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Jurisdiction Strip Tease

In light of the current effort to replace the soon-to-retire Sandra Day O'Connor on the Supreme Court, the judiciary has been on my mind lately. As I've thought about the subject off and on, my thoughts have kept coming back to jurisdiction-stripping and judicial review.

For the uninitiated: "Jurisdiction-stripping" would use Congress's power under Article III, Sec. 2 of the Constitution to remove the courts' ability to hear cases. That power was tested in Ex Parte McCardle, 74 U.S. 506 (1869) (Abstract; Text of case), where the Supreme Court found that when Congress confers jurisdiction by statute, it may later repeal that same jurisdiction. Timothy Sandefur comments further on jurisdiction-stripping here.

Judicial review, on the other hand, is the courts' ability to declare that a law or other legislative act is unconstitutional, as first set out in Marbury v. Madison, 5 U.S. 137 (1803) (abstract; text of case).

In the modern context, conservatives have assayed jurisdiction-stripping to prevent courts from hearing cases involving, for example, school prayer, same-sex marriage, and the display of the Ten Commandments on public property. On the Ten Commandments and school prayer issues, the courts have taken the position that certain state-sanctioned practices are not permitted under the Constitution. Those who favor jurisdiction-stripping presumably disagree with these interpretations.

I am curious, however, about whether such acts can be rendered constitutional simply by stripping the courts' ability to hear such cases, or, indeed, if the jurisdiction-stripping itself would be constitutional when the practice in question concerns constitutional questions.

In counterpoint, I submit this quote from Federalist No. 78:

he complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Under this interpretation, it seems that when a dispute is brought before a court, the practice or law in question is entirely void if it runs counter to the Constitution. Therefore, for example, a law that permits public-school teachers to lead classes in prayer and distribute religious leaflets to the students is void because it violates the First Amendment to the Constitution, which prohibits the establishment of religion.

But, jurisdiction-stripping proponents would no doubt argue that the courts can't even to hear challenges that law if it includes a jurisdiction-stripping provision. This outcome, to say the least, would be troubling, as a jursdiction-stripping provision would essentially set Congress up as its own judge of the extent of its powers. This runs counter to how the court system should work when a legislative act runs counter to the Constitution. From Federalist No. 78:

It only supposes that the power of the people is superior to both [legislative and judicial power]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

There seems to be an inherent conflict here. Given Federalist No. 78's predeliction for accreting superior authority to the Constitution, and to the court system's role in interpreting the Constitution, it appears that a law with a jurisdiction-stripping provision would still be fair game for the court to consider if the law itself is in violation of the Constitution. Thoughts?

Pennywit has no artificial flavors or preservatives, and regularly blogs at Pennywit.com.


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Comments (10)

Jurisdiction-stripping thro... (Below threshold)
Michael A:

Jurisdiction-stripping through statute has always been the lazy, half-hearted method of addressing such issues. For true jurisdiction-stripping to occur within our system, an Amendment to the Constitution is required. The statutory method may work for a time, but only if the right cases are heard by the right justices. By taking the more difficult road and amending the Constitution, only those justices who have forsaken their oath will be able to ignore such a measure.

Well, if you're going to go... (Below threshold)

Well, if you're going to go for an anti-judiciary power play, I'd say the route to go is to expand the Supreme Court by a couple seats, then ram through your preferred justices for those seats.

Of course, then your power play is rather naked ...


I'd make a couple of points... (Below threshold)

I'd make a couple of points:

-- First, this congressional power is rarely exercised. Despite the repeated judicial encroachments on legislative power during the last 30 years, in particular, the only Section 2 legislation I know of that got anywhere was a late-90s attempt to removed federal court jurisdiction over state prison administration (spurred by District Judge William Wayne Justice's actions relating to Texas prisons). Passed the House, died in the Senate. So Congress as an institution is reluctant to challenge the judiciary.

-- I believe Congress should make more frequent use of this power (that you even have questions about it shows how atrophied it's become -- this should be a settled question after 215 years, don't you think?). Congress shouldn't be concerned what the court will say about it, but be guided by its own sense of what the Constitution means: They've taken an oath to defend it too, you know. Pass the law, exempt it from Article III jurisdiction, and see what happens.

The legislature can engage ... (Below threshold)

The legislature can engage in jurisdiction-stripping only where jurisdiction is conferred by the legislature. Constitutional jurisdiction is not conferred by the legislature, but by the Constitution itself, which the legislature has no authority to alter.

i>Constitutional jurisdicti... (Below threshold)

i>Constitutional jurisdiction is not conferred by the legislature, but by the Constitution itself, which the legislature has no authority to alter.

If the Constitution gives the Legislature the authority to alter jurisdiction (see Article III, Section 2), the above isn't quite exactly true.

The first paragraph in my c... (Below threshold)

The first paragraph in my comment above, quoting GeoBandy, is supposed to be in italics. Danged disappearing pointy bracket.

I realize this isn't perfec... (Below threshold)

I realize this isn't perfectly aligned with the actual topic of the post, but it does go hand-in-hand in that it explains the exasperation of the legislature that leads to their contemplation of such an act.

The court did establish, in Marbury v. Madison that the court had the constitutional right to declare legislation unconstitutional, and therefore nullify the actions of the Legislative and Executive branches, although there's a dubious air surrounding a branch self-defining its own Constitutional powers.

The real problem, however, arises when this power is applied to situations like the school prayer issue. Read carefully:

Amendment I

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.

The incredibly obvious questions are whether the Judiciary can declare something unconstitutional in absence of legislation, and whether the court's decision establishing law through legal precedence is subject to the same Constitutional requirements as laws enacted "conventionally" by the legislature. In this case, the establishment clause was cited as the grounds for ruling school prayer unconstitutional, but the fact remains that congress had made no law in regard to school prayer. The result was SCOTUS doing something the Constitution prohibits the legislature from doing: enacting a law against the free exercise of religion. Now, if one reads the first amendment quite literally, while Congress is prohibited from enacting laws in this area, there is no mention of such protection from either the Executive branch (through executive order) or from the Judicial branch (through rulings such as the one in question here), but one must necessarily assume that the intent of the first article of the Bill of Rights was intended to prohibit any and all government interference and influence upon religious practice. Furthermore, there exists no check upon this power of "legislation through precedence" by which any decision of the Supreme Court may be challenged or appealed.

After such decisions as this, in which the court either overstepped or redefined their bounds, the legislature is driven to very carefully scrutinize the constitution in order to find a way to counterbalance the court, and it's a daunting (if not impossible) task. Also, the fact that no check on such power is clearly stated in the Constitution leads me to believe that the Court was never intended by the framers to wield such power.

Am I missing something, or ... (Below threshold)
Sue Dohnim:

Am I missing something, or isn't jurisdiction-stripping in the Constitution and therefore, by definition, constitutional? So if a court annulls or limits such a thing, they are doing something unconstitutional?

And if they're not, how can something written in the Constitution be unconstitutional?

It's worth remembering that... (Below threshold)

It's worth remembering that Federalist no. 78 (and presumably Federalists nos. 1-77) are not legally binding documents under the U.S. system.

Although I agree with you that jurisdiction stripping is silly in this instance.

Note the courts have always... (Below threshold)

Note the courts have always limited their "jurisdiction stripping" decisions to jurisdiction enacted by statute. My point above, without going into it at great length, is that, since Marbury v. Madison (which is pretty well-settled law) Congress would not have the ability to interfere with judicial review. Consequently, since judicial review is the determination of what is and is not Constitutional, Congress does not have the authority to strip jurisdiction as to the issue of constitutionality...and can't enact a binding statute that precludes Constitutional analysis by the Courts. In other words, as legal texts would put it, it is a fundamental and well-settled principle of American jurisprudence that the Supreme Court, not Congress, has the authority to decide whether a law passes Constitutional muster.

And Marshall was smart enough to make it quite clear in Marbury that judicial review derives directly from the Constitution and devolves directly upon the courts, and is beyond the authority of Congress for tinkering.

As to other forms of jurisdiction stripping, various other Constitutional provisions come into play so that it would be allowed in some circumstances, and not in others.






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