Shame On Me?

by Jonah Goldberg

From a reader:

Shame on you for posting an email from a person who refers to others as “ignorant”.

First of all, that’s simply rude. Disagree, but don’t be vitriolic about it. Second, it is not as cut and dry as the post makes it seem to simply “revoke” judicial review by the means suggested.

For one thing, there’s a simple constitutional aspect of separation of powers.

Let’s say the Congress passed and the President signed a law saying two things:
1) There is hereby established a United States Church of Jesus Christ which is to receive from the Treasury $1 million for the greater glory of the Lord. Amen.
2) Under Article III, Section 2, Clause 2, no Federal Court shall have jurisdiction to hear any case arising from provision 1. This goes double for the Supreme Court.

Now, do you really think the lower Federal courts and the Supreme Court would stand idly by with the 1st Amendment shredded and say “Ah well. We don’t have jurisdiction. Alas and alack.” Moreover, do you think they should say such a thing?

I agree with the 2nd Circuit in Battaglia v. General Motors Corp., 169 F. 2d 254 “We think . . . that the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.’”

Yes Congress can curtail the courts jurisdiction, but not so much as to make it impossible for the court to function or to operate so that it in effect is suspended.

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