The Long View 2004-09-24: Jurisdiction, Under God; Niall's Little England; Kerry Defended

I still think John is right that it wouldn't be possible at present for Congress to use it's theoretical authority to define the jurisdiction of the federal courts. In another generation, who knows?

Jurisdiction, Under God; Niall's Little England; Kerry Defended

I see that more legislation is in the works to limit judicial review by restricting the jurisdiction of the federal courts. The latest effort along these lines was the passage by the House yesterday of the Pledge Protection Act of 2004, which says in relevant part:

'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, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.'. The limitation in this section shall not apply to the Superior Court of the District of Columbia or the District of Columbia Court of Appeals.

Why that exclusion of the District of Columbia courts? Probably because Congress is the supreme legislature for the District, and the drafters of the bill want to be able to handle the matter locally.

Bills like this are introduced so that legislators will have something to put on their campaign literature. In this case, the bill lets congressmen say that they have done their bit to control run-away courts. Actually, as readers to this blog know, I fully agree that the practice of judicial review has become untethered, but not in this context. The courts really are authorized by the Constitution to hear cases like this, and a Supreme Court decision that found the Pledge unconstitutional could at least be plausible. In any case, we need not consider the matter again here: the Senate is very unlikely to take up the bill.

By far the more interesting point is this business about limiting review by the courts. The Constitution gives Congress the power to define the jurisdiction of the Courts, but the scope of that power is one of those things that mankind was not meant to know. It's like the Commerce Clause: sane people don't ask the Supreme Court what its limits are. Nonetheless, non-sane people often draft legislation and then vote for it. Many persons of the same sort sit on the federal bench. So, what happens when legislation like this is put to the test in a culture-war context?

Assume, as is likely, that the courts find that the limitation of jurisdiction falls short of some constitutionally mandated minimum. It makes no difference whether that minimum is visible only to the judges; their decision would then be the last word on the books. The legislative and the executive branches would then have to acquiesce, or ignore the most recent interpretation of the law. The latter would be politically impossible.

Some proposed legislation of this sort have bite-back clauses: any judge who tries to pass judgment on a matter that the legislature says is beyond his jurisdiction would be considered to have committed an impeachable offense. That's not good enough, frankly. It is nearly impossible to impeach a federal judge even for ordinary crimes; there is small likelihood of impeaching one on a policy dispute.

No: something must happen automatically if a judge tries to exceed this sort of jurisdictional limitation, and it must not happen to the judge. The law limiting jurisdiction must contain a provision that would require Congress and the president to decide whether a court has exceeded its authority. The sequence might run like this:

A court finds the definition of jurisdiction unconstitutional;The president is automatically notified;

He has 30 days in which he may decide whether to issue the an executive order declaring the decision a nullity. If he does, it cannot then be published in the official compilations of federal court decisions that can be cited as precedents;

Congress has a further 60 days to overturn the executive order by a simple majority vote;

Any further judicial decisions in derogation of the executive order would be subject to the same review process.

As I said, only non-sane people think about this sort of thing.

* * *

Meanwhile, I see that Niall Ferguson has grown too grand for NYU to be his American connection; he is now a professor of history at Harvard, though still quite a Fellow at Jesus College, Oxford. I learn these things from the byline to his recent piece in The Spectator, Britain First, in which he advises Great Britain to throw off the special relationship with the United States, and take up with the Scarlet Woman of Brussels:

The interests of the United States and the United Kingdom have in fact been divergent for many decades. They were perhaps most perfectly complementary a century ago, when Joseph Chamberlain and others discerned the impossibility of maintaining Britain's Far Eastern empire without American support, and the United States still considered itself a hemispheric power. There was another good reason for Anglo-American partnership by 1917, when it seemed that Britain could not defeat Germany without American financial and military support.....

Mr Blair's fervid Atlanticism therefore marks a discontinuity — a break in the longer-term deterioration of Anglo-American relations....

Mr Bush's tacit imperialism -- so much more resolute than that of his predecessor -- has found its staunchest support in Mr Blair's private faith. On they march, these two Christian soldiers, each with a Bible in one hand and a bazooka in the other...The trouble is that while a majority of Americans are receptive to what might be called a faith-based foreign policy, very few Britons are.

I am a great fan of Niall Ferguson, but sometimes I think that he writes things on a bet. ("You don't believe I'd really go on the BBC and advocate cannibalism for overpopulated countries? A case of Guinness Stout says your wrong!") Quite aside from the fact that the "special relationship" is one of those things that seem to take forever to die, the premise of his argument is wrong.

If it were actually the case that Bush's foreign policy is just an example of forthright imperialism, then it would be true that Britain would have no special reason to support it. Imperialism is just exported nationalism; no country has an interest in supporting another's nationalism. However, the point does not apply here. The world has evolved in such a way that the United States has become a cosmopolitan utility, like the UN, except that the US works. What the US has been doing since 911 is a little like a man manually working the pump on a small boat with a hull breach. Strictly speaking, he is working in his own interests, but he can't save himself without saving the other passengers. Some of the brighter passengers will realize that the relationship is mutual.

Britain could freeload off of this service, as Canada and Germany are content to do. The price of that, of course, is that such countries will be less and less consulted on matters of the first moment.

* * *

Speaking of French delusions, let me first make a defense of John Kerry. Swiftvet John O'Neill recently said about antiwar activist John Kerry's meeting over 30 years ago with the North Vietnamese and Viet Cong delegates to the Paris Peace Talks:

"It would be like an American today meeting with the heads of al Qaeda," said O'Neill.

By no means. Talking with al Qaeda would be like doing a face-to-face interview with the Unabomber when he was still at large. Some people should not be talked to, but shot on sight. (Well, arrested.) If you do not try to help bring them to justice, you are an accomplice. In contrast, the US government found the Communist delegations to the Paris talks fit to treat with. If Kerry was trying to some negotiating on his own, he was arguably committing a felony, but that's another matter.

That said, though, the way that Kerry continues to follow the Vietnam script is becoming eerie. Consider this headline, about the recent visit of the Iraqi prime minister, which I will not trouble to link to:

Kerry: Allawi Abets Bush in Putting on 'Best Face'

Allawi "abets" Bush in making an argument for his own government, does he? It's exactly like the antiwar movement in 1971: nothing but defeat will do.

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