Has Congress, after 50 years of seeing its power seized by the Supreme Court, begun at long last to recapture its lost constitutional rights?
Don’t laugh. It may just be about to happen.
A day before Congress left town for a six-week vacation, the House passed the Marriage Protection Act 233 to 194. This bill would deny “all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act.”
So reports the Washington Post. DOMA is the 1996 law that says no state need recognize same-sex unions established by other states.
What the House is saying is this: Massachusetts may hand out marriage licenses to homosexuals – and these gay couples may sue, under the “full faith and credit” clause of the Constitution, to have their “marriages” recognized in other states. But no state has to recognize such “marriages,” and no U.S. judge is permitted to take up these cases.
This law has explosive potential. The House brushed aside, said the Post, “warnings that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun-control to abortion.” Exactly.
That is the idea. To recapture the lawmaking power from a black-robed judicial elite and restore it to elected legislators. The overthrow of what author-scholars William Quirk and R. Randall Bridwell call our “Judicial Dictatorship” may have just begun.
The significance of this bill in terms of the balance of power in government is hard to overstate. For years, Congress has been systematically stripped of its power to decide the issues of race, religion and morality by the courts, which have taken to making law by issuing edicts from the bench.
Congress is now dusting off a long-neglected weapon, put in Article III, to restrict the jurisdiction of the Supreme Court and, eventually, to tell it to keep its hands off such issues as abortion, flag-burning, school prayer and gay marriage.
The House is saying: These decisions should not be made dictatorially by judges, but constitutionally by the 50 states and democratically by legislators.
This is how it was before the court began to exploit its right of judicial review – first claimed by Chief Justice John Marshall in Marbury v. Madison – to impose a social revolution on America, a revolution rooted in the non-majority values of Warren, Blackmun, Brennan, Douglas, Thurgood Marshall and Ruth Bader Ginsburg.
If the Marriage Protection Act passes the Senate and is signed by Bush, a showdown will have been scheduled. Not just over gay marriage, but over whether the Supreme Court has the final say over whether a law conforms to the Constitution. The issue here is nothing less than, “Who says what the law is?” Unelected justices, or elected congressmen and presidents?
This will be a critical test of the GOP majority in the Senate. If it stands with the House and President Bush, the first and second branches of the U.S. government will be telling the third, the U.S. Supreme Court: Your right of review of all U.S. law is not absolute, but subject to our restrictions. You are hereby instructed to return to the stall into which the Founding Fathers placed you.
The House vote, on a bill sponsored by Rep. John Hostettler, could be the first shot in a counterrevolution that could ring down the curtain on the Supreme Court’s 50-year role as battering ram of social revolution.
Democrats sense the stakes. Said Rep. Jim McGovern, “This bill is … mean-spirited, unconstitutional, dangerous … They couldn’t amend the Constitution last week, so they’re trying to desecrate and circumvent the Constitution this week.”
But the desecrators and circumventers of the Constitution are not the congressmen empowered by that document to write our laws. The circumventers are the justices who have stolen that power.
If McGovern will take a look at Article III, Section II, he will see there a written right of Congress to put regulations on the appellate jurisdiction of the Supreme Court. He will search in vain to find any Supreme Court right to review and overturn U.S. laws.
“When legislators rail that unelected judges are finding legislative acts unconstitutional, they are attacking the very structure of our democracy,” ranted Georgetown Law Professor Chai Feldblum, when Hostettler’s bill passed.
The professor has it exactly wrong. The Founding Fathers created a republic where the majority rules through its elected representatives. They did not create this rule of judges we have today, and which Congress, hopefully, may be about to overthrow.