On Lawn's Journal: Clash pending: a power in the constitution v. one that isn't

There was a lot of interesting news yesterday. SQL*Kitten pointed out a story on how after a year the lesbian couple that changed everything in Canada is getting a divorce.

The one I take special note of is a little covered item. Apparently after the FMA failed to move to vote in the Senate, the House passed a bill excercising a power granted them in the Constitution. What it says is that the courts are limited in their rulings to not make one state accept another state's marriage (this signed into law by Clinton in 1996).

The power to limit judicial powers is discussed in this JE. It should be an open and shut case, but as the story points out some think that it comes in direct conflict with the Supreme Court's power of Judicial Review (the basis of which is not found in the constitution at all). Just how we got a notion of Judicial review out of thin air is discussed in this JE.

As an anonymous coward raised the very valid question of just how far the Supreme Court powers go, it would be interesting if they feel they have the ability to place precidence over what is in the constitution with something that isn't. I for one would be very happy if defending marriage also winds up helping reset the constitution back to what it was designed to do.

UPDATE:

It turns out folks that this is not a new constitutional crisis. It has happened before. Thanks to "grouse" from K5 for pointing this out...

n Ex Parte McCardle, 74 U.S. 506, Congress had actually removed the appelate jurisdiction of the Supreme Court over the case even after arguments had already been heard. Here's part of the opinion of the Court, delivered by Chief Justice Salmon P. Chase:

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer...

The appeal of the petitioner in this case must be

DISMISSED FOR WANT OF JURISDICTION.

Congress removed original jurisdiction of a lower court in a case sub judice in District of Columbia v. Eslin, 183 U.S. 62. The Supreme Court upheld the Congressional action there as well.

Now, the Supreme Court does change its mind and this was 135 years ago, so it might feel that it can if the jurisdiction-removing clauses, such as this one, that the Republicans have been pushing in recent years are enacted and tested in the courts. In fact, in Fay v. Noia, 372 U.S. 391, the Court tries to say that the appellate jurisdiction was only removable in McCardle because there was somewhere else for the same questions to be raised. That if Congress tried to say you can't try habeas corpus cases anywhere, that could be overruled by the courts.

UPDATE: Sep 29, 2004
The Washington Times has a larger review of legislation where Congress has used this power.

minor error

[turg]

after a year the lesbian couple that changed everything in Canada is getting a divorce.

They were not "the couple that changed everything." The article says they were " among the first same-sex couples to get legally married." There are thousands of couples who could be described as "among the first."

Re:minor error

[On Lawn]

Thanks for pointing that out.