Pat Buchanan is generally a blowhard extroidinare. In his call for a new Boston Tea Party he does make interesting point; that Congress has too rarely used it's power to restrict judicial review.
Congress should re-enact the Defense of Marriage Act and amend it to deny the Supreme Court any right of review. Congress' power to restrict the appellate review jurisdiction of the Supreme Court was granted in Article III of the Constitution for a purpose. This is it.Regardless of how you feel about the DoMA, it is an interesting thought. Here is the section of Article III:
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.Of course a set of cajones will be required to attempt a maneuver such as this, which virtually guarantees that perpetually campaigning Representatives will never consider it...
Hat Tip: OTB
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Comments (3)
Actually, Buchanan is wrong... (Below threshold)1. Posted by James Joyner | November 24, 2003 2:19 PM | Score: 0 (0 votes cast)
Actually, Buchanan is wrong here. He skips a rather important part of Article III--which is pretty short to begin with--the comes right before the part he quotes:
So, if the courts rule that there is a 14th Amendment equal protection right to gay marriage, then it would be a matter arising under the Constitution, and thus not subject to restriction by Congress.1. Posted by James Joyner | November 24, 2003 2:19 PM |
Score: 0 (0 votes cast)
Posted on November 24, 2003 14:19
2. Posted by De Doc | November 25, 2003 3:09 PM | Score: 0 (0 votes cast)
James:
You're misreading Article III. Let me quote it in full, without cutting it in the middle; it's important to the discussion:
"...Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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."
The clear intent of Article III, Section 2, when read *intact*, is precisely as Buchanan states it--the Congress is *clearly* allowed to make "exceptions" to EVERYTHING covered in the section, except cases affecting ambassadors, public ministers, and cases where a state is directly being sued. A FEDERAL "Defense of Marriage" Law would speak to none of those.
2. Posted by De Doc | November 25, 2003 3:09 PM |
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Posted on November 25, 2003 15:09
3. Posted by Kevin | November 25, 2003 3:22 PM | Score: 0 (0 votes cast)
My interperetation was the same as De Doc's. Everything except original jurisdiction cases could excepted or regulated on by Congress. By practice and tradition this power has been mostly abdicated.
I did note that judicial review of INS decisions were limitted by statute. That's as much as I've found, but I wasn't looking very hard.
3. Posted by Kevin | November 25, 2003 3:22 PM |
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Posted on November 25, 2003 15:22