Monday, July 26, 2004

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: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.


At 3:10 AM, [REDACTED] said...

I've heard a counter-argument that Marbury v. Madison is the legal fig leaf necissary. Other than the vague "democratic principles" argument, I can't see how this case specifically regards the clause of Article 3 Section 2 that is relevant to the MPA...

At 1:43 PM, [REDACTED] said...

Great summary RS. I would add gerry-mandering to the list of "gloves off" tactics that are eroding the stability and legitimacy of our system. The Texas example is the most egregious yet.

At 1:57 PM, [REDACTED] said...

Thanks for your further explication, Rahul. You wouldn't believe how interesting and informative this stuff is for us non-lawyers.

At 4:30 PM, [REDACTED] said...

Responded - my issue (if it's not clear) is mostly with a semantic problem; what you term "democratic" principles are actually CONSTITUTIONAL principles, and as such legitimate grounds to overturn.

At 5:02 PM, [REDACTED] said...

Arthur, your article responds quite well, but as much as I want to see the Bill of Rights obliquely making that argument, if Article 1 Section 9's prohibitions can be placed beyond the appellate jurisdiction of the Supreme Court, there seems to be no reason why an amendment is different. It may supercede the Constitution, but it only grants a right. It does not specify enforcement, and to the extent then that the document as modified provides for no qualitative difference between "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." and "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."(and the caveat that A1S9 places on habeas corpus mirrors the limits the Court has placed on any of the rights provided for by amendment; it is an insufficient reason anyway to see the two rights as qualitatively different with regards to the mandate of the Supreme Court to enforce them vs Congressional action.)

At 5:12 PM, [REDACTED] said...

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At 6:08 PM, [REDACTED] said...

My opinion is McCardle is wrongly decided, so the analogy doesn't matter too much. I wish, like Publius, I thought they were easily distinguished, but I don't - the Court would likely have to strike McCardle to strike this law.

At 2:27 PM, [REDACTED] said...

Out of curiousity... do you think that any law/act which narrowly defines marriage as being between a man and a woman only could be struck down under the same constitutional logic that has been used to strike down other discriminatory laws/acts?

It seems to me that a lot of the same logic that was used to strike down discriminatory laws that stopped women and minorities from having equal protection and treatment under the law could be applied here. Let me know what you think.

At 4:06 PM, [REDACTED] said...

Not until/unless the Court declares homosexuals to be a protected class, Kevin. And they explicitly didn't do that in Lawrence. Til that happens, discrimination against homosexuals gets a different test than discrimination against women or blacks.

At 4:07 PM, [REDACTED] said...

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At 4:09 PM, [REDACTED] said...

Let me add to my previous thoughts. Let's say that a gay couple gets married in a state which allows such a marriage. Then this couple moves to a state which does not recognize gay marriages. This same couple wants to have their marriage recognized by the state in which they reside so they bring a case against the said state. This case would clearly bring into conflict two opposing laws from two seperate states and be a case against one of those states. At this point a federal court is suppossed to hear the case. (btw... this case really is just a Dred Scott waiting to happen in our time... except this time we're not worried about secession (I hope)). Wouldn't it be fairly easy at this point for the Supreme Court (or some federal court) to say that it was not legal for the US goverment to pass a law forbidding the federal courts from hearing such a case since such a law violates article three of the Constitution? Moreover, arent' there some framer's intents arguments here? How is the court suppossed to provide a check for the executive and legislative branches when they can bypass the courts so easily?

At 12:53 AM, [REDACTED] said...

Kevin, strange as it may seem, to this point it is very cloudy as to whether it is unconstitutional to restrict the Supreme Court's jurisdiction from reviewing if a given law or executive action is itself unconstitutional.

Arthur and I disagree about where the law lies, and I think everyone expects expediency to win the day. It does point out just how weak our Constitution really is. For a robust one, take a look at Germany's Basic Law. Their constitution is elegant, robust and explicit.


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