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Time to Checkmate Federal Courts on Same-Sex Marriage and More

Building the Resistance to Same-Sex Marriage…
(eleventh article in a series)

By Thomas J. Ashcraft

At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

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 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. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction.

As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system.

If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.

The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. [Emphasis added.]

(In Federalist Nos. 79 and 81 Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)



 

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