Marriage and the Judiciary: Rein in the Courts--for the Interest and
Liberty of the People.
Steven Montgomery
Thursday, February 26, 2004
A great constitutionalist, J. Reuben Clark, once observed that the checks and
balances designed into the Constitution of the United States constituted its
"marvelous genius" and was the result of "divine inspiration." If then, the
United States Constitution was the result of marvelous genius and divine
inspiration, why is it that there are so many proposals to alter the document
with amendments? For example, in recent years we have seen calls for
constitutional amendments to deal with:
Abortion
Term limits
Balanced budgets
Flag burning
Forced busing
School prayer
And others
And now, just recently, calls for a Constitutional Amendment that would ban
gay marriages and define marriage as between one man and one woman. Those who
love freedom identify with these issues and will usually agree that these are
all issues that must be dealt with. Because of the way that certain activist
Federal Judges and the Supreme Court have ruled on these various issues, many
who understand the moral basis of free societies, feel backed up to a wall,
thinking that only a Constitutional Amendment will properly restrict abortion,
balance the budget, or whatever the latest call might be to restore morality,
common sense and freedom.
And now, President President Bush has joined the fray. On Tuesday, February
24th, 2004, he came out in support of a constitutional amendment which would ban
gay marriages and stated, that because of a "few judges and local authorities"
that "Their action has created confusion on an issue that requires clarity." Yes
indeed, President Bush, this issue does deserve clarity. The proposed
Constitutional Amendment banning gay marriages however will only serve to
promote obfuscation and cloudiness. Let me explain why.
The Constitution is not flawed
The Constitution, is not flawed, and in need of amending, activist Federal
judges are. The Constitution has a well suited mechanism to deal with activist
judges--which I'll get to in a moment.
Why is amending the Constitution a bad idea? Marriage historically and
constitutionally has always been either the province of churches or of
individual state governments. The mere fact of having a marriage amendment will
introduce the Federal Government into this sacred institution. It will tend to
greatly enlarge the size and scope of the Federal Government. Will there now be
a bloated and bureaucratic Department of Family and Marriage security, for
instance? Do we really want to give the Federal Government this much power?
What if, say in ten or twenty years, due to the deteriorating decline in the
attitudes and morals of the American people, the amendment is itself modified to
include same sex marriages? The history of prohibition should certainly give one
pause to consider that such would be a possibility, if not certainty.
Besides, the amendment process being a cumbersome and tedious chore, it
offers little hope for success. Law Professor Jules B. Gerard of Washington
University explains why:
The claim that amending the Constitution is the proper remedy for
bad decisions is not a legitimate response. That requires super-majorities
at every stage of the process. But why should society have to shoulder the
burden of mustering super-majorities to overturn decisions like the abortion
and death penalty cases, decisions without even a semblance of an anchor in
the language, structure, or history of the Constitution? Amending the
Constitution was designed to provide for unanticipated changes in our
society, not to be a corrective for abuses of judicial power. Furthermore,
resorting to the amendment process lends an aura of respectability to such
decisions that they on no account deserve. It implies that the problems are
created by the Constitution instead of by the judicial usurpations of
legislative power, and regular resort to the amending process is bound to
encourage rather than discourage misbehavior by the courts.
The Constitutional Solution
More importantly, It diverts attention from a far more effective and less
troublesome method for dealing with judicial irresponsibility. The solution
offered by the Constitution itself in Article III, Section 2, which states, "In
all cases affecting ambassadors, other public ministers and consuls, and those
in which a State shall be a party, the Supreme Court shall have original
jurisdiction. In all the other cases' before mentioned, 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." In other words,
Congress may, by simple majority vote of both the House and Senate (and approval
by the President), strip the Supreme Court and the inferior federal courts
(established by Congress under Article III, Section 1) of their authority to
hear cases on appeal, thus leaving the resolution of such cases to state courts.
A perfect mechanism for checking judicial activism. The sacredness of the
marriage institution can be preserved--without an amendment.
Witnesses
There is a whole train of judicial witnesses that this power--to make
exceptions and limitations on jurisdiction--is a legitimate and viable one.
First, here is what founding father, John Marshall, said about this power during
Virginia's ratifying debate:
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 may think proper for the
interest and liberty of the people."--John Marshall, during the
State of Virginia's ratifying debate.
Next, Chief Justice Oliver Ellsworth, whose opinion is especially noteworthy
because he was a delegate at the Constitutional Convention and a member of the
committee of detail which drafted the exceptions clause, remarked in Wiscart v.
Daushy (1796):
. . . 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.
Then, John Marshall, after he became Chief Justice of the Supreme
Court in United States v. More (1805):
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.
John Marshall, once more, in Durousseau v. United States (1810):
When the first legislature of the union 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.
Roger B. Taney, as Chief Justice in 1847, when he observed in Barry v.
Mercein:
By the Constitution of the United States, the Supreme Court
possesses no appellate power in any case, unless conferred upon it by act of
Congress; nor can it, when conferred, be exercised in any other form, or by
any other mode of proceeding, than that which the law prescribes.
Salmon P. Chase, Chief Justice in 1869, wrote, in Ex Parte McCardle, for the
unanimous court, that the Court had no choice but to decline jurisdiction
because Congress had stripped the Supreme Court of Jurisdiction in this
particular case:
. . . the power to make exceptions to the appellate jurisdiction of
this court is given by express words .... Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is the power to declare the
law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.
Chief Justice Morrison R. Waite, in the Francis Wright case, (1881), remarked
that the Court's appellate powers:
shall be [and] to what extent they shall be exercised, are, and
always have been proper subjects of legislative control. Authority to limit
the jurisdiction necessarily carries with it authority to limit the use of
the jurisdiction. Not only may whole classes be kept out of the jurisdiction
altogether but particular classes of questions may be subjected to
reexamination and review, while others are not. . . the rule, which has
always been acted on since, that while the appellate power of this court
under the Constitution extends to all cases within the judicial power of the
United States, actual jurisdiction under the power is confined within such
limits as Congress sees fit to prescribe.
Justice Wiley Rutledge, in Yakus v. United States (1944):
Congress has plenary power to confer or withhold appellate
jurisdiction.
Justice Rutledge, who, by the way, opposed the power Congress held to
make exceptions or limit jurisdiction, and knew it would take a constititutional
amendment to abolish the power. Likewise, Justice Owen J. Roberts, opposed
the power but remarked there was nothing he could do about it in the American
Bar Association Journal, (January 1949):
What is there to prevent Congress taking away, bit by bit, all the
appellate jurisdiction of the Supreme Court of the United States? ... I see
nothing. I do not see any reason why Congress cannot, if it elects to do so,
take away entirely the appellate jurisdiction of the Supreme Court.
Want me to go on? But, I think you get the point--this particular power that
Congress holds under Article III, Section 2 is valid and begs to be used.
In speaking of how this power could be used, Notre Dame Law Professor, Dr.
Charles E. Rice, declared:
The constitutional system of checks and balances, was designed to
operate with respect to the judiciary, as well as in other matters. Congress
has the power to control the entire jurisdiction of the lower federal courts
and the appellate jurisdiction of the Supreme Court .... While Congress has
not used this power since the Civil War period, it is clear from the 1869
case of Ex Parte McCardle, and from numerous statements in Supreme Court
opinions, that Article III, Section 2, means what it says.
By limiting the Court it would remove a vast "breeding ground" of false
judicial doctrine which has been spawned over the years. At the very least it
would send a very strong message to these courts. It could teach the Supreme
Court, or other activist Federal judges, a lesson. One advantage of a withdrawal
of jurisdiction is that it would not permanently change the constitution as an
amendment would. As Dr. Charles E. Rice, of Notre Dame University noted,
appellate jurisdiction could be easily restored whenever Congress decided that
the courts "showed signs of a return to sanity."
Critics of the Article III, Section 2 option, often cite that litigants would
be denied "due process" or "equal protection" of the law were such legislation
limiting or denying jurisdiction to Federal Courts ever passed. However, as Dr.
Ralph Rossum, dean of the faculty of Claremont McKenna College and former
chairman of its Department of Government wrote in a Monograph entitled,
"Congressional Control of the Judiciary: The Article III Option," that even if
you limited the jurisdiction of the Supreme Court and the lower federal courts,
or took away their appellate jurisdiction entirely, it would not deny due
process as litigants appeals could still be heard by state courts, as they are
also bound by oath to sustain the U.S. Constitution as the supreme law of the
land. It is a critical and important point. Noting that, "Independent judicial
hearings need not necessarily occur at the Supreme Court level. The requirements
of the Due Process Clause can be fully satisfied in the lower Federal and State
courts, even if the Congress were to strip the Supreme Court of its entire
appellate jurisdiction."
To restate, Congress's power under Article III, Section 2, doesn't prevent
Federal Issues from reaching a judicial forum, since both the State and Federal
Courts Justices have sworn to uphold the Constitution of the United States, it
only gives Congress the power to decide how to funnel these issues between the
Federal and State court systems. As long as Congress doesn't discriminate
between litigants, it has the power to pass legislation that funnels litigation
between either the Federal or State Court systems based on the type of issue,
all without fear of the Constitutions equal protection provision.
Other critics argue that, under the "full faith and credit" clause (Article
IV, Section 1) of the Constitution, that gay marriages legal in one state would
have to be recognized by all the other states. This is a weak argument however,
when currently, there is no state in the Union which sanctions gay marriages.
Not even Massachusetts, California, or Hawaii. In fact, 38 States have
Constitutional Amendments defining marriage as between one man and one women.
The other states are similarly opposed. Therefore, the "full faith and credit"
argument is moot. It's a non-issue. Even in "hot spots" like Boston or San
Francisco, the governors of those states have said that gay marriages are
illegal. Arnold Schwarznegger said so. Mitt Romney also. Left to the states, it
is hardly likely that they would legislate against traditional marriage.
Finally, during the ratification debates of 1789, nearly everyone agreed that
"consolidated" government was to be avoided. If Congress utilizes their power
under Article III, Section 2, it will help us return to our original
constitutional system, which will restore "confederated" government, and avoid
the evils of "consolidated" government we have been getting for the last several
decades.
Yes, defending the sanctity of marriage takes clarity. This proposed Marriage
Amendment however serves those promoting obfuscation. Clarity deserves something
better. Isn't it about time to utilize this little known check, found in Article
III, Section 2, and provide this much needed brightness against judicial
darkness and tyranny?
Bibliography
The Constitution: A Heavenly Banner, by Ezra Taft Benson.
The New American magazine,
published biweekly by American Opinion Publishing Inc., a wholly owned
subsidiary of the John Birch Society.
