Dispatches from the Creation Wars

Congress Shreds the Constitution

If there is one thing our Congress does better than any other deliberative body, it is their unmatched ability to come up with names for bills that cause one to spit their coffee out and drop their jaw in amazement upon hearing them. On the heels of the USA PATRIOT (Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism) Act comes the astonishingly named Constitution Restoration Act of 2004, sponsored by Sen. Richard Shelby and Rep. Robert Aderholt of Alabama. Jack Balkin of Yale Law School has an essay analyzing the act section by section and pointing out that every single one of them is unconstitutional. In short, the act would strip the courts of their jurisdiction to hear any cases involving the establishment clause and any act at any level that involves “acknowledgement of God as the sovereign source of law, liberty, or government.” It would also prohibit the court from looking at any legal precedent of any other nation – except “English common law”. And it would impeach any judge that violated the provisions of the bill. Balkin writes of the act’s main provision:

Although Congress has the power to change the Court’s appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge “God as the sovereign source of law, liberty or government” are shielded from judicial review, while actions which specifically (deny) “God as the sovereign source of law, liberty or government” may be reviewed under the Establishment Clause. Since both types of acts may in theory violate the Establishment Clause, the jurisdictional bar is based on the content of the government official’s viewpoint. This would be akin to Congress denying review of cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining review in cases where government officials punish someone for supporting the war, which would also be an unconstitutional withdrawal of jurisdiction.

The second provision, prohibiting judges from “relying upon” any precedent from any other country, is equally unconstutional, as well as entirely unnecessary. This is no doubt a reaction to the citing of precedent in other nations in Lawrence v Texas last year, but even there the judges did not “rely upon” those precedents, they merely mentioned them as background. The basis of the decision was solidly in US law and precedent and the decision makes a clear distinction. This is little more than a kneejerk xenophobic reaction.

Balkin concludes with this:

I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill’s sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.

Here, here. This is nothing more than pandering and hypocrisy on the part of Congress in an election year. After years of listening to conservatives piss and moan about liberals and their “outcome-based legal reasoning” (they like to claim that liberals only care about “social engineering” and therefore find any basis to reach a judicial decision that leads to the result they desire), we finally see in perfect relief the utter hypocrisy of that claim. They have no problem shredding the constitution when it leads to the desired result, whether that result is scoring political points with their constituents or banning gay marriage. Only the outcome counts, and whatever means gets them to that end is just fine with them.


  1. #1 Flatlander100
    February 24, 2004

    TY for the pointer to the Balkin essay. Will be useful dealing with student questions about the bill when it starts to get more press coverage. And it will. And I will get questions. TY again.


  2. #2 Ed Brayton
    February 24, 2004

    Glad you found the page, flatlander. Nice to see you. I figured there are a lot of things here you’d enjoy reading. What do you teach again?

  3. #3 flatlander100
    February 24, 2004

    American History. Major field was American Revolution and I taught that for both grad and undergrads for decades. Semi-retired now I teach survey US History to freshmen as an adjunct at Weber State University in Ogden, Utah. Just back from voting in the all important Utah Democratic Primary which, no doubt, CBS, NBC, CNN and FOX will cover live from eight pm MST on until the issue is decided…. Flat

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