From: baldwin@csservera.scs.usna.navy.mil (J.D. Baldwin)
Newsgroups: talk.politics.misc,alt.politics.elections,misc.legal
Subject: Re: Judicial Branch
Date: 19 Nov 92 13:17:31 GMT
Followup-To: talk.politics.misc
Organization: Comp. Sci. Dep't., U.S. Naval Academy, Annapolis, MD
In-reply-to: mfriedma@uucp's message of 18 Nov 92 21:10:53 -0400

In article <1992Nov19.011053.6720@oracle.us.oracle.com> mfriedma@uucp
(Michael Friedman) writes, quoting tjc50@juts.ccc.amdahl.com (Terry
Carroll), writes:
>[regarding the possibility of Congressional exemption of a law from
> Supreme Court jurisdiction]
>
>>Humph!  Jurisdictional gerrymandering.  Technically legal in most
>>cases, but still suspect, IMHO.
>
>Hardly a gerrymander.  Also, why are you calling it technically legal?
>The Constitution specifically permits it.  It is totally and
>completely legal.
>
>>There've also been suggestions that where a jurisdictional gerrymander 
>>interferes with the Court's core functions or an individual's fundamental 
>>rights, it would be unconstitutional.  These theories, of course, have not 
>>been tested.
>
>No.  I challenge you to give us a cite on these theories.  I don't
>believe they exist.  Why?  Because the Constitution explicitly permits
>Congress to limit the cases the Court can try.

Well, I can't give you a cite, but I can give you a theory.  The
exemption comes from Article I, Section 2.  (By the way, Congress'
power to exempt is not absolute even here.)  However, there are a
number of *amendments* to the Constitution which guarantee certain
fundamental rights.  (For example, "Congress shall make no law
respecting an establishment of religion . . .")  Since they came later
than Article I, Section 2, it can reasonably be assumed that they
override it.  (After all, no one cites the XVIIIth Amendment anymore,
because it has been overridden by the XXIst.  Examples of this are
numerous.)

(Note that the fact that the XXIst Amendment explicitly repealed the
XVIIIth Amendment is not relevant.  There are dozens of examples of
amendments overriding previous sections and amendments without
explicitly repealing them.)

So, suppose Congress passed a law tomorrow saying, "All Americans are
now members of Oral Roberts' flock and shall tithe appropriately.
And, by the way, the Supreme Court shall have no jurisdiction in cases
arising under this law."  We have two conflicting principles arising
under the Constitution: the one that says Congress can't do this, and
the one that says that the judiciary can't tell Congress to stop.  It
would be reasonable to say that, since a fundamental right has been
violated, the First Amendment overrides the main body of the
Constitution (Amendments have a way of doing that, as demonstrated
previously), and the Supreme Court could step in and put a stop to it.

Such an example would not apply, of course, if a case arose under,
say, the Commerce Clause.
--
 From the catapult of:              |+| "If anyone disagrees with anything I
   _,_  J. D. Baldwin, Comp Sci Dept|+| say, I am quite prepared not only to
 _|70|___:::)=}-  U.S. Naval Academy|+| retract it, but also to deny under
 \      /   baldwin@usna.navy.mil   |+| oath that I ever said it." --T. Lehrer
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Newsgroups: talk.politics.misc,alt.politics.homosexuality,soc.veterans