Reining in the runaway judiciary

Last week, nine of the eleven members of Congress from Virginia cast what may turn out to be one of the most important votes in recent American history. They were among the 233 House members to vote for HR3313, titled the Marriage Protection Act of 2004. This piece of legislation takes a forthright and long overdue approach to the most serious threat to American democracy today, after the menace of terrorism. (The threat is not same-sex marriage; that may be the topic of a future column in this space, but it is not my focus today.) Rather, HR3313 confronts unbridled judicial activism, using the tools the Founders wisely gave to the people’s representatives.

The crucial section of this very short bill reads: “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.” While this may not sound earth-shaking, these words, if passed into law, would be a serious setback for the cause of judicial governance in this country.

“Section 1738C” refers to an addition to the U.S. Code enacted by the Defense of Marriage Act, signed by President Bill Clinton in 1996. Stripped of legalese, Section 1738C permits states to ignore the supposed legal effect of same-sex marriages performed or recognized by other states. In other words, Massachusetts and California officials can marry, or recognize the marriage of, as many same sex couples as they want, but it does not mean that Virginia or any other state has to treat the couples as legally married.

There is danger that a federal court will strike down Section 1738C as unconstitutional. Such a decision need not be based on any provision of the U.S. Constitution. A federal judiciary that has found a “right to privacy” and a “right to abortion” in a document that provides neither has already demonstrated its disregard for this country’s founding document. More recently, a supposedly conservative Supreme Court has actually limited political speech, by upholding the Campaign Finance Reform Act.

And in April, the high court prohibited prayer at Virginia Military Institute, having already ruled in 1996 that the 100-plus years during which single-sex education was legal at VMI counted for nothing. Recent federal court decisions have also banned the Pledge of Allegiance (since reversed) and reinstated the practice of partial birth abortion, decisions that are at odds not only with the stated desires of large majorities of elected officials, but also fly in the face of the overwhelming majority of the American people.

The Founders foresaw the possibility that a branch of the U.S. government would attempt to destroy the liberties of the American people. As every civics student knows, the Constitution contains checks and balances to make such tyranny less likely. HR3313 revives an almost forgotten check on the judiciary: the right of the Congress to determine the extent of the jurisdiction of the federal courts. Except for the Supreme Court itself, all the federal courts in the U.S. are creations of Congress. Congress has the power to open and close courts, to rearrange their geographic boundaries, and, most notably, to decide areas in which judicial interference with the wishes of the people is not allowed. During WWII, for example, Congress prohibited the judiciary from interfering with wage and price controls.

Americans traditionally have a high regard for the federal judiciary, so the exercise of checks on this branch have been rare. Congress has the right to impeach judges for wrongdoing, and Congress is free to define flagrant disregard for the people’s wishes as wrongdoing. But judges are rarely impeached and even more rarely removed from office. Constitutional amendments are even more unusual. Congress has also been reluctant to limit jurisdiction. When the judiciary is checked at all, it is through the appointment of new judges.

However, the Democrat minority in the U.S. Senate, by filibustering so many of President Bush’s appointees, is threatening to strip the president of his right to appoint jurists who will interpret the law without trying to rewrite the law. With so many of Bush’s appointments stalled in the Senate, the House has to play its Constitutional role more aggressively than in years past.

Virginia legislators played an important part in this demand for freedom and constitutional order. Virgil Goode, Jo Ann Davis, Randy Forbes, and Tom Davis, all Republicans, were co-sponsors of HR3313. Representatives Bob Goodlatte, Rick Boucher, Ed Schrock, Eric Cantor and Frank Wolf all voted for it.

HR3313 will probably not pass in the Senate, at least not this year. But it might still put some desperately needed fear into the hearts of some of our federal judges. And it has given me more hope in our constitutional processes than anything else has for years.