Sunday, April 10, 2005

Michael: The Coming Theocracy’s Jurisdictional Strip Tease

I hope that most Americans were appalled, as was I, by the venality of some members of Congress in their handling of the Schiavo controversy. Of course, only those now convinced that the courts sentenced Terri to death, and that Congressional machinations were intended to ‘save’ her, were the intended audience. The Theopublicans need a lot people to hate the courts so they will blindly support destroying the basis of the federal courts’ power and independence: judicial review - the ability of the courts to strike down acts of Congress as unconstitutional.

Last week the Traditional Values Coalition held a big conference at the capital, entitled Confronting the Judicial War on Faith. The conference centered on stopping the federal courts’ supposed threat to ‘traditional Christian values.’ The speakers list was chock full of Congressional leaders from the Right, including Tom DeLay, whose recent incendiary charges and thinly-veiled threats against the judiciary shocked many.

But the worry is not just conferences and speeches, several bills have been introduced, and some passed, this session, which seek to strip the jurisdiction of the federal courts to review certain subjects or specific acts of Congress. For instance, the Protection of Marriage Act purports to exclude the Defense of Marriage Act from judicial review. One bill introduced this session, the so-called ‘Constitutional Restoration Act,’ could be interpreted to prevent any federal court from taking jurisdiction of any suit in which a government official claims to be acting in name of any God, and imposes impeachment as a remedy if a judge exceeds his or her jurisdiction. The Congressional Accountability for Judicial Activism Act seeks to allow Congress to directly overturn a Supreme Court decision by a 2/3 vote. In all, I count 10 bills this session, and an equal number last session, seeking to work some degree of jurisdiction stripping.

Can Congress do this? It’s a question Congress has generally been wise enough not to ask; it has always accepted judicial review. Were Congress free to change the jurisdiction of the courts as they please, they could easily evade judicial review. But case law suggests that the Supreme Court will not allow Congress to use its power over federal jurisdiction specifically to escape judicial review, denying Americans any forum to challenge a new law - such a move would essentially render the federal judiciary and the Supreme Court powerless. When it comes down to it, the Supreme Court would just have to invalidate any attempt to strip them of jurisdiction as unconstitutional and rely on our respect for the institution for enforcement - hence the Theopublicans’ desire for as many people as possible to dislike the courts.

But aside from the question of interpreting the text of the Constitution, allowing Congress to, in effect, set some of its acts beyond the reach of the Constitution, and become the sole interpreter of the Constitution, is unwise. The potential for a simple majority of Congress to seriously abuse the constitutional rights of citizens is manifest. Congress could inter all Muslims, establish a state religion, or ban the opposition party, and immunize even such clearly unconstitutional acts from judicial scrutiny or injunction. The only remedy would be to vote out the offending majority, or storm The Hill and throw them out; clearly the ballot, or the bullet, alone is not a sufficient nor civilized means to protect our constitutional liberties. The mechanism in our political culture for enforcing our rights as citizens and protecting the continuity of the law is vested in our courts, not in our Congress.

So why are some members of Congress, sworn to uphold the Constitution, so intent upon destabilizing our constitutional order? I don’t believe that the Theopublicans actually think that they have a prayer of establishing an unconstitutional Christian caliphate, nor that they will succeed in challenging the jurisdiction of the federal judiciary in such an obviously manipulative fashion. But they want their supporters to believe these things are possible. What is most disturbing about these tactics is that attacking the settled constitutional order in such a fundamental way has historically been a device of demagogues in declining democracies. Only when some large portion of society has become sufficiently disillusioned with, or hostile to, the existing constitutional order do such tactics accomplish anything but marginalizing the user. Far from marginalizing the Theopublicans, such tactics have brought them to the very pinnacle of power in today’s American. That says something about the state of our democracy that should give us all cause for grave concern.

Update 4/11/05: Salon has a story on the conference I referred to in this post.

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