9/1/2006 - September 2006 Educational Update - Article III Limitation of Federal Court Jurisdiction - Another Example

AN EDUCATIONAL UPDATE FROM THE SOUTHEAST LAW INSTITUTE™, INC. To: SLI Supporters Date: September 2006 From: A. Eric Johnston Re: Article III Limitation of Federal Court Jurisdiction – Another Example Section 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 . . . Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . . . . . 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. A great deal has been written on the meaning of the foregoing provisions which are found in Article III of the United States Constitution. These provisions define the authority of federal courts in America. Some legal scholars say the federal courts cannot be deprived of jurisdiction to consider, among other things, constitutional issues. Section 2 specifically states the federal courts have power over issues “arising under this Constitution.” The jurisdiction of the federal courts began expanding only two years after the ratification of the Constitution with the Judiciary Act of 1789. Congress has passed successive acts expanding federal court jurisdiction. There is not a significant example of Congress ever restricting federal jurisdiction. Removal or restriction of federal court jurisdiction enjoys legal precedent. Beginning in 1796 in Wiscart v. D’Auchy, 3 U.S. 321, 327 (1796), Chief Justice Elworth said: “If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellant jurisdiction; and if the rule is not approved, we cannot depart from it.” Simply put, while the federal courts have jurisdiction over constitutional issues, that jurisdiction extends only as far as Congress says it does. The wont of government is to expand and this is true of the courts. The original intent for the federal judiciary, as expressed in the Federalist Papers (essays published in 1787 at the time the Constitution was written), was to be the weaker of the three branches of government . . . “it may truly be said to have neither force nor will” (Federalist No. 78), with the legislative branch to be the guardian of liberty (Federalist No. 49), and the state governments being more powerful than the federal government (Federalist No. 45). What we have seen develop through the years is the expansion of federal courts to not only protect liberty, but to create “liberties” where none existed before. Consider the fashioning of an abortion right in 1973 in Roe v. Wade. Also consider the late twentieth century removal of religious rights from the public square. While the concept of limiting federal court jurisdiction is not new, there have been recent efforts, such as Chief Justice Roy Moore’s bill to remove federal jurisdiction over Ten Commandments monuments. A more recent effort involves a bill introduced in the U.S. House of Representatives by John Hostettler (R-IN), HR 1100, the “Marriage Protection Act” (“MPA”). This bill is an alternative to the proposed constitutional marriage amendment. The constitutional marriage amendment would amend the United States Constitution to permit marriage only between a man and a woman. The MPA proposes to remove federal court jurisdiction to hear cases that challenge the existing federal Defense of Marriage Act. While approval of a constitutional amendment requires two-thirds of the House and Senate, along with three-fourths of the state legislatures, a federal statute, such as the MPA, requires only a majority vote in each house and approval by the President. The purpose of this update is not to discuss the marriage issue or the merits of these two bills. There are many complex questions in that issue. Its purpose is to identify yet another example of a remedy to the activism of federal courts, while addressing a substantive issue. We do not lightly advocate interfering with court jurisdiction. We respect the federal judiciary and recognize its importance. We must be careful in our efforts. A bad example of this type thing occurred in 1934 when the German Supreme Court properly released the principal defendants, innocent communists, who were accused of setting fire to the German legislative building, the Reichstag. This fire was set by Nazis and was a political event that helped solidify Nazi rule. In response to the court’s action, Adolph Hitler removed jurisdiction to hear treason cases from the German Supreme Court and created the Volksgerichshof (“Peoples Court”), a biased tool of the government. Like the Volksgerichshof, United States federal courts have improper authority. We believe federal courts have wrongfully usurped existing authority, assuming for themselves the power to create and enforce rights or obligations that do not exist. Federal courts have enjoyed their unbridled autonomy for so long, they may have forgotten they are not entitled to much of the authority they have appropriated for themselves. We believe the United States Supreme Court would uphold federal statutes which properly restrict the jurisdiction of federal courts. While a case by case approach is permitted, we would also like to see a national debate to restore the federal judiciary as envisioned by the authors of the U.S. Constitution.

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