The "Constitution Restoration Act"

April 8, 2005 8:05 AM

The "Constitution Restoration Act". `Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.'

This article claims that this bill is almost certain to pass, and that if it does that no Federal court or judge will have jurisdiction over any Federal, State, or local government entity or official who claims God's law.

Are these claims true? Why isn't there a fuss?
posted by lupus_yonderboy (71 comments total)

Um, because this is moronic, unconstitutional grandstanding?
posted by twsf at 8:20 AM on April 8, 2005

While I am no constitutional law scholar (title 26 is more my speed), I don't think this would be valid without an constitutional amendment. While Art. I does give the congress the power to confer (and revoke) jurisdiction to the federal courts, it cannot use this power to invalidate other constitutional precepts. The separation of church and state/religious freedom is pretty high up there in our list of rights, and the courts tend to rankle at congress coming in and getting all up in the judiciary's grill, and whatnot. The constitutional system would be a shambles if, with an unconstitutional enactment, congress could simultaneously remove the courts' ability to hear a challenge of the law; instead a court will take a challenge case and invalidate the law. IMO.
posted by Admiral Haddock at 8:22 AM on April 8, 2005

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

this, of course, stops the clock in the 18th century when women could not vote, chattel slavery was fashionable, indoor plumbing was not yet invented, and life was pretty goddamn fucking miserable.

the past can't be anyone's plan for the future.
posted by three blind mice at 8:22 AM on April 8, 2005

The funny thing is that the Bill does not define "God". So, what God are they talking about? Any? All? I guess the Courts would have to decide which Gods are entitled to this treatment, except that the Courts can't decide because the Bill forbids them to do so. I think in the end the creationist answer applies here too, "Matters of faith do not require logic"...
posted by nkyad at 8:24 AM on April 8, 2005

Right on! I hereby declare my house a Rastafarian protectorate. Smoke if you got 'em...
posted by idontlikewords at 8:27 AM on April 8, 2005

See also discussion here.
posted by monju_bosatsu at 8:28 AM on April 8, 2005

It hasn't even gotten out of committee yet, in either the House or the Senate. If you worried about every weird thing that was introduced, you'd never sleep.

And generally, even when the House passes stupid bills, the Senate lets them die.
posted by smackfu at 8:30 AM on April 8, 2005

I'm hoping the SCOTUS will find the law unconstitutional and then we can have a military showdown with our own Supreme Court.

That would be great entertainment.
posted by Fantt at 8:35 AM on April 8, 2005

No fuss because it's unconstitutional. Even Zmag really isn't worried, since their, mostly hysterical, articles are usually much more filled with doom than that.
posted by OmieWise at 8:36 AM on April 8, 2005

There have been attempts before to assert legislative authority over the courts and the courts strike them down. Even if this were to pass the House, Senate, and get signed (and trusting zmag to report on conservatives is like trusting littlegreenfootballs to report on Islam, there is a bit of an agenda there) it would need to be a consitutional ammendment, which isn't going to happen.
posted by blahblahblah at 8:37 AM on April 8, 2005

So... 'restoration' now means 'add something entirely new in direct contradiction of the original' ... and they say they're the reality based ones.
posted by cedar at 8:39 AM on April 8, 2005

Actually the FPP is wrong. The bill is there in order to attempt to enact an end-run around the first amendment and make it legal (protected even) to explicitly and officially associate governments of various levels and religion in the US.

If it's passed it will be impossible, for example, for the whole 10-commandments-statue issue to even be examined by SCOTUS. Extremist judges will also be free to base rulings entirely on Biblical grounds and not fear having their rulings reversed by SCOTUS. This underscores the need for rational Congressmen to really examine who gets appointed to the federal Circuit Courts of Appeal, because they're really the last judicial step before the Supreme Court.

It's completely unconstitutional of course. Any lawsuit that would fall under this category is, in fact, a lawsuit appealing for protection of First Amendment rights, and Congress has no right to attempt to legislate that Amendment away (although they seem to be trying at least moderately hard).
posted by clevershark at 8:41 AM on April 8, 2005

Would voting for this make one eligible to be gunned down legally on a Florida street?
posted by trondant at 9:11 AM on April 8, 2005

Only if the shooter is doing God's work.
posted by punishinglemur at 9:22 AM on April 8, 2005

This has to be a double post. This seems to be like, at least, the fourth time we've talked about this.

Yes, it is Constitutional. Yes, Congress has the constitutional authority to do this. No, it does not have to be an Amendment to the Constitution. No, the Supreme Court can't rule such a bill unconstitutional as that would be a violation of checks and balances. Yes, it is an incredibly stupid and short-sighted bill. No, it won't pass.
posted by dios at 9:24 AM on April 8, 2005

Uh, how is the Supreme Court ruling a law unconsititutional an example of a violation of checks and balances? Isn't that exactly what checks and balances are? . . .
posted by Boydrop at 9:31 AM on April 8, 2005

Also, monju is a good resource on this topic. He has some good articles. This is really a non-issue because it is a questionable tactic that Congress won't be stupid enough to pursue.

On preview:
Boydrop, it would be when Congress is asserting it's check on the Court. It is one of two checks that Congress has over the Judiciary: removing judges and controlling jurisdiction. So, the Court can't keep Congress from asserting its rights over the Court. But, the whole issue is a mess, and it really has zero chance of happening.
posted by dios at 9:35 AM on April 8, 2005

As I understand it, the relevant constitutional question is how to interpret Article III Section II's command that for such Constitutional claims "...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." On its face, this bill looks like an "exception" and a "regulation" (since it regulates the use of foreign precedent in the court, etc.)

The part that makes the bill more dubious is that it also strips federal district courts of jurisdiction to hear the cases, meaning, I guess, that the sponsors think they can confine claims arising under federal law to state courts. The Supreme Court hasn't definitively ruled on this question, and I'm sure they would rather not have to figure it out, but I don't think it's obvious what they would decide.

And just to be clear, this wouldn't mean that there would be no judicial review of these matters, just that the judicial review would have to be done in state court rather than federal court, where many people have to face untenured judges and different procedural and standing rules.
posted by willbaude at 9:50 AM on April 8, 2005

The purpose of this bill is simple: it's to throw something up for the courts to slap down, so that the right can jump up and down and scream "See? See?! That's why we need more wingnuts in the judiciary who are 'strict constructionists'." It's all about riling up the brownshirt base.
posted by mondo dentro at 10:04 AM on April 8, 2005

Can't we just have Civil War II and get it over with?

People who complain about "activist judges" must be completely unable to watch sporting events, where those pesky umpires and referees are always legislating changing the rules from the bench.
posted by kirkaracha at 10:22 AM on April 8, 2005

Can't we just have Civil War II and get it over with?

And what are the sides?

Whatever the sides end up being, the side that Metafilter would be on would be smaller...
posted by dios at 10:26 AM on April 8, 2005

It won't pass, and it's unconstitutional anyway. This "let's take power away from the Judiciary" thing is going to bite the GOP in the ass when Bush tries to nominate judges--if i were Rove, i'd be telling them to cut.it.out.now.

It might make the fundie base happy, being another step towards their creaming-for theocracy, but no one else wants it.
posted by amberglow at 10:28 AM on April 8, 2005

Oh, but sooo much smarter than the side you're on, dios.
posted by LittleMissCranky at 10:28 AM on April 8, 2005

Smugness and condescension are so HAWT. And politically effective!

I need a cold shower now.
posted by dios at 10:38 AM on April 8, 2005

Given your addiction to both smugness and condescension, I'm not terribly surprised that you think so. Wrap yourself up all warm and tight with your narrow majority -- they won't mind too much that you're a complete asshole.
posted by LittleMissCranky at 10:50 AM on April 8, 2005

Name calling. Come on. Is that really necessary? First you call me stupid and now you call me names. Can't we discuss things without getting personal?
posted by dios at 10:53 AM on April 8, 2005

Smugness and condescension are so HAWT.

My irony meter just exploded.
posted by clevershark at 10:56 AM on April 8, 2005

Actually, I didn't call you stupid, to be technical. I will now, if you want. If you don't want things to get ugly, you maybe should refrain from your "we're bigger than you are, neener neener" bullshit. Oh, and also from being an asshole.

If you recall, I have never been among the number that calls you a troll when you are just expressing an opinion that I don't happen to agree with. If you want to discuss things, I'm happy to discuss them, and you won't get any name calling from me. But you very often veer into assholery and then get up on your oh-so-appropriate cross when people don't like it.
posted by LittleMissCranky at 10:57 AM on April 8, 2005

dios wrote, "Name calling. Come on. Is that really necessary? First you call me stupid and now you call me names. Can't we discuss things without getting personal?"

You cannot, apparently.
posted by Rothko at 11:04 AM on April 8, 2005

they won't mind too much that you're a complete asshole.
posted by LittleMissCranky at 10:50 AM PST on April 8

I'm happy to discuss them, and you won't get any name calling from me. But you very often veer into assholery and then get up on your oh-so-appropriate cross when people don't like it.
posted by LittleMissCranky at 10:57 AM PST on April 8

My irony meter just joined clevershark's.

How is bullshit to ask a legitimate question when someone proposes that we have a Civil War. The logical followup would be "What are the sides?", would it not? And its rude to suggest that calling for Civil War might be shortsighted when one is likely to be in the minority?

I didn't make this personal. You did. Twice. It's uncalled for, and you should apologize. I haven't said a mean thing to you. But don't pretend like you didn't make two off-topic personal insults because they are right there.

On preview: Rothko, wtf? What does your little link have to do with the not making things personal? That comment you linked to is clearly a generalized as opposed to personalized comment. I'm quite certain you could find a better comment to turn on me

Anyhow... can we get back on topic. There is no reason to turn this into a train wreck with people make personal gripes about me.
posted by dios at 11:09 AM on April 8, 2005

There is no reason to turn this into a train wreck with people make personal gripes about me.

Perhaps if you did not continually, regularly express a pattern of unprovoked, smug condescension towards the rest of the participants of this site, this thread (and past and future threads) would not turn into DiosFilter.
posted by Rothko at 11:30 AM on April 8, 2005

Rothko, if you think my expression of my opinions is fundamentally any different than any other person on this website, then you are wrong. Everyone on this website is snarky and opinionated. I am not different. The only difference is that my opinions grate you because you disagree. But don't pretend that my opinions are any different than anyone else's. People just make a bigger deal about mine because they don't agree. If you can't see that, then you aren't being fair.
posted by dios at 11:39 AM on April 8, 2005

Oh yeah! Another fun thread about dios....
posted by elwoodwiles at 11:48 AM on April 8, 2005

The only difference is that my opinions grate you because you disagree.

I have not expressed an opinion or argued any facts either way in this thread. I am merely voicing the demonstrated fact that you regularly derail threads, that you have decided to derail this thread, and indirectly suggesting you change your behavior.

To be frank, if I had not read the bulk of your other comments on Metafilter, the only obvious opinion I can glean from your comment in this thread is that you hold the members of this community in complete disregard for their own views.

I have to openly wonder why you remain among people you so obviously despise. Based on the pattern of previous writing, one obvious conclusion I can make is that you enjoy insulting and belittling others. You might consider asking if that is really so worthy of staying.
posted by Rothko at 11:49 AM on April 8, 2005

dios: No, the Supreme Court can't rule such a bill unconstitutional as that would be a violation of checks and balances.

It seems to me that this bill is a violation of checks and balances. How would the Supreme Court ruling it unconstitutional because it violates checks and balances be a violation of checks and balances?

Please understand, I'm not being snarky - I just don't understand the legal issues involved.
posted by Joey Michaels at 11:55 AM on April 8, 2005

arg. double post. sorry! I searched!
posted by lupus_yonderboy at 11:56 AM on April 8, 2005

Will's on the right track here. Art. III s. 1 states "[t]he 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." Art. III s. 2 c. 1 states "[t]he 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..." The power of Congress to make exceptions and regulations comes from Art. III s.2 c.2, which states in relevant part "[i]n 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."

The proponents of this bill argue that Congress has the power to create exceptions and regulations to the Supreme Court's appellate jurisdiction under Art. III s.2 c.2, which is a relatively straightforward reading of the section. Although the contours of Congress's power are not well defined, the Court has addressed the question several times, and held that Cognress has wide latitude to carve out such exceptions.

The proponents of the Bill also argue the Congress has the power to limit the jurisdiction of the lower courts. This is based on the grant of power to Congress in Art. III s. 1, giving Cognress the power to create federal courts. If Cognress has the greater power to choose whether or not to even create the lower courts, the argument goes, surely it has the lesser power to restrict the jurisdiction of the lower courts it does create. Although this greater/lesser power syllogism has difficulties, the Supreme Court has relied on it at least once, in Sheldon v. Sill. It's unclear whether the current Court would agree with the syllogism as discussed in Sheldon v. Sill, or whether there might be limits on its application. The Second Circuit, for example, held in Battaglia v. General Motors Corp. that the due process clause of Fifth Amendment prohibits Congress from taking jurisdiction away from all courts over constitutional questions "in whole or part."

Those interested might find this primer from Eugene Volokh helpful.
posted by monju_bosatsu at 12:04 PM on April 8, 2005

[And Will, I hope we see more of you around these parts. :)]
posted by monju_bosatsu at 12:07 PM on April 8, 2005

See, my irony meter has a fuse, so whenever Dios posts, I can just reset the fuse. Much better then just buying new ones all the time.
posted by delmoi at 12:12 PM on April 8, 2005

Joey, your understanding is correct. Despite what Dios is writing (and I have no interest in flamewars or ideologies here), this would likely be unconstitutional and the federal judiciary ALWAYS has the authority to hold federal (and state) laws unconstitutional. Congress can enact whatever laws it likes--even to "remove" the federal courts' jurisdiction to hear a case or issue, but it is the courts that determine whether the enactment withstands scrutiny. That is the very nature of checks and balances. If congress disagrees with a determination that a law is unconstitutional, it has to try to pass an amendment.
posted by Admiral Haddock at 12:14 PM on April 8, 2005

Hey tech guys and gals, I need a Dios filter. You know: something that will delete or highlight his/her comments so I don't start reading, realize it's the same crap all over again, and have to slap my head and shout Doh!

Anybody? Anybody?
posted by a_day_late at 1:11 PM on April 8, 2005

a_day_late: Use greasemonkey with one of the metafilter scripts on this page.
posted by monju_bosatsu at 1:26 PM on April 8, 2005

iif you think my expression of my opinions is fundamentally any different than any other person on this website, then you are wrong. Everyone on this website is snarky and opinionated. I am not different. The only difference is that my opinions grate you because you disagree. But don't pretend that my opinions are any different than anyone else's. People just make a bigger deal about mine because they don't agree. If you can't see that, then you aren't being fair.

I don't think he realizes that, yes, his personal expression is worse than other peoples. First of all he has opinions on everything, particularly things he knows nothing about. He just jumps in and trolls whereever possible. ON and on and on...

He claims to be a lawyer, but I'm sure not convinced.
posted by gesamtkunstwerk at 1:39 PM on April 8, 2005

Ironically, if this thing passes, it will result in an overall decrease in government's respect for God. Every single law passed, from the "Respect for God Monument Fund" to blatant pork barrel bills to the "Extra Surveillance for Arabs and Other Minorities Act" will have the phrase "In God's Name" stamped on it, making it immune to review by the Supreme Court.
posted by CrunchyFrog at 1:45 PM on April 8, 2005

People just make a bigger deal about mine because they don't agree.
Keep telling yourself that.
posted by sonofsamiam at 1:47 PM on April 8, 2005

more wingnuts in the judiciary who are 'strict constructionists'

Well, "equal protection under the law" is guaranteed in the Bill of Rights. "Full faith and credit"is guaranteed in Article IV.

How would you feel about strict constructionism if I told you that a strict constructionist interpretation of the above should bolster individuals' ability to lawfully carry their legally-owned firearms through multiple states?

Now, how would you feel if I told you that a strict constructionist interpretation of those same two provisions should bolster the ability of gay couples to have their marriages recognized in all states?

Remember: "a nation of laws, not of men." Now and always, please.
posted by ZenMasterThis at 1:54 PM on April 8, 2005

Oops. That should say "government of laws..."
posted by ZenMasterThis at 1:58 PM on April 8, 2005

Use greasemonkey with one of the metafilter scripts on this page.

monju_bosatsu, thanks for that. The docs say "Greasemonkey is a Mozilla Firefox extension" but I am not so sure it will work with Mac OS 9/Mozilla. Searches on Ask Metafilter, google, etc. did not yield anything tangible but I'll look into it further and see if I can get it running.
posted by a_day_late at 2:04 PM on April 8, 2005

I want to ditto what monju said. If I recall, the AEDPA case addressed this as well. (But since I can't recall the name, it may be one he mentioned).

would likely be unconstitutional and the federal judiciary ALWAYS has the authority to hold federal (and state) laws unconstitutional.
posted by Admiral Haddock at 12:14 PM PST on April 8
By arguing this, you are reading the right of Congress to limit federal jurisdiction right out of the Constitution. You are eliminating the check that the Constitution gave to Congress, are you not?

He claims to be a lawyer, but I'm sure not convinced.
posted by gesamtkunstwerk at 1:39 PM PST on April 8
This is the second (or third?) time you made this point. I'm not sure if you realize how ignorant it makes you look. I have no duty to convince you of anything. The people that know me here can vouch for me if you really care. All you are doing is trying to insult me by calling me a liar without the guts to actually do so. I'm a lawyer. Big deal. Not sure why my profession should interest you that goddamn much. Lots of people on this website are lawyers. If you are that interested, I could show you my state bar page or my firm's website with my picture on it... but I'm not that stupid because one or more of you petty vindictive pricks would try to pull some stunt by contacting my firm. If you don't believe me, then fine. But don't call me a liar until you have some legs to stand other than your personal lack of knowledge of anything about me.
posted by dios at 2:21 PM on April 8, 2005

Um ... derail?
posted by ZenMasterThis at 2:29 PM on April 8, 2005

Wow, that was just like water off a duck's back, dios.
posted by sonofsamiam at 2:33 PM on April 8, 2005

Thank you, Admiral Haddock.

dios: By arguing this, you are reading the right of Congress to limit federal jurisdiction right out of the Constitution. You are eliminating the check that the Constitution gave to Congress, are you not?

I still don't understand. It still seems to me like this law actually flies in the face of checks and balances. I am not a student of the law, so could you explain it to me in a simple way? Again, not trying to be snarky. It just seems like this is an important an issue and my knee jerk reaction may well be steeped in ignorance.
posted by Joey Michaels at 2:37 PM on April 8, 2005

I don't get it. Are the proponents of this law so enamored by the Federal District Courts that they want those Courts' decisions on such matters to be final and unreviewable? District Courts would still be bound by Supreme Court precedent, so what's the point?
posted by Cletis at 2:45 PM on April 8, 2005

I'm not sure which part of my comment you're agreeing with, dios, as I was trying to make clear that the answer to the question regarding the constitutionality of the limitations in jurisdication contained in this bill are far from easy to answer. You seem to be saying something very different, e.g., that the bill is easily constitutional. It is not at all clear to me that effectively precluding the Supreme Court from reviewing any Establishment Clause cases is at all constitutional.

Henry Hart believed that although Congress could regulate jurisdiction under certain circumstances, it could not destroy the "essential role" of the Supreme Court in the constitutional plan. Exceptions and regulations to S.Ct. jurisdiction must be just that--exceptions to jurisdiction, not total withdrawals of it. Hart noted that the Court has never adopted this theory because "Congress so far has never tried to destroy the Constitution." Maybe that's what Congress is trying to do now.

There is a great deal of literature on the constitutionality of jurisdiction stripping. A good place to start is Sager's article in 95 Harv. L. Rev. 17 (1981), and Amar's articles at 65 BU L. Rev. 205 (1985), 138 U. Pa. L. Rev. 1499 (1990), and 138 U Pa. L. Rev. 1651 (1990), and the Hart dialogue in 66 Harv. L. Rev. 1362 (1953), all of which suggest either that Article III itself prohibits jurisdiction stripping in part or that other substantive provisions of the constitution forbid some jurisdiction stripping.
posted by monju_bosatsu at 2:51 PM on April 8, 2005

Joey,
Congress is given, within the Constitution, the power to create courts and modify jurisdiction. The only constitutionally granted jurisdiction that the Supreme Court has is very limited. The argument goes that Congress is given the power, as it is articulated in the Constitution, to limit the jurisdiction over the Supreme Court. It is a check. It is what limits the Supreme Court's power to just exercise a veto power of Congress.

Judicial review is not a constitutional creature. It was created out of whole cloth by CJ Marshall in Marbury v. Madison. As such, it cannot be a superior power to Congress's constitutionally guaranteed power to limit the court's jurisdiction. So, the argument goes, the Supreme Court cannot overturn the exercise of its Constitutionally guaranteed power.

As a matter of thought experiment, say this did happen, what would be basis for appeal to the Supreme Court? On what grounds could they review it? Is it a political question? If so, no appeal. Would such a bill be a violation of a provision of the Constitution? If so, which? There likely isn't one that prohibits it. This is why the whole area of it being unconstitutional is iffy. It is expressly contemplated by the Constitution, so there is no grounds to rule unconstitutional.

It is, as I said in my first post, an enormously stupid idea.
posted by dios at 2:53 PM on April 8, 2005

Monju, I agree with your analysis. As the court said in the AEDPA case, and you just said, exceptions can be made, but you can't rule out whole areas. So, my understanding is as follows:

"Federal Courts cannot hear Establishment cases" would be impermissible.

"Federal Courts cannot hear cases challenging the pledge of allegiance on establishment grounds as we are not mandating that people say the pledge or that they follow a religion, etc." would be permissible.

That seems to be how the threshold is addressed between stripping all jurisdiction and limiting it. The jurisdiction would still exist to permit the Court to review the Constitutional issue of the First Amendment, but it couldn't hear the pledge case as it would be deemed to not touch upon the First Amendment. The review of whether such a bill establishing an exception would not be possible by the Court either as the grounds (or standing) for it do not exist.
posted by dios at 3:03 PM on April 8, 2005

Hmm. That last sentence should say something more like:
"Review by the Court of whether such a bill establishing an exception is constitutional would not be possible either as the grounds for such a review do not exist."
posted by dios at 3:12 PM on April 8, 2005

"Federal Courts cannot hear Establishment cases" would be impermissible.

That's probably true, under most theories of jurisdiction stripping. But you said above that you though this law was clearly constitutional. Which is it? This bill provides:

Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.

This bill seems a lot closer to a blanket removal of jurisdiction in Establishment Clause cases than to your pledge example, at least to me. How does a governmental "entity" acknowledge God as the sovereign source of law? A written statement? Funding?

Review by the Court of whether such a bill establishing an exception is constitutional would not be possible either as the grounds for such a review do not exist.

I'm still not sure what you mean by this. Imagine I sue my local city government for putting a Ten Commandments monument in City Hall. I lose in the district court, and appeal the judgment to the court of appeals. The court of appeals affirms the district court. I attempt to appeal to the Supreme Court, and according to you, what happens? The Court just denies certiorari? Or does it take the case and hold that it has no jurisdiction?

Under Hart's theory, a court always has jurisdiction to determine whether it has jurisdiction, and may use this general power to strike down unconstitutional limitations on its jurisdiction. Indeed, Marbury requires that the court look beyond what Congress has said in order to see whether it is consistent with the Constitution. In passing on the constitutionality of the limit on its jurisdiction, there are a number of possible options the Court could rely on. It could, for instance, hold that Article III itself does not give Congress the power to eliminate jurisdiction over the Establishment Clause. The Court could also find, like the Second Circuit did in Battaglia, that the Fifth Amendment due procees rights of litigants prevents such jurisdiction stripping.
posted by monju_bosatsu at 3:23 PM on April 8, 2005

monju, if the Court doesn't have jurisdiction, the mechanism is already in place: it denies cert. for want of jurisdiction. Just as if someone filed cert on a political question, the Court would just deny it for want of jurisdiction.

From my reading of the bill, the hypothetical matter you posited would be left to the state to decide. All federal courts would lack jurisdiction.... or at least parts of the bill intimate that. The bill itself is so poorly written that it seems internally inconsistent. For instance, it does mention:

Any decision of a Federal court which has been made prior to, on, or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court.

and

To limit the jurisdiction of Federal courts in certain cases and promote federalism.

but then in the language you cite, it mentions specifically the Supreme Court. I'm not sure I can see the reason for that inconsistency. But I would suspect it woudl apply to all federal courts.

As to you question about my comment being a sure thing: a constitutional challenge about the ability of Congress to do limit jurisdiction is a slam dunk. Whether a particular action would fit under this particular bill and would survive scrutiny would be an issue that I think depends on how limited it is.

Or to put another way, if this bill was passed, I couldn't take it to the Supreme Court and say "Congress can't limit your jurisdiction!" because I think clearly they can. But if it passed, I think another issue would exist that isn't a slam dunk: if I filed a 1983 claim that said my civil rights were violated because, say, the state made me wear a "God is good" shirt every day. The Court could review that about whether it falls into the exception, and after finding that it does not, could then either rule the "God is Good" t-shirt law unconstitutional or permit damages under 1983.
posted by dios at 3:46 PM on April 8, 2005

Thank you, dios. I think I understand a bit more about this now. I agree that it is an enormously stupid idea, but understand now how it could be constitutional. Still don't like it, though.
posted by Joey Michaels at 4:11 PM on April 8, 2005

if the Court doesn't have jurisdiction, the mechanism is already in place: it denies cert. for want of jurisdiction. Just as if someone filed cert on a political question, the Court would just deny it for want of jurisdiction.

This is clearly false. Consider the numerous occasions in which the Court has ruled that it has no jurisdiction, not at the certiorari phase, but in a decision following a grant of certiorari and oral arguments. In order to determine that it has no jurisdiction, the Court must first determine that the restriction on its jurisdiction is valid. As I said above, "a court always has jurisdiction to determine whether it has jurisdiction."
posted by monju_bosatsu at 4:13 PM on April 8, 2005

How would you feel about strict constructionism...

I'd feel the same way I always do: "strict constructionism" is to legal interpretation what "bibilical literalism" is scriptural hermeneutics, namely a sham and a lie proffered by philosophical snake oil salesmen.

The right has no intention of being "strict constructionist"--they are simply using the closest available stick to beat the crap out of "judicial activism" that they don't like, and replace it with activism that they do like.
posted by mondo dentro at 4:16 PM on April 8, 2005

OK, so here's what I don't understand. Assuming dios is correct and Congress indeed has the power to limit the jurisdiction of the Supreme Court, where does it stop? SCOTUS has to have some way to check Congress' power to limit its jurisdiction. The extreme would be that Congress would restrict the SCOTUS' jurisdiction such that it could only hear cases that the majority party in Congress wanted them to hear.

Also: FindLaw's Writ - Rubin: Conservative Jurists And The Myth Of "Strict Constructionism"
posted by RylandDotNet at 6:46 PM on April 8, 2005

the federal judiciary ALWAYS has the authority to hold federal (and state) laws unconstitutional.
posted by Admiral Haddock at 12:14 PM PST on April 8

Umm, the standing doctrine, jurisdiction requirements, mootness requirements, the case-or-controversy requirements, and (perhaps) the non-justiciability doctrine, to name a few, are barriers that sometimes stop the federal judiciary from declaring a law unconstitutional, even when it is. See, e.g., Los Angeles v. Lyons, 461 U.S. 95 (refusing to grant an injunction to stop the LAPD from imposing unconstitutional choke-holds).
posted by willbaude at 7:18 PM on April 8, 2005

Will, you are, of course, absolutely correct. There are multiple barriers to a bringing a case in the federal courts. However, standing (e.g. Lyons, Lujan, Allen v. Wright (also filling in for case or controversy issues)), speaks more to the ability of a petitioner to bring a case. Mootness and ripeness speak to the issue itself and whether it is appropriate for the judiciary to decide the case. In my glib response above, I elided these important gatekeepers.

Aside from those hurdles, what I was trying to suggest was that while Congress has power to confer and withdraw jurisdiction to the federal judiciary (see McCardle), it is my understanding that (assuming standing, ripeness, etc.) the courts will be free to examine the constitutionality of a congressional enactment even though the enactment purports to be beyond judicial review. This seems, to me, to be the very essence of the checks and balances provided for in the Constitution.
posted by Admiral Haddock at 9:54 PM on April 8, 2005

I'm not a lawyer, but even if we accept that Article III Section II gives congress the right to restrict the court in this way, the Establishment clause is part of an amendment which means that it takes away the right of congress to restrict the court at least with respect to religion doesn't it? Article III Section II seems to me to be at least partially changed or superseded by the first amendment.

Right?
posted by willnot at 1:21 AM on April 9, 2005

It's about time we put the judicial branch of government in its proper spot: fourth place, behind the noble Executive, the courageous Legislative, and the divinely inspired Religious branches. Three branches good, four better. Or maybe we should just combine two, and make all the judges seminary-trained; that's the way the ancient Israelites set it up, and if it was good enough for them ...
posted by Mur at 5:36 AM on April 9, 2005

willnot: That's right, in a general sense. I don't think that Art. III s.2 was changed by the First Amendment, but it is limited by the First Amendment. In other words, the general rule here, I think, is that Congress must comply with all of the Constitution all of the time. That means that while Article III gives Congress the power to enact regulations and exceptions to the Supreme Court's jurisdiction, it does not empower Congress to violate other parts of the Constitution, like the Establishment Clause.
posted by monju_bosatsu at 6:35 AM on April 9, 2005

That's clearly right, that Congress can't violate the Constitution. The question is whether and when the Judicial branch can enforce that Constitutional obligation upon Congress by striking down the law, when it can enforce that obligation by simply entering particular judgments in particular cases and controversies, and when it must trust the Constitutional question entirely to the other two branches. To those steeped in the post-Cooper-v.-Aaron world of Judicial Supremacy, this may seem like a really bizarre question (witness the popular response to A.G. Gonzales's Senate confirmation hearing) but it's a very hot topic inside of legal academia, and the answers are not at all obvious.

[Example: The impeachment clause of the Constitution entrusts certain Constitutional decisions to the legislative branch, and even though the Constitution puts certain restrictions on how they can make that choice, it's pretty well understood that the judiciary doesn't get to superintend that choice. Justice Story said something similar during some cases about the militia clause-- that the determination of whether or not there is an emergency that justifies calling for the militia belongs in the hands of the President, not the Supreme Court.]


So this bill purports not to overrule the Constitution, but just to take certain decisions about the Constitution away from the federal judiciary. But of course(?) Congress's power to do this isn't unlimited. Thus the thorny, thorny, questions.
posted by willbaude at 8:23 AM on April 9, 2005

will: I was actually thinking about adding an addendum to my previous comment along exactly those lines. The operative constitutional question is not: is Congress limiting the jurisdiction of the Court in ways which might prevent the Court from exercising authority over certain constitutional disputes at some time in the future? The operative question, instead, is this: is Congress limiting the jurisdiction of the Court in ways which violate the Constitution right now? Those two questions necessarily overlap, but the distinction between them is important. In other words, does the Constitution Restoration Act itself violate Article III, the Establishment Clause, or some other source of rights, potentially including the due process clause of the Fifth Amendment?
posted by monju_bosatsu at 9:22 AM on April 9, 2005

I was thinking how the Executive Branch has taken things away from Congress--declaring war for instance, and not being answerable to them like they're supposed to, and other things. They've gotten away with it--would Congress get away with this?
posted by amberglow at 9:46 AM on April 9, 2005