We the People Act(HR 3893 IH)March 4, 2004 To limit the jurisdiction of the Federal courts, and for other purposes. Mr. PAUL (for himself and Mr. BARTLETT of Maryland) introduced the bill in the 108th Congress and needs to be introduced in the 109th Congress.

Sunday, December 5

The Fourth Choice: Ending the Reign of Activist Judges

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.

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 process is so difficult that it is really a trap, wasting time and resources and, ultimately, frustrating those seeking the new amendment.


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.

William J. Quirk is a professor at the University of South Carolina School of Law. The Fourth Choice: Ending the Reign of Activist Judges - Chronicles - June 2004

Article III, Section 2 - The Washington Times: Editorials/OP-ED , October 6, 2003
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.

Comments:
The following generally agree:

Daniel Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569 (1990).

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.

Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984).

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).


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).

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).

Julian Valasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. L. Rev. 677 (1997).

William Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973).
 
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