The Power of Congress to Curb the Courts

In recent decades there have been many proposals for amending the Constitution in an attempt to overturn federal and Supreme Court decisions. All of these efforts have failed to gain the necessary support. Moreover, the amendment process is not the proper route to correct a problem with perceived judicial abuse of interpretation when the Constitution itself is not at fault.

However, a much more effective, but little know process is immediately at hand. We are referring to the clause found in Article III, Section 2, providentially written as follows: “...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.”

It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation, and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.

So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction.1 This view was confirmed again by Chief Justice John Marshall in 18052 and has been affirmed by all Supreme Court justices who have commented on the subject.

The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people through Congress. Lower court cases find their way to the Supreme Court by the appeal process. Cases generating objectionable decisions — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court.

Among landmark cases presumably corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.

A good question arises: If Congress acts to restrain the Supreme Court, what can it do to restrain the federal district courts? For certain, many of the lower courts have exceeded their authority to interpret the law. But control of the two court systems entails two different legal routes:

The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.

Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws. Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws. Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate or ask permission to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.

How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound. A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.

A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”

Significantly, this Concurrent Resolution would accomplish the intended purpose while safely circumventing the desk of the president.

The simplicity of this route, and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.

Okay, that should curb the Court’s passion for new decisions that distort the Constitution, but what about its past decisions? How can Congress nullify the existing immoral burdens imposed by former Supreme Courts? How for example does Congress, if so inclined, reverse Roe v. Wade and Lawrence v. Texas?

There is no instant route. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried. Unfair? Yes, but the second time around the lawyers fighting the abuse of original intent will have a slight advantage, which will include the same files, proven arguments, decent-thinking judges, and local juries. Under these circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts.

1 In Wiscart v. Daushy (1796) Chief Justice Oliver Ellsworth said, “Even [the court’s] appellate jurisdiction is qualified inasmuch as it is given ‘with such exceptions, and under such regulations, as Congress shall make.’ ... If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” Ellsworth’s opinion is especially weighty, as he had been a delegate to the Federal Convention and had served on the very Committee of Detail that had drafted the Exceptions Clause.

2 John Marshall was a delegate to the Virginia convention that ratified the Constitution. During the debates he said, “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature [Congress] may think proper for the interest and liberty of the people.” Later, as Chief Justice of the United States, he reaffirmed that view. In United States v. More (1805) he said, “As the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its power must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described.” In Durousseau v. United States (1810) Marshall said, “When the first legislature of the union [Congress] proceeded to carry the third article into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court.”

Liberty, under the Founders' Constitution, as others have stated, depends upon a virtuous and knowledgeable citizenry.

John Adams stated:"The foundation of every government is some principle or passion in the minds of the People."

The Founders' principle was LIBERTY. The virtue among the people often referenced by the Founders was linked to this love of liberty referenced by John Jay, the first Chief Justice of the Supreme Court:

"Let virtue, honor, the love of liberty . . . be the soul of this constitution, and it will become he source of great and extensive happiness to this and future generations. Vice, ignorance and want of vigilance, will be the only enemies able to destroy it."(Quoted in "Our Ageless Constitution" Essay entitled, "Virtue Among the People" available here

Rediscovering and understanding the principles which made the American Constitution a protection for liberty may be the most important task of our day, and time is running out. The "enemies" already have censored these principles from the nation's textbooks and much of our public discourse.

If every person on this thread and every person involved in the TEA Party movement would commit himself/herself to understanding and then sharing the ideas of liberty with at least 3 people, what a difference that might make!

Levin's "Liberty and Tyranny," Schweikart's "A Patriot's History of the U. S.," and Stedman and Lewis's "Our Ageless Constitution" lay out these principles in easy-to-understand language and are an excellent means by which our own "dumbed-down" generations can be exposed to the truly revolutionary principles by which our liberty was obtained.

It's important to note that since the Constitution is the Supreme Law of the Land, the Court has no authority to uphold unconstitutional acts; any decision claiming to do so is void. Further, preventing the court from hearing cases dealing with an unconstitutional act would not make the act in question constitutional.

The court is given the task of examining whether particular acts are constitutional because, if an act is unconstitutional, it would be better to have the matter decided by courts than by an armed citizenry. Nonetheless, if the court refuses or is prevented from doing its duty, other less-pleasant avenues may remain open.

In reviewing some old files today, I came across these words from James Madison and remembered this thread. His observations, I believe, are pertinent to this discussion:

"However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

"The truth declared in the resolution being established, the expediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."

The Constitution does not provide that Supreme Court rulings are the Supreme Law of the Land, nor does it require anyone to swear allegiance to the Supreme Court of the United States. Rather, the Constitution is the Supreme Law of the Land, and certain people are required to swear fealty to it.

If the Supreme Court issues a decision which would seem like it's probably inconsistent with the Constitution, but which might plausibly be correct, it's usually better for everyone to agree to go along with the imperfect decision than to have people disagree about whether it's legitimate. On the other hand, if the Supreme Court issues a decision which clearly contradicts the Constitution, it is the right and duty of every citizen to recognize such decision as illegitimate.

Wow! A mere citizen of today to "interpret" the wisdom of James Madison?

Surely, you jest. There were some nuggets contained in these paragraphs, however, which seemed to be of special interest this year.

Selected sentences will appear below in a numbered list, not in the order they appeared.

1. "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present." Our current Administration and Congress need to be reminded of these "truths." Elsewhere, in his Remonstrance, Madison declared, "Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe."

With these statements, he affirms the unique American idea, that the people/government relationship is Creator - People - Government. Other people/government arrangements make it Government - People, with no acknowledgement of the role of the Creator.

2. "It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable . . . ." This, too, seems to be important for today, as it calls us to "principles," as the basis and safeguard of our liberty.

3. The very first sentence in the first paragraph, it seems, deals with a question which our current Administration doesn't seem to "get," as evidenced by the SOTU reprimand of the Court. Separation of powers, and the authority of the Constitution over all of those powers, was and is a critical principle to the preservation of liberty.

Don't know, but when I came across this file, it just seemed to address so many pertinent points, as well as the original post here with regard to the "last resort."

My apologies for my post yesterday, which was intended to be in response to yours, but I clicked on my own post instead. Please refer to my attempt to respond, however.

One other note: I failed to provide a citation for the Madison statements. It is:

"James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 6. Chapter: REPORT ON THE RESOLUTIONS. 1" - to be found: here.

Other later paragraphs within this same document may be significant in light of some of the recent actions emanating from Washington.

The warnings contained in this REPORT ON THE RESOLUTIONS.1 House of Delegates, Session of 1799-1800 (Virginia) should be read by citizens who, today, see the threats to liberty of unconstitutional combinations of power in government.

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