In the popular imagination the courts, particularly the federal courts, and preeminently the Supreme Court of the United States are the interpreters of the national Constitution and the police of the legislatures - state and national.But in fact every branch is a participant and guardian of the ground rules of the polity. In the 1950s the Supreme Court came to be identified with a progressive vision - limiting the greatest excesses of the anti-communist panic of the time as we confronted our former ally - the USSR which was not only armed with a nuclear bombs but demonstrated its rocketry via the Sputnik satellites and intercontinental missiles.
But more to the point was the high court's determination to confront the failure of the national government to realize the objectives of the post-Civil War Amendments which barred slavery, promised equal protection of the laws, and gave the vote to African American men. The Court itself had undermined those promises in the 1883 Civil Rights Cases which voided the Civil Rights Act of 1875. That measure by which Congress exercised its power under the 14th Amendment to enforce the Amendment's promises was stripped by the Court of the federal government's power to bar private acts of discrimination, limiting the national government's authority to actions by a state. In Plessy v. Ferguson the Court ratified a state law which demanded separate rail cars even for persons travelling interstate. Even laws criminalizing integrated education such as that of Kentucky were OK'd by the Supreme Court in the Berea College case of 1908.
The 13th Amendment barring "involuntary servitude" inspired the nascent labor movement. But the high Court broke new ground in 1895 when in the In re Debs case it authorized a strike-breaking injunction, and the jailing of rail worker union leader Eugene V. Debs. Not until the 1932 Norris-LaGuardia Act did the Congress act to strip the courts of their strike-breaking inunction powers.
So when the Supreme Court voided the laws compelling or permitting racial segregation of schools it was treated by the southern states as aggrandizement and usurpation of their traditional powers. Southern massive resistance only began to crack with the 1964 Civil Rights Act, 42 USC 2000 et seq. Frustrated and emboldened the Court acted to protect people from abusive police practices and sought t assure effective defense to criminal charges by promising in Gideon v. Wainwright that even impecunious defendants were entitled to a defense attorney.
So Congressional passivity of a century left many with the understanding and expectation that those aggrieved by denial of rights could look to the courts. But in fact from 1883 to 1954 the single most protective action to protect the civil frights of Americans had been Congress's stripping the federal courts of jurisdiction over labor disputes.
To correct the residual warmth of progressives toward the Supreme Court NYU's Christopher Sprigman presents an expansive view of how Congress, by jurisdiction stripping, can practically amend the Constitution and perhaps stem the current conservative super-majority's pursuit of its anti-civil rights and anti-administrative state agenda.
- GWC August 22, 202272 Pages Posted: 16 Sep 2020
New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy
Date Written: August 8, 2020
Abstract
Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.
Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.
In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters.
Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts.
To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.
Keywords: constitutional law, constitutionalism, democracy, judicial review, federal courts
Suggested Citation:
Sprigman, Christopher Jon, Congress's Article III Power and the Process of Constitutional Change (August 8, 2020). New York University Law Review, Vol. 95, No. 6, 2020, Available at SSRN: https://ssrn.com/abstract=3669954
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