On July 19, three days before H.R. 3313 was debated, the ACLU issued notice of an “Urgent Briefing” entitled: “How the Marriage Protection Act (H.R. 3313) Will Harm Civil Rights, and Violate the U.S. Constitution.”  The flyer explained: “The bill would shut the federal courthouse doors—including the door to the Supreme Court—to an entire group of people, would violate the core constitutional protection of separation of powers, and would set a dangerous precedent for future legislation.”  A Georgetown law professor and other experts briefed members of Congress and staffers on July 20.

During the House debate, on July 22, Democrats said that H.R. 3313 was “undermining the constitution,” “meanspirited, unconstitutional, and dangerous,” “muzzling the courts,” “opening the floodgates,” trying to “desecrate and circumvent the constitution,” “repealing Marbury v. Madison,” promoting “mobocracy,” like “driving off a cliff,” and “an attack on gays.”  On one hand, it was “unprecedented” and, on the other, “reactionary” and “going back to the Articles of Confederation.”

H.R. 3313, the object of this abuse, removes the “gay marriage” issue from the Supreme Court’s docket.  Each state’s high court would then be the last word.  It has been proposed by those who believe that the Supreme Court, if it gets a “gay marriage” case, will rule, pursuant to the Full Faith and Credit Clause, that Florida must recognize a Massachusetts “gay marriage.”  There are only two ways to remove a case from the Supreme Court’s docket: by constitutional amendment, or by a statute limiting the Court’s appellate jurisdiction.  H.R. 3313 follows the statutory route.  Probably 95 percent of Americans agree that the federal government should steer clear of the “gay marriage” issue.  The bill does not even sound controversial.  How could something so bland draw such high rhetoric?

Well, there’s more than just “gay marriage” involved.  If Congress can remove this issue from the Supreme Court’s docket, it can remove anything else, from term limits to school prayer to abortion.  That is what makes H.R. 3313 so controversial.

Congress’s power to control the Supreme Court docket is clear.  In 1948, retired Supreme Court Justice Owen B. Roberts, in a talk to the Association of the Bar of the City of New York, said that the Constitution has “a great big hole in it.”  His speech was entitled “Now Is the Time: Fortifying the Supreme Court’s Independence.”  Roberts recommended four amendments to the Constitution that he thought would assure the Court’s independence.  Three were relatively noncontroversial: Fix the number of justices at nine; require mandatory retirement at 75; and bar any justice from seeking the presidency or vice presidency.  His fourth amendment, Roberts said, was critical—it would “give the Supreme Court appellate jurisdiction in all cases under the Constitution.”  The Court had that authority at the time and has it today, but this authority is based on a statute passed by Congress, the Judiciary Act of 1789, not on the Constitution.

Roberts had no doubt that Congress, under the Constitution, controls the Supreme Court’s appellate docket.  The Constitution grants the Court original jurisdiction in cases involving ambassadors and actions between the states (Article III, Section 2).  Congress cannot touch that original jurisdiction—Marbury held that Congress could not even add to the original jurisdiction—but otherwise, what the Court hears is up to Congress.  Article III, Section 2 provides: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make.”  The Framers provided a democratic check on the Court.  When Congress should exercise its power is, of course, a political question.  It often has exercised it without any noticeable outcry.  Federal courts, since the 1930’s, have been stripped of the power to hear taxpayer claims that state tax laws violate the federal Constitution (the Anti-Injunction Act) or to issue injunctions in labor disputes (Norris-Laguardia).  More recently, Congress limited judicial review in death-penalty, illegal-alien, and prisoner habeas corpus cases.  Congressional sentencing guidelines limit judicial discretion.  The last Congress adopted an amendment by Sen. Tom Daschle (D-SD) directing fire-prevention clearing in the Black Hills Forest notwithstanding any provision of the Environmental Protection Act or any other provision of law: “Any action authorized by this section shall not be subject to review by any court of the United States” (P.L. 107-206, Section 706(j)).

Justice Roberts feared Congress might decide to let the decisions of the state courts of appeals be the last word on all constitutional questions:

What is there to prevent Congress taking away, bit by bit, all the appellate jurisdiction of the Supreme Court of the United States, not doing it by direct attack but by that sort of indirect attack?  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 of the United States over state supreme court decisions.  The jurisdiction is exercised now under the terms of the Judiciary Act.  Suppose Congress should decide to let the decisions of state courts of appeal be final on constitutional questions.  How could the Supreme Court assert a power to take those questions, notwithstanding the act of Congress, in view of the language of the Third Article of the Constitution[?]

Why did the Framers leave it to Congress “to let the decisions of state courts of appeal be final”?  Roberts believed that they did not envisage the large number of lower federal courts we have today.  Indeed, they left the very existence of the lower federal courts to the discretion of Congress.  They believed constitutional issues would arise in state courts and then be appealed to the Supreme Court: “Then came into play state pride, the state’s rights’ feeling [and fear of the Courts overturning jury verdicts].  The best compromise that could be made in the situation was to give to Congress the right to define the appellate jurisdiction of the Supreme Court.”

The deeper reason is that the Framers created a republic, a system of congressional supremacy.  Following Montesquieu, they separated power into three parts.  The Constitution was based on a theory of divided powers enforced by a series of checks and balances between the branches of the federal government and between the states and the national government.  The American experiment was unique in its attitude toward power: It opposed power, not simply when it was held by a prince, or by one or a number of assemblies, or by many citizens or a few, but power in the abstract, wherever it existed or by whatever name it was known.  The Framers’ experiment, Henry Adams wrote in 1870, was the most fascinating in the history of political science, even if it failed.

The three branches were to be as independent as possible.  The Framers tried hard to prevent the powers from combining since that was their definition of tyranny.  They all agreed, however, that they were creating a republic based on the consent of the governed.  The representative branch, to whom the people delegate their power, has to have the dominant powers—the power to raise and spend taxes, the war power, the power to impeach anyone in the other two branches, and the power to control what the Supreme Court can hear.  Woodrow Wilson, in his 1884 Congressional Government, concluded that Congress is “unquestionably the predominant and controlling force[,] the centre and source of all motive and of regulative power.”

The late Sen. Patrick J. Moynihan said, in 1982, that he agreed with Justice Roberts that Congress had the constitutional authority to limit the Court’s appellate jurisdiction “whenever it deems proper.”  It could lead, though, to what he called a “constitutional oxymoron,” that “we may face a constitutional crisis, [but] we may be getting there by a route many would argue is constitutionally permissible.”  The oxymoron was that Congress was authorized to limit or remove the Court’s appellate jurisdiction, but, if Congress pushed its power, it could, for practical purposes, remove the Court as a third branch:

If you can strip from the Supreme Court the right to hear one question, you can strip from it the right to hear any question.  There is no right in the Constitution that would not be placed in jeopardy.  The great fear of the founding fathers was that we should have a tyranny of the majority.  They spoke over and over again of a tyranny of the majority and they devised the Court as the institution in which minority rights would be protected.

Of course, if the people disagree with what Congress does, they can vote them out.

The “gay marriage” issue has a peculiar ability to make politicians reverse their usual positions.  In the Senate debate of July 12-14, Democrats, who normally prefer national solutions, argued that “gay marriage” is a state issue.  Senate Republicans, who traditionally have claimed to believe that cultural issues should be decided by the states, proposed President Bush’s Federal Marriage Amendment, imposing a national rule banning “gay marriage.”  Both parties seemed disingenuous: The Democrats were pro-homosexual and used states’-rights rhetoric as a ruse, since they were sure that one of the state decisions would ultimately make its way to the Supreme Court, which would impose a national rule in favor of “gay marriage.”  And the Republicans put the Bush amendment forward knowing it had no chance of passage.

Sen. Hillary Clinton (D-NY) argued that questions about marriage “will be taken care of as they traditionally have in the States which have held the responsibility since before our founding as a nation.”  Sen. Ted Kennedy (D-MA) said that, “Contrary to the claims of the supporters of the amendment, no State has been bound—listen to this—no state has been bound or will be bound—by the rulings or laws on same-sex marriage in any other State.”  Sen. Chris Dodd (D-CT) added: “For Congress to step in and dictate to 49 states how they ought to proceed in this matter runs counter to the State’s rights principles that many hold so dear.”  Sen. Patrick Leahy (D-VT) worried: “Where is the respect for our States here?”  And, finally, Sen. Tom Daschle (D-SD) concluded: “This fundamental responsibility lies with the States.”

The Bush amendment was thoroughly defeated, securing only 48 votes on a procedural vote.  Senators Kerry and Edwards were absent, but they have repeatedly said that “gay marriage” is a state issue.  Yet two weeks later, in a House debate, Democrats were calling  H.R. 3313, which returned the question of “gay marriage” to the states, a lot of bad names.  The bill would, they said, desecrate and circumvent the Constitution.

Our written Constitution is as clear as Justice Roberts feared, but we are not following it.  We are following an unwritten constitution that calls for judicial supremacy.  Judicial supremacy is the view that the Supreme Court is first among equals.  The Court decides most of the important questions—from electing a president to campaign-finance regulations to how to treat Guantanamo Bay detainees—and all of the cultural hot-button issues, from abortion to school prayer to flag-burning.

The Judiciary Act of 1789 created the lower federal courts and gave them jurisdiction in diversity cases.  The act did not allow a citizen to go into a federal district court to present a claim arising under federal law and the Constitution—what are called “federal-question cases.”  Those cases were decided by the state courts and could be appealed to the Supreme Court.  Congress did not give the federal district courts power to hear federal-question cases until 1875.  The Supreme Court can hear appeals from the state courts, as noted by Justice Roberts, “with such exceptions and regulations as Congress shall make.”  Federal courts cannot hear a case if the case does not fall within the authority granted by Congress.

Many Americans are surprised to learn that, according to the Constitution, Congress has control over what the Court can hear.  Instead, we are operating under a frame of government in which the Supreme Court decides most important questions.  Why have we placed such power in an unelected judiciary?

There seem to be two groups that benefit from this arrangement.  Criminals, prisoners, pornographers, atheists, homosexuals, anti-crèchists, illegal aliens, and Indians get better results from the Court than they ever could from a legislature.  But they do not have the political clout necessary to impose judicial supremacy on us.

The Congress, however, benefits not from the decisions themselves—many congressmen might even disagree with them—but from the fact that the Court is making them.  The Constitution grants Congress power to control both domestic and foreign affairs.  However, Congress prefers not to exercise its powers, because exercising its power on controversial issues leads to losing elections.  The unelected court can deal with the domestic problems, and the president can deal with the foreign ones.  And the Court and the president were willing to take on the new power.  Congress successfully used its dominant power to protect its members by rearranging the constitutional roles: In 2002, of the 386 incumbent representatives who ran for reelection against nonincumbents, all but four won.

The Framers made no provision to sanction Congress for not using its powers.  They worried that the branches would seek to expand their power.  They never dreamed that one branch, would divest itself of its basic powers.

The current state of affairs is very dangerous.  Congress allows the president and the Supreme Court to run unchecked, undermining the system of checks and balances.  For example, the September 11 Commission Report holds Congress largely responsible for the government’s poor intelligence performance—which has been wrong on every major issue for the last 20 years—because of its weak oversight.

The use of the Court to deal with controversial issues removes those issues from the democratic process.  The Court is forced to take sides in the culture war.  Its decision brings into play all the federal government’s power to force one side’s views on the other.

When Rep. John Hostettler (R-IN) introduced H.R. 3313, he concluded that it must be obvious to anyone who reads the Constitution “that Congress can do it . . . the question today is should Congress.”  The Court checks the Congress and the President, but who checks the Court?  Committee Chairman James Sensenbrenner (R-WI) noted:

Far from violating separation of powers the bill is an exercise of one of the very checks and balances provided for in the Constitution.  No branch of the Federal Government can be entrusted with absolute power, and certainly not a handful of Federal judges who are appointed for life.  The Constitution allows an exercise of judicial power but it does not grant the Federal Courts unchecked power to define the limits of its own power.

The Democrats in the House Judiciary Committee denied that Congress has such power.  Rep. John Conyers (D-MI), after Hostettler had explained Article III, stated he was “in some state of shock.”  He asked if any research had been done.  Hostettler replied that his main research was “to read the Constitution.”  Conyers replied “Well, we have established then my friend, two things, that one, you could read, and two, that you have read the Constitution.”

Rep. Jerry Nadler (D-NY) argued that Congress did not have the power to limit the Court’s jurisdiction because, if it did, the state courts would have the last word, and we might have a patchwork quilt of 50 different interpretations of what federal law is.  Specifically, some states would rule the 1996 Defense of Marriage Act constitutional, while others—wanting to have “gay marriage” from other states imposed on them—would deem it unconstitutional.  That is true—but is it disturbing?  Justice Brandeis called the states the laboratories of democracy, where different approaches could be tried so that we could figure out what we are comfortable with.  In any case, the matter is within the control of Congress.  It may find some diversity to be a good thing, and, whenever it believes uniformity appropriate, Congress can restore federal judicial authority.  Nadler judged H.R. 3313 to be clearly “unconstitutional,” “discriminatory,” and “dangerous nonsense”: “We are playing with fire, Mr. Chairman, and the fire could destroy this nation.”  Rep. Peter King (R-NY) supported the bill: “If Congress is not the check on the overreach of power by the judiciary, where is it?  I will say Congress is the check. . . . [W]e absolutely do not want to see Massachusetts law imposed on the entire United States of America.”  Rep. Tom Feeney (R-FL) agreed with King, noting that some might prefer to live under Platonic Guardians, but he does not:

Now, if you want to live under philosopher kings making your laws for you, if you believe oligarchy is a great form of government, that is a different position.  Plato, for example, in The Republic suggested that is a great way to be governed; but it is not our form of Government, and thank God it is not.


I will say that if the people of Massachusetts want to live under a judicial oligarchy, as Lincoln said, if they have decided to cease to become their own rulers, there is probably not much we can do to save the people of Massachusetts.  But at least with respect to protecting the definition of marriage, Mr. Hostettler’s good bill will give us the right in 49 other States to preserve the democratic principle that our State legislatures and not the Massachusetts justices get to define what marriage means.

The main Democratic opposition came from Representatives Nadler and Anthony Weiner of New York.  Weiner said that Marbury v. Madison means that the Court has the power to review all acts of Congress for constitutionality and that the other branches must follow the Court’s interpretation.  In Marbury, Justice Marshall, of course, did not claim that authority—he just said that, when a case is properly brought before the Supreme Court, the Court could decide whether a statute is within Congress’s authority.  The people and the Constitution are the principal, he said, and the Court has to determine if Congress, the agent, has stayed within its granted authority.  Thomas Jefferson agreed that the Court should interpret the Constitution when necessary to decide cases properly brought before it.  His tripartite theory held that each branch interpreted the Constitution for its own purposes, but none could interpret for any other.  The three branches, in case of disagreement, would have to compromise their differences.  The country, because of the separation of powers, needs all three to be in agreement to move forward.  Weiner considered Jefferson’s approach inefficient.  In his view, the Supreme Court rules, and we obey.  “[W]ithout this interpretation and without this ruling, virtually there is no place the buck stops”:

at the end of the day, the threshold test of whether something is violative of the Constitution of the United States of America only can be handled one of two ways: The courts rule that it is or is not, or an overwhelming majority of American citizens change the Constitution.

The majority, in Weiner’s view, was trying to create a third choice—a statute that the Supreme Court could not review.  The Court, according to Weiner, is supposed to be the decisive part of our process.  If this is not the case, “the Supreme Court can choose one President, [and] Congress can choose a different President.”  If the Court does not have the authority to settle the dispute, “you have a constitutional crisis.”  Of course, from a Jeffersonian viewpoint, if the Supreme Court is choosing the president, we already have a constitutional crisis.

The majority did not take the Jeffersonian tripartite view.  The “court is the final authority on issues it decides,” said Rep. Spencer Bachus (R-AL), but Congress had to grant the Court the “authority to hear the issue in the first place.”  To the majority, the Court is still supreme, but Congress has to give it authority to hear the issue.  To Weiner, the Court is supreme without respect to what Congress does, because “there has to be some arbiter.”

A constitutional crisis does loom over H.R. 3313, however.  Congress could pass its law limiting the jurisdiction of the Court.  What if the Court found the limiting law to be unconstitutional?  Would that, in Judge Bork’s words, “be the end of the matter”?  Or would that be the beginning of a true constitutional crisis?

We could also slip into a crisis sideways.  Toward the end of the debate, Mr. Nadler startled the majority by claiming that their bill, if passed, would have no effect on the “gay marriage” issue—it was a “big zero,” it would do “zilch.”  Suppose a homosexual couple, said Nadler, gets “married” in Massachusetts and moves to New York.  One dies intestate, and the issue goes to the New York Surrogates Court.  The court has two choices: It can find the marriage valid on the ground that New York has no public-policy exception.  (Out-of-state marriages are generally recognized under the Full Faith and Credit Clause unless a state has a public-policy exception—e.g., the out-of-state marriage is bigamous or incestuous.)  That would be the end of the matter, since New York is free under H.R. 3313 to recognize the Massachusetts “marriage” if it so desires.  However, what if the court finds the “marriage” invalid because the state has a public-policy exception?  The “spouse” then goes over to the Federal court but does not make a Full Faith and Credit claim because that would run him up against the barrier of H.R. 3313.  Instead, the spouse claims New York’s ruling violates the Constitution’s Equal Protection or Due Process Clauses.  The federal court and the Supreme Court would hear the claim, according to Mr. Nadler, and could decide that New York’s public-policy exception against “gay marriage” violates equal protection.  Then New York would have to recognize the Massachusetts “marriage.”  The federal courts, in other words, could just skin the cat in a different way.  The majority, via Representative Hostettler, replied: “You are telling us that Congress cannot do those things that the court doesn’t want it to do.”

If the Court, after Congress made it unmistakably clear (by enacting H.R. 3313) that Massachusetts law is not to be imposed on the rest of the states, went ahead and did so, it would be firing the first volley in a constitutional war.  The Court would have to consider that Congress has a pretty big arsenal for such a conflict.  The Court, if it took Alexander Hamilton’s advice, would not risk the battle.  The fact that the Court “has no influence over sword or purse” and “must ultimately depend upon the aid of the executive arm” for the enforcement of its judgments, Hamilton wrote in Federalist 78, “proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two and that all possible care is requisite to enable it to defend itself against their attacks.”

H.R. 3313 passed the House 233-192.  The New York Times editorialized the next day that the House vote was an “assault on the federal judiciary” and “an outrage.”  According to the Washington Post, it is DOA in the Senate.  The Post may be right in its political prediction, but why should it be?  Now that their constitutional amendment has been defeated, President Bush and the Republicans should support the bill since it is the only way to keep “gay marriage” off the Supreme Court’s docket.  Otherwise, we would have to conclude, their advocacy of the amendment—which they knew could not pass—was insincere.

Senators Kerry and Edwards and the rest of the “states’-rights Democrats” should support H.R. 3313 because it does exactly what they said—just a few weeks ago—is the right thing to do.  Otherwise, we would have to think that their states’-rights rhetoric was a ruse to cover up a pro-“gay marriage” position that they were too diffident to express directly.

Even if both President Bush and Senators Kerry and Edwards have been kidding us, however, the House passage of H.R. 3313 may be the first robin of a new spring.