I’m surprised that the Republican establishment isn’t more in favor of Ron Paul. He is delivering on a part of the Republican platform that I’m sure plenty of other Republicans would love to see enacted, or at least the hardline Christian conservatives. How so? HR 958 – We the People Act
This bill was introduced by Dr Paul on March 8, 2011. It seeks to limit the jurisdiction of the Federal courts with regard to actions of State and local governments and agencies. It seems the good Doctor has forgotten a bit about the jurisdiction and role of the Courts. Let’s review.
The jurisdiction of Federal courts is established by Article III, Section 2 of the Constitution: (stricken portion clarified by the Eleventh Amendment)
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;
–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
The first portion of this section is what is most prominent, and is what Dr Paul seeks to override with his bill:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority
This establishes the original jurisdiction requirement: any question where any law conflicts with a Federal law, treaty or the Constitution of the United States must be given a forum in a Federal court. In those cases the court of original jurisdiction on that question is typically a United States District Court. Congress can and has assigned original jurisdiction to other courts, such as the various bankruptcy and tax courts. But the Constitution requires there to be a court of original jurisdiction at all times. Congress cannot eliminate this.
The only limitation on Congress assigning original jurisdiction is with the Supreme Court. Congress cannot amend or degrade the original jurisdiction of the Supreme Court. Congress has the power to muck with the appellate jurisdiction of the Courts, and has in the past. But such a power may, in fact, be overridden in part by the First Amendment, namely the provision providing for the right of the people to "petition the government for a redress of grievances". And a case that is not decided in your favor may in fact be a grievance under the First Amendment.
Limitation of Jurisdiction
Section 3 of Dr Paul’s bill seeks to limit the jurisdiction of the Federal courts, stating that no Federal Court, including the Supreme Court of the United States, shall hear a case involving:
- any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;
- any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or
- any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation
None of this is constitutional in the least, not by any stretch, because Congress cannot eliminate the original jurisdiction of the Courts. If there is a question of a conflict regarding anything at the State or local level and any Federal statute, treaty, or the Constitution of the United States, that question must be given a forum in the Federal judiciary. The limitations above could only constitutionally apply to the appellate jurisdiction within the Federal judiciary.
So what kind of cases would these points affect? What cases would basically be stripped from the jurisprudence of this country with the stroke of the legislative pen? Here are some examples, and it’s convenient that these are the kind of cases likely to get a Court or judge labeled as "activist" by conservatives:
- Kitzmiller v. Dover, the 2005 case in Pennsylvania regarding intelligent design in public schools; any case involving the Pledge of Allegiance with regard to "under God"; all cases involving prayer in public schools; Torcaso v. Watkins; Everson v. Board of Education
- Planned Parenthood v. Casey, Roe v. Wade, Griswold v. Connecticut, Eisenstadt v. Baird, Lawrence v. Texas
- Perry v. Schwarzenegger
This is a very dangerous idea indeed: the Supreme Court decisions that many Christian conservatives want to see nullified rendered such by the stroke of a legislative vote and President’s signature. If you cannot see danger behind this idea, you are in need of a serious education. Further this bill, if passed into law would prevent future cases in Federal courts involving these topics, and would render these decisions inapplicable to the States and State courts.
Thankfully this bill is likely to suffer the same fate it has in Congresses prior: a silent death at committee.
Now Perry v. Schwarzenegger is still relatively new on the jurisprudential landscape, but it’s making its way through the appellate process. The other cases I’ve provided above are examples of established jurisprudence. And Dr Paul thinks that this can be ended with an ordinary act of Congress? And I thought Perry’s ideas for amending the Constitution were dangerous.
While it is certainly great that Ron Paul wants to bring this country back to the original scope of the Constitution, I think he needs to brush up on a few things.
