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H.Res. 580 --112th Congress.
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H.R. 539 -
We The People Act
TO: DAVID JAMES, PRESIDENT
THE LIBERTY COMMITTEE
FROM: HERBERT W. TITUS
SUBJECT: LIMITING THE JURISDICTION OF THE FEDERAL COURTS
DATE: OCTOBER 30, 2003
This memorandum is in response to your request for a constitutional blueprint for a Congressional act limiting the jurisdiction of federal courts, including the United States Supreme Court, in certain cases concerning the 14th Amendment of the United States Constitution as applied to the States in private civil actions brought under Title 28, Section 1983, of the United States Code, and in other actions arising under other civil rights statutes and under the Fourteenth Amendment itself.
I. Limiting the Jurisdiction of United States District Courts and Courts of Appeals.
Article III, Sections 1 vests the judicial power of the United States "in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish." Unlike the United States Supreme Court, which is established by the Constitution, itself, Congress has no duty to establish any lower federal courts. Because the United States District Courts and the United States Court of Appeals are solely the creatures of Congress, Congress has discretionary authority not only to establish them, or not to establish them, but to vest such lower federal courts with such judicial power as is contemplated by Article III, Section 1, governed by such "laws which shall be necessary and proper for carrying into Execution ... all Powers vested by this Constitution in the Government of the United States or in any Department ... thereof." U.S. Constitution, Article I, Section 8, Clause 18.
As to whether a law is "necessary and proper," Congress has plenary power to adopt any means "appropriate" to accomplish a constitutional end, so long as there is no explicit constitutional prohibition against the means chosen. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Among the constitutionally legitimate objects of the United States is the provision in Article IV, Section 4 guaranteeing the States a Republican form of government. For nearly fifty years, lower federal courts have been used by individuals and groups to wrest from the state democratic process issues textually and historically reserved by the Tenth amendment to the states or to the people. In the name of a "right to privacy" - a right not found in the constitutional text - the federal courts have struck down state statues prohibition abortion and sodomy; in the name of the Establishment Clause, but in blatant disregard of the plain meaning of the text, the federal courts have struck down prayer and Bible reading in the public schools and government displays of the Ten Commandments. Such a misuse of power to make law, in disregard of the democratic legislative process secured to the people by their State constitutions also violates the guarantee of Republican form of government provided for in the United States Constitution. After all, at the heart of a republican form of government is the guarantee that policy matters, such as the protection of human life and the family, educational policy and other relationships between religion and government, are to be mediated by elected state representatives accountable to the people, subject to the checks and balances of the state executive and judicial branches, not to the veto power of unelected judges beholden to an elite faction. See Federalist No. 10.
By excepting from the jurisdiction of the lower federal courts cases involving privacy and the Establishment Clause, as applied to the States through the Fourteenth Amendment, then, Congress would be restoring the republican form of government to the fifty states, relegating to the state courts, not the lower federal courts, the primary responsibility of applying the guarantees of the United States Constitution, as those apply to the states. Such a restoration of power to state courts is within the federalist structure of the original United States Constitution as contemplated by Article VI, Paragraph 2 which expressly provides that "the judges in every state shall be bound" by the United States Constitution, any state statute or state constitutional provision to the contrary notwithstanding. Thus, by divesting the federal courts of judicial power in certain classes of cases involving federal constitutional issues does not mean that the federal constitutional guarantees limiting the exercise of state power will be left without judicial recourse. Rather, in such cases as Congress excepts from the jurisdiction of the lower federal courts, jurisdiction over such matters would reside in state courts. Thus, divesting the federal courts of jurisdiction in such cases as privacy and the establishment of religion would not impair the rule of law, a central feature of a republican form of government.
II. Limiting the Jurisdiction of the United States Supreme Court.
While Congress may constitutionally limit the jurisdiction of lower federal courts - even divesting from them jurisdiction over certain classes of cases - the case for limiting the jurisdiction of the United States Supreme Court is more problematic. Not only is the Supreme Court a creature of the Constitution, not of Congress, but it is vested by Article III, Section 1 with the judicial power of the United States by the Constitution, not by act of Congress. Additionally, Article III, Section 2, Paragraph 1, in pertinent part, extends that judicial power "to all cases in law and equity arising under this Constitution, [and] the laws of the United States." (Emphasis added). If this were all that was provided for in Article III, then it would appear that the Constitution would not permit Congress from making any exceptions to the Supreme Court's jurisdiction insofar as it extends to cases arising under the United States Constitution or laws of the United States which must in their entirety be amenable to the exercise of the judicial power of that supreme body.
But, Article III, Section 2, Paragraph 2, coupled with Article I, Section 8, Clause 18, confers upon Congress express authority to make "such exceptions... and such regulations" as it shall deem "necessary and proper" in the exercise of powers "vested by this Constitution ... in any department or officer thereof." According to Article III, Section 2, Paragraph 2, the Supreme Court is vested with "appellate jurisdiction" in cases "arising under" the United States Constitution and the laws of the United States, subject to "such Exceptions and such Regulations, as Congress shall make." Thus, even though Article III, Section 2, Paragraph 1 vests judicial power of the United States Supreme Court in all cases arising under the United States Constitution and the laws of the United States, Article III, Section 2, Paragraph 2 vests in Congress the authority to make exceptions to, and regulations of, such exercise of judicial power.
Congress, however, may make such exceptions and regulations only by the exercise of legislative power, not by the exercise of judicial power. Thus, Congress may not enact a statute overruling a specific case decided by the Supreme Court, or in the process of decision by that Court. That would be an exercise of judicial appellate power, and hence, a violation of the separation of powers principles in the first three articles of the Constitution. See Federalist No. 81; United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). Nor could Congress enact a statute that is designed solely to reverse a line of cases, such as Roe v. Wade and its progeny, on the grounds that Congress has found such rulings contrary to the Constitution. Rather, Congress may carve out exceptions, and make such regulations, that are expressed in the form of a general rule and based upon policy reasons other than disagreement with the outcomes of particular cases or a particular line of cases.
To avoid acting judicially, instead of legislatively, in the exercise of its authority to make exceptions to, or make regulations of, the Supreme Court's appellate jurisdiction, Congress must take two steps: (1) Identify a legislative policy that is not based upon disapproval of specific judicial rulings; and (2) Craft a general rule of exception to the Supreme Court's appellate jurisdiction.
As is the case with abuses of executive power, Congress has a legitimate legislative interest in the abuse of judicial power. If a president is acting contrary to statute, without statutory authority, or contrary to the Constitution, Congress may take steps to stop that abuse of executive power either by enacting a statute curbing the abuse or withdrawing from the executive any power to act at all, even though Article II, Section 1 has vested the executive power in the President. After all, under the necessary and proper clause of Article I, Section 8, Congress has plenary discretion as to the means by which executive power is to be carried out, or whether executive power is to be exercised at all. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S,. 579 (1952). In like manner, Congress may choose to curb the abuse of judicial power by the United States, even though Article III, Section 1 has vested the judicial power in one Supreme Court, either by regulating the exercise of such judicial power, or by divesting such Court of such judicial power as may be necessary and proper to accomplish a constitutionally permissible legislative purpose.
As noted above, Congress may rightfully be concerned about the misuse of judicial power by the lower federal courts which has resulted in the undermining of the republican form of government guaranteed to the states by Article IV, Section 4. Such concern need not be limited to the lower federal courts, but may arise from the misuse of judicial powers of the Supreme Court. As noted above, such abuses are abundantly evident in the High Court's enforcement of a constitutional right of privacy in cases involving abortion and sodomy, and in its enforcement of the Establishment Clause. Indeed, even those who support the "right" of a woman to terminate a pregnancy have admitted that such a right is nowhere to be found in the constitution. See, e.g., Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale L. J. 920 (1973). And several members of the High Court - from both its liberal and conservative wings - have admitted that its "Establishment Clause" jurisprudence is indefensible. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 688 (2002) (Souter, J., dissenting); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, concurring); and Committee for Public Educ. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting).
Not only are the right of privacy and Establishment Clause line of cases indefensible as exercises of judicial power, they are indefensible as encroachments upon the constitutionally guaranteed powers of state legislatures to set state policy governing human life and the family, and educational and other policies related to the proper relation between church and state. See, e.g., Zelman, supra, 536 U.S. at 680 (Thomas, J., concurring). Such intrusions by the High Court have undermined the fifty states' republican form of government which dictates that such policies be determined by elected representatives accountable to the people, as stated above. Thus, Congress, in pursuit of the goal of guaranteeing a republican form of government to the states may except those classes of cases arising under the constitution in which the Supreme Court has abused its power, wresting from the states issues that rightfully belong to them as reserved by the Tenth Amendment.
By resting its exercise of power to except from the appellate jurisdiction of the Supreme Court all cases related to claims of a so-called right to privacy or to a separation of church and state, neither of which is found in the text or history of the Constitution, as means necessary and proper to restore to the states a republican form of government, Congress could be challenged in the courts for having acting unconstitutionally. Such a challenge would be difficult to sustain, however, because the Supreme Court, itself, has recognized that it has no jurisdiction over the republican form of government guarantee, it being a "political question" to be resolved exclusively by the legislative and executive branches of the United States. See Luther v. Borden, 7 How. 1 (1849); Pacific Telephone Co. v. Oregon, 223 U.S. 118 (1912); Baker v. Carr, 369 U.S. 186 (1962).