View From a Height
Commentary from the Mile High City
Sunday, July 25, 2004

Constitutionally Illiterate 

With yesterday's edition, the Denver Post editorial staff has officially crossed the line into Constitutional illiteracy. Its opinion on the unfortnately-named "court stripping" bill (now there are some visuals you just don't want) demonstrates an ideologically-driven willful ignorance of Constitutional provisions that should disqualify them from further comment on the document, until further notice.

Just when we thought the gay marriage debate couldn't get any more offensive ...

The Republican-controlled U.S. House of Representatives outdid itself this past week by passing a make-believe bill that would strip the federal courts of jurisdiction over same-sex marriage cases.

Yes, a "make-believe bill." Presumably the make-believe vote on this make-believe bill will be referenced in the Congressional Record, a journal not exactly given to parliamentary flights of fancy. This bill was actually quite real, although it may become a fairy tale once Tom Daschle gets a hold of it.

Republicans called it a fallback measure to keep "activist judges" from ordering states to recognize same-sex marriages allowed by other states.

In reality, it was a political maneuver to polarize the fall campaign.

Note the scare quotes around activist judges. Just because Colorado isn't in the 9th Circus is no reason not to have heard of it. Does the Post really believe that federal judges, even this Supreme Court, are above this sort of thing? Maybe they believe that activist judges are similarly make-believe. Personally, it looks to me as though judicial restraint has passed into myth and legend.

Set aside the social and moral implications of the gay marriage argument for a moment, if you will, and look at this bill at face value: Do we want Congress to tell the U.S. Supreme Court what it can or cannot review? What system of government is that? Lawmakers are attempting to rig the separation of powers and unbalance the three branches of government.

That system of government is called "Constitutional Republicanism." Now, the editors of thePost may have heard of one or both of those terms, but let me refresh their memory. This comes from Article III, Section 2 of the "Constitution:"

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.

Findlaw, a terrific site, includes some judicial and legislative history on this point. It says, without much fanfare or controversy on the general issues, that Congress has the explicit right to do just what the Republican leadership wants to do. At first, there was question as to whether the Courts required explicit permission to decide a case, but since the Courts were doing the deciding, that issue was settled pretty quickly. The editors of the Post might want to read this sometime. Preferably before they write their next editorial on the subject.

If it were ever to see the light of day, the legislation would prevent courts from ordering states to recognize gay marriage by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act. That law, passed in 1996 and signed by President Clinton, says no state has to recognize same-sex unions from other states.

This past spring, Massachusetts began sanctioning same-sex marriages.

Memo to the 223 lawmakers, including 27 Democrats, who approved this bill: Contrary to what you may wish, in our system the Constitution reigns supreme.

Memo to the Post editors: read the Constitution before invoking it. You might be surprised what's in there.

"This bill is a mean-spirited, unconstitutional, dangerous distraction," Massachusetts Rep. Jim McGovern was quoted as saying. "They couldn't amend the Constitution last week, so they're trying to desecrate and circumvent the Constitution this week."

Alarmingly for a US Congressman, Mr. McGovern doesn't know the Constitution any better than the Post, but he certainly knows what side of the aisle he's on. Using Project Vote Smart, you can find out the most amazing things about voting records...

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