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Saturday, November 12, 2005

Can congress restrict the Supreme Court's interpretation of the constitution ?
The amateur constitutional scholar attempts to reply


Clause 1: 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 a State and Citizens of another State; (See Note 10)--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.

Clause 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.


ooooops looks like even the founding fathers managed to wiff one. The constitution is only effective as it is enforced by the courts when they declare laws or executive acts unconstitutional. the rest of the constitution was effectively voided by the words in bold. In defence of the convention it should be noted that the idea of a constitutional republic was new then and that all earlier constitutions which had any effect on anything had evolved over centuries and were full of contridictions.

I would argue, however, that the gross mistake of the founders has been remedied. The reason is that the constitution is not at all the last word on rights. It has been amended. Each of the amendments introduce principles which must be followed by courts even if congress passes a law which provides otherwise. None includes the provision that congress can make exceptions to the jurisdiction of the courts.

I think that the only interpretation of the constitution as it is is that any right described in the main body of the constitution can only be enforced by the courts if congress does not declare an exception to their jurisdiction. On the other hand all the rights in the amendments are not so restricted.

To be a bit originalist, I think that the intention of the convention was to describe the authority of federal as opposed to state courts. Note how often the word "state" appears in clause 1. Thus the exception the founders had in mind would be a declaration in support of states rights made by the federal congress.

This division of state and federal authority has been changed as the constitution has been amended and, in particular, was completely transformed by the 14th amendment. The 14th amendment is the principal basis for the supreme court's claims that it can review state laws and executive acts. It essentially overides article III section 2 clause 1. From the day that the 14th amendment was ratified any question of individual rights or immunities was a federal issue. Thus, I think the 14th amendment also overides article III section 2 clause 2 eliminating the role of congress in returning to state jurisdiction matters which might appear to be under federal jurisdiction.

Now the bit about "such Exceptions, and under such Regulations as the Congress shall make" does not explicitely state that the issue is which court shall have jurisdiction, so the interpretation that it means that laws can exist without a governing legal authority whatsoever is consistent with the plain meaning of the words. However, it is inconceivable that any member of the constitutional convention meant to create such a nonsense. The idea, due to the dread enemy of republicanism Thomas Hobbes, that a law without a judge is an impossibility was certainly part of the common intellectual heritage of the founders.

There is no doubt in my mind that their intent was to define the jurisdiction of federal as opposed to state courts and, if I am not confused, there is no doubt in the mind of any serious constitutional scholar (a set with null intersection with the preceding set) that the 14th amendment completely revoked overturned and cancelled anything written the main body of the constitution on that issue.

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