union. Although tellingly, he only addresses disputes arising from interstate conflicts, not a citizen vs. his own state. So the question becomes, does the Supreme Court have original jurisdiction over a case where a citizen claims his own state government has violated his rights? The letter of the 14th Amendment would seem to say so, except that the privileges and immunities clause was largely gelded by the 19th century SCOTUS. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [November 7, 2016, 3:14am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/31 "2016-11-07T03:14:17Z")
(cont.) only for the 20th century SCOTUS to resurrect oversight of rights under the “due process” clause. If that interpretation holds, then the letter of the Constitution gives the court that inviolable authority. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 7, 2016, 3:26am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/32 "2016-11-07T03:26:27Z")
> [@D\_Anconia](#): > > Right, but “federal Congress” is redundant. Not at the time. The Federalist Papers were written during the period between when our current Constitution had been written and when it was ratified and put into effect (arguing in favor of ratification was the reason they were written). So the Congress of the Confederation, created under the Articles of Confederation, was still in existence and was the government of the United States. Hamilton, writing about the Congress proposed under the Constitution, referred to this proposed Congress as the federal Congress to distinguish it from the then current institution. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 7, 2016, 3:30am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/33 "2016-11-07T03:30:26Z")
> [@Saint\_Cad](#): > > They could also impeach/convict all of the Justices that ruled against them. They could but that wouldn’t overturn the decision set by the now former justices. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [November 7, 2016, 3:36am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/34 "2016-11-07T03:36:18Z")
Lump, while a lot of con law types speculate all different ways about jurisdiction stripping, I’m not familiar with any special argument about “constitutional cases”, which you define as cases in which a citizen is suing a state or something, as being particularly relevant. Quite literally–any case that isn’t brought to the Supreme Court under its original jurisdiction, is an appellate case, a case appealed up to the Supreme Court. The plain reading of the constitution is that such cases are under appellate jurisdiction, which Congress can restrict. Original jurisdiction cases are rare, a couple a year, sometimes literally one or two. In such cases, note that the Supreme Court’s role is not to read appeals from the lawyers and listen to relatively brief oral arguments. They actually have to function as a full trial court. The Supreme Court is not super well set up to do this, and further, it’d take time away from the bulk of their work that they care about. So what they normally do in original jurisdiction cases is appoint a Master who basically acts a trial judge and conducts a more or less normal case. After his decision, the full Supreme Court reviews the trial judge’s decision, so in effect they get to work the case more like they do their normal appellate cases. At the end of the day the real reason jurisdiction stripping isn’t super common is there’s a lot of built up respect for the institution of the Supreme Court as an equal member and equal branch of government. While this goes against your High School civics lessons, the constitution didn’t actually create three equal branches. The judicial branch is by far the weakest in the constitution itself, and also it is the weakest in more functional/practical terms. They can’t even collect a salary or get money for ink pens without Congress. In most ways the legislative is by far the most powerful branch. But functionally the President’s veto power and his broad power to run the government, as the government itself grew, and as the dysfunction of the Congress has proved almost constant, has made the executive the most powerful branch in my opinion, _de facto_. Unlike the other two though, almost the entirety of the judicial branch’s real power has built up entirely through custom and respect for it as an institution. For that reason there are things that don’t make sense if you imagine the founders writing up the three branches to be “perfectly equal”, that just wasn’t the intention. The real intention for the Supreme Court was it’d occasionally meet to hear a narrow range of important cases that the Founders thought ought be settled by some special high court. Most of the day to day time of the early Supreme Court justice’s time was actually spent “riding a circuit”, they would literally be assigned to a region to conduct the business of lower level Federal circuit courts and do more “normal judge stuff.” I don’t think that jurisdiction stripping was seen as a way around judicial review, I think instead it’s that the founders imagined the Supreme Court having a much more limited role, and that specialist courts of various types would exist to be the last courts to hear certain appeals on various issues. Military courts, maritime courts etc, the thought was there’s no reason to even have stuff from those appealed all the way to the Supreme Court, why would it? But over time we’ve developed, through informal means and tacit acceptance, a system where we generally expect cases can ultimately at least be sent to the Supreme Court to decide if they want to take a look at it. The Supreme Court is also acknowledged as having a very valid role in deciding cases determining the constitutionality of legislation, and is expected to be solely the highest level appellate court, its justices are certainly not expected to “ride a circuit” any longer. If the Congress just didn’t give a shit about any of this there’s all kinds of things they could do. They could just impeach the entire court. They could make the court have 30 justices and appoint 21 new yes men to do whatever the hell they want, they could reduce the pay of the justices to $1 a year. After that, the Congress could also basically just ignore Supreme Court rulings they disliked and if the President was like “okay” and kept executing the laws as before the Supreme Court has no recourse. None of this happens because the independence, and current power, of our judicial branch is seen as deeply important to our functioning as a real democratic country, politicians that tried to assault it directly would fare poorly in the public’s eyes. FDR was a beloved President, but his scheme to pack the court was received very poorly, and in plain text it wasn’t even _that egregious_. His court packing plan basically allowed for the President to appoint an additional justice to the court for every current justice who was over 70.5 years of age, up to a total number of justices of 15. But his motivations were so clearly political, that it had very little support. The Senate committee chair responsible for the bill (a Democrat) was very much against it and never let it out of committee, and even Roosevelt’s own Vice President opposed the plan. Many other Democrats throughout Congress opposed it, all largely based on the fact they didn’t like FDR’s plan to politically maneuver the Supreme Court. On spec, it wasn’t remotely an unconstitutional proposal, but just the motivation of politically “out-maneuvering” the court was seen as very distasteful. This was in an era when most Democrats in Congress were pretty supportive of FDR, and the New Deal–there was one conservative justice in particular who was often the 5th vote in the cases that had struck down some New Deal programs, and he was largely the target of this action. So even though many in Congress _wanted_ the New Deal legislation they were passing to be upheld, they weren’t willing to subvert the Supreme Court’s independence to do it. Perhaps naively, I like to think Congress today would respond similarly to executive actions deleterious to the Supreme Court’s independence. ---
**Author:** ![RadicalPi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/radicalpi/32/9806_2.png) [@RadicalPi](https://boards.straightdope.com/u/RadicalPi)\ **Post date:** [November 7, 2016, 6:00am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/35 "2016-11-07T06:00:01Z")
> [@Martin\_Hyde](#): > > If the Congress just didn’t give a shit about any of this […] they could reduce the pay of the justices to $1 a year. Just FYI, but this last one they can’t do, at least constitutionally. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [November 7, 2016, 7:23am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/36 "2016-11-07T07:23:09Z")
Of course they can–Congress cannot be compelled to legislate. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [November 7, 2016, 7:31am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/37 "2016-11-07T07:31:00Z")
To elaborate–I had forgotten the clause in the constitution that says the justices conpensation cannot be reduced once their term in office has started. But on reflection it’s like the constitutional requirement that the “debt shall not be questioned.” Many pointed to this as proof Congress couldn’t refuse to raise the debt ceiling because this would’ve resulted in a debt default which is unconstitutional. But the sticking point with that, or a judge’s salary, is Congress cannot be compelled to legislate and if they refuse to appropriate funds or etc, no mechanism exists through which they can be compelled. ---
**Author:** ![RadicalPi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/radicalpi/32/9806_2.png) [@RadicalPi](https://boards.straightdope.com/u/RadicalPi)\ **Post date:** [November 7, 2016, 7:33am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/38 "2016-11-07T07:33:00Z")
> [@Martin\_Hyde](#): > > Of course they can–Congress cannot be compelled to legislate. I’m not sure I follow. Reducing the salaries of the judges to some set amount would require a law. ---
**Author:** ![obfusciatrist](https://avatars.discourse-cdn.com/v4/letter/o/4af34b/32.png) [@obfusciatrist](https://boards.straightdope.com/u/obfusciatrist)\ **Post date:** [November 7, 2016, 1:04pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/39 "2016-11-07T13:04:48Z")
> [@Tripler](#): > > There was a really good podcast I heard last weekend that illustrated the poor status of the SCOTUS under the Adams/Jefferson administration, and how a “midnight appointee” basically invented the process of Judicial Review–allowing the SCOTUS to declare something unconstitutional. I’ll get the title for you. The podcast is Radiolab Presents: More Perfect. Episode was “[Kittens Kick The Giggly Blue Robot All Summer](http://www.wnyc.org/story/giggly-blue-robot)” I agree it was very interesting. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 7, 2016, 6:29pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/40 "2016-11-07T18:29:49Z")
> [@DSYoungEsq](#): > > I’m sorry, what do you mean “over constitutional claims?” Claims where the right of action arises directly from the constitution, rather than a federal statute. Claims under the 1st, 4th, 5th, 6th, and 14th amendments being what most readily leaps to mind. > [@Lumpy](#): > > Cases in which a citizen of a state claims that a state law is in contradiction to the US Constitution. That’s a particular subset of constitutional claims, because typically the only issues on which a state court’s ruling is reviewable by the US Supreme Court are alleged constitutional violations. > [@Martin\_Hyde](#): > > Lump, while a lot of con law types speculate all different ways about jurisdiction stripping, I’m not familiar with any special argument about “constitutional cases”, which you define as cases in which a citizen is suing a state or something, as being particularly relevant. And my point is that this is because the distinction has never been put to the test. Congress has never sought to strip the federal courts of jurisdiction to hear cases alleging first amendment violations, for instance. I think it’s technically possible, but it would provoke a crisis in practice. The state courts would thus be left to develop fifty sets of potentially inconsistent jurisprudence as to what the constitution means. My original comment was suggesting that in such an instance, my guess is that the Supreme Court would find some doctrinal means to limit the exceptions clause and retain jurisdiction. [Previous page](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661.md?page=1) [Next page](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661.md?page=3)