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The Right Response to Obergefell: Jurisdiction Stripping
The other day on the main podcast (episode 265 for those playing along at home), I argued in favor of what I consider to be the most realistic strategy to undo the damage wrought by Obergefell v. Hodges; namely, jurisdiction-stripping legislation. The proposal generated a fair amount of interest among the Ricochetti, and now I have expanded on the idea over at National Review.
I encourage you to read the whole thing, but here’s the basic idea. Congress should abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage. The result would be that states would immediately be free to reinstate laws defining marriage in the traditional manner, if they so wish. Same-sex marriage advocates would be free to challenge those laws, but they would do so in state court, and the final judicial decision would rest with the Supreme Court of each state.
Can Congress do that? Yes. Under Article III of the Constitution, the appellate jurisdiction of federal courts (including the Supreme Court) is entirely subject to congressional regulation. In fact, the very existence of every federal court (except the Supreme Court) is a matter of congressional discretion. Over the years, Congress has expanded and contracted federal appellate jurisdiction in various ways.
In the 1980s there were a number of proposals to restrict federal appellate jurisdiction over cases involving abortion, school busing, and other issues (one advocate of this strategy was a young Reagan administration lawyer named John Roberts!), but back then the House was under Democratic control. By the time the GOP controlled both houses and the presidency, it seems that the fervor for jurisdiction stripping had died down. But now it must be renewed afresh — and if we get a Republican in the White House, this might just become a reality (as distinct from proposed constitutional amendments on marriage, which have very little chance of success).
There’s more over at National Review, and — if you’ll forgive the plug — I also discuss jurisdiction-stripping in my new book, A Less Perfect Union: The Case for States’ Rights.
Published in Domestic Policy
Wouldn’t the courts just take up the cases anyway on constitutional grounds? And who could stop them if they did?
Excellent question.
Federal courts would be divested of jurisdiction — they would not be able to hear marriage cases even if the litigants raised constitutional questions. It’s important to remember that state court judges can hear arguments based on the US constitution and render decisions based on the US constitution. It often happens that when there is a federal constitutional question, one party or the other will “remove” the case to federal court, or appeal the state court decision to federal court. But with jurisdiction stripping those avenues would be blocked.
I just don’t see how that would work in reality. The only time a court doesn’t realistically have jurisdiction is when a case is filed with it and the court itself declares the case to be out of its jurisdiction. There is no authority to tell them otherwise if they rule on a case they do not have jurisdiction over legally except the next higher court. If a court wants to rule on a case over which it has no jurisdiction the court will simply do whatever legal gymnastics is required to declare jurisdiction.
You mean write a law that holds that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?
Fat chance.
When I was a kid, the covers of Superman comics were constantly teasing stories like “Clark and Lois Get Married!”. Then there’d be a litany of similar fakes in the past–“Not a Red Kryptonite fantasy! Not a parallel universe story! Not a hoax!” before you opened the comic and discovered that the wedding that looked so realistic on the cover was posed with robots.
Some of these Obergefell “cures” are beginning to sound that desperate.
If 75-80% of the country agreed with you on Obergefell, this might be politically possible. But if 75-80% of the country did, we wouldn’t be in this situation today. It’s over.
Congress passes a statute saying that the federal courts have no jurisdiction to hear cases challenging the validity of state laws defining marriage. It would be pretty clear, and federal courts would follow the statute.
Congress regulates federal jurisdiction by statue all the time. For example, under the Constitution, a federal court could hear any case between citizens of different states; however, Congress limits this “diversity” jurisdiction to cases involving $75,000 or more and in which there is “complete diversity” (i.e., no two parties are from the same state). Federal courts respect these congressional limits on their power.
Sure, it’s possible that a rogue federal judge would accept a case outside of his jurisdiction, but then the party defending the law (presumably the state AG) would seek remand to state court. If the judge denies the motion, it goes up on appeal to the Circuit Court and, if necessary, the Supreme Court. If a federal court ignores the statute and votes to strike down a state marriage law, I think the state would simply ignore the order and await further litigation.
You need that kind of support for a constitutional amendment, but jurisdiction stripping can be done by normal congressional legislation. Statutes make it through Congress all the time without extraordinary public support — ObamaCare, for example.
The ball would still be completely in their court. The only realistic remedy to courts ignoring the law is for states to ignore the courts. I don’t see that ending well.
If it worked, your idea is the best fix available, but I’ve lost quite a bit of faith in the system.
Like!
Robert Bork discussed this in his book and said that Article 3 section 2 is misunderstood and does not confer the power you say it does. It sounds pretty clear to me that it does in fact confer such power, but there doesn’t seem to be any agreement about it.
Congress tried to do this by stripping the Supreme Court of jurisdiction over habeas corpus challenges to the tribunals for terrorism detainees. In Boumediene v. Bush, the Supreme Court just brushed it aside:
“Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.”
The Court reasoned that the Constitution itself creates jurisdiction for the Court to enforce Constitutional rights.
“To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).”
In other words, the “jurisdiction stripping” strategy doesn’t work.
Be careful what you wish for. The awful consequences of this judicial folly are already evident and only going to get worse. Much as Kennedy and his ilk like to think they can dictate biology and its consequences, they can’t; it will reassert itself. They have merely relegated our nation to chaos and family destruction for the foreseeable future. People complain, and should, about the decision being psychobabble masquerading as law, but the truth is that psychobabble is all that was available to Kennedy. This decision could not be justified on sound legal grounds. When your national marriage and family policy is underwritten with psychobabble, it is time to be afraid. Be very afraid. Which is why, if Congress can throw it back to the states, they absolutely should do so.
Viewed in non theological terms the same sex marriage battle is a battle about the union called marriage. This battle was lost several decades ago by the church when it began to acquiesce to the idea that divorce should be tolerated and sex outside of the union should not be vigorously condemned. This last episode is just an inevitable result of that. If SoCons. want to find someone to blame for the current farce they need look no further than their mirrors.
Thinking that the concupiscence of vigorous advocates for SSM will be satiated by their latest victory is naive. They will insist on the condemnation of any and all who refuse them hearty approval. Yes, there is more to come.
Proposing legal balms might make one feel they are offering solutions, but this simply reveals they know not what is transpiring.
Oh please, I’m sick to death of Socons being blamed for this mess. Divorce has always been tolerated to some degree in this fallen world, but it was not Socons who pushed no-fault divorce, quite the contrary. Every Socon I know preaches against sex outside of marriage. We have predicted the results of all of these follies all along and we have been right in our predictions. It’s very odd to blame us in light of this. The good news is that we are willing to fight the folly. Our nations has given in to a number of follies in the past, slavery and eugenics come to mind, and abolished them in the end. Folly tends to find its true place eventually–in the dustbin of history.
At least some of the groundswell in favor of SSM is a rational response to the Progressive ratchet. Back when this was just another political issue, traditional marriage won the day everywhere.
Nowadays, opposition to SSM has been Alinskied from a mistaken position into a fatal moral flaw. In 2014, the fact that Mozilla CEO Brendan Eich donated one-thousand dollars to California’s 2008 Proposition 8 campaign was sufficient cause for his defenestration from the company he co-founded. And Proposition 8 was passed by voters to reinstitute the ban on SSM originally passed by California voters years earlier as Proposition 22. This measure was struck down by the California Supreme Court. The federal courts invalidated the will of the voters in the case of Proposition 8.
Only one result is moral or equitable: the outcome the Left favors at any given moment.
Under these circumstances, why brave calumny to annoy gay friends and neighbors in support of a position which will never be allowed to prevail?
Get with the program, people. Forward!
How could you strip jurisdiction from the Federal courts on issues that arise from a violation of a Federal constitutional right? The Court found its rationale for Obergefell in the XIV Amendment. I’m not saying I agree with it, but there it is. All we’ll end up with is everything becoming a violation of somebody’s XIV Amendment rights, and your jurisdictional legislation won’t be worth the paper it’s written on. The XIV Amendment will become the Wickard v. Filburn of our times (if it hasn’t already).
Merina Smith:
This post from the Member Feed seems to indicate it’s moving in that direction without our help.
Illiniguy, the Supreme Court is not the only arbiter of federal constitutional rights, although we have become so accustomed to life after Marbury v. Madison that we sometimes forget the powers that Congress has, as does Congress. Mr. Freedman, I think your idea is brilliant, both because it would be salutary in this particular case, but also because it might help awaken Congress. I hope other influential thinkers take it up.
double post
I’m aware of that. But the Supreme Court also has the power to accept original jurisdiction, so cutting out the intermediary courts won’t solve the problem unless you limit that, as well. Marbury wasn’t used as precedent for the proposition that the Supreme Court had the authority to review until, I believe, 1879, at the beginning of the so-called “Progressive Era”.
In fairness George, there are plenty of people on the right who also think that the only outcome that is moral or equitable is the one that they favor at any given moment.
Marbury had nothing to do with it, though the Myth of Marbury did; Prof. Paulsen explains.
Long after Marbury (1803), it was still easy to think that Constitutional interpretation belonged to the people, the States, Congress, and the President, and to the federal Courts.
Madison (1815) looks to the interpretations of several branches of government and the people:
Jackson (1832) looks to the interpretations of Congress and States:
But it has worked a number of times, as cited by Freedman.
I suppose it’s the sort of thing that’s either uncertain, or hard to do right, or both.