Positive Liberty

Dolphin has asked me to comment on The Constitution Restoration Act, whose operative text reads as follows:

‘Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element’s or officer’s acknowledgement of God as the sovereign source of law, liberty, or government.’

First off, I should note that the more high-sounding and grandiose a bill’s title appears, the less honorable and the less useful its ultimate ends inevitably are. Recent examples include the USA-PATRIOT Act, the No Child Left Behind Act, and the Defense of Marriage Act. This bill seems destined to join their ranks, and if a Being Nice to Cute Cuddly Puppies Act ever comes up for discussion, we’d all better be certain to read the fine print more carefully than usual.

Now, I am not a constitutional scholar, but so far as I can tell, the bill before us is merely another in the very long and quixotic train of court-stripping measures; such tactics were last heard of (and debunked) in the context of same-sex marriage, notably by Tim Sandefur (who is a constitutional scholar, and a very good one), and by Sasha Volokh (with help from Eugene), both of whom are also far more competent than I am to judge these questions.

The verdict is unclear whether jurisdiction stripping is at all permitted, but it seems doubtful to say the least. Oxblog says quite explicitly that such tactics are unconstitutional, and my gut reaction is to agree–but again, I’m not an expert.

No, I am merely a wit, and so–with no further qualifications–I will give my opinion. As I understand it, the Supreme Court in Ex parte McCardle declared that some forms of jurisdiction-stripping were indeed permitted. Why, pray tell, did it take this unusual step? After all, it makes no sense for any branch of government to voluntarily limit its own powers.

There must have been a reason for this ruling, and my suspicion is that it was quite carefully crafted for one specific reason: to waste the time of the legislators from one frustrated session of Congress to the next, each of which would be tempted into the consideration of jurisdiction-stripping measures. Ultimately they would all amount to nothing–even while consuming the limited time and resources of a rival branch of government. And the legislature, being institutionally too dim to notice such things, has complied ever since. The Supremes must surely be amused.

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