Vox Clamans In Deserto

(Arthur at Ad Populum responds to this article thusly)

Text of the MPA
Final Roll Call Vote for the MPA
Article 3 Section 2, US Constitution
Legal Fiction
Andrew Sullivan
Washington Monthly

The Marriage Protection Act

In the aftermath of the passage of this law by the House, there are a few questions that must be asked:

• Is this constitutional?
• What does this mean for the future?

On the Constitutionality of the MPA

Article 3, Section 2 of the United States constitution outlines the jurisdiction of the Supreme Court:

....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.

Legal Fiction has a great introduction into the issues of this law and the legal games it is trying to play. On the issue of whether this is constitutional, "publius" (the author) makes comparatively few arguments, conceding that it will probably pass constitutional muster, but pleading that SCOTUS find it unconstitutional based on general democratic principles. That argument aside, the only cases to regard this issue that I have ever heard of are:

• Ex Parte McCardle (1868)
• United States v. Klein (1871)
• Felker v. Turpin (1996)
• INS v. St. Cyr (2001)

It is the conclusion of these cases that while Congress cannot legislate a decision on behalf of the Court, it can restrict its appellate jurisdiction regarding both legislative and executive acts. If it can in fact move habeas corpus cases outside the Court's jurisdiction, it is hard to see how cases regarding any other issue are somehow qualitatively different. I have to disagree with "publius"' hopeful opinions in the sense that there is very little scope within stare decisis for the Court to reject this law, and even then really none for DOMA, which is constitutional thanks to Article 4 Section 1. A Roe v. Wadeesque departure from precedent and textualism is not impossible, perhaps not even unlikely, but I can see no legal basis (other than those "democratic principles") for the Court to use.

The Impact of the MPA

It seems a general trend in this country that as time goes by, we see an erosion of all of the subtle customs that allowed us to have a stable government despite what is generally acknowledged by experts in Comparative Constitutional Law as one of the worst constitutions in the First World. These customs were the response to, or the cause of, the vague lack of clarity that the Constitution suffers from, but either way they are rapidly becoming a relic of the past. Whether it be the threatened removal of the filibuster from Senate Rules, the current abuses by the House Rules committee, or this new escalation in the form of the MPA, the gloves seem to have come off.

Without those restraints any controversial law can be passed without any moderating influence. With the removal of judicial review, we have no enforcement mechanism for the precepts of the Constitution, and indeed, no final determination of constitutionality. This apocalyptic image is not so far-fetched; abortion and gun control laws are as likely to be passed w/ A3S2 protection as prayer in schools and criminalization of homosexuality.

Indeed realistically this will not come to a head. Any institution is jealous of its own power, and thus SCOTUS will find some legal fig leaf to strike down this law, and perhaps DOMA as well. The Right will see this as another attack on their precepts by an unelected court, never knowing how close they came to the Left abolishing the private ownership of firearms.