JURISDICTION-STRIPPING? FINE BY ME
The debate over the jurisdiction-stripping bill passed by the House last week (H.R.3313), is actually three debates: first, a debate over the meaning of marriage, second, a professional debate over the constitutionality of jurisdiction-stripping measures in general, and, third, a debate over the relative powers of Congress and the courts.
1) Marriage. Most Republicans seem to want marriage to be defined as the "union of one man and one woman," and most Republicans also want this to be an invariable definition embedded in national rules -- localized consent to alternate understandings are not permissible, on this view. (There may be some exceptions among Republicans, but they haven't been talking a lot recently.)
My view is that Republicans are wrong on this score. Marriage does not require a uniform rule, and same-sex partners should be allowed to marry. And it will eventually happen.
2) The professional debate is nicely summarized by an outline provided by Eugene Volokh. For an eloquent explanation of "VI. Major Theory #2: Dissenting View -- Mandatory Federal Jurisdiction Theory," see Josh Chafetz's posts here and here.
I don't really have an opinion on the professional controversy as such, for reasons that should be obvious from what I write below. One response to Josh's point about the Eleventh Amendment (which he knows more about than I) is that the existence of a constitutional amendment is not necessarily a judgment on the constitutionality of an identical statute. It's at least possible that the appeal to an amendment process is an attempt to enforce a rule that members of Congress, say, believe is constitutional, but that a recalcitrant and overreaching judiciary might declare unconstitutional. It's an empirical (or historical) question whether or not the Eleventh Amendment fits that category, though.
3) But the professional debate doesn't really matter all that much, at least in the following respect. Jurisdiction-stripping bills should be celebrated as an attempt by members of Congress to engage in substantive constitutional lawmaking. Jurisdiction-stripping is an attempt by Congress to claim more authority over certain areas of legislation. It shouldn’t trouble Congress all that much whether or not the professional legal culture produces more and better arguments that say that such actions are unconstitutional.
Contrast this action with, for example, congressional and executive punting on the question of campaign finance reform. By this I mean: congress passed a big listing steamship of a law and forced a court to take a look at it right away; President Bush signed the law and many Republicans voted for it even though they believed it was unconstitutional; they probably hoped that a free-speech friendly Supreme Court would invalidate it, and they didn't want to spend too much political capital on defending the role of money in politics. Ask yourself: is it better, in general, for Congress to claim responsibility or to abdicate it?
On a more mundane level, imagine a world in which there was a definitive and authoritative resolution – in the negative -- to the question of the constitutionality of jurisdiction-stripping (not that hard to imagine from this Court, at least). Congress would be deprived of one of its very few powers to signal courts that they are treading on dangerous ground.
Perhaps the loss of the jurisdiction-stripping threat wouldn't matter all that much. After all, if members of Congress are really serious about something, they can tinker with judicial administration, vote to impeach offending judges, and go public with their concerns. But in the current institutional environment, Congress probably needs all the help it can get.*
Right now, it is pretty uncontroversial to say that jurisdiction-stripping is "irresponsible [,] reckless and unconstitutional". I'm not so sure that any of these descriptions are correct, and it seems to me that the really interesting puzzle
It probably results from such high-school civics tropes as the division of labor theory of constitutionality: Congress passes laws, the President signs them (and implements them), and the Court determines whether or not they are constitutional. Professional legal opinion also helps out here, as does the experience of the Warren Court (for folks on the left) and the Rehnquist Court (for folks on the right).
One might also add that belief in the interpretive superiority of courts could be an unintended consequence of Reaganite government-bashing. For Reaganites, "government" can't be trusted to make good decisions, but courts can somehow be above the political fray, as long as judges possess the requisite virtues (which, amazingly enough, Republicans are better able than Democrats to perceive in judicial candidates). It's a nice, self-reinforcing argument. For folks on the left, the Republican takeover of Congress in 1994 probably didn't do much to sustain their faith in Congress as a constitutional interpreter. H.R. 3313 doesn't help much, either.
Nonetheless, Democrats shouldn't be too harsh in their criticism of jurisdiction-stripping as such. When they're in charge of Congress again, their time will come as well. It probably won't be too long, either.
For more on the debate, see Will Baude here, and see a nice post by Larry Sullivan on an earlier jurisdiction-stripping proposal, here.
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*MORE: I say these even though, as I've noted before, I think that one shouldn't overstate the extent to which the Supreme Court is more powerful than Congress. Republican court-bashing often proceeds from faulty empirical assumptions that actually rest on claims of judicial supremacy. There are always lots of ways to respond to court rulings, and other actors need only to avail themselves of those options.
MORE, AGAIN: Thomas Nephew has some additional thoughts here, and he points to a brilliant Fafblog post that comes to different conclusions than I do here. And Fafblog is a lot funnier than I am. Go read Fafblog. I think that Thomas and Fafblog are wrong, though, to say or imply that jurisdiction-stripping is an end run around the amendment process. The nice thing about jurisdiction stripping is that it is, in fact, ordinary legislation that can be repealed by Congress. Congress doesn't repeal many laws, to be sure, and one shouldn't overstate the ease with which it does so (but going eastward on Capitol Hill, neither should one overestimate the staying power of Supreme Court decisions). It's an extraordinary power, one that is not likely to be used all that often, and its effectiveness both as a threat and as a legislative device is already clouded by doubts about its constitutionality. Obviously I want to think through this some more, but as I note above, to the extent that jurisdiction-stripping forces Congress to take responsibility for the development of constitutional norms, it should be celebrated, even if this particular instance is a bad idea for policy reasons. The question is, what would be the effect of jurisdiction-stripping as a legislative device over the long term and used by both political parties for ends that you find alternately good and bad?
9 Comments:
Very interesting. A quibble: it seems inaccurate to me to say you "don't have an opinion on the professional controversy as such": you say that if jurisdiction-stripping is found unconstitutional, "Congress would be deprived of one of its very few powers to signal courts that they are treading on dangerous ground." But if it's an unconstitutional "power," then they never had it, they just tried to claim it. To me, it seems like barbarians at the gates, trying to take something that's not theirs.
It seems to me either you welcome this end run on the amendment process, or you don't. Because you make an interesting case for legitimizing and welcoming it, and you've studied these issues much longer than I have, I see that there's more to the issue than I initially thought. Yet I suppose I still instinctively prefer more channeled, purposely difficult ways to amend our political process. But I should figure out whether my instincts are wrong.
(PS: I mention and briefly respond to your post here.)
I think that there is a distinction between the (narrowly) professional discussion of whether jurisdiction-stripping is constitutional, and a broader set of arguments about whether jurisdiction-stripping is constitutional. Perhaps it's too fine of a point, but I mean to emphasize the separation between constitutional meanings and the professional discourse that goes on in law schools.
The question is, what would be the effect of jurisdiction-stripping as a legislative device over the long term and used by both political parties for ends that you find alternately good and bad? Well, at least two ill-effect scenarios occur to me, both concerning "tyranny of the majority." Both may run the risk of restating the obvious, but here goes anyway:
1) you have a bolshevik-style and/or 50.5%-style majority that intends to ensconce itself +/- permanently. They pass jurisdiction-stripping laws to prevent legal challenges to some strategy they've come up with, like, say, continuous redistricting or unchallenged purges of registered voters.
2) you have a consensus across the major parties that is nonetheless (at least arguably) disrespectful of/injurious to the rights of an unrepresented minority -- eg, DOMA. Jurisdiction-stripping helps preserve that, if not in amber, then in tar; the only way out is then to force one side or the other or a third party to own a controversial side to an issue many-to-most of its constitutents don't care about or disagree with.
That is, to my mind, "judicial review" is one of the bulwarks against majority overreach, whether by an organized party or -- perhaps more insidiously -- by a consensus across parties.
Re 1) If there is a permanent majority that is injurious in that fashion, then jurisdiction-stripping is a bad idea. But that's just a specific case of the general problem that permanent majorities pose for decent government. It's not clear to me that this is the condition that besets American politics right now, though. If the past is predictive of the future at all, we can expect party rotation for some time.
Re 2) Similar problem as above. You might cite the rights of African-Americans here (they're the prototypical permanent minority in American politics). But the courts haven't really done a heck of a lot for African-Americans; progress has come at the national level, when it has come, primarily through Congress. In fact, one could make a case that a jurisdiction-stripping bill in conjunction with the 14th Amendment might have helped African-Americans, since the Supreme Court was pretty regressive in its interpretation of the Civil Rights Act of 1875, for example (struck down in 1883). Challenges to "separate but equal" couldn't have been heard in federal courts, but such challenges turned out to be a false hope until Brown, and probably even through Brown if you're persuaded by recent political science criticism of the Court's capacities to effect social change.
Let me add: if you've got a permanent majority that entrenches itself in the fashion that you describe, there would be little reason to even engage in jurisdiction-stripping, since that majority would have a good shot at controlling the composition of the courts in a variety of ways anyway. (Do you think that, for example, the filibuster would survive long under conditions of a permanent slim majority?) But we don't really have such a polity. It's good that we don't, because it sounds like it would be one that is ripe for civil war. . .
primarily through Congress: arguably mainly once Brown v Board of Ed. happened. That emboldened civil rights activists, knocked things loose, created some movement. The legal fight gave activists a goal besides armed rebellion or exodus when nothing else was available.
[entrenched majority can do other things]: Sure, jurisdiction-stripping is one step along the way to the permanent frozen-majority rule; I agree that they'd do other things. I think it's what's called an "absorbing state": one that can't be escaped, like stepping off a cliff. I think jurisdiction-stripping gets us up on the guardrail... "We don't really have such a polity." Not yet.
I think that there's value to having some out-of-bounds to partisan politics, to letting a slower judicial cycle take care of legal interpretation. The courts provide a (sometimes distant) safety valve that jurisdiction-stripping gums up; to tell blacks or gays or future minorities to be named later "well, you'll have to roll up your sleeves and convince everyone, but federal courts of law are out of bounds on this" seems more like a first step to taking away more of their rights than a first step to an invigorated democratic marketplace of ideas. For a legislature to block citizen access to legal redress just seems wrong to me.
I don't mean to be a pest about this, it's just a troubling concept for me. Please take the last word! (for this post, anyhow.)
Thomas:
Perhaps I'm the real pest here, trying to defend the indefensible. :-)
But here goes:
The effect of Brown v. Board is an open question. One version of a negative thesis about Brown would hold that the folks who really brought about change were those who rejected litigation and instead took to the streets, as well as those in Congress who responded to those pressures. (They rarely talked about Brown, either, as far as I've seen the evidence, mostly from Rosenberg's book.) Something else was available, namely, protests and direct action, and it was much more effective.
As for whether a successful jurisdiction stripping-bill would help to perpetuate a permanent majority: in theory, yes. But Congress -- like courts -- can change their mind if pressure is applied to them. And I doubt that the social development toward gay marriage is going to be significantly halted if Congress passes a jurisdiction-stripping bill. If anything, I would bet that such a bill would run into some serious political difficulties, even assuming that the courts let it go (seems to be unlikely).
I'm not sure how jurisdiction-stripping could contribute to the creation of a permanent majority faction. Concretely: do you think that this issue helps or hurts the Republicans? I think it probably hurts them, and I'll bet that a bunch of the folks in the House who voted for the bill wouldn't have done so if they thought a) that the Senate would pass it, and b) that the courts would uphold it. Jurisdiction-stripping is not a tool calculated to win support among the majority of folks who believe that courts are basically fair over the long term. Court bashing -- like abortion restrictions -- would become less frequent if members of the House thought that they could be held accountable for such actions.
And to the extent that litigation sucks up resources that could be used for other kinds of pressure (like lobbying, grassroots efforts, etc.), perhaps it is good to take it off the table. Maybe not ideal, but certainly not the end of the world.
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