A calm discussion of the Jurisdiction question

[Dookus]

which is in play in today's anti-gay marriage vote.

Article III, Section 2 of the US Constitution states:
Clause 2: 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.

Now... what does this mean? It DOES seem to violate the basic premise of Marbury v Madison, which is that the federal courts have the right to decide the constitutionality of any legislation.

This particular clause, as far as I know, has never been used and never been decided by the courts. Does it mean that congress really CAN strip from the Supreme Court appellate jurisdiction on any issue they decide? If so, we'd end up with varying levels of constitutional protection depending on the federal appellate court district one lives in, with no mechanism for resolving discrepancies.

I think the Supreme Court would disallow such a state, but it's hard to imagine the logic they would use. I don't think they can argue that a prior decision overrules the inherent text of the constitution.

Are there any constitutional experts who can say what basis the court would use to deny this power to Congress?

On edit: I'm hoping to discuss the legal issues here, not whether it's right, wise or moral to invoke this clause.

[Dookus]

1. kick

Or is a calm discussion on this issue out of the question?

[kiahzero]

2. It would seem that Article 3, Section 2 means

that the Congress may establish the method under which a case rises to the jurisdiction of the Supreme Court, not which type of cases it may hear.

Given that the Supreme Court gets to interpret the Constitution, they'd almost certainly interpret it to not allow Congress to bar the Supreme Court from hearing certain types of cases. Were it to decide otherwise, Congress could violate the Constitution as a regular course of action: simply bar the Supreme Court from reviewing a law, and it won't ever be able to be struck down.

[Dookus]

4. I'm not sure...

I don't read it that way. The clause clearly specifies what TYPES of cases the SC has original or appellate jurisdiction. I don't see it specifying only the METHODS by which cases get tehre.

I agree with your assessment that the SC would likely find a reason not to allow this.

[pnorman]

3. I hope to see more knowledgable opinions than mine here,

but in my own opinion, the supremacy of the Supreme Court over other branches of government ("Marbury vs Madison") was "established" by a bare-faced BLUFF. In a similar manner, the concept that corporations are "persons as defined by the 14th Amendment" (Santa Clara County vs Southern Pacific RR) was a BLUFF. (http://onegoodmove.org/1gm/1gmarchive/000437.html)

There was a phrase attributed to Aaron Burr which goes: "The law is whatever can be forcefully asserted, or plausibly denied". That's a little too cynical for my own taste, but it's well worth bearing in mind.

pnorman

[Gothmog]

5. No law on this issue yet

First, the Senate will never let this bill get through. Frist was not able to muster a simple majority in the last attempt to invoke cloture much less sixty votes.

Second, this is a very murky area. I responded to one thread already on this issue. See http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x2044871 Some abortion nuts have been threatening to use this provision on Roe v. Wade for years. The concept that congress can restrict the appellate jurisdiction of a federal court does fly in the face of Marbury. I intend to look at my copy of Tribe tonight but I simply do not think that limiting jurisdiction on particular issues passes the smell test.

[Dookus]

6. I agree

I don't see how the courts could reconcile Marbury v Madison with this attempt.

But... I don't see how they can use their own decision to invalidate the clear text of the constitution. I believe they WILL invalidate it, but I'm trying to imagine what grounds they'll use.

[kiahzero]

7. Simple

They'll argue that "Exceptions" does not mean what you are reading it to mean. Rhenquist and the conservative block will use an original intent argument... I'm not sure what argument the moderates of the Court would use.

[Dookus]

8. Well

what other reading of "exceptions" is there?

And are you saying the conservatives would uphold the current attempt to limit jurisdiction? I'm not convinced of that.

[kiahzero]

12. Exceptions would apply to circumstances of cases

Not the legal questions that come up in a case.

Section 2 reads: 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.

You can't interpret away provisions of the Constitution: each clause must be given some meaning. Interpreting the word "exceptions" how conservatives are would contradict Section 2: "the judicial power shall extend to all cases, in law and equity, arising under this Constition."

I was actually saying that the conservative bloc of the Court would defy the Republican Party.

[Dookus]

13. I see...

what you were saying about the conservatives.

However, I still don't know how to reconcile the two sections - they seem almost contradictory to me. One says "all cases, in law and equity, arising under this Constitution" and the second says "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."

It's a stumper - I knew I shoulda gone to law school :)

[kiahzero]

14. Yes, but here's the crux of rational interpretation

Every clause must be given meaning, and no clause can conflict with any other.

So, it's remarkably unlikely that the Supreme Court would ever accept this ruling, even without considering the bureaucratic entrenchment that would tend to make the SC rule against it: each branch of the government tends to, overall, zealously guard its power.

What is astonishing to me is the number of people here who think this bill is going to fly: it's not going to go anywhere, and even if it did miraculously get out of the Senate, the SC will strike it down as soon as it's challenged.

[Gothmog]

9. Need to look at all of Sections 1 and 2 of Article III

I went back and looked at the Constitution. Here is all of Sections 1 and 2 of Article III.
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

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.
______________

One key concept is judicial power and the supreme court has judicial power over all matters arising under the Constitution. I can see an argument that given Marbury, Congress can not take away jurisdiction over purely constitutional issues. In this case, Congress is in effect ordering the Federal Courts not to enforce the full, faith and credit clause as to gay marriages. This simply does not pass the smell test.

[tritsofme]

10. Its a paradox and constitutional crisis

if Congress says that the courts do not have the power to rule on this issue, and the court maintains that it does, then Congress could tell them to go pound sand and find a way to enforce it.

[Dookus]

11. Yes...

it could lead to a constitutional crisis, but I think it's unlikely. While some wingnuts might want to create one, I doubt the majority of congress would want to light that bomb.