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House Votes to Strip Federal Courts of Pledge Jurisdiction


— September 23, 2004

What the hell? I’ve never heard of this nonsense before, but apparently conservative congressmen have previously tried to go after same sex marriage and public displays of the ten commandments in the same manner. Here’s an article from Newsday:

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 cases challenging the words “under God,” a part of the pledge for the past 50 years.

And this is from the ACLU’s press release on the issue:

The ACLU also pointed to a growing trend by some members of Congress to push similar court stripping measures. Similar measures under consideration consider the ability of the courts to review cases considering the legal definition of marriage, and the ability of courts to review the public display of the Ten Commandments. Passage of any of these measures, the ACLU said, would establish a dangerous precedent for Congress to respond to court decisions with which they disagree.

I wouldn’t have thought that congress could legislate away the federal courts’ ability to determine what is and is not constitutional (other than by amending the Constitution itself). See, e.g., Marbury v. Madison. Apparently, I would have been wrong.


What the hell? I’ve never heard of this nonsense before, but apparently conservative congressmen have previously tried to go after same sex marriage and public displays of the ten commandments in the same manner. Here’s an article from Newsday:

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 cases challenging the words “under God,” a part of the pledge for the past 50 years.

And this is from the ACLU’s press release on the issue:

The ACLU also pointed to a growing trend by some members of Congress to push similar court stripping measures. Similar measures under consideration consider the ability of the courts to review cases considering the legal definition of marriage, and the ability of courts to review the public display of the Ten Commandments. Passage of any of these measures, the ACLU said, would establish a dangerous precedent for Congress to respond to court decisions with which they disagree.

I wouldn’t have thought that congress could legislate away the federal courts’ ability to determine what is and is not constitutional (other than by amending the Constitution itself). See, e.g., Marbury v. Madison. Apparently, I would have been wrong.
The argument goes like this: The Constitution grants the federal courts original jurisdiction only in cases affecting foreign officials or when a state is a party. Other than that, any jurisdiction the federal courts have is granted to them by congress. And what congress giveth, congress can taketh away.

A not so controversial example is the “amount in controversy” requirement for diversity jurisdiction. The amount is set by congress, and congress perennially raises it. Each time they do, they effectively take away the courts’ jurisdiction over certain cases.

One thing a legislature can’t do is legislatively overrule a case already decided by a court, as was just demonstrated in the State of Florida in the right-to-die case. But theoretically, congress can remove the courts’ jurisdiction over certain controversies in advance. That creates serious separation of powers issues.

And, as the ACLU points out, it would likely result in challenges that the pledge violated the federal Constitution in state courts, and different states would likely reach different results. That would leave us with something being constitutional in one place, but unconstitutional in another, and the federal courts would be unable to straighten it out.

This is a very, very bad idea. Perhaps you should let your senators know that.

UPDATE: The Washington Post had this to say in an editorial (“Strip This Bill“) this morning:

How much power Congress has to block judicial consideration of the constitutionality of its laws remains, somewhat surprisingly, an open question — because Congress wisely has chosen not to test the question. It has, rather, accepted judicial review — the idea that the courts can strike down legislative enactments that offend the Constitution — as integral to the system of checks and balances. So while legislators have sometimes been tempted to yank controversial matters from the court’s jurisdiction, cooler heads have prevailed. They should prevail now too.

Apparently they did not prevail. (via How Appealing)

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