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Ninth Circuit Judge William Fletcher: Conservatives Who Propose Constitutional Amendments to Deal With Gay Marriage and Abortion are Ignoring a Much Easier Solution

Can Congress strip the federal courts of power to decide some federal legal questions, like whether gay marriage or abortion are fundamental rights under the Fourteenth Amendment?  The answer is “yes”, according to an article earlier this year in the Duke University Law Review by Federal Ninth Circuit Judge William Fletcher. I emphatically agree with Judge Fletcher that Congress can indeed allow the courts of a particular state to make a final decision about whether a particular type of state statute violates the federal Constitution.

Article III, Section 2 of the Constitution says that, “The [federal] judicial power shall extend to all cases, in law and equity, arising under the Constitution, [and] the laws of the United States….” (emphasis added).  This is the source of the federal courts’ jurisdiction over federal questions. At first glance, this extension of federal question jurisdiction to “all cases” would seem to mean that Congress cannot withdraw some federal question cases from the federal judiciary.  However, such a hasty conclusion would be flat wrong.

Judge Fletcher points out that the word “all” in this sentence of the Constitution was intended to allow Congress to strip state courts of jurisdiction over some cases (e.g. federal question cases), whereas the Constitution’s omission of the word “all” in relation to other cases (e.g. diversity controversies) disallows Congress from stripping state courts of jurisdiction.  Thus, according to Judge Fletcher, inclusion of the word “all” in Article III, Section 2 expands congressional power with respect to state courts, instead of shrinking congressional power to create exceptions to the federal question jurisdiction of the federal courts.

There are several textual features of the Constitution that I would like to now point out in support of Judge Fletcher’s argument that the word “all” in Article III, Section 2 does not forbid Congress from making exceptions to federal question jurisdiction with respect to the federal courts.  Keep in mind that such exceptions would make those particular federal questions subject to final decision in the state courts.

The first textual feature that provides additional support to Judge Fletcher’s argument is that the Constitution repeatedly discusses “cases of impeachment”, as an exception to federal judicial power over federal questions.  If those cases were not an exception to federal judicial power, then the Senate would have to be an inferior court whose members serve for life, given that all federal judicial power must be vested in the Article III courts.

The second textual feature supporting Judge Fletcher is that Article III, Section 2 does not include the word “whatsoever” as does Article I, Section 8 which gives Congress power over the District of Columbia “in all cases whatsoever.”  When the framers wanted to be categorical, they knew how.  If they had wanted to prevent Congress from making any exceptions to the federal judiciary’s jurisdiction over federal questions, they would have said “all cases whatsoever” instead of merely “all cases”.

A third textual feature in support of Judge Fletcher’s position is the Exceptions Clause, which plainly allows exceptions to federal appellate jurisdiction for federal question cases.  The only way to maintain federal jurisdiction over those particular federal question cases would be by giving the Supreme Court original jurisdiction over those cases.  However, Congress cannot expand the original jurisdiction of the Supreme Court.  The canon of exclusio unius indicates that the Supreme Court’s original jurisdiction only extends to ambassadorial-type cases plus state-party cases (described in the first sentence of Article III, Section 2).

To my mind, these textual considerations strongly buttress Judge Fletcher’s argument.  No recourse is necessary to the private intentions or the secret deliberations of the framers, or to congressional activity after ratification, or to U.S. Supreme Court precedent, or to legislative practice, or to the vast number of law review articles that have been written on this subject.  The text of the Constitution is clear that Congress can make exceptions to the federal question jurisdiction of the federal courts.

As Judge Fletcher emphasizes in his closing paragraph, the failure of Congress to do anything simply amounts to an endorsement of what the U.S. Supreme Court has done: “if Congress has the power to strip the federal courts of their jurisdiction, and if it chooses to leave their jurisdiction undiminished, Congress has to that degree in turn accepted and legitimized the exercise of judicial power.”

UPDATE (October 23, 2010): Just thought I’d mention the following line from the Supreme Court’s opinion by Justice Joseph Story in Martin v. Hunter’s Lessee, 14 US 304 (1816): “The judicial power shall extend to all the cases enumerated in the constitution.   As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised” (emphasis added).  One could argue that no judicial body can exercise power in cases of impeachment, and so those cases are not an exception to the judicial power granted to the federal courts.

On the other hand, Federalist 83 says: “the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.”  That’s similar to what the Supreme Court held in Marbury v. Madison, which seems to contradict the argument (by some scholars who believe stripping the federal courts of jurisdiction is unconstitutional) that congressional exceptions to the Court’s appellate jurisdiction signify that the Court instead has original jurisdiction over those excepted cases.

Anyway, this is certainly not a simple issue, and I’ve got an open mind about it, though I still think that Judge Fletcher is correct.

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