An email I received recently asked about the Exceptions clause in Article III of the United States Constitution. Here is my reply:
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Dear XXXXXX,
First, we must establish a proper premise. Part of the problem with dealing with folks that either oppose the Constitution, or have fallen for the "case law" interpretation, is that they don't understand the argument because they are operating from a different foundational premise.
Article III establishes the Judicial Branch, a branch of the federal government that was nearly not created. A number of delegates in the Constitutional Convention argued that we already have a judiciary, at the State level. Others argued a federal judiciary was necessary for cases involving external issues such as treaties and trade, as well as internal issues that involved resolving legal conflicts between the States. After all, the Commerce Clause (contrary to current opinions and beliefs) was included in Article I, Section 8 to enable the federal government to put interstate commerce in good order, should there be a dispute between the States. In other words, the Commerce Clause was not created to allow the federal government to control interstate commerce, but to act as a mediator when conflicts arose.
The Judicial Branch was agreed upon and established in the Constitution during the final month of deliberations in the convention of 1787.
We must also remember that contrary to popular belief, we are not supposed to have three co-equal branches of government. The Legislature is supposed to be the strongest, followed by the Executive Branch, and finally the weakest branch is supposed to be the Judicial Branch. In fact, John Jay, after serving as the first Chief Justice for a while, resigned his post to be Governor of New York. After his gubernatorial term expired, John Adams, attempting to insert a Chief Justice partial to the Federalist Party's bigger government policies, asked John Jay if he would take the position again, but Jay said no. He considered the position beneath a man, with too little power. Jay, as would the fourth Chief Justice of the United States, John Marshall, believed that the judicial branch should be much stronger, and have powers equal, or above, that of the other branches of government. When Adams appointed John Marshall, and the Midnight Judges, as the Federalist Party began to fade due to the unpopularity of their big government agenda, Thomas Jefferson said that it was a dangerous thing, because unable to create a more centralized government through politics, the Federalists were retreating to a stronghold in the judiciary to accomplish their aims.
The inferior federal courts are established, and can be disestablished, by the Congress, as per the beginning of Article III. Which leads us to the Exceptions clause. Yes, the Legislative Branch is supposed to be the strongest branch of government, established as such because it is the voice of the people (House of Representatives) and the States (Senate prior to the 17th Amendment ratified in 1913). From a purely Constitutional point of view, Congress does have the authority to strip the federal courts of any authority to handle cases that the federal government has no authority over based on express powers enumerated in the Constitution, such as cases regarding marriage, or abortion. However, the Federalists changed the premise, creating a web of constitutional interpretation through case law, largely established by the opinion of John Marshall in the Marbury v. Madison case, where the concept of Judicial Review finally grabbed full hold of our system. The opinion of the Marbury v. Madison case, as well as Marshall's opinion in the 1810 Fletcher v. Peck case, and Joseph Story's opinion in the 1816 Martin v. Hunter's Lessee case, solidified the foundational cornerstones of the concepts of Federal Supremacy, and Judicial Review.
Let me address those two concepts for a moment.
Story used the Supremacy Clause in Article VI of the Constitution to establish his position on Federal Supremacy, as did Marshall in his opinions on the matter during his time as Chief Justice of the United States. But, a careful review of Article VI reveals that not all federal laws, or federal actions, are supreme over the States. Article VI reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."
What this means is that not all laws, or federal actions, are supreme. If a federal law, or action, is not pursuant of the Constitution, it can't be supreme, because the federal government has no authority regarding said law or action in the first place. Unconstitutional laws or actions can't be supreme because the federal government did not have the authority regarding that issue in the first place.
Now for Judicial Review, which is the belief that the federal courts can determine if a law is constitutional or not. State laws on State issues are not supposed to be heard by the federal court system. For example, in Roe v. Wade, the law was regarding abortion, a State issue, and a State law in Texas regarding that issue. The federal courts, including the Supreme Court, had no constitutional authority to take the case, because abortion, or any medical industry associated law, are listed in the Constitution as an enumerated power to the federal government. As per the Tenth Amendment, if the federal government has no authority over an issue, and the State is not expressly prohibited in the Constitution regarding that issue, it is a State authority only.
As for federal laws, and the federal courts practicing judicial review on those cases, we have to ask ourselves what the point of limited government as established by the Constitution means. Delegates, as representatives for the States, wrote the social contract known as the United States Constitution. The States, prior to the Constitution, held all authorities on all governmental powers. The States, through the Constitution, legally transferred some of those powers, the ones expressly enumerated by the Constitution, to the federal government so that it may function in the manner intended. This means that the authorities granted to the federal government were determined by We the People of the States that are united, through our States. The federal government was intended to be limited to only those authorities, and any authorities granted by 3/4 ratification of any amendments, and nothing more.
In the case of judicial review of federal laws, we are told the federal courts may determine if a federal law is constitutional or not. To determine if a federal law is constitutional, that is to determine if the federal government has the authority, or powers, regarding the issue addressed in that federal law. The Supreme Court, and the inferior federal court system, is a part of the federal government; so we must ask ourselves, "Is not judicial review a case of the federal government, through its court system, determining its own authorities? How is that in line with the principles of limited government?"
So, with all of that in place, here is what we must understand regarding congressional checks against the federal court system. Congress cannot confer an authority to the federal courts that is not expressly enumerated in the Constitution as a federal authority, but the Congress can remove from the federal courts any cases that the federal government has no authority over, such as marriage and abortion - as per the Exceptions clause. If worse comes to worse, the Congress, and the States, can also work together to remove authorities from the courts, as was the case in the Eleventh Amendment, which was inspired by the Chisholm v. Georgia case.
Ultimately, laws like DOMA, or federal rulings striking down State laws regarding marriage, or abortion, are all unconstitutional. The issues of marriage and abortion are simply none of the federal government's business.
But, we can take it even a step further. Remember, we have federal courts striking down State laws regarding a State issue, which is bad enough. But the unconstitutionality by the federal courts goes even further.
Article I, Section 1 of the United States Constitution establishes that "All legislative Powers herein granted shall be vested in a Congress of the United States." Legislative Powers include the power to make law, modify law, and repeal (or strikedown) law. Therefore, the mere act of the federal courts striking down law is a legislative action by the courts, or as some like to say, "Legislating from the bench." The concept of Separation of Powers, established in the first sentences of each of the first three articles of the United States Constitution prohibits the courts (and the executive) from acting legislatively. Yet, by striking down laws, and modifying laws with executive orders, both of the non-legislative branches have been continuously acting legislatively.
Now that the two House of Congress are firmly in the hands of the Republican Party, however, that does not mean the Congress will act according to the law. The problem is that the professional politicians (of which there should be no such thing) all believe (save for a small number of Congress Critters whose population includes less members than the number of fingers I have) the tripe of federal supremacy and judicial review. They aren't acting in the manner they should not because they are gutless, but because they truly believe they legally can't. They fear the courts, and the judges, just as the founders feared may happen if too much power wound up in the hands of a federal judiciary.
John Marshall would be proud, I believe.
The problem is, everyone wants to try to solve this through the courts, suing the federal government, and suing leftist judges and politicians. The courts is not where we can win these battles. We must influence and educate our local politicians, and our State politicians, on the United States Constitution, and get them to act. If the States realize they have all the power, and that they are the final arbiters of the United States Constitution (not the federal court system), then the States can simply nullify unconstitutional laws and rulings, for how can they be forced to follow these federal laws and rulings if they are illegal from a constitutional point of view, in the first place?
Blessings,
Douglas V. Gibbs
Constitution Radio, KCAA AM1050
Conservative Voice Radio, KMET AM1490
Author, "25 Myths of the United States Constitution," "The Basic Constitution,"
and "Silenced Screams: Abortion in a Virtuous Society"
President, Constitution Association
www.douglasvgibbs.com
www.politicalpistachio.com
www.constitutionassociation.com
www.constitutioneducation.net
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