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The Fourth Choice:Ending the Reign of Activist Judges
Chronicles ^ | June 2004 issue | William J. Quirk

Posted on 12/05/2004 12:18:48 PM PST by Ed Current

If you are looking for a reason to vote for Ralph Nader, the way both parties are handling the "gay marriage" issue should give you lots of data. John Kerry, when asked his opinion of "gay marriage," looks like a dog getting a bath, as Chris Hitchens puts it. Kerry says he personally opposes "gay marriage"—but he favors civil unions, which are exactly the same thing. The states, he says, should decide the issue, but he voted against the Defense of Marriage Act in 1996, which was specifically designed to allow each state to reject marriage licenses issued in other states. Even President Bush, who seems to have the advantage on the issue, is ill at ease. He vacillated for months and then proposed a constitutional amendment banning "gay marriage" but condoning civil unions: "The amendment," he said, "should fully protect marriage while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." The status in other states of a New Hampshire civil union is left to the courts—the same "activist courts" who, the President said, were so irresponsible that they made the amendment necessary in the first place. Neither Kerry nor Bush has a coherent position.

How did the issue of "gay marriage" come to the fore of social and political debate? It is the last thing Americans want to think about, but the Massachusetts Supreme Judicial Court ruled in November (Goodrich v. Department of Public Health) that homosexuals have the right, under the state constitution, to marry and directed the legislature to pass laws within 180 days to accomplish that. The Massachusetts Senate asked the court if a bill giving same-sex couples the rights and benefits of "marriage" but calling their relationships "civil unions" would be good enough. The court, in February, ruled it would not: It is a "considered choice of language that reflects a demonstrable assigning of same sex, largely homosexual, couples to second-class status." President Bush called the court’s February ruling "deeply troubling."

In late February, the President announced he would support a federal constitutional amendment banning "gay marriage" because "activist courts have left the people with one recourse." There is no assurance, the President added, that the "Defense of Marriage Act will not itself be struck down by activist courts." John Kerry said of the President: "He’s trying to divide America . . . [he] always tries to create a cultural war." The New York Times editorialized that the President was putting "bias in the constitution." He was injecting "meanspiritedness and exclusion into the document embodying our highest principles and aspirations." All sides seems happily headed for another nasty, divisive culture-war battle.

Is such a battle necessary? Some on each side desire a national uniform rule either permitting or prohibiting "gay marriage." The majority of Americans (58 percent), however, believe the issue should be decided by the states. Both John Kerry and President Bush have, at times, said that it is appropriate that the states decide. What if it were possible, by a simple statute, passed by a simple majority in Congress, to assure that each state could choose for itself without fear of being overridden by a judicially imposed uniform national rule—and that no state could decide for any other? Could we just pass the statute and forget the issue (polling data show most Americans wish they had never heard of it) and move on to something else?

The answer is Yes, but it takes a little explaining. Last summer, the U.S. Supreme Court struck down Texas’ antisodomy law, ruling that it violated personal liberty "in its spatial and more transcendent dimensions" (Lawrence and Garner v. Texas). The majority opined that homosexuals are "free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment," citing the European Court of Human Rights. Since, as the Court conceded, antisodomy laws "do not seem to have been enforced against consenting adults acting in private," it is unclear why the Court had decided to reach out and issue a ruling that was offensive to the majority of Americans. Justice Antonin Scalia, in a bitter dissent, wrote that the Court was taking "sides in the culture wars." Apparently, the Court wanted to educate and improve the country morally—to make the public aware that homosexuals are entitled to freedom, dignity, and "respect for their private lives." The Massachusetts Supreme Judicial Court took the lesson to heart in its November and February rulings.

The Supreme Court’s effort to educate has been a total failure. Indeed, the more Americans have been forced to think about "gay rights," the less they have liked them. A New York Times/CBS News poll taken in July 2003 reported that 54 percent of Americans believe that homosexual relations should be legal. By December, that number had dropped to 41 percent. The December poll found that Americans oppose "gay marriage" by an almost 2-to-1 margin (61 to 34 percent). They also oppose civil unions 54 to 39 percent.

Do the wishes of a clear and large majority make any difference? Not if the issue stays in the federal courts. The course that "gay marriage" will follow is predictable. Within ten years, we will have a national rule requiring "gay marriage" or something only rhetorically different. First, a gay couple, "married" in Massachusetts, will move to South Carolina and insist that the state, pursuant to the Full Faith and Credit Clause of the Constitution, recognize their Massachusetts "marriage." The state, citing the federal Defense of Marriage Act (DOMA) will argue that it need not recognize the Massachusetts law. After four or five years of litigation, the Supreme Court will find that the Full Faith and Credit Clause trumps DOMA. If the amendment President Bush favors is adopted, the same scenario will play out with "civil unions." Proponents of traditional marriage will then put all their resources into urging Congress to propose a constitutional amendment for the states to ratify. The effort will likely fail in the Senate, where it will be vetoed by a one-third negative vote. The New York Times, a few days after it becomes clear that the amendment will not get out of Congress, will report a victory for "equal rights" establishing that "gays should be allowed to marry" (reprising their editorial of January 13, 2004). Around 2014, the majority of Americans will realize that, once again, it has lost. In the meantime, however, the Republican Party will have a delicious issue designed, as they say, to "energize the base." Would the base be "energized" if it understood that the Party, in 2004, had the power to give it a win?

Are the Supreme Court’s decisions the last word? What can the majority do if it believes the Court is seriously out of line—or likely to be? Most people believe there are three choices: They can grumble but accept the decision, take the easy way, decide to live with it even though they do not like it; they can try to change the composition of the Supreme Court (an approach that is indirect, takes a long time, and, if history is any guide, does not work); or they can try to amend the Constitution.

The third choice, at first glance, sounds like a reasonable approach. If the proposed change is really popular, why not amend the Constitution? Senate Majority Leader Bill Frist, after the Lawrence decision, proposed an amendment banning homosexual marriage. President Bush, last July, said he did not support an amendment at the moment because he was not sure it was "necessary." And, while the December New York Times/CBS News poll found strong support for such an amendment, it will never materialize.

The trouble with the amendment process is that Congress is the gatekeeper. Since World War II, seven amendments got out of Congress, and five were ratified. The two losers in the states were the Equal Rights Amendment and District of Columbia voting. Since the ratification of the Constitution, 10,000 amendments have been introduced, 33 have been passed out of Congress, and 27 have been ratified by the states. The casualty rate is so high because, before an amendment can be proposed to the states, it must pass two thirds of both houses of Congress. The House of Representatives, whose members are elected every two years, will approve any popular proposed amendment. One third of the Senate, by contrast, need not face the electorate for six years. Consequently, one third of the Senate can defeat any proposed amendment with a minimal risk of political retribution. If a proposed amendment gets out of the Senate, it needs to be ratified by three fourths of the states to become part of the Constitution. Three fourths of the states would almost certainly approve the amendment barring "gay marriage," but they will never get the chance, because Congress is institutionally hostile to limiting the power of any of the federal branches—which is exactly what most amendments seek to do. An amendment reversing a Supreme Court decision would, of course, be considered a sharp attack on the authority of that branch.

In recent decades, the ERA failed in the states, but most proposed amendments fail in the Senate. One-third minorities in the Senate have killed proposed amendments concerning term limits, school prayer, flag burning, busing, and a balanced budget. The states, quite likely, would have adopted those amendments if they had gotten out of Congress. The amendments may or may not be brilliant, but if three fourths of the states want to add them to the Constitution, it is hard to see why they cannot. That, however, is the nature of our amendment process. The process is so difficult that it is really a trap, wasting time and resources and, ultimately, frustrating those seeking the new amendment.

The big surprise is that the Constitution gives the majority a fourth choice. Previously known only to a few scholars, this fourth choice is a lot easier than the amendment process. Congress, by a simple statute, passed by majority vote, can effectively overturn any Supreme Court ruling. The decision itself, of course, binds the parties forever. The future impact of the case, however, is what people are worried about. Congress, under the Constitution, controls the Court’s jurisdiction, and, if it believes a uniform national rule is not desirable, it can restore it to state authority. Congress could, for example, reenact the Defense of Marriage Act, restricting marriage to men and women, but adding one sentence: "This law is not subject to review by the lower federal courts or the U.S. Supreme Court." The issue would then return to the states, which is where President Bush and John Kerry, at times, have said it should be.

Article III of our Constitution provides that Congress determines the jurisdiction of the federal courts. Congress has the power to establish or abolish all federal courts except the Supreme Court, and the power to abolish includes the power to limit jurisdiction. Congress can also limit the Supreme Court’s jurisdiction to "cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party." The Supreme Court has jurisdiction in all other cases only if Congress grants it by statute. Congress can remove, as it often has, any class of case from the lower federal courts and from the Supreme Court’s appellate jurisdiction. Congress can even, as it did in the Reconstruction McCardle case, remove the Supreme Court’s jurisdiction over a case that has already been argued.

Constitutional litigation would still take place—but in the state courts. The state supreme courts would have the last word. The state courts naturally would consider any prior U.S. Supreme Court decisions with respect. But they would not, according to Article VI of the Constitution, be bound by them. They are bound by the Constitution, not by the decisions of the Supreme Court. Moreover, new cases would always present somewhat different facts and issues than those previously decided by the Supreme Court. Congress could always, if state-court decisions go off the tracks, restore federal court jurisdiction.

Change by the statutory route is straightforward. If the opponents of a Supreme Court ruling can get Congress to enact a law removing federal-court jurisdiction and Supreme Court appellate jurisdiction, they can—by moving future constitutional litigation to the state courts—possibly change the outcome. They have at least changed the forum to one closer to home. If the opponents of a Supreme Court ruling cannot get a law passed to limit the Court’s jurisdiction, they should relax, realize they are a minority, and attempt to persuade others to join them.

All sides should benefit from the availability of a democratic forum for debate. The Supreme Court would benefit, since it could no longer be accused of taking "sides in the culture war." Traditionally, abortion in the United States was a state issue. In 1970, New York, by a close vote, legalized abortion. By 1973, when the Supreme Court intervened in Roe v. Wade, 21 states had repealed or limited their criminal laws against abortion. The democratic progress toward consensus, however, stopped when the Court made the issue legal rather than political. Subsequently, because of the judicial setting, the positions of both sides stiffened into nonresolution. The travail that has followed could have been avoided if both sides had understood that the debate could be shifted from the courts to the Congress. Congress today could restore the issue to the states, which the enemies of Roe—such as the Republican Party—say they want. That raises an interesting question: Since the Republicans have a majority in both houses, and a President ready to sign the act, why do they not do it?

The Antifederalists, in our great 1787-88 constitutional debates, believed that a federal court would slowly, but steadily, enhance the powers of the national government of which it was a part. The other two federal branches, they also believed, having benefitted from the Court’s centralizing rulings, would give the Supreme Court such a free rein that it might, in time, believe itself (in the words of the Antifederalist Brutus) "independent of Heaven itself." That all happened, as predicted.

As time went by, the representative branches discovered a new use for the Court. The hot-button cultural issues—so hazardous to a representative’s reelection—could be shifted to the Court, which did not have to stand for reelection. Political-cultural issues are easily turned into legal issues. By this arrangement of convenience, the Court gains a lot of power as well as celebrity status. Public outrage, to them, is just water off a duck’s back. The shift also worked very well for the representatives who, for practical purposes, are reelected for as long as they want the job. This, however, largely drains the political process of purpose and has brought the country into its present comical situation—where, if a political issue is at all controversial (campaign finance, school vouchers, status of foreigners captured in battle, etc.), the political branches may propose, but the last word, to approve or disapprove, is given by the unelected Court. This is not the constitutional system the Framers created for us.

We do not need to let the Supreme Court decide another issue in the culture war. The Constitution provides an easy, democratic check on the Court. The statutory check, as it becomes better known to the people, can act as a safety valve to relieve pressure on the Court and on society as a whole. The majority, as it begins to understand the fourth choice, can ask their representatives to start deciding hard issues again. Social change in a democracy, after all, should come through the give and take of the political process rather than through the decisions of nine wise people.

William J. Quirk is a professor at the University of South Carolina School of Law.

TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: judicialactivism; scotus
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Still not convinced?

Article III, Section 2 - The Washington Times: Editorials/OP-ED In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

The US Constitution v. rebellious federal judges and cowardly republicans ... As you can see, jurisdiction stripping is far more common and easier to accomplish than amendment or impeachment; and far more effective than hoping for a favorable decree from trained monkey, or his more liberal colleague - a federal judge.

The commentary for Article 3, Section 2, Clause 2 is found in Federalist No. 81

The Federalist #48: "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."

The proposal is consistent with the goals of Free Republic:

is dedicated to reversing the trend of unconstitutional government expansion and is advocating a complete restoration of our constitutional republic. Listed below are some of the issues we feel strongly about.
Basically, we believe that the Founders designed our system of government in the form of a constitutionally limited republic, with maximum freedom intended for the people and minimum government control or interference into our personal lives and business affairs.
The united states of America was intended to be a federation of sovereign states, each with its own constitution and state government. Governments at all levels -- federal, state and local -- were to be controlled by the people. Our Constitution explicitly restricts the power of our federal government; and our Bill of Rights guarantees that NO government may infringe upon our God given unalienable rights. This is to ensure that the real power remains close to home, with the states, the local governments and always in the hands of the people.
We the People have granted our federal government limited powers to oversee certain things, such as national defense, interstate commerce, the postal service, the coining of money, and the operation of a court system. Most other powers now in the hands of the federal government were illegally usurped from the states and from the people.
Somehow, over the years, our guiding principles of law, as set forth in the Constitution, have been eroded to the point that the federal government now has total control -- leaving the states impotent and the people as captive servants to the federal government. This must be reversed if we are to survive as a free Republic and a free people.
We at Free Republic are determined to return the Constitution to its rightful place as the Supreme Law of the land as the Founders intended.
It is not necessary for everyone to hold the same views to be members of Free Republic, however, many of us do share many of the following as common beliefs and goals:
The preservation and complete restoration of our Constitution and Bill of Rights with special emphasis on the first, second, fourth, fifth, sixth, ninth and tenth amendments and, of course, our right to life, liberty and pursuit of happiness -- free of government intervention.

Keep these 4 items foremost in your mind:

  1. The Avalon Project : Federalist No 78 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.
  2. The Avalon Project : Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates
  3. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  4. Amendment X 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.

The federal courts, using an injudicious doctrine known as the 'Incorporation of the 14th Amendment' (Gitlow v. New York (1925) [19] ) , have hyperinflated their jurisdiction beyond the confines of the U.S. Constitution to grotesque proportions. Rather than admit they have no jurisdiction, as Marshall did in Amendment V: Barron v. Baltimore and declare what the Constitution states with regard to a particular case over which they have jurisdicion - federal judges fabricate their own private interpretation from the hubris opined in novel dicta and deviant precedent, from which even greater deviation is justified in subsequent decisions.

For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) and Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997) The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: "Well Doctor, what have we got, a republic or a monarchy?" "A republic if you can keep it" responded Franklin. A Republic, If You Can Keep It

Congress has the CONSTITUTIONAL power! They lack the WILL power, because Will O. DePeoples knows far more about their favoirte sports star, or entertainer than what's in the Constitution.

1 posted on 12/05/2004 12:18:48 PM PST by Ed Current
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Additional reading for the severely challenged:
  1. Daniel Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569 (1990).
  2. Martin Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990); Redish, Constitutional Limitations on Congressional Power to Control Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982).II.
  3. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984).
  4. James McClellan, Congressional Retraction of Federal Court Jurisdiction, 27 Vill. L. Rev. XX (1982); McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 511- 516 (3d ed. 2000).
  5. Charles E. Rice, Congress and the Supreme Court’s Jurisdiction, 27 Vill. L. Rev. 959 (1982); Rice, Withdrawing Jurisdiction from the Federal Courts, 7 Harv. J. L. & PP. 13 (1984).
  6. Ralph A. Rossum, Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court: The Letter and Spirit of the Exceptions Clause, 24 Wm. & Mary L. Rev. 385 (1983).
  7. Julian Valasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. L. Rev. 677 (1997).
  8. William Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973).

2 posted on 12/05/2004 12:30:46 PM PST by Ed Current
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To: Ed Current

WoW, You really did your homework. Great post. It's kinda late, but welcome to Free Republic. :)

3 posted on 12/05/2004 12:31:07 PM PST by NRA2BFree
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To: NRA2BFree

Many thanks.

4 posted on 12/05/2004 12:33:24 PM PST by Ed Current
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To: Ed Current

You betcha! :)

5 posted on 12/05/2004 12:41:03 PM PST by NRA2BFree
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ping to self for later pingout.

6 posted on 12/05/2004 12:53:00 PM PST by little jeremiah (What would happen if everyone decided their own "right and wrong"?)
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To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act.
7 posted on 12/05/2004 1:21:34 PM PST by Ed Current
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To: Ed Current

... uh, wait a minute. Wrong subject.


There. That's better.

And more Constitutional.

8 posted on 12/05/2004 1:39:29 PM PST by Gritty ("Judges will never ursurp the legislature's power if the legislature can punish them-Federalist #81)
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To: Ed Current
9 posted on 12/05/2004 1:47:05 PM PST by CHARLITE
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To: Gritty
Due to the increasing propensity of SCOTUS citing foreign law, GET THE US OUT OF THE UN AND THE UN OUT OF THE US! is very appropriate for this thread.
10 posted on 12/05/2004 1:47:26 PM PST by Ed Current
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To: Ed Current


11 posted on 12/05/2004 4:30:03 PM PST by tuesday afternoon (Everything happens for a reason. - 40 and 43)
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To: Ed Current
This "solution" to the problem of an activist USSC might work in the case of Roe v Wade, but it would fail in the case of homosexual marriage for one reason, the full faith and credit clause of the US Constitution. Congress may be able to muster enough votes to take the matter out of the USSC's jurisdiction and give it to the individual states. But then even if one state fails to enact a ban on same sex marriage the USSC can, and no doubt will, cite the FF&C clause to force every other state to honor same sex marriages performed in that one state.

The only reason that hasn't already happened now that the MASC has forced same sex marriage in that state is that no such case has even begun to work it's way through the courts. But eventually one will unless the Constitution is amended. When that happens, and it will, each and every state will have legally married homosexuals residing throughout the state and enjoying the same benefits as traditional married couples, even though their state constitutions may still define legal marriage as only consisting of one man and one woman.

The only sure way to keep homosexual marriage from spreading throughout the nation is for the people to force Congress to pass a defense of marriage amendment. If that happens the necessary 38 state legislatures will fall all over themselves in their rush to ratify it.

But I do agree with the writer on one critical point, it will be virtually impossible to persuade or coerce the necessary 67 Senators needed for a DOM amendment. IIRC we couldn't even get a bare 51 vote majority for it this year, nevermind the 67 vote supermajority that's required. Frankly, barring a radical change in the Senate makeup at some point I don't see any way for a state to deny to a same sex couple legally married in another state the same status and privileges enjoyed by conventional married couples. By that I mean a Senate makeup that would result in 67 votes for either a DOM amendment or an amendment repealing the FF&C clause. Someone please show me where I'm wrong, PLEASE.

12 posted on 12/05/2004 6:34:03 PM PST by epow
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To: epow
To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Marriage Protection Act of 2004'.


(a) In General- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1632. Limitation on jurisdiction

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.'.

(b) Amendments to the Table of Sections- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:

`1632. Limitation on jurisdiction.'.

Passed the House of Representatives July 22, 2004.



13 posted on 12/05/2004 6:39:35 PM PST by Ed Current
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To: epow
Additionally, President Bush could:

Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law is, 83 Geo. L. J. 373 (1994); Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993). Paulsen also argues for a form of departmentalism, i.e., that each branch of the federal government has co-equal power to interpret the Constitution independently, with no requirement of giving deference to another branch’s interpretation. Specifically, he states that if the Supreme Court renders a decision with which the President disagrees on constitutional grounds, the President is at liberty to refuse to enforce the judgment. G. Charles Warren, The Supreme Court in United States History 470-71 (1923).

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

14 posted on 12/05/2004 6:50:23 PM PST by Ed Current
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To: Ed Current
If I understand Article III section 2 clause 1 correctly, it grants the SC original jurisdiction in all cases "arising under this Constitution and all laws of the United States" According to the judicial revue doctrine established by Marbury v Madison, this clause gives the SC the power to declare laws passed by Congress unconstitutional and unenforcible.

Article IV sec 1 clearly says that all states must honor the public acts, records, and judicial proceedings of every other state. Article III sec 2 clause 2 gives Congress authority to take away the right to appeal a lower court decision to the SC only in cases in which the SC does NOT have original jurisdiction. It seems to me that a case involving the FF&C clause would be one where the SC would have original jurisdiction since it "arises under this Constitution"

I'm not knowledgeable enough about Constitutional law to be able to refute your sources, but personally I can't see any way Congress could take away jurisdiction from the SC in cases involving Article IV sec 2. And if not, then it can't block the SC from hearing an appeal of any case in which someone challenges a state marriage law on FF&C grounds.

I'm probably missing some obscure nuance of the law here but I still don't think the scenario you outlined in your post will work, much as I would like for it to.

15 posted on 12/05/2004 11:22:21 PM PST by epow
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To: epow
Many have been led to believe the BIG LIE which you just stated, and that is why we are in this increasingly intolerable situation.

Think about what you just posted:

Your statement correctly implies that SCOTUS can declare ANY LAW unconstitutional and unenforceable. Again, by implication, that means we are under a judicial oligarchy vs a Constitutional Republic.

Article VI of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land," and it requires that all "judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution. Thus, the Constitution is the governing law and federal judges are required to rule in accordance with it because it is from the Constitution that federal judges derive their authority.

Congress, the President and State officials are also bound by Oath or Affirmation, to support this Constitution and not UNCONSTITUTIONAL OPINION flowing from the federal judiciary, or UNCONSITUTIONAL ACTS flowing from others in government.


Defense of Marriage Act /Public Law No: 104-199, 342-67 & 85-14 w/Clinton signature, signed by Clinton, and agreed to by 342 in the House & 85 in the Senate.
States issuing legal, medical, and firearm (CCW) licenses states can and do claim an interest in putting their laws and requirements ahead of the issuing same in other states. In a case involving a citizen of another state, a state may apply its own laws if there are facts "creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.'' Allstate Insurance Co. v. Hague, 449 U.S. 302, 312-313 (1981)
A state, in its sovereign function, has the authority to regulate the marriage relationship and the power to determine the requisites of a valid marriage contract. SeeZablocki v. Redhail, 434 U.S. 374, 392 (1978) (Stewart, J., concurring) (state legislation that burdens an individual's right to marry is subject to strict scrutiny; states can and may prohibit marriage for such "compelling" reasons as consanguinity, immature age, presence of venereal disease, and prevention of bigamy). Based on this sovereign function, many states have held that they need not issue marriage licenses to same-sex partners.
A marriage valid where contracted will nevertheless not be recognized as valid in the forum state if such recognition would be contrary to a strong public policy of the forum state. Restatement (Second) of Conflict of Laws 283(2) comment f (1971) (marriage valid where contracted will be recognized as valid everywhere unless it violates the strong public policy of another state which has the most significant relationship to the spouses of the marriage); e.g., Fattibene v. Fattibene, 183 Conn. 433, 441 A.2d 3 (1981) (Connecticut need not recognize marriage that violates strong public policy of state); In re Estate of Loughmiller, 229 Kan. 584, 629 P.2d 156 (1981) (listing exceptions to validation statute, including marriage that is polygamous, incestuous, or prohibited by the state for public policy reason); K. v. K., 90 Misc. 2d 183, 393 N.Y.S.2d 534 (Fam. Ct. 1977) (court called upon to decide whether law of Poland, which requires civil ceremony in addition to religious ceremony, was repugnant to law of New York); Kelderhaus v. Kelderhaus, 21 Va. App. 721, 467 S.E.2d 303 (1996) (general statement that marriage's validity is to be determined by law of state where marriage took place, unless result would be repugnant to Virginia public policy).
Second, states have refused to recognize marriages that are solemnized in sister states when the parties are of a level of sanguinity that is forbidden in the forum state.
Third, states have refused to recognize marriages that are solemnized in sister states when the parties are not deemed of sufficient age to marry, as determined in the forum state.

In the summer of 1996, Congress considered and passed the Defense of Marriage act (DOMA) with bipartisan support . Proposed by Republicans, it was endorsed by the Democratic President and a majority of Senators and Representatives of both parties votes for the Act. Yet DOMA is widely misunderstood, reflecting some inaccurate meadia coverage.

DOMA simply establishes that if any state chooses to legalize same-sex marriage, it may not force that radical redefinition of marriage upon other states or upon the federal government over their objection. DOMA simply preserves the right of the other states and of Congress to decide for themselves whether to legalize or recognize same-sex marrige.

Thus, the Defense of Marriage Act might well be called the protection of Federalism in Family Law Act. The main principles underlying DOMA are respect for federalism and for respect for the right of each state to settle the same-sex marriage definition questions for itself.

DOMA contains two operative sections. Section 2 provides that federal full faith and credit rules neither prohibit nor compel any state to recognize same-sex marriage laws, records or judgments from another state. Nothing in Section 2 bars any state from legalizing same-sex marriage or from recognizing same-sex marriages or decrees from another state. Each state is still free to give effect to another state's same-sex mariages if it chooses to do so.Section 2 simply clarifies that the federal full faith and credit rules do not force states to recognize same-sex marriages legalized in another state.

Thus, DOMA adopts a "neutral" position, that federal full faith and credit neither prohibits nor requires any state to recognize same-sex marriage acts, records and judgments from other states. It simply removes the potential federal compulsion (one way or the other) and leaves it up to each state to decide for itself what effect to give to same-sex marriage. The right of each state to decide whether to recognize marriages from other states that violate the public policy of each state is long-established. Both the first and second Restatement of Law, Conflict of Laws explicitly acknowledge that a state is not obligated to recognize marriages from other jurisdictions that violate its strong public policy.

Congress clearly has the power to enact legislation defining the full faith and credit effect of states' laws, records and judgments. The very language of the Full Faith and credit Clause of the Constitution (Article IV, §1) explicitly provides that "Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." The Supreme Court has repeatedly acknowledged Congress' constitutional authority to establish full faith and credit rules.

Section 3 of DOMA provides that for purpose of interpreting federal law, "the word 'marriage' means only a legal union between one man and one woman as husband and wife..." This defines what the term "marriage" means when used in federal law (such as federal income tax law and federal social security laws) only. The definition of such terms is a routine function of any legal system..

The definition of marriage in section 3 is not imposed upon any state law. DOMA says only that if a state chooses to legalize same-sex marriage within its own jurisdiction, that will not force the federal government to use that radical redefinition of marriage in federal programs and federal laws. Section 3 does not interfere with the ability of the states to define and regulate marriage for themselves. Nor does it deprive Congress of the ability to define marriage some other way if it were to decide that for some particular program that same-sex unions should be treated as marriages. However, DOMA accurately clarifies the fact that Congress has never intended to include homosexual unions when extending federal benefits to "marriages."

DOMA responds to a very serious threat to the ability of states to decide from themselves whether to recognize same-sex marriages. Efforts to legalize same-sex marriages are very far advanced. In Hawaii, a bill to extend marriage rights. to same-sex couples passed the Hawaii Senate earlier this year, and the Baehr case in which same-sex couples are seeking to judicially legalize same-sex marriage is scheduled for trial in Honolulu in September. If Hawaii or any other state legalizes same-sex marriage, hundreds of same-sex couples are expected to immediately go there, get "married, and then return home and demand that their homes state and federal benefit programs recognize their "marriages". Gay and lesbian advocates vigorously assert that federal Full Faith and Credit principles would force all states to recognize same-sex marriages.

In the past year and a half, at least fifteen states have enacted laws declaring that they will not recognize same-sex marriages. Gay and lesbian advocates are seeking to override those state laws by the manipulation of federal full faith and credit law. DOMA checks that tactic and protects each state's right to resolve the homosexual marriage issue for itself.


Professor Lynn Dennis Wardle joined the faculty of law at Brigham Young University in 1978 and has taught family law, biomedical law, conflict of laws, and other subjects ever since. He received his B.A. from B.Y.U. in 1971 and J.D. from Duke University School of Law in 1974, having served on both the Duke law Journal (editor and staff) and the Moot court board. He clerked for Judge John J. Sirica, U.S. District Court for the District of Columbia, from May 1974 to September 1975, then practiced law with Streich, Lang, Weeks & Cardon in Phoenix, Arizona until July 1978. He was a Visiting Professor at Howard University School of Law (Washington, D.C., 1990-91), a Scholar-in-Residence at U.S. Department of Justice, Civil Division (Washington, D.C.,1989-1990) a Visiting Professor at Sophia University, Tokyo, Japan, 1988 summer), and a Visiting Research Fellow at the University of Aberdeen (Scotland 1985 summer). Professor Wardle currently is the Secretary-General of the International Society of Family Law ( an international learned society), a member of the American Law Institute, and has served in other professional and public interest oranization. He is the lead editor and coauthor of a four-volume treatise, Contemporary Family Law (1988), the sole or lead author of two other law books, twenty-five law review articles or chapters in law books. and author of more than a dozen other scholarly and professional publications. His current research and writing pertains to same-sex marriage and marriage recognition issues, and other family law, biomedical law, and conflicts law topics. He is an Honorary Trustee of the National Lawyers Association.

Supreme Court Chief Justice John Marshall, Jan. 23, 1804 Less than one year after Marbury v. Madison decision:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing to his fault."-

While it is "''emphatically the province and duty of the judicial department to say what the law is,'"' certainly the same can be said of Congress and the President. All three branches say what the law is. The Court states what the law is on the day a decision comes down; the law may change later by actions taken by the elected branches. I will give a number of prominent examples of this institutional interplay.

In 1803, Marshall did not think he was powerful enough to give orders to Congress and the President. After the elections of 1800, with the Jeffersonians in control of Congress and the Presidency, the Federalist Court was in no position to dictate to the other branches. Marshall realized that he could not uphold the constitutionality of Section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshall believed that the Court was supreme on matters of constitutional interpretation.

This conclusion is borne out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it turned its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.

The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he played a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judiciary functioned as a yea-saying, not a negative, branch. Congress, the Court, and the Constitution

Federalist No. 81 ``The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.


The Marriage Protection Act addresses that possibility by removing the Supreme Court’s appellate jurisdiction, as well as inferior federal courts’ original and appellate jurisdiction, over DOMA’s full faith and credit provision. It also removes appellate jurisdiction from the Supreme Court and inferior federal courts over DOMA’s marriage definition.
This is the sort of legislative check the Founders intended. Article I, Section 8 and Article III, Sections 1 and 2 of the Constitution grant Congress the authority to establish inferior federal courts, determine their jurisdiction and make exceptions to the Supreme Court’s appellate jurisdiction. By implementing this legislative power we can preserve each state’s traditional right to determine its own marriage policies without federal court interference. (For instance, a state of appeals court in Arizona last week upheld that state’s DOMA law.)

This would leave the state legislatures free to enact (or, in most cases, re-enact) laws on those matters reflecting the moral consensus of their constituents. This would leave the well-funded leftist network of legal agitators — the ACLU, et al. — without effective recourse, since they would have no access to their longtime allies in the federal judiciary. Rather than use the judicial system as a detour around representative government, the cultural left would have to contend, on equal terms, in state legislatures.

The three branches of federal government are coordinate and coequal in their understanding of the U.S. Constitution.

The U.S. Constitution plainly states that the three branches of federal government are anything BUT co-equal in power.

Congress can remove the President & any federal judge.

Congress can abolish all lower federal courts and modify the U.S. Supreme Court's appelate jurisdiction.

Congress controls the money.

The President is the enforcement branch and doesn't have to enforce anything that he believes is unconstitutional, or sign bills he thinks shouldn't become law; requiring significant supermajorities to override his veto.

SCOTUS can only bind the parties to the particular case on which it rules and even needs the executive to enforce it.

ALL the above are UNDER a WRITTEN constitution that SCOTUS & the President play no part in amending - for ONLY Congress and the Soverign States share that decision of tremendous import.

The only decision that voters have before them, is to live in a UNITED STATE ruled by unelected federal judges, or the former Constitutional Republic known as the United States.

16 posted on 12/06/2004 6:22:12 AM PST by Ed Current
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To: Ed Current
Obviously you have put a lot of time and effort into studying this issue. If you think there is any chance that Congress will defy the SC on the homosexual marriage issue I certainly hope you're right, but I don't have much hope that Congress will do that unless and until the public forces it to.

I expect that when the SC eventually decides that the FF&C clause requires all states to honor MA same sex marriages either one of two things will happen. Perhaps public outrage will finally force Congress to get serious enough to do whatever it takes to override the decision. Or more likely IMHO, a majority of the people will just accept the SC decision, and married homosexual couples will eventually become common in most states. I can truthfully say that I hope you're right and I'm wrong.

17 posted on 12/06/2004 9:43:22 AM PST by epow
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To: MHGinTN; Coleus; nickcarraway; narses; Mr. Silverback; Canticle_of_Deborah; ...
Pro-Life & Family PING

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

18 posted on 12/07/2004 8:28:04 PM PST by (The Missing Key of The Pro-Life Movement is at
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To: Ed Current

The Congress can only regulate the appellate jurisdiction of the Court. At least those are the plain words of the Constitution. It says nothing about regulating the original jurisdiction of other, inferior courts.

19 posted on 12/07/2004 8:43:44 PM PST by edsheppa
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To: Ed Current

Perhaps I am wrong, but I would guess many new law students draw this same conclusion during their 1L constitutional law class.

I did, and thne promptly dropped the idea presuming it out of the realm of possibility, despite the simplicity of it all.

What is sad is that the SCOTUS would likely try to "interpret" this portion of the COnstitution out of existence (some penumbra written in the founders invisible ink that only liberal justices can see, dontchaknow).

20 posted on 12/07/2004 9:21:26 PM PST by Notwithstanding
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