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March 30, 2004

Slapping the Judges' Hands

Michael Williams informs readers of a pair of identical bills making their way through Congress with two central themes:

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 element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government. ...

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.

"The Constitution Restoration Act of 2004" also includes text about impeachment. The teeth inserted by that language's inclusion mean that the legislature, if this passes, would be taking an actual stand rather than essentially petitioning its judicial betters to behave.

Perhaps it is the strength of the move, combined with potential for increased ease for subsequent measures of the same sort, that makes Michael qualify his support as "tentative" and suggest a sunset provision for the restriction. The prudence of such specifics is open to debate, but the degree to which a sunset might undermine the purpose of the step is a necessary consideration against the perceived need to insert a date for automatic cessation. The law can change according to future circumstances, and if any government branch is going to be too powerful, it's best that it be the legislature.

Subsequently, Michael makes a point that could be seen as arguing for the "permanence" of a sunsetless act:

I don't know how effective such a law would be because I'm not confident that judges' rulings are always honestly tied to the explanations they give. Judges could still rule based on these un-American factors but simply stop saying so and cloak their reasoning behind more acceptable justifications. Still, it might make their jobs more difficult.

Through such legalistic maneuvering, the judiciary could force both other branches to combine efforts to restrain it, if the courts so desire, with the executive finding it necessary to publicly declare a refusal to enforce a particular ruling. A sunset might merely delay the showdown. In contrast, perhaps the best way to avoid such a turn of events would be through various smaller measures that amount to hand-slaps (in their judiciary-facing provisions), such as the Constitution Restoration Act and the Federal Marriage Amendment.

If nothing is done, however, it just might be that the currently unthinkable judicial coup would arise quickly with the support of a global central government. Even in the initial efforts of the legislature, we see the reflection of this potential struggle. Note that both themes of the act have, essentially, to do with sovereignty: protecting officials who proclaim that belonging to God and restricting judges who wish to chip away at that of the United States of America.

"One nation under God" doesn't seem like such a superfluous verbiage to the Pledge in this context, does it?

Just a note on a stratagem of which James Heflin, who was quoted for the WorldNetDaily report to which Michael links, is surely just an early practitioner. Writes Heflin:

The restricting of Supreme Court jurisdiction is a strange maneuver, but one which the hazy language of the relevant part of the Constitution may allow.

The first step in disregarding pieces of the Constitution that one finds disagreeable, rather than working to amend them, is to portray them as "hazy," almost accidental words that somehow slipped into the crucial founding legal document. Here's the offending sentence for the debate at hand, from Article III:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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.

I can only presume that what makes this language hazy to Heflin is that it doesn't offer any guidance as to what those "exceptions" and "regulations" can be. The simple answer, if that is his objection, is that they can be whatever the legislature decides they can be within the limits of the rest of the Constitution. As I said, if any government branch is going to be too powerful, it's best that it be the legislature.

Mr. Heflin has (I think) replied in the comments section, and I realized that I was remiss in not seeking out and linking to his piece.

His first reply, here, is that "the many opinions of the legal community [he] read about that passage were anything but unified." I'm neither a legal scholar nor a journalist, but having read and written about similar matters with fair regularity, I can say that I've yet to come across legislative language that doesn't generate fundamentally conflicting opinions among the legal community. Almost invariably, those opinions happen to coincide with the preferred policy of the speaker.

In this case, Heflin suggests that "the Constitution 'Restoration' Act might well open the door for abuse of Article VI, which disallows religious tests for office." And yes, somebody, somewhere, is almost certain to put forward the proposition that proper "acknowledgement" of the Deity requires each employee to profess it. This, however, ignores the difference between acknowledging something and taking further action based on that acknowledgment. Note that the Act does not forbid the Court from hearing cases that seek relief by reason of an element's or officer's refusal of acknowledgement of God, something for which the Constitution makes specific provision.

Ultimately, though, this gets at what could be seen as the genius of our system. It admits human nature and seeks to ensure that it is channeled and checked where it presents worries for the community. In this case, as far as I know, the courts themselves will decide what constitutes "acknowledgment," tempered by the risk of impeachment. If Congress wishes to broaden the word, it will either have to pass additional language or impeach judges who overstep its desired boundary. Both of these actions, not being immediately procedural, will take place in public view, where the representatives are accountable.

Posted by Justin Katz at March 30, 2004 8:06 PM

Thanks for the link. You bring up a point I hadn't considered before, and I agree that if any branch is going to be too powerful it should be Congress.

Posted by: Michael Williams at March 31, 2004 11:21 AM

I think this is only the tip of the iceberg. The Federalist has begun pushing what it calls the Enumerated Powers Amendment. A full amendment with a similar scope, rather than basic legislation. Apparently, they may be starting to get some traction in Congressional support.

Posted by: Timbeaux at March 31, 2004 12:10 PM

I agree with the goal of a jurisdiction-limiting bill, but not the method. What does limiting the jurisdiction of the US Supreme Court really accomplish? It just means that the decision of the federal circuit courts becomes the law of the land for its region on those topics, and there is no way to unify the rulings. If you take a topic out of the US Supreme Court's jurisdiction, then the 9th circuit can issue whatever loopy ruling it wants, and there is no appeal.

The solution does not lie in limiting the jurisdiction of courts. The solution lies in directly punishing individual judges for outrageous rulings. That may be putting some teeth into impeachment, as you say, or it may be some new invention.

Posted by: Ben Bateman at April 1, 2004 12:33 AM


You raise a good point; as it applies to state courts, I guess it's ultimately a judgment call. However, I imagine limits of the Supreme Court apply to lesser federal courts as well.

Posted by: Justin Katz at April 1, 2004 6:50 AM

OK, let's assume that this jusidiction stripping goes all the way down to federal district courts. Now who decides a controversy on that topic?

To take a recent example, some mayors and county clerks have decided that the truth of SSM is so blidingly obvious that they started handing out marriage licenses to same-sex couples. Who is going to stop them? The courts, we hope!

Yes, there is a state-federal distinction there, but it doesn't really affect the point. Suppose that Congress strips all the federal courts of jurisdiction to hear cases on the definition of marriage. Then suppose that the Social Security Administration decides that same-sex "married" couples should receive the same benefits as opposite-sex married couples. Who is going to tell them they're wrong? Normally that kind of thing could be challenged in federal court, but the courts have been stripped of their jurisdiction.

To put the point more broadly, jurisdiction stripping is a procedural, content-neutral approach. It assumes that the courts are the ones who will impose wacky stuff on us, and everyone else is much more reasonable. But as we've seen with SSM, lots of people other than the courts are also unreasonable and would like to impose wacky stuff on us. Stripping jurisdiction would both stop the courts from doing ridiculous things, but also stop them from stopping others from doing ridiculous things. I don't think that's a good tradeoff.

The problem with the court system is not procedural. It's that the courts are too well insulated from the will of the people. It's that modern judges are corrupt and unwilling to confine themselves to their proper and traditional role.

Posted by: Ben Bateman at April 1, 2004 3:13 PM


Well, you certainly do point to something that ought to be considered, and I tried to indicate in the post that one danger of the strategy is overusage, and foolish usage would be included. That's why I support a series of limited moves (i.e., "hand-slaps") picking issues and the corresponding strategies carefully.

I'd have to research it, but I'd be surprised if there weren't some way for the judiciary to stop the SSA in the scenario that you describe on the grounds that the organization isn't following guidelines, which would happen to be marital in nature. But even so, again, about all I've supported, thus far, is removal of the jurisdiction to judge cases about "acknowledgement of God as the sovereign source of law, liberty, or government" — not a far-reaching realm of activity, at all.

With marriage, the aspect of the Federal Marriage Amendment having to do with inspiring judicial restraint in the future is much more specific. It defines marriage and will put forward some variation of language declaring that courts can't redefine it.

Taking the momentum out of the courts' excesses remains a messy business, no doubt, but that's a result of the nature of the problem, not of any given solution. One of the reasons the courts are so removed from the will of the people is that the branches that are accountable to us haven't adequately represented our interests.

Posted by: Justin Katz at April 1, 2004 6:52 PM

I didn't know I had my hands on a strategem! No, it's merely that the many opinions of the legal community I read about that passage were anything but unified. What if someone wants to restrict the Supreme Court from judging on something that would be clearly unconstitutional? I don't claim to know. That passage isn't the the real problem here -- the Constitution "Restoration" Act might well open the door for abuse of Article VI, which disallows religious tests for office.

Perhaps it would be more accurate to say that opinions are hazy, thus avoiding this very interesting criticism. Thank you for pointing it out. I had/have no desire to ignore part of the Constitution. No left-wing conspiracy here, just a journalist finding his research on that passage giving inconclusive answers.

Posted by: the author at April 1, 2004 11:15 PM

Mr. Heflin (I presume),

Thanks for clarifying. I'll reply as a second addendum.

Posted by: Justin Katz at April 2, 2004 10:18 AM

I guess the question is do you really want Tom DeLay making each and every decision on court cases. Or, what if the conservatives here and elsewhere are thrilled with the far-right judges Congress will appoint to the Supreme Court and all federal courts in the next few years? Then, if they make up the balance of the Supreme Court, and Democrats win back both houses of Congress, would you approve of Democrats using laws enacted by Republicans to stop any conservating rulings that they see as going too far?

Posted by: Bill at April 4, 2004 4:22 PM


Tom DeLay can't pass bills on his own. But to answer the broader question, I wouldn't want Congress to dictate judicial decisions. However, that's quite a different thing from a handful of targeted restrictions meant mainly to assert boundaries for the judiciary.

Given the specifics of what was discussed above, I'm not sure what laws you think Republicans are enacting that would stop conservative rulings.

Posted by: Justin Katz at April 4, 2004 7:48 PM