It came to my attention about 5 days ago that there exists a bill in the House of Representatives,
HR 3313, the protection of marriage act, which essentially prevents federal courts from interpretting the wording of the defense of marriage act of 1996.

Here's the text:
(there are two versions of the bill so read both, they're really similar)
Protection of Marriage Act

What? If the courts can't interpet legislation then the legislation is meaningless. If any disputes of the defense of marriage act come to the courts they must simply be turned away because the courts won't be able to interpret the law.
Isn't it the entire raison d'etre of the courts to interpret legislation?

Question for debate:
Is it reasonable to pass a bill that completely preempts judicial authority?
Is this piece of legislation unconstitutional in itself?

Is this piece of legislation unconstitutional in itself?

That can't possibly even be Consitutional.


Rather complicated bit of wording, but to me it seems that Congress has absolutely no authority to tell the Judicial branch on which laws they can or cannot interpret.

I find it astonishing that supporters of this "marriage is only between a man and a woman" garbage are so willing to completely ignore the Constitution because it doesn't suit them.

Is it reasonable to pass a bill that completely preempts judicial authority?

I find it objectionable, and feel that it upsets the balance of power between the branches and the concept of judicial review. The intention is carve out an exception to a specific issue, such as marriage, to thwart the ability of the Supreme Court to review the law in terms of the constitution, equal protection, privileges and immunities, etc. It evidences a willingness to try and push such laws through solely on the grounds that it is the will of the majority (fifty-one to sixty percent?), without that pesky Supreme Court stepping in to protect minorities.

Is this piece of legislation unconstitutional in itself?

Unfortunately, no, it is not. Article III, Section 2, Clause 1, does give judicial Power to the Courts to try all cases in law and equity. It also goes on to say that the Supreme Court shall have appellate jurisdiction with such exceptions and under such regulations as the Congress shall make. This issue came to a head in 1869 with the famous case Ex Parte McCardle, and although it was found that Congress did not have the power to completely remove the Court's appellate jurisdiction, Congress did have the power under Article III to remove specific areas of the Court's jurisdiction as it saw fit. There has not been a major ruling on this issue since.

So, if we look strictly at the Constitution, and the prior case law interpreting Article III, yes, Congress does have the power to place a ban on gay marriage beyond the ability of the Supreme Court to review it.

This is shocking to most people. We are used to thinking of the Supreme Court as being the ultimate champion of minority rights in the face of majority tyranny. But it could happen. Congress has flirted with the idea in the past. Congress considered a proposal to remove certain internal security laws from the possibility of Supreme Court challenge (Senate Bill 2645) in 1956, and proposed making certain legislative apportionment arrangements beyond constitutional review (House Resolution 11926) in 1964. Congress also considered removing appellate jurisdiction to review Congressional laws on obscenity (Senate 4058) in 1968, religious school exercises (HR 6501) in 1971, and review of certain police techniques in criminal investigation as well as racial segregation in the public schools (Senate 1194) in 1967.

From time to time, Congress will continue to toy with the idea. What stops them? Usually, they can't quite get the right majority to pass the bill, and although the concept of seperation of powers and the belief that the Supreme Court should have the final say on whether or not something is constitutional is lost on some congressmembers, many still recognize the inherent value in that system and the hypocrisy of passing laws to restrict the Supreme Court over issues in the here and now that are just trendy and favored by a slight majority. Most Supreme Court justices have spent their life studying the Constitution and are beyond the political pressures felt by congressmen and senators, who hold their positions for only a couple years before finding themselves at the whim of the voters and groups of constituents that demand preference be given to their causes in the next election. It should also be considered that Congress has the power to enforce its own laws, in addition to making them in the first place, and if Congress can also prevent its laws from being reviewed by another branch of Government, it has found a way to put all the eggs in one basket. The Supreme Court can review laws, but it can not draft new bills and resolutions of its own accord and is dependent on the other branches to carry out its orders. Taking away its ability to hear specific issues is of questionable governmental virtue and upsets the balance of power.

Now, it's always possible that if Congress passed a law restricting the Supreme Court's appellate jurisdiction, and the case made it up to the Court anyway, and the Justices on the Court carefully considered all the case law going back to the Judiciary Act of 1789, they might very well try to find a way to overrule McCardle. Perhaps they would argue that our system of checks and balances has generally worked for more than 200 years and that independent seperation of powers must be preserved. This could well prompt a showdown, with Congress with Article III in one hand and the Court attempting to overrule the precedent of McCardle in the other, that would leave a lot of people wondering "What happens next? What do we do now?". Plenty will say that if the Court overrules McCardle, the Court has run amuck and usurped Congressional power under Article III, and they would be right. But it should be pointed out that there is still another "check" in the system - the amendment process of Article V. No matter what the Supreme Court wants to do, it can not strike down a new law as "unconstitutional" if the Constitution itself is amended to incorporate it; thus, ultimate power is still vested in the Legislature and its power to draft a constitutional amendment.

If any of the above concerns you, please consider writing your congressperson or senator and let them know you do not support any attempts to use Article III to restrict or regulate the ability of the Supreme Court to review the law, and your reasons why.

Actually, if I remember correctly from my US Constitution class, Congress does have the right to determine what can or cannot be reviewed by the Supreme Court.

This question surfaced when my professor made the point that Congress could have stopped the Supreme Court from deciding our 2000 election for us, or at least made sure that it never happens again.

Maybe. This is an incredibly complex Constitutionality question. I sort of hope that Congress passes it so we can see the fireworks between the brances.

I think the Supreme Court would have to deliberate on the Constitutionality of the Protection of Marriage Act.

Why I think so:
The question concerns the vagueness of the Founders on the issue of Supreme Court jurisdiction:



Which competes with this:



Now, it would seem that the Constitution speaks quite clearly on this. The Congress can limit and regulate what the Supreme Court can decide. However, the Constitution gives the Supreme Court judicial power over all Cases arising under the Constitution.

I think the Protection of Marriage Act would, through an incredibly tangled and confusing opinion, be ruled unconstitutional. I reason that the Justices would read the legislative record and find that the Republicans are merely trying to push through a de facto Constitutional amendment. Further, the Court is given the ability to rule on Constitutional issues, which this is one.

It would be an interesting showdown--in all honesty, I fear the outcome.

I also fear the irresponsibility of a party that would try and use this weapon during an election year.


Modified: wording.

Well, the bill passed the house today.

If you want to see how your Representative voted, see here.

Judges aren't supposed to decide for the good of the majority but Constitutionally.I love the use of fear tactics employed by this idiot.
Republicans have finally gotten their wedge into undermining the Constitution.
Nice to see the party of the conservatives are so eager to enact mob rule.
The nice thing is if it gets past the Senate, sooner or later it all comes around and I wonder how they will regret the above quote when the democrats someday regain power and they get some of their sacred cows shot by their own cannons(hello gun control) after all its majority rules, Correct, Republicans?



Fairly well covers how i feel on this subject.

The Republicans are merely trying to show there Conservative values on such issues. Its an election year.

It DOES seem a bit over zealous though.

In the two quotes njs6 posted the Constitution almost seems to counterdict itself!

Very interesting. This could turn into a real quagmire.

I'm sorry Jaime. No I didn't realize that I thought a one liner was like a smart butt remark.

Yes I think this could create a real Quagmire, in that every party will try to find a loophole for there bills to be exempt from the scrutiney of the Supreme Court.

It IS the Supreme Court, and those Judges should be able to review and rule on any issue with out exception.

It might be a little 'glitch' in the Constitution.

But, who knows. I pray that this issue somehow resolves itself before the Republican agenda somehow wipes out any vestiges of our valued democratic system.

This is very scary to me, as a libertarian liberal (really...really...I'm serious) who values freedom and liberty while fearing government attempts to define 'values'.