“Courts of justice cautiously abstain from deciding more than what the immediate point submitted to their consideration requires.”

—Mr. Justice Nicholl


In what was probably the most laudable achievement of his administration, President George W. Bush placed on the Supreme Court two justices, Chief Justice John Roberts and Associate Justice Samuel Alito, who believe that judges are not supposed to make it up as they go along.  We now have a President who has made clear that his beliefs are different.  Barack Obama has said that he wants to place judges on the bench who understand what it’s like to be a single mother or a member of a minority.  He has signaled, in other words, that he believes the job of the courts is to ameliorate the lot of the less fortunate.  For him, and for his friends and advisors—Prof. Cass Sunstein of Harvard, one of Obama’s former colleagues at the law school of the University of Chicago and a likely choice for the Supreme Court, for example—justice is not supposed to be blind but a handmaiden in “spreading the wealth,” following the policies that Obama famously outlined to Joe the Plumber.

Those who argued for the passage of the U.S. Constitution in 1787-89 did so because they believed the state legislatures were failing to enforce the basic rules of private property, and that demagogues in the states were threatening to undermine the foundations of commerce and future prosperity.  The Framers created a structure whereby the states would be restrained from interfering with contracts, the currency would be controlled by a purportedly responsible central government, and each state would be guaranteed a republican form of government.  The new country was not to be a democracy, because the people would not rule directly and because there would be built-in safeguards against popular excesses—such as suspension of debts and other legal obligations.  Still, the Framers formulated a government in which the people were to have the right to manage their own affairs, through the election of representatives and the establishment of courts that would apply the Constitution and the laws in a neutral manner.

This conception, as William J. Quirk brilliantly demonstrates, is now in tatters.  Over the course of the last 70 years or so, our representatives in Congress have, in order to secure their continuing reelections, avoided controversial political issues by ceding control over social issues such as abortion, religion, and race to the courts, and the power to make war to the president.  Thus, while the Constitution gives only Congress the power to declare war, we have been involved in three major conflicts—Korea, Vietnam, and Iraq—with the loss of tens of thousands of American lives, all without such a congressional declaration.

In short, though the Constitution was supposed to guarantee the right of self-government to Americans, the “Imperial Presidency” and the “Imperial Judiciary” now rule us, while our representatives, convening in Washington at what Quirk dubs “The Happy Convention,” concentrate on channeling resources (through earmarks, bailouts, and other measures) to favored constituencies.  The Court returns the favor by declaring federal term limits unconstitutional, and, in return for the free hand it gives him, the President shields Congress from any responsibility for his foreign adventures.

With the redistributionists about to assume control of the Executive Branch, with their possibly filibuster-free control of the Senate, with them soon to be in a position to pack a Court now full of superannuated justices, and with the economy in shambles and major financial institutions failing left and right, the case for optimism is not strong.  The terrorist threat still looms, as shown by recent events in Mumbai, and for all the temporary security we may have gained after seven years of President Bush’s “War on Terror,” Quirk is quite rightly concerned that we may have lost our souls, and that the Framers’ efforts to preserve popular sovereignty, to build a republic maintained by the rule of law, have deteriorated almost to the point of no return.

The lament for the lost rule of law is not new, but Professor Quirk has made a signal contribution in demonstrating that the Constitution offers Congress the tools, if only it will use them, to rein in the Imperial Judiciary, if not the Imperial Presidency.  The principal means he explores in this book (as he has in these pages) is the “stripper”—that is, legislation passed to remove jurisdiction over particular matters from the federal courts, including the Supreme Court.  The promulgation of strippers would have the effect of reinvigorating the state courts and the state legislatures, bodies presumably closer to the people, and would thus reestablish something closer to Jefferson’s conception of democracy.  (As a man of the South, Quirk is nothing if not a good Jeffersonian.)  In plain language, Quirk reminds us, Article III of the Constitution permits Congress to decide what appellate jurisdiction to give to the Supreme Court and what jurisdiction to give to the lower federal courts—and, indeed, whether to permit the establishment of lower federal courts at all.  And while this provision is virtually unknown to nearly all Americans, the Supreme Court itself has affirmed it, in Ex parte McCardle (1868).

A significant number of the Framers thought that state courts could preserve our rights as well as federal courts could.  Indeed, many of them foresaw that the federal courts would abandon sound jurisprudential and republican principles and promote the power of a central government that could favor particular elites and betray the people.  In order to minimize this risk, the Constitution gives Congress the power to determine what sort of matters the federal courts will hear, and even to deprive the Supreme Court of all jurisdiction save in the case of ambassadors and disputes between states.  With several strokes of the legislative pen, then, Congress could remove from the federal courts matters involving race, religion, abortion, homosexuality, term limits, or any other controversial public policy or cultural issue, and return them for resolution to the American people themselves.  Such a move would mean different approaches in different states, of course, but Quirk quite properly poses the question of whether the price of uniformity—the loss of popular sovereignty and rule by the Happy Convention or the “Unwritten Constitution”—is one we really want to pay in order to obtain all-or-nothing solutions to these social problems.

At least four massive obstacles stand in the way of using constitutional strippers.  The first is that the promulgation of strippers would require a Congress with the courage to return government to the people, and with the altruism to abandon the sinecures incumbency has provided most senators and representatives.  The second is that any president committed to the powers the Happy Convention provides him would likely veto a stripper, and a congressional supermajority capable of overriding that veto might be difficult, if not impossible, to achieve.  The third is that virtually all constitutional scholars and most of the legal profession believe that strippers, insofar as they might allow state legislatures and courts to decline to follow the rulings of the Supreme Court (or the lower federal courts), are unconstitutional, and perhaps even in violation of due process, equal protection, or the privileges and immunities of U.S. citizens.  (There are some exceptions: My intrepid colleague Martin Redish, one of the country’s leading experts on federal jurisdiction, as noted by Professor Quirk, quite sensibly believes that the Constitution means what it says, and that therefore strippers are perfectly permissible.  Redish thinks strippers are bad policy, however.)

Quirk argues (following Jefferson and Jackson) that there is nothing in the Constitution that makes the Supreme Court the exclusive arbiter of that document’s meaning and that, indeed, it is the job of all three coequal branches of the federal government to determine constitutional meaning and to act pursuant to their determinations.  That understanding, which is actually gaining favor these days in the academy under the name “departmentalism,” might eventually overcome excessive academic court worship.  A fourth obstacle exists, however, which may prove the most difficult to overcome: The Court itself could declare strippers impermissible on theories borrowed from the academy.  Because the 14th Amendment’s ill-defined procedural protections were passed after Article III, they offer the Court an opportunity to rule that due process, equal protection, or privileges and immunities trump jurisdiction-stripping.  There is every reason to suppose the Supreme Court, especially one augmented by Obama appointments, would take this tack.

Something very near that tack was taken in Boumediene v. Bush (2008), when a five-person majority disregarded a clear congressional stripper to deprive the federal courts of jurisdiction to hear habeas corpus proceedings brought by Guantanamo detainees.  Justice Scalia, in a blistering dissent, observed that

It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting.

Nevertheless, Scalia continued, “The Court today decrees that no good reason to accept the judgment of the other two branches is ‘apparent.’”  Scalia nicely summarizes the problem with the Imperial Court that Quirk identifies: “What competence does the Court have to second-guess the judgment of Congress and the President on such a point?  None whatever.  But the Court blunders in nonetheless.”  A Court with absolutely no competence in national-security matters, but which feels free to dictate the means of conducting a war, obviously is not likely to restrain itself from overturning strippers of all kinds.

Recapturing the Constitution through strippers is unlikely, as is Professor Quirk’s other inspired reform measure to bypass Congress and allow constitutional amendments whenever three quarters of the state legislatures demand them.  Yet, as a true son of the South, William Quirk understands that a lost cause is the one most worth fighting for.  He is one of our great expositors of what the Framers gave us, and Courts & Congress is his finest effort to date.  If Professor Quirk’s ideas were ever to penetrate the consciousness of the American people, they might impel them to toss out the congressional incumbents, reduce the role of the Platonic Guardians on the federal benches, and take back the Republic.


[Courts & Congress: America’s Unwritten Constitution, by William J. Quirk, Foreword by Ralph Nader (New Brunswick & London: Transaction Publishers) 312 pp., $49.95]