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Limiting Federal Court Jurisdiction To Protect Marriage For The States (Charles E. Rice)
Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary ^ | June 24, 2004 | Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Notre Dame Law School

Posted on 10/30/2004 12:18:50 PM PDT by Ed Current

The subject of this hearing is the power of Congress over the jurisdiction of lower federal courts and its power over the appellate jurisdiction of the Supreme Court. This issue arises in the context of H.R. 3313, which provides:

'No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of Title 1.'(see footnote 31)

This statement, however, offers a general analysis of the power of Congress to remove classes of cases from federal court jurisdiction rather than a specific and detailed analysis of H.R. 3313.


The Constitution [Art III, Sec. 1) provides, ''The juridical 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.'' The Constitution itself did not create the lower federal courts. Instead it left to Congress the decision whether to create such courts and, if Congress chose to create them, how much of the jurisdiction encompassed within the federal judicial power it ought to confer upon them. Congress need not have created such lower courts at all. Having created them, it need not vest in them jurisdiction to decide the full range of cases within the federal judicial power. For instance, until 1875, the lower federal courts had no general jurisdiction in cases arising under the Constitution or laws of the United States.(see footnote 32) Today, the jurisdiction of the lower federal courts is limited in some respects by the requirement of jurisdictional amount and in other respects as to the classes of cases in which they are empowered to exercise jurisdiction. The Norris La Guardia Act, for example, withdrew from the lower federal courts jurisdiction to issue injunctions in labor disputes. The constitutionality of the Norris La Guardia Act was sustained by the Supreme Court in Lauf v. E. G. Shinner and Co.(see footnote 33)

In an extensive dictum in Palmore v. U.S.(see footnote 34) the Supreme Court summarized the status of the lower federal courts under Article III:

Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested ''in such interior Courts as the Congress may from time to time ordain and establish.'' The decision with respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the juridical power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art III. ''[T]he juridical power of the United States . . . is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) . . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.'' Cary v. Curtis, 3 How 236, 245, 11 L.Ed. 576 (1845). [9] Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts.

9. This was the view of the Court prior to Martin v. Hunter's Lessee, 1 Wheat 304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall 8, 1 L.Ed.718, (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed.259 (1812). And the contrary statements in Hunter's Lessee, supra, at 327–339, 4 L.Ed. 97, did not survive later cases. See for example, in addition to Cary v. Curtis, 3 How 236, 11 L.Ed. 576 (1845), quoted in the text, Rhode Island v. Massachusetts, 12 Pet 657, 721–722, 9 L.Ed. 1233 (1838); Sheldon v. Sill, 8 How 441, 12 L.Ed. 1147 (1850); Case of the Sewing Machine Companies, 18 Wall 553, 577–578, 21 L.Ed. 914 (1874); Kline v. Burke Construction Co., 260 U.S. 226, 233–234, 67 L.Ed. 226, 43 S.Ct. 79, 24 ALR 1077 (1922).

While various theories have been advanced to argue for restrictions on Congress' power over the jurisdiction of the lower federal courts, none of them is supported by the Supreme Court. Not only does the greater discretion to create, or not, the federal courts themselves include the lesser power to define their jurisdiction, the evident intent of the framers was to vest in the Congress the capacity to make the prudential judgment as to which courts, state or federal, should decide constitutional cases on the lower and intermediate levels.

A statute withdrawing a particular class of cases from the lower federal courts or forbidding those courts to issue specified types of order, would clearly be within the constitutional power of Congress to enact.


The Exceptions Clause of Article III, Section 2, provides that ''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.'' This was intended, according to Alexander Hamilton, to give ''the national legislature . . . ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove'' the ''inconveniences'' which might arise from the powers given in the Constitution to the federal judiciary.(see footnote 35) There was evidently concern in the Constitutional Convention and in some of the ratifying conventions that the Supreme Court would exercise appellate power to reverse jury verdicts on issues of fact. Nevertheless, the language of Article III, Section 2, explicitly give the Supreme Court ''appellate Jurisdiction, both as to Law and Fact.'' And it is evident that the power of Congress to make exceptions to that appellate jurisdiction extends to the Court's power to review questions of law as well as questions of fact. As Hamilton observed in The Federalist, no. 81, ''the Supreme Court will possess an appellate jurisdiction both as to law and fact, in all cases referred to [the subordinate tribunals], both subject to any exceptions and regulations which may be thought advisable.''(see footnote 36)

This power of Congress was so broadly interpreted that a specific authorization by Congress of appellate jurisdiction was construed by the Supreme Court to imply that such jurisdiction was excluded in all other cases. This ''negative pregnant'' doctrine was enunciated by Chief Justice John Marshall in U.S. v. More, in which the Court held that it had no criminal appellate jurisdiction because none had been expressly stated by Congress. Marshall, speaking for the Court, said:

. . . an affirmative description of its powers must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described.(see footnote 37)

It is interesting to note that no criminal cases were appealable to the Supreme Court until 1891, simply because until then Congress had not specified that they could be so appealed. The only way a criminal case could be brought to the Supreme Court was ''by certificate of division of opinion'' in the Circuit Court ''upon specific questions of law.''(see footnote 38)

In 1810, in Durousseau v. U.S.,(see footnote 39) Chief Justice Marshall emphasized that the Court is bound even by implied exceptions to its appellate jurisdiction, so that, in effect, it can exercise it only where expressly granted by Congress.'' The ''first legislature of the union,'' he said, ''have not declared, that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative in the exercise of such appellate power as is not comprehended within it.'' When Chief Justice Taney spoke to the issue in Barry v. Mercein, he said, ''By the constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.''(see footnote 40)

Prior to 1868, the Supreme Court never had to decide the validity of an act of Congress making a specific exception to its appellate jurisdiction. But when William H. McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities on account of statements he had made, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under a statute specifically permitting such appeals. After the Supreme Court heard arguments on the case and while the Court was deliberating, Congress enacted a statute repealing that part of the prior statute which had given the Supreme Court jurisdiction to hear such appeals from the circuit court. The Court, in confronting for the first time the issue of the positive congressional exception to the appellate jurisdiction, dismissed the petition for what of jurisdiction, even though the case had already been argued and was before the Court. ''We are not at liberty to inquire into the motives of the legislature,'' said the Court. ''We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words . . . without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case. And this is not less clear upon authority than upon principle.''(see footnote 41)

It is true that the statute upheld in McCardle did not bar the Supreme Court from reviewing all habeas corpus cases. Rather, it only barred review sought under the 1867 statute which had provided an avenue of review of such cases from the circuit court. The Supreme Court retained the habeas corpus review power which had been given it by the Judiciary Act of 1789 and which Congress had chosen not to withdraw. Later in 1868, the Court applied this distinction in Ex parte Yerger,(see footnote 42) where the Court held that the 1868 statute left untouched the Supreme Court's power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication whatever that the Court would not have upheld an act withdrawing appellate jurisdiction in all habeas corpus cases from the Court.

Four years later, in U.S. v. Klein,(see footnote 43) the Court had occasion to spell out one important limitation of the Exceptions Clause. Klein is the only Supreme Court decision ever to strike down a statute enacted under the Exceptions Clause. The claimant in Klein, who had been a Confederate, sued in the Court of Claims to recover the proceeds from the sale of his property seized and sold by the Union forces. He had received a full presidential pardon for his Confederate activities, and the Court of Claims ruled in his favor for that reason. If he had not received a pardon, the governing statute would have prevented his recovery. While the appeal of his case was pending before the Supreme Court, a state was enacted which provided that, whenever it appears that a judgment of the Court of Claims has been founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he has been guilty of any act of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court expressly reiterated that Congress does have the power to deny appellate jurisdiction ''in a particular class of cases'':

Undoubtedly the legislature has complete control over the organization and existence of that court and may confer or withhold the right to appeal from its decisions. And if this act did nothing more, it would be our duty to give it effect. If it simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make ''such exceptions from the appellate jurisdiction'' as should seem to it expedient.(see footnote 44)

The statute in Klein attempted to dictate to the Court how and by what processes it should decide the outcome of a particular class of cases under the guise of limiting it jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, that is, a pardon. And the statute further prescribed that the effect of the pardon would be such that the recitals in the pardon of acts of rebellion and disloyalty would be conclusive proof of those acts. ''What is this,'' said the Court, ''but to prescribe a rule for the decision of a cause in a particular way?'' It is difficult to imagine a more flagrant intrusion upon the judicial process than this effort to dictate the rules to be used in deciding cases. Moreover, the statute in Klein intruded upon the President's pardoning power by attempting ''to deny to pardons granted by the President the effect which this court had adjudged them to have.'' In these major respects the statute involved in Klein was wholly different from a statute simply withdrawing appellate jurisdiction over a certain class of cases.

Since the Klein case, the Supreme Court has not had occasion to define further any limits to the Exceptions Clause. In The ''Francis Wright,''(see footnote 45) the Court said that what the ''appellate powers'' of the Supreme Court ''shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.'' Chief Justice Waite, in his opinion for the Court in The ''Francis Wright'' referred to ''the rule, which has always been acted on since, that while the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe.''(see footnote 46) Several statements of individual justices in the intervening years reinforce this conclusion. Thus Justice Frankfurter, in his dissenting opinion in National Insurance Co. v. Tidewater Co.(see footnote 47) Noted that ''Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice. Ex parte McCardle, 7 Wall. 506.''(see footnote 48)

In summary, the holdings of the Supreme Court and the statements of various individual justices compel the conclusion that Congress clearly has power under the Exceptions Clause to withdraw appellate jurisdiction from the Supreme Court in particular classes of cases. Indeed, this power is so strong that an exception will be implied in cases where Congress has not specifically ''granted'' appellate jurisdiction to the Court.

It will be useful here to mention some arguments that have been advanced against the use of the exception power by Congress. It has been urged, as Professor Henry Hart put it, that the exceptions ''must not be such as to destroy the essential role of the Supreme Court in the constitutional plan.''(see footnote 49) In addition to the difficulty of determining what is the Supreme Court's ''essential role,'' that test would make the Court itself the final arbiter as to the extent of its powers. Despite the clear grant of power to Congress in the Exceptions Clause, no statute could deprive the Court if its ''essential role;'' but that role would be whatever the court said it was. It is hardly in keeping with the spirit of checks and balances to read such a virtually unlimited power into the Constitution. If the Framers intended so to permit the Supreme Court to define its own jurisdiction even against the will of Congress, it is fair to say that they would have made that intention explicit.

Furthermore, the ''essential role'' test was advanced by Professor Hart in response to the suggestion that Congress could satisfy the Exceptions Clause by removing all but a ''residuum of jurisdiction,'' for example, by withdrawing appellate jurisdiction in ''everything but patent cases.'' Whatever the cogency of Professor Hart's ''essential role'' test would be to a wholesale withdrawal of jurisdiction, if it were ever attempted by Congress, his test cannot properly be applied to narrowly drawn withdrawals of jurisdiction over particular types of cases. It could hardly be argued that the ''essential role'' of the Supreme Court depends on its exercising appellate jurisdiction in every type of case involving constitutional rights. Such a contention would be contrary to the clear language of the Exceptions Clause and to the consistent indications given by the Supreme Court itself.

A related but more substantial argument against the exercise of Congress' Exceptions Clause power is that Supreme Court review of cases involving important constitutional rights is necessary to ensure uniformity of interpretation and the supremacy of federal statutes over state laws.

The argument that fundamental rights should not be allowed to vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The argument overlooks the fact that the Exceptions Clause is itself part of the Constitution. As Alexander Hamilton wrote in No. 80 of the Federalist, the Exceptions Clause is a salutary means ''to obviate and remove'' the ''inconveniences'' resulting from the exercise of the federal judicial power. Judging from what the Supreme Court has said about it over the years, it is not only an important element of the system of checks and balances, but one which grants a wide discretion to Congress in its exercise. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, the more dramatic personal rights, such as speech, privacy, free exercise of religion, would quickly be reduced to nullities. This right to preservation of the system of checks and balances is itself one of our most important constitutional rights.

If it be contended that the Exceptions Clause cannot be used to deprive the Supreme Court of appellate jurisdiction in cases involving fundamental constitutional rights, it must be replied that such a limitation can be found neither in the language of the clause nor in its explications by the Supreme Court. Indeed, the Supreme Court's conclusion, prior to 1891, that there was no general right of appeal to that Court in criminal cases surely involved the denial of the right to appeal in cases involving constitutional rights. For what constitutional right is more fundamental than the Fifth Amendment right not to be deprived of life or liberty without due process of law?

A withdrawal of Supreme Court appellate jurisdiction and lower federal court jurisdiction over a subject such as same-sex marriage, school prayer or whatever, would not reverse any rulings the Supreme Court had already made on the subject. Some state courts might apply previous Supreme Court decisions but others might not. The constitutional commitment of complete discretion to Congress as to whether even to create lower federal courts, the resulting discretion of Congress to limit that jurisdiction, and the explicitly conferred control of Congress over the appellate jurisdiction, all combine to compel the conclusion that there is no constitutional right to uniformity of interpretation among the states as to constitutional rights. There would therefore be no constitutional obstacle to the effect of H.R. 3313 in permitting each state to make its own decision on the definition and legal incidents of marriage.

In his First Inaugural Address, President Abraham Lincoln warned that ''the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal.'' Supreme Court decisions in several areas are distortions of the constitutional intent in matters of substantial importance. It is within the power—and it is the duty—of Congress, to remedy this wrong. The withdrawal of jurisdiction would be a measured and appropriate response. It would be preferable to a constitutional amendment in that it would have no permanent impact on the Constitution. If experience showed it to be unwise, it could be readily repealed by a statute. But it would restore the balance of governmental powers and help to undo some of the unfortunate consequences of judicial excess.

TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Extended News; Government; News/Current Events
KEYWORDS: homosexualagenda; judicialactivism; marriage; protectmarriage
Limiting Federal Court Jurisdiction To Protect Marriage For The States Testimony Of Martin H. Redish, Professor Of Law And Public Policy, Northwestern Law School
1 posted on 10/30/2004 12:18:50 PM PDT by Ed Current
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To: Ed Current

so the short of this is they want to go back to real federalism regarding the issue of marriage?

2 posted on 10/30/2004 12:22:19 PM PDT by Rakkasan1 (Justice of the Piece:Charity is conservative;doing it with someone else's money is liberal.)
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To:; MHGinTN; Coleus; Lexinom; CobaltBlue; Askel5

You are probably familiar with Professor Charles E. Rice.

3 posted on 10/30/2004 12:32:55 PM PDT by Ed Current
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Limiting Federal Court Jurisdiction To Protect Marriage For The States (PHYLLIS SCHLAFLY)
4 posted on 10/30/2004 12:49:26 PM PDT by Ed Current
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To: All

Some thoughts. I live in an area where there are a lot of gay people and so I feel more qualified than most people here to comment on this.

I am a moderate Repblican. I know some people here will have a problem with this, but its pretty clear to me that people who rant on and on about 'defending marriage' are clueless about some important facts. I don't know how they got to see it this way, but they did. Here's my plea for some thinking to be applied to this issue. Because its clear to me that the current official line is very counterproductive and decisive.

Why? Because, gay people clearly don't make a 'choice' to be gay. I would guess that most of them probably wish they weren't. But they are and they then have to make the best of it.

It's some kind of biological difference that forms at a very early age in their brains. We don't have a choice. We are straight - or gay. Period. So I think the whole idea of their gayness 'being a sin' is based on a faulty premise.
I don't think God wants *us* to exclude people from the possibility of being good or bad based on something *He* did.

It just doesn't make sense. If he did, God would be putting those people into a situation that violates the doctrine of free will.

At least that's my opinion.

I also have a thought on gay marriage. I think that its fine for me for official 'marriage' to be for men and women only. However, I do think that having some kind of 'legal equivalent' for gay people is only right, based on some of the legal problems they have now. Especially when people die.

The adoption issue is also something I think many don't understand. Ten years ago, the big thing in the gay community was clearly the club and bar scene. Stable relationships were not common. Now, when my wife and I walk around our neighborhood, instead of gay people going in and out of bars as early as 10 am on a Saturday morning, we see lots of gay families who have adopted. Walking around, talking with their kids, etc.

They clearly are *normal* and responsible parents and it is a huge improvement over the situation that existed before which was clearly pretty sordid with lots of alcoholism, etc. The kids they are adopting are often black or handicapped, kids who would NOT get decent care in the foster care system, which is worse than dysfunctional. So, thats also a plus. Kids have homes. Our (50% gay) neighborhood is also a lot safer now, and much quieter at night.

These people are the people in the gay community who would be the most likely to vote Republican, and we seem to be going out of our way to alienate them.

Not very smart!

Only slightly related - I got a start today when I found out what the state with the lowest divorce rate is..

Its Massachusetts, with 2.4%

Divorce also goes down, in general, during Democratic administrations.

What does this tell us? Sometimes, tough talk is used to mask a policy of intentional inaction. It's called 'overcompensating'.

What can we do to improve these figures?

5 posted on 10/30/2004 1:05:13 PM PDT by nicholasj
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To: MHGinTN; Coleus; nickcarraway; narses; Mr. Silverback; Canticle_of_Deborah; ...
Pro-Life Pro-Family PING

Please let me know if you want on or off my Pro-Life Ping List.

6 posted on 10/30/2004 1:25:23 PM PDT by (Birth is one day in the life of a person who is already nine months old.)
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To: Ed Current


7 posted on 01/06/2005 9:00:04 PM PST by Tailgunner Joe
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