Pick your reason for unconstitutionality (Signifying Nothing: how does saying nothing at all become so loud?)

Saturday, 24 July 2004

Pick your reason for unconstitutionality

The “Marriage Protection Act of 2004” has all the good legalist-model-types in the blogosphere scrambling for reasons why it would be unconstitutional. Josh Chafetz says it’s unconstitutional because it (partially) strips the federal judiciary of its mandatory jurisdiction over all cases arising under federal statute and the Constitution.

My gut feeling is that the Court would be more likely to rule the act (assuming it ever becomes law, something I don’t see given the inevitable filibuster in the Senate) unconstitutional on the basis of Romer v. Evans, on the basis of the act being a violation of equal protection.

All this, of course, is trumped by the attitudinalist in me, which sees zero chance of the Supreme Court ever permitting any of its jurisdiction to be curtailed by Congress without its consent. The legal reasoning surrounding such a ruling would be, more likely than not, just window dressing for the underlying preferences of the Court’s members. (I suppose this is my bias as a political scientist showing.)

7 comments:

Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.

1. Xrlq wrote @ Sat, 24 Jul 2004, 11:31 pm CDT:

Chafetz’s argument doesn’t make sense. Article III clearly allows Congress to restrict the Supreme Court’s appellate jurisdiction as it sees fit. Only the cases in which it has original jurisdiction (cases involving ambassadors, states, etc.) are off limits.

I think, however, that the law would be more likely to help the gay marriage cause than hurt it. Here’s why.

2. OF Jay wrote @ Sat, 24 Jul 2004, 11:34 pm CDT:

Chris, how about the SCOTUS not even being able to rule on its consitutionality since the MPA has declared itself impervious to judicial review?

3. Brock Sides wrote @ Sun, 25 Jul 2004, 9:49 am CDT:

IANAL, but it seems to me that the natural reading of Article III, Section 2 does not authorize Congress to remove jurisdiction from the Supreme Court.

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.

The second sentence strikes me as saying that Congress can grant original juridiction on matters other than those mentioned in the first sentence.

But then I can’t explain Marbury v. Madison.

4. Xrlq wrote @ Sun, 25 Jul 2004, 10:46 am CDT:

The explanation is that it doesn’t work that way. The second sentence is not about original jurisdiction, only appellate jurisdiction. Congress can’t grant or restrict original jurisdiction for anything. It can, and routinely does, limit the Supreme Court’s appellate jurisdiction. The only difference is that here, they’re doing it on a hot-button issue, rather than a boring issue like limiting diversity jurisdiction to cases that have complete diversity (no plaintiffs share state residents with any defendants) while Article III only requires minimal diversity (at least one plaintiff residents in a different state from at least one defendant) and where the amount in controversy is at least $50,000, $75,000, or whatever the threshhold is these days.

I don’t think courts will touch this one with a ten-foot pole.

5. Xrlq wrote @ Sun, 25 Jul 2004, 3:34 pm CDT:

Also, if Congress had no power to restrict jurisdiction over federal question cases, why the statute of limitations? I should be able to sue the government for any violation of the Constitution it has ever made at any point of its 228 year old history. Ditto for any federal statutes that were not subject to the current statute of limitations at the time of the violation.

6. Brock Sides wrote @ Sun, 25 Jul 2004, 9:37 pm CDT:

I doubt you’d have standing for a 228-year-old Constitutional violation.

I hadn’t considered the $75,00 threshold for civil suits with diversity jurisdiction, which was presumably set by statute. However, that’s not restricting the Supreme Courts appellate jurisdiction so much as restricting the original jurisdiction of the district courts.

Next question: if Congress has the power to restrict the jurisdiction of courts in such a radical way, why did the states need to pass the 11th amendment?

7. Xrlq wrote @ Sun, 25 Jul 2004, 9:58 pm CDT:

Standing: Why not? Maybe I can show that my great-great-great grandfather lost a significant amount of money as a result of the violation, in which case the interest would make me filthy rich.

Diversity: Actually, it restricts both. If I sue a resident of not-California for $25.00 in state court, the ruling is not appealable to the Supreme Court (not that the SC would want to accept cert anyway, but that’s another matter).

11th Amendment, I explained that one on my blog. It relates to the original jurisdiction, not appellate jurisdiction, of the SC. The latter is subject to Congress’s exceptions; the former is not.

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