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An Alternative to Amendments
Monday, August 21, 2006
By George Detweiler
Many Americans, tired of federal courts meddling in their lives, have resorted to trying to add new amendments to the Constitution, but there's a better solution.
George Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.
Interest is multiplying both in and out of Congress to use Article III, Section 2 of the U.S. Constitution as an alternative to the constitutional amendment process for curbing the excesses of runaway federal courts. The Pledge Protection Act of 2006, introduced by Rep. Todd Akin (R-Mo.), passed the House on July 19 and now faces an uncertain future in the Senate. It would strip federal courts of jurisdiction to rule on the constitutionality of the words "under God" in the pledge of allegiance to the flag. A companion bill in the Senate, introduced by Jon Kyl (R-Ariz.), has gone nowhere, and if the matter is to become law this year, the House bill will be the one to watch (and support with letters to your senators).
Rep. Chris Cannon (R-Utah) filed a bill in the House of Representatives on June 5, 2006, H.R. 5528, denominated the Pornography Jurisdiction Act, which provides, in part, "No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide a question of whether a State pornography law imposes a constitutionally invalid restriction on the freedom of expression." The bill also provides that no decision on point by a federal court shall be binding on state courts. Federal courts have struck down some state laws regulating pornography, ruling that the First Amendment prohibits what the courts have described as the "freedom of expression." The language of H.R. 5528 is similar to that used in other bills currently in Congress which limit federal judicial jurisdictions on a variety of other subjects.
The First Amendment states, "Congress shall make no law ... abridging the freedom of speech, or of the press." The drafters intended to leave the citizenry free to engage in political speech, in particular, and to protect the free flow of information necessary to a free people. Nothing indicates an intent to protect access to smut or those who peddle it. Nevertheless an out-of-control federal judiciary has taken liberties with the Constitution to recast the document as they would have it become, a process which its proponents call an evolving, "living" Constitution.
Proponents of a "living" Constitution faced many obstacles in implementing their will and rewriting our Constitution piecemeal. Their first hurdle came from the first five words of the First Amendment, "Congress shall make no law." State pornography laws are enacted by state legislatures, not by Congress. To overcome this limitation on federal judicial power, an activist Supreme Court developed a line of cases holding that the 14th Amendment was the conduit that allows it to impose the federal restrictions of the Bill of Rights (amendments one through 10) upon state action. The 14th Amendment provides in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law." Once they extended the applicability of the 14th Amendment to state action, it stuck. The 14th Amendment was intended only to protect former slaves from state action which might infringe on their new status of full citizenship, but this limited intent was ignored in favor of an expanded scope far beyond the drafters' intent.
The second hurdle involved bundling the freedoms of speech and of the press into a "freedom of expression" that went far beyond speech or news reporting to include sexually explicit photography.
But activist judges still don't have everything their own way. The Founding Fathers provided a remedy, a check and balance of such judicial excesses. Article III, Section 2 creates the jurisdiction of the Supreme Court, specifically giving Congress the authority to make "Exceptions [to] and ... Regulations" of the court's appellate jurisdiction. Since the great bulk of the cases coming before the court are appeals from inferior federal courts and from state courts, the impact of these exceptions and regulations can be great. All federal courts below the Supreme Court are created by act of Congress; therefore their jurisdictions are under complete congressional oversight.
Congressional control over the jurisdiction of the courts is one of the least understood and least used of the checks and balances of power between the three branches of government which the Founding Fathers built into the Constitution. It is practically impossible to amend the Constitution to undo bad court decisions. For example: former Senator Everett Dirksen (R-Ill.), despite being majority leader, didn't have sufficient clout to secure an amendment overriding the Supreme Court's decisions placing redistricting of state legislatures in the hands of federal courts. Fortunately, an amendment in such circumstances is unnecessary. Using what has become known as jurisdiction-stripping legislation, Congress can accomplish the same goal by statute under its Article III, Section 2 powers. Congress must merely pass a law saying that federal courts cannot hear cases concerning this subject.
Critics of these laws have called them an end run around the constitutional separation of powers. Such characterizations are typical of the statist's mentality and reflect a perversion of the concept of separation of powers. Article III, Section 2 empowers Congress to trim the jurisdictions of federal courts. It could have no other purpose, no other use, than to regulate judicial assumptions of powers in excess of constitutional limits. Like the surgeon's scalpel which excises a malignant growth, this section of the Constitution allows Congress to keep judicial wanderings in check. Yet the judicial activists have the audacity to suggest that the exercise of constitutionally granted congressional checks and balances of the judiciary somehow constitutes an end run around those powers. That's like saying, "The Constitution is unconstitutional!" But judicial activists keep chanting the same slogan because, as the Nazi Joseph Goebbels was paraphrased as saying, "Shout a lie long enough and people will believe it."
Jurisdiction-stripping bills now in Congress were listed in Utah's Daily Herald:
H.R. 1070, Constitution Restoration Act of 2005 [and companion bill S. 520]: Would prevent the Supreme Court from reviewing a government official or agent's "acknowledgement of God as the sovereign source of law, liberty or government." LAST ACTION [on the House version]: Referred to a House subcommittee in April 2005.
H.R. 1100, Marriage Protection Act of 2005: Seeks to keep federal courts and the Supreme Court from reviewing cases related to Defense of Marriage Act, which defines marriage as between one man and one woman. LAST ACTION: Referred to a House subcommittee in April 2005.
H.R. 4364, Public Prayer Protection Act: The Supreme Court could not review any "establishment of religion" cases involving public prayer by a government agency, officer or agent. LAST ACTION: Referred to a House subcommittee in February [2006].
H.R. 4379, We the People Act: No federal court could review a state's laws or regulations relating to the free exercise or establishment of religion; any claim based on the right of privacy; and any equal protection claim involving the right of same-sex couples to get married. LAST ACTION: Referred to a House subcommittee in February [2006].
H.R. 4576, Safeguarding Our Religious Liberties Act: Federal courts could not rule on cases involving Ten Commandments displays, the Pledge of Allegiance or the National Motto. LAST ACTION: Referred to a House subcommittee in February [2006].
George Detweiler was born in Salt Lake City in 1943. But, he has spent most of his life in Twin Falls, Idaho, where he wants to be known as one of its proud citizens.
Although he received his bachelor’s and law degrees from Georgetown University in Washington, D.C., he happily reports that the years he spent in the nation’s capital never compromised his determination to keep America independent.
George served for two years as an Idaho assistant attorney general. For most of his career, George ran a private law practice in the Twin Falls area. No longer practicing law, he devotes a significant portion of his time and energy directing JBS members throughout the nation in their efforts to protect the U.S. Constitution from any state officials who would propose a constitutional convention. He actively participates in Society activities in his community.
Having a lawyer with George’s thorough understanding of the Constitution within our Council has been of great benefit to our organization. He was appointed to the Council in 2003.
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