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The Courts

Journal pudge's Journal: Coequal 31

Journal by pudge

There's a move afoot to use Article III, Section 2, Clause 2 of the Constitution, which states:

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.

Say what?

That means, basically, that Congress has the authority to tell the Supreme Court what its juridictional authority is. Which means, for example, that Congress can tell the court it may not hear cases about gay marriage or the Pledge of Allegiance, which is what some members of Congress are, indeed, trying to do.

Now, for a moment, let's set aside the meaning of the Constitution in this particular case, and whether that interpretation is valid. I do welcome comments on the matter, but I want to get to something a bit more interesting to me.

In an article on CBS, attorney Andrew Cohen says that this is wrong not because the Constitution says it is wrong, but because of the "Constitutional principle" of three coequal branches of government that does not allow for Congress to tell the Court what cases it can and cannot hear.

It is popularly understood that the three branches of government are coequal. But as is often the case, popular opinion is incorrect.

It's self-evidently incorrectly from any reading of the Constitution. Every important executive act requires Congressional approval, or can be overridden by Congress. The only court that can exist without Congressional approval if the Supreme Court, and even then, they only judge what the law says: if the Congress dislikes the decision, they can change the law (with or without the help of the executive branch, including amending the Constitution itself [although that requires the States]).

And this legislative "predominance" was recognized before the Constitution was ever ratified, as James Madison wrote in Federalist 51:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

Note that the title there, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments," is not Madison's. It was added much later. In fact, the words "check" and "balance" do not appear together in the Constitution, and neither does the word "coequal," which also does not appear in the Federalist.

Indeed, "check" and "balance" appear together in the Federalist only once, in No. 9 by Hamilton, and he -- just as Madison is above -- is talking about the two houses of Congress checking and balancing each other.

Let's collectively face the facts: the three branches have never been equal, have never balanced each other, and were never intended to. They do perform various checks on each other, but Congress still predominates.

Now, back to Article III, Section 2, Clause 2. I am undecided about this. We know that the court has previously ruled that when Congress has authority, it should be interpreted broadly. And we know the Constitution says the court's jurisdiction is subject to exceptions and regulations from Congress. Taking that, I don't see how one could rule this is an abuse of Congress' power, since that power is specifically granted by the Constitution. And all the arguments against it that I've seen amount to ridiculous whining about a Constitutional principle of coequality and balance that does not exist.

Note that this power has been exercised before, and was respected by the Supreme Court. (I especially like the part where Senator Byrd tried to do almost the exact same thing, 25 years ago.)

Now, I know that there are fears this power could be abused. But that is beside the point here, which is what the power is, and whether or not it is Constitutional. Whether that power should be exercised is, for my concern here, largely tangential, and would be framed primarily by a greater understanding of the power at issue, which I do not yet have.

This discussion was created by pudge (3605) for no Foes, but now has been archived. No new comments can be posted.

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  • He's a really smart Christian, who is an expert in constitutional stuff.

    I found a bunch of things on the Focus on the Family site, which may or may not help, but is interesting either way.

    try this: http://www.family.org/resources/itempg.cfm?itemid= 4792 [family.org]
    • w00t! It's fun to hear when someone is reading the same stuff I've been reading :-) . David Barton is great. I've read some of his booklets on early American history, and it's really eye-opening stuff. I've making my way through Original Intent . It'll amaze you just how badly since the early 1940's the courts have mangled the intentions of the Constitution. The courts basically just ignored all previous precident on the issues (i.e., freedom of religion), and came up with new and contradicting definitions
  • One [slashdot.org]

    Two [slashdot.org]

    The first is from just a bit ago when the outrage over Congress actually using its constitutional powers, because it seems to conflict with Supreme Court powers that are *not* in the constitution. I find that arguing this matter turns quickly into the Constitution quoting vs. School House Rock plattitudes and talking points (in your case "coequal" and "checks and balances".

    The second is a collection quotes from Jefferson and Lincoln warning us that the unltimate check of Congress should be the p
  • Since congress, and not the Supreme Court, are officials that "we the people" selected...they should have more power than the ones who were selected 1 - 3 steps away from our electoral choice. i.e. Those elected and specifically selected for an office by our vote should have more power than those who were appointed by or against our will....without our direct choice.
  • ...then why give the courts the ability to determine the constitutionality of any law? If Congress can pass legislation with the near legal equivalency of a constitutional amendment - that is, not subject to any oversight by the courts, but not subject influencing future decisions - they may as well just pass a law taking away the court's responsibility for oversight of every law passed... past, present and future.

    It's almost a moot issue though, since the Courts themselves are the sole interpretters of

    • Exactly - the Congress is frustrated by the Constitutional Process of amending the Constitution, so they are trying for a shortcut. But nobody really takes this seriously (except, maybe, Pudge?). It's an election year gimmick.

      If it does become law (unlikely), the Supreme Court will strike it down in a victory for the Constitution and the concept of Irony.
    • Man, talk about your egg-eating chicken...

      If Congress passed a law taking away the SC's power of oversight - hmm. That's either within Congress' power via III.2.2, or it's unconsititutional via how the SC would (I'm virtually certain) interpret the Constitution. In which case it would have to be passed as an Amendment, and then the States' consent would be required, and that would never happen. So yeah; the SC is safe as long as it says it's safe (and three fourths of the States agree).

  • Congress is only allowed to establish the Supreme Court and inferior courts. "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." (Article III Section 1)

    An "inferior court" is "any court whose decisions can be appealed to a higher court" (Free Law Dictionary [thefreedictionary.com])

    If a federal court has juristiction over something (for example the Defense of Marriage Act) that can not be appealed to the Su

    • Some things are not heard by the Supreme Court, for example, an impeachment trial. That is heard by Congress.

      This will be interesting to watch, that's for sure.
      • Not entirely true. The Chief Justice presides over the impeachment procedings [msn.com], presumedly to ensure that they are implemented according to the Constitution.
        • But then he is not sitting as an officer of the Court, but of the Senate.
          The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
          The sole power to try the impeachment of the President still rests with the Senate.
  • Interesting that you don't provide the context of your ruminations:

    House vote strips Supreme Court of authority on God [thesunlink.com]
    By Jim Abrams, The Associated Press
    September 24, 2004

    WASHINGTON -- The House, in an emotionally and politically charged debate six weeks before the election, voted Thursday to protect the words "under God" in the Pledge of Allegiance from further court challenges.

    The legislation, promoted by GOP conservatives, would prevent federal courts, including the Supreme Court, from hearing ca

    • Interesting that you don't provide the context of your ruminations:

      I noticed that after I posted it, and thought about adding it; but then I realized that I didn't add it to begin with because it is completely beside the point of what I was talking about. Also, the two articles I linked to discussed it, for those who cared.

      Based on 1 and 2 above, Supreme Court gets to rule unconstitutional the *very bill* limiting its jurisdiction over specific cases relating to interpretation of the Constitution. The
      • *Ahem* Before we get started, you might want to re-read your own favorite phrase (emphasis mine):

        Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution

        Keep the highlighted words in mind as you read the rest of this comment.

        I noticed that after I posted it, and thought about adding it; but then I realized that I didn't add it to begin with because it is completely beside the point of what I was talking about. Also, the two articles I linked to discus
        • *Ahem* Before we get started, you might want to re-read your own favorite phrase (emphasis mine):

          You pretend that my argument didn't already take that phrase, with that emphasis, into account.

          You should have referenced it.

          No, I shouldn't have.

          Leaving it out paints this argument as an esoteric discussion on Constitutional Law, when in fact it's discussion of a specific Bill.

          See, but that's wrong. My argument WAS an esoteric discussion of Constitutional Law, NOT a discussion of a specific bill.

          Ye
          • You pretend that my argument didn't already take that phrase, with that emphasis, into account.

            You didn't re-read it, did you?

            No, I shouldn't have [referenced the Protection Act bill].

            Yes, you should have.

            See, but that's wrong. My argument WAS an esoteric discussion of Constitutional Law, NOT a discussion of a specific bill.

            Hmmmm? What's this? First you say that it was "implicit" because you linked to some related articles. Now you claim your original argument was "esoteric?" Please, make up you
            • First you say that it was "implicit" because you linked to some related articles. Now you claim your original argument was "esoteric?"

              Huh? I said from the beginning it was not important to my argument.

              Wrong.

              Says you. That's what this whole discussion is about. You have not demonstrated this.

              In virutally cases, the constitutionality of the case was not in question.

              In the first post I linked to, Constitutionality was the central question in several of the cases. I keep pointing this out, and you
  • Because a certain fencer did such a poor job of it. :-)

    Taking that, I don't see how one could rule this is an abuse of Congress' power, since that power is specifically granted by the Constitution.

    One can agree that it IS a power that congress HAS been specifically granted, and still hold that said (legitimate) power is being used in order to circumvent traditional/accepted methods of determining the appropriateness of laws. One can further argue that using this power on specific ideological grounds, and

    • Yes, there are many reasons why Congress shouldn't exercise this power, it's just that I am looking for Constitutional reasons why it can't. And so far, all I've seen is hand-waving at a mythical Constitutional principle.

      Oh sure, people say "look at Marbury v. Madison!" but they don't actually say what Marshall wrote that has any relevance. Specifically, just noting that Marshall recognized a Constitutional authority of judicial review does not mean there is no power of Congress to provide exceptions to
      • Oh sure, people say "look at Marbury v. Madison!"

        How about Federalist 47 [findlaw.com]?

        For those of us who don't have a lot of time, here is the SparkNotes version [sparknotes.com]

        One funny thing I just realized: you point out that "public opinion is often wrong." Heh.

        The framers allowed the Judiciary and Executive branches to limit the powers of the Legislative branch precisely *because* it is so close to the rash sway of public opinion. And, of course, the drive behind this absurd "Judicial Limitation Bill" is erroneous public
        • You appear to think that I am saying there is no judicial review. I am simply saying the Congress can make exceptions. You have not said one thing against that Constitutional power, except to assert it violates a principle I've already conceded exists. But you have not shown how there is any legal violation of that principle, you just assert that you think it is. Well, bully for you, but that is not an argument.

          As far as the phrase "checks and balances" not appearing in the Constitution (or Madison's

    • Re:Devil's Advocate (Score:1, Flamebait)

      by cyranoVR ( 518628 ) *
      Because a certain fencer did such a poor job of it.

      You know, I wish we lived in a time where you could challenge a man to a duel!

      But since we don't...go fuck yourself.

      /Just takin' a few pages from your team's playbook ;->
      • This is now your second warning about misbehavior here. I don't want to Foe you because I enjoy your arguments, for the most part, but this is the last warning you'll get.
    • However, we get into a Catch-22 no matter which interpretation we take. The supreme court has the ultimate judicial authority in the land, and thus is the final arbiter of the constitutional authority residing within any branch via the legal process. Including congress, since acts of congress are law. The document says what they want it to say, within reason.

      In other words, if they want to hear these cases, they can. If they want to respect Congress's wishes, they can. The choice still lies with them
      • Well, you did a better job than cyrano, at least. :-)

        The constitution EXPLICITLY gives the legislative branch to decide what the bounds of the of the Supreme Court's authority is. It is only the "final arbiter" to the extent that congress says it is. To argue that "The document says what they [the supremes] want it to say, within reason." is to say that the constitution has NO meaning whatsover. What would be the point of an amendment? The supreme court could just rule that the amendment (or article 3 of th

      • Are you really comfortable with Congress having that power without any checks upon them? I'm not, so I'm going to have to declare any judge which agrees with the interpretation, whether right or wrong, an "Activist Judge for judicial dissolution."

        First, this is what I am talking about by not addressing the legal point. I don't begrudge you this, because it is important, but realize that the ends do not justify the means: just because we don't like where the Constitution may lead, doesn't mean we should f

  • It is popularly understood that the three branches of government are coequal.

    Ah; you have enlightened me. I didn't realize people thought this. Honest. Consequently, I was mystified and angered in the recent court decision handed down in the Terri Schiavo case. The sequence of events was that the courts ruled in favor of Schiavo's husband, the legislature passed a law enabling Schiavo's parents to take custody of her, and then the court overturned the law. Now, the law was in fact hurriedly passed,

    • I don't know Florida's law, but were this the federal government, it would be ludicrous: there is no federal prohibition of any kind of doing what the Florida legislature did. I would assume the Florida law would be similar, but I don't know.

      • I don't know Florida's law

        I don't think Florida's courts do, either, given the 2000 election as well as this case.

        Something I'm seeing a lot lately is uneducated judges making crackpot decisions (law) up out of whole cloth. In Texas, most of our judges are elected, and many consider this to be a flaw in the system resulting in judges who are very uneducated about the law. (I do not agree that judges should not be elected, but it's a valid criticism.)

        If I can get away with introducing homeschoolin

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