Law Against Courts Finding Law Unconstitutional

[LostAngeles]

The other day, I joined in on MoveOn.org's petition against the Gay Marriage amendment.

I've subsequentially recieved an e-mail urging voters to "fire" the supporters of the amendment in question, with four canidates who are running campaigns against four incumbants.

Listed as the incumbant against their pick, Jon Jennings, is John Hostettler. About him it says:

...
Hostettler said he would vote against the Federal Marriage Amendment because it does not go far enough and instead introduced the Marriage Protection Act (HR 3313) which removes the power of the courts to determine the constitutionality of the Defense of Marriage Act.
...

Emphasis mine.

The bill in question does exist here. It proposes to amend the DMA by adding:

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1.'

I'm going to try and not snicker as I wonder what happens when this is ruled "unconstitutional". In essence it completely usurps the power of SCOTUS, as we all learned as kids. COTUS makes law, POTUS approves law, SCOTUS determines if law is constitutional if law is challenged by the people.

Wanna see what's even better? Fourty-eight cosponsors of this bill. (I had a momentary "Whu-huh?" until I realized that they're Representatives and not Senators.)

See the list here.

 

[Grammatron]

It just goes to show once again that you can't fight dumb with stupid.

 

[shanek]

I submit that a law prohibiting the courts from finding laws unconstitutional is unconstitutional. All the SC would have to do is find that law unconstitutional, and then it would be null and void all the way back to the time when it passed. They would then be free to find laws unconstitutional again.

Oh, and the courts aren't created by Congress—they're created by Article III of the Constitution.

So, I guess MoveOn.org doesn't understand the Constitution...there's a shocker!

 

[Occasional Chemist]

Oh, and the courts aren't created by Congress—they're created by Article III of the Constitution.

So, I guess MoveOn.org doesn't understand the Constitution...there's a shocker!

Did I miss something here? I don't think moveon.org authored the bill in question ...

 

[Bunk]

Oh boy, guess what? My congressman, from my very own district, the one that I wouldn't vote for last time for some reason or another, is one of the cosponsors.

I just shot off a questioning email to him. I wonder if I'll get an answer?

 

[Rob Lister]

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1.'

One of you smart folk correct me if I'm wrong. Reading this as stated, no case could be brought before any judge regarding this law. Therefore, the law has no legal standing. It is, so to say, self mooting.

 

[gnome]

They obviously haven't studied their Kurt Godel...

Next they'll pass a law called the Defense of Marriage Protection Act, saying the courts can't find the MPA unconstitutional.

And so on...?

 

[LostAngeles]

I submit that a law prohibiting the courts from finding laws unconstitutional is unconstitutional. All the SC would have to do is find that law unconstitutional, and then it would be null and void all the way back to the time when it passed. They would then be free to find laws unconstitutional again.

Oh, and the courts aren't created by Congress—they're created by Article III of the Constitution.

So, I guess MoveOn.org doesn't understand the Constitution...there's a shocker!

Uh... yeah. What Occasional Chemist said.

MoveOn.org merely sent out a list of Congressional canidates they like with a blurb about the author of the bill in question. I then went, "WTF?" and proceeded to look it up and make my post.

You're right, though. A law that says courts cannot find a law unconstitutional is, in fact, literally unconstitutional. It's essentially wiping your butt with it.

 

[NoZed Avenger]

You're right, though. A law that says courts cannot find a law unconstitutional is, in fact, literally unconstitutional. It's essentially wiping your butt with it.

I have not looked at this jurisdictional issue in quite some time, but the Congress is empowered to set the jurisdiction of the lower courts as they see fit under Article III. The Congress could abolish the federal courts, with the exception of the SC, at any time that it wanted to.

And, while the original jurisdiction of the SC is set within the constitution, the appellate jurisdiction of even that Court is subject to Congress' legal process.

The two provisions from Article III usually cited by persons looking at these types of issues are the following:

(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.

(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. (Emph. added by me).

There appears to be no technical impediment to limiting this issue to state courts in this fashion. Finding a law "unconstitutional" is itself a remedy or power not found within the Constitution, but was created, more or less out of whole cloth, by John Marshall.

While I am not positive a measure like this would work, I cannot dismiss the attempt as pointless quite as quickly as everyone else has in this thread.

N/A

 

[TillEulenspiegel]

Thank god the framers knew enough to propose that " More deliberative of bodies" the Senate. The fact is a single body of popular representation would long ago realized "the Dictatorship of the Majority". Long live the constitution.
.

 

[Ed]

Hmmmmm

The Digital Millenial Marriage Act?

 

[NoZed Avenger]

Oh, and the courts aren't created by Congress—they're created by Article III of the Constitution.

Incorrect. The lower courts only exist to the extent that the Congress creates them -- they could be abolished at any time as optional: The only requirement is that a Supreme Court exist -- and "such inferior Courts as the Congress may from time to time ordain and establish." The Congress has the power to establish such courts -- not an obligation to.

So, I guess MoveOn.org doesn't understand the Constitution...there's a shocker!

I can't say that I care for everything coming out of moveon, but I think you're wrong on this one, Shane.

N/A

 

[crimresearch]

"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."

Uhhmmm....last I checked, the Defense of Marriage Act and the proposed 'remedy' act were both directly aimed at the states...so unless all 50 states sit still for it, at least one of them would be a party, giving the USSC original jurisdiction.

And should Congress in fact dissolve the lower courts, they would have a hard time finding anyone who felt bound by decisions and opinions from non-existent courts, thus opening up a Pandora's box of lawlessness.

Maybe someone should swear out a complaint against the sponsors of that bill under the Patriot Act for trying to help the terrorists.

 

[NoZed Avenger]

Uhhmmm....last I checked, the Defense of Marriage Act and the proposed 'remedy' act were both directly aimed at the states...so unless all 50 states sit still for it, at least one of them would be a party, giving the USSC original jurisdiction.

If the Act at issue reserved the right to define marriage to the applicable state, I am not sure that the states would have standing. To the extent that it contradicted state law by requiring a definition that conflicted with state law, the Supreme Court would have original jurisdiction. I never read the full text of the Act as it seemed something between pointless and damaging, but I gathered it does the latter, rather than the former.

And doing away with the federal courts is obviously not going to be happening, but if the Congress has the power to that, they have the power to limit the courts' jurisdiction by excluding certain matters at will -- including this one.

N/A

Edited to add: Just looked at the original text, and they seem to recognize this by explicitly stating that the Supreme Court shall have no "appellate" jurisdiction. The amendment would therefore not try to affect the original jurisdiction mentioned directly above.

 

[Occasional Chemist]

Oh boy, guess what? My congressman, from my very own district, the one that I wouldn't vote for last time for some reason or another, is one of the cosponsors.

I just shot off a questioning email to him. I wonder if I'll get an answer?

A guy that's running for senate (but is currently a Rep) here also cosponsored it (Jim DeMint - SC). I'd write him, but I don't think he'd care. He also cosponsored the "Ten Commandments Defense Act of 2003'". I think I can get a good feel for who he's pandering to from there.

 

[Richard G]

Congress has the power to exempt certain laws, as it sees fit, from Supreme Court oversight.

Its in the Constitution.

 

[shanek]

MoveOn.org merely sent out a list of Congressional canidates they like with a blurb about the author of the bill in question.

Well, if they're just the messenger here, then I retract that last comment. But not everything leading up to it.

 

[shanek]

Incorrect. The lower courts only exist to the extent that the Congress creates them -- they could be abolished at any time as optional: The only requirement is that a Supreme Court exist -- and "such inferior Courts as the Congress may from time to time ordain and establish." The Congress has the power to establish such courts -- not an obligation to.

Except that they included the Supreme Court in this and denied their appelate jurisdiction, directly codified in Article III. Also, they aren't abolishing the lower courts, just denying them powers that they have under Article III. Congress can declare their existance, but those courts still have their full Article III powers.

 

[shanek]

Congress has the power to exempt certain laws, as it sees fit, from Supreme Court oversight.

Its in the Constitution.

Where?

 

[Nasarius]

Where?

Don't worry, it'll be there soon enough if people keep whining about "activist judges" when said judges aren't interpreting the law in the way they like.