Rep. Sodrel’s court stripping bill is not yet available through Thomas, but someone was kind enough to forward me a copy. (While I’m thinking of it, I want to once again recommend the site Plogress. It’s a site that has a script that scours Thomas for information on legislative action by the Congress.)

Rep. Sodrel’s bill strips federal courts of jurisdiction to remedy Constitutional violations committed by state governments through government speech.  The most relevant portion states as follows:

No court created by Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation or the validity, under the Constitution, of the content of speech of any member of a State legislative body or any individual invited by a State legislative body to speak before that body, when such speech occurs during the legislative session of that body.

This legislation is pretty obviously seeking to take advantage of a possible interpretation of Art. 3, Sec. 2 of the U.S. Constitution. That provision says:

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.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Lately it seems that certain members of Congress have been eager to file bills that remove one issue or another from federal court jurisdiction. I don’t know what the jurisprudence on this issue is, but I have serious doubts as to whether Congress has the power to entirely deprive the federal judiciary of jurisdiction over government violations of the U.S. Constitution. In this case, it’s a relatively minor squabble over the Establishment Clause. But, in principal, if we follow Rep. Sodrel’s logic, there is nothing preventing Congress from prohibiting the courts from hearing cases alleging violations of the Thirteenth Amendment prohibiting slavery. With no access to the courts, a person could be enslaved and there would be no way for the person to enforce the person’s right to be free from involuntary servitude under the Thirteenth Amendment. If we open Rep. Sodrel’s can of worms, Congress would have the power to repeal any provision of the Constitution by a simple majority vote of the Congress.

I think there is a more likely interpretation of the Constitutional provision that says “In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make.” I think this authorizes Congress to legislate original jurisdiction for the Supreme Court on those other kinds of cases even though the Constitutional default setting is for the Supreme Court to have appellate jurisdiction. The exceptions the Congress is allowed to create are to the appellate nature of the jurisdiciton, not to the jurisdiction itself. I think this view of the provision his supported by Alexander Hamilton’s Federalist Number 81 where he says, in part:

We have seen that the original jurisdiction of the Supreme Court would
be confined to two classes of causes, and those of a nature rarely to
occur. In all other cases of federal cognizance, the original
jurisdiction would appertain to the inferior tribunals; and the Supreme
Court would have nothing more than an appellate jurisdiction, “with
such EXCEPTIONS and under such REGULATIONS as the Congress shall make.”

Hamilton is focused on the issue of whether the Supreme Court’s jurisdiction will be appellate or original, not whether it would be deprived of jurisdiction altogether.

Aside from technical legal issues of the law, there is a deeply practical reason why court stripping bills such as Rep. Sodrel’s should never be contemplated. A nation governed by laws depends on citizens perceiving those laws as legitimate in order to function. Access to the courts and review of those laws by an independent judiciary confers legitimacy on the law, regardless of whether a citizen believes the particular law to be misguided. The citizen, therefore, obeys the law even if he or she disagrees with it because he or she regards it as legitimate. Because our laws are, by and large, perceived by the citizenry as legitimate, it takes a relatively small amount of force to enforce the law. Remove the perception of legitimacy, and it becomes much more difficult to govern your citizens. 

Turning back to the issue of Christian prayer offered by the Indiana government as official business of the Indiana House of Representatives.  For years, we had a workable system in the Indiana General Assembly. The House opened its sessions with prayers. The prayers were probably in technical violation of the Constitution in that they were sectarian and not ecumenical, but nobody got too worked up about it. For the most part, those leading the prayers were respectful of those who did not share their views and they focused more on the uplifting qualities of prayer and less on their devotion to a particular deity. In short, the majority was polite to the minority.

But this year, those leading the prayer were less respectful of others and, finally, we had the spectacle of a revival-style, clapping and dancing rendition of the song “Just a Little Walk with Jesus” in which the sensibilities of those who do not worship Jesus and even those who choose not to worship Jesus in that fashion were ignored. In short, the majority forgot its manners.

That escalation of the prayer led to escalation on the other side in the form of a lawsuit. Now we have further escalation in the form of legislation that would chip away at the underpinnings of the rule of law. And for what? For lack of common courtesy. We are not being well served on this issue by our legislators at either the state or the federal level.