Dispatches from the Creation Wars

The Danger of Legislative Activism

Posted by Ed Brayton on November 28, 2004
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Having tired of hearing all of the mindless blathering about “judicial activism”, the right wing catchphrase that means “judges refusing to allow us to do whatever we want to other people”, I hereby propose a new phrase: legislative activism. In response to unpopular court opinions, particularly the Lawrence decision that overturned state sodomy laws and the Massachusetts decision instituting gay marriage, we are witnessing an all out assault on the idea of an independent judiciary. There are now six separate bills in Congress that would strip the courts of their jurisdiction to hear certain types of cases, and the religious right, basking in what they view as the glory of their victory in the Presidential election, want to reach for even more. Look at this report by George McEvoy on a meeting between key legislators and the Christian Coalition:

Reportedly, such leaders as the Rev. Jerry Falwell and Republican Rep. John Hostettler of Indiana, flush with what they see as a successful right-wing revolution, believe they can make the federal courts virtually powerless.

Rep. Hostettler, addressing a special legislative briefing of the Christian Coalition last month in Washington, reportedly talked at length about a bill he plans to introduce. It would deny federal courts the right to hear cases challenging the Defense of Marriage Act, which bans same-sex marriage.

“Congress controls the federal judiciary,” Rep. Hostettler was quoted as saying. “If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have limited power to enforce their decision.”

Apparently, the Hoosier congressman has not heard of the balance of power among the three arms of our government. He was quoted as telling the Christian Coalition members:

“When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy… The court can opine, decide, talk about, sing, whatever it wants to do. We’re not saying they can’t do that. At the end of the day, we’re saying the court can’t enforce its opinions.”

Another congressman, Alabama Republican Robert Aderholdt, was quoted as advocating court stripping as a means to protect state-sponsored Ten Commandment displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore.

And then there was Sheila Cole, executive director of the Republican Study Committee, a group of ultra-conservative House members. She said federal judges who refuse to listen to Congress might well be impeached.

This is an extraordinarily dangerous idea. With all of the talk of “judicial activism” and how it “thwarts the will of the people”, why does no one ever speak of legislative activism thwarting the intent of the Constitution? I submit that the latter is far more dangerous than the second, and history bears that out. Madison spoke often of the tyranny of the majority, and indeed it must be said that in a nation where political power lies in the ability of a majority to elect representatives that will vote their interests and goals, the limitations on the power of government found in the Bill of Rights are, by definition, limitations upon the power of majorities to impose their will on others. The courts, having the authority to enforce the limitations found in the Bill of Rights, are our last and strongest bulwark against the very sort of governmental overreach that the founders sought to avoid.

Additionally, as I and many others have noted before, the idea that Congress can strip the courts of jurisdiction whenever they feel like it is constitutionally dubious at best. Jason Kuznicki has addressed this question, as have Timothy Sandefur and Sasha Volokh. Sandefur points out that, at the very least, Congress cannot strip the Supreme Court of their original jurisdiction found in the Constitution, which means any case to which a state is a party. There are only two minor cases in American history, neither of them answering the central question of when and how Congress may make exceptions to judicial review.

So what happens if Congress passes a law stripping the courts of jurisdiction in some type of cases and the Supreme Court overturns that legislation as unconstitutional? Well, then we have a constitutional crisis on our hands. And all so the religious right can score some points with their halfwit followers by standing up to those Godless pagan judges. In earlier times, I might have said that this is overblown, that cooler heads will prevail. But these days, watching the religious right’s eager and voracious grab for power, what was previously unthinkable is now quite possible. They will stop at nothing to get their way, it seems, and the Constitution be damned. Americans United sum it up nicely:

These misguided and dangerous court-stripping bills are of dubious constitutionality, raising serious concerns about the violation of separation-of-powers, equal protection and due process principles. By threatening to eviscerate the courts, these bills are also bad policy–they undermine public confidence in the federal courts by expressing hostility toward them, threaten the legitimacy of future congressional action by removing the federal courts as a neutral arbiter, and reject the unifying function of the federal judiciary by denying federal courts the opportunity to interpret the law. These bills are an attack on our very system of government, and must be opposed.

Spot on. This is an extraordinarily dangerous time in American history, folks, and these legislative activists must be stopped before we have a full blown constitutional crisis on our hands.

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  1. #1 Jim Anderson
    November 28, 2004

    “When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy… The court can opine, decide, talk about, sing, whatever it wants to do. We’re not saying they can’t do that. At the end of the day, we’re saying the court can’t enforce its opinions.”

    Hmm… the rule of law is invalid without the implied threat of violence? I thought such sentiments were confined to anarchic moral nihilists–and that moral nihilism is the exclusive province of the Liberal Left.

  2. #2 Jason Kuznicki
    November 28, 2004

    This is precisely what makes Andrew Jackson the worst president we have ever had: He openly defied the courts, merely because the courts had no army or navy–and he did it for Indian removal, the most shameful and openly genocidal policy that we have ever had.

    I hope the fundamentalists like the company they are keeping.

  3. #3 flatlander100
    November 28, 2004

    Periodically here in the Great State of Zion [aka Utah], a citizen outraged by some federal court action — blocking construction of a highway because the state ignored filing the legally required environmental impact statements, or telling a mayor that the Ten Commandments monument in the city park can stay there only if other faiths are permitted to erect similar monuments there under the same terms and conditions [something about "equal protection of the laws" apparently]— will take to the public prints demanding the courts be reined in, the offending judges impeached or strung up [which ever is faster] and denouncing the litigeousness of Liberals, tree-huggers, the ACLU, and their ilk. Sentiments not at all unlike those quoted in your posting.
    On those rare occasions when I am moved to reply, I like to point out that in the US we settle differences over the meaning of statutes and the Constitution by lawsuit. In a depressing number of places in the world, they settle such differences by apealing to AK-47s and car bombs. I like our way better.
    The worthy Congresspersons you have quoted seem not to understand that. And that IS scarey.

  4. #4 raj
    November 29, 2004

    The courts, having the authority to enforce the limitations found in the Bill of Rights, are our last and strongest bulwark against the very sort of governmental overreach that the founders sought to avoid.

    Given that the BoR–and the 14th amendment and, for that matter, all other amendments–were ratified subsequent to the ratification of the rump Constitution (that is, the constitution prior to being amended), it seems fairly evident that any attempt to strip the federal courts of the jurisdiction to hear matters under those amendments would be unconstitutional. For example, if congress passes a law that purports to strip the federal courts of jurisdiction to hear cases involving the 10 commandments, that law is itself a law “respecting an establishment of religion,” which the 1st amendment expressly forbids congress to enact. Since the 1st amendment was ratified subsequent to ratification of the rump constitution, it takes precedence over anything in the rump constitution, including congress’s Article III power to control the federal courts’ jurisdiction.

  5. #5 Dan
    November 29, 2004

    [T]hese legislative activists must be stopped before we have a full blown constitutional crisis on our hands.

    I’m afraid that stopping the legislative activists may be easier said than done. The issues raised here go to the very heart of our structure of government and the federal system it contemplates. There are no easy answers because no system of laws is perfect. Our Constitution has gaps that have yet to be filled, and we should hope that we never have to fill some of them.

    I’m tempted agree with raj that “it seems fairly evident that any attempt to strip the federal courts of the jurisdiction to hear matters under [the amendments to the Constitution] would be unconstitutional.” In the end we may arrive at the same place, but I’m not sure we get there for the same reasons. At the very least, the Constitution’s text creates some sticky problems. Article III, Section 1 vests “[t]he judicial Power of the United States…in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That judicial power, in turn, “shall extend to all Cases, in Law and Equity, arising under this Constitution” and the “Laws of the United States… .” Article III, Section 2, cl. 1. So far, so good. The judicial power of the United States extends to what we sometimes refer to today as federal questions — those arising under the United States Constitution and laws.

    But the next clause of Article III, Section 2 then takes up the issue of jurisdiction, the authority to exercise the power. Here, things get troublesome: the Constitution appears to relegate federal question jurisdiction to the appellate jurisdiction of the Supreme Court. That appellate jurisdiction is subject to “such Exceptions…and Regulations as the Congress shall make.” Article III, Section 2, cl. 2. Federal question jurisdiction is not within the Supreme Court’s original jurisdiction unless one reads into that jurisdiction the judicial power described in Article III, Section 1. Such a reading has some support. Justice Story reached this conclusion in Martin v. Hunter’s Lessee, and Professors Akhil Amar and Jack Balkin, among others, have argued for this result, though sometimes for different reasons.

    When all is said and done, I tend to side with those who conclude that our federal structure requires some Article III court to have both the power and the jurisdiction to resolve federal questions. What happens when Congress passes a law but purports to remove from any federal court the jurisdiction, whether original or appellate, to decide upon the law’s constitutionality? Must we be content with as many as 50 different state court interpretations? This could lead to just the sort of constitutional crisis we fear. Without an Article III court to resolve conflicting interpretations, the system breaks down. I realize that to a strict textualist this conclusion may be unacceptable. It is, to my thinking, the best way to fill one of those constitutional gaps.

    Up to this point, our leaders have (usually) had the wisdom and the good sense to avoid creating constitutional showdowns. Those in control of Congress would be wise to heed the lessons of history. When FDR proposed to pack the Court for blatantly political reasons, public backlash was swift and vocal. It seems that the public trusts judges more than it tends to trust politicians. An effort to curb the power of the judiciary for similar gain today should be met with the same sort of outcry. I say “should” because I’m not sure that it would be. And perhaps the politicians have learned a different lesson of history — when you want to grab political power, the first thing you do is get rid of the judges.

    An extraordinarily dangerous time, indeed.

  6. #6 raj
    November 30, 2004

    I certainly am not going to disagree with Dan’s comment, but I just want to point out that, in some cases, it might be more straightforward for the federal courts to overturn limitations on jurisdiction based on amendments that were ratified subsequent to the ratification of the “rump” Constitution. He and I would certainly end up at the same place in connection with those cases. That would not solve the problem, though, with other cases, and in those cases it may be necessary to resort to his more esoteric arguments. But, for cases that can be resolved with resort to the amendments, why not use them? We do so in cases regarding the 11th amendment.

    I haven’t done more than a cursory examination of the relevant Federal Papers, and even that was done a few years ago. It is unfortunate that there wasn’t more in the FPs regarding this. Quite frankly, from a textual standpoint, it is quite possible that the Art. III limitation was to be nothing more than an indication that Congress could determine what standard of review was to be used in connection with findings of fact and conclusions of law–whether the clearly erroneous standard was to be used, or whether the appellate court could review lower courts’ findings and conclusions de novo. It is fairly clear, reviewing the FPs relating to the “judiciary department” (FP78 and above) that the federal court system was based on the British model, but I have no idea what the British standard was on these issues.