Extended Phenotype

….to Tom DeLay and the radical right. The Hill is reporting that Republicans are considering other tactics in the fight to ban gay marriage. The principal tactic being discussed is a “jurisdiction stripping” bill (sponsored by Indiana representative John Hostettler) which would bar Federal courts from even hearing lawsuits related to gay sex and marriage.

Tom DeLay is quoted as saying that he plans to use similar “jurisdiction stripping” legislation to achieve other socially conservative policy goals. Key goals seem to be barring courts from hearing cases relating to the Pledge of Allegience, and abortion, but one can easily surmise it doesn’t stop there.

I’ve seen articles saying this kind of maneuver is allowable, but I’m not so sure. It’s true that Article III only establishes the Supreme Court, and leaves lower court establishment up to Congress, but Article III Section 2 seems fairly clear on jurisdiction:

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; (See Note 10)–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Hmmm…the judicial power extends to all cases arising under the Constitution and the laws of the United States. And the judicial power is exclusively vested in the Federal courts according to Article III Section 1.

Granted, I’m an amateur, but I read that as meaning that Congress can’t strip jurisdiction from the courts. Period. Congress certainly has the right to establish and regulate the number of Article III courts (Article III, section I, and Article I, Section 8, clause 9), but it can’t say that the courts don’t have the right to adjudicate a lawsuit arising under the Constitution or a law of the United States.

Justice Scalia has been a huge proponent of allowing controversial issues to be decided within the “political branches.” And he’s often right — some issues really should be deliberated by the country’s representatives. But that means that the losers have to abide by the results, and not try to tear down the rules in order to change the outcome. That’s not the rule of law, and it’s not what our country stands for.

What the hell are these guys thinking?

This must be posturing, in an effort to keep the radical right “base” believing that Congressional conservatives are working hard for their world-view.

I hope.

But it certainly seems like there is no depth to which the radical right isn’t willing to go in order to win. Apparently heterosexual marriage is sacred, but the Constitution isn’t. Well, I’ll tell you what. I’d be more likely to respect their views if they respect our Constitution and the rule of law.