The Corner

Amending The Constitution

The testy emailer who used the word “ignorant” responds:

First off, Jonah, I did not say the writer was ignorant as a general matter, I said he was ignorant “of basic principles of Constitutional law.” I don’t see this as an ad hominem attack and if it’s construed as such, I apologize – I am ignorant about most principles of physics, if it helps.

As for the other writer’s example of “Now, do you really think the lower Federal courts and the Supreme Court would stand idly by with the 1st Amendment shredded.” First off, the lower federal courts are a creation of Congress, (Art. III, Sec. 1 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”) and may be dis-established at any time that Congress chooses. Should they refuse to disband if ordered, it would be an illegal act and in any case the executive powers would be under no duty to enforce their decisions – if you want to assume that the federal courts are willing to engage in open revolution, fine. Don’t forget too that Congress has the purse strings and can strangle the courts through lack of funding.

Further, if Congress removed appellate jurisdiction from the Supreme Court over 1st Amendment issues, the Court better “stand idly by” or you have a Supreme Court CLEARLY usurping power, exercising extra-Constitutional powers and truly throwing the balance of powers out the window (not that they haven’t done this in more subtle ways already). No, it wouldn’t be an easy thing to curtail appellate jurisdiction because it would have to be approved by Congress, but if done, Constitutionally, the Supreme Court would have NO Jurisdiction over those cases in which appellate jurisdiction has been withheld.

Finally, if federal courts were dis-established and the Supreme Court’s jurisdiction restricted, we still have 50 state court systems which have the power to ensure that the 1st Amendment is not shredded in the writer’s example (as if the Establishment Clause hasn’t already been shredded by federal courts) and that the executive powers do not “deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.” I know Federalism, for most people, is an outmoded concept nowadays, but the state courts can interpret federal law as well – the world will not fall apart without federal courts.

Contrary to the writer’s assertion, the clear language of the Constitution refutes the writers statement that “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.” There is NO restriction on Congress’ power in this respect except as expressly stated in the Constitution. On the contrary, as I’ve pointed out, the lower federal courts are a creation of Congress and may be abolished by Congress and funding withheld and the jurisdiction of the Supreme Court may be abolished except where the Constitution has Original Jurisdiction – it would then be left to the state courts to protect the rights of citizens – so the Second Circuit can rest easy, they may be disbanded and citizens would yet retain their rights.

Jonah Goldberg — Jonah Goldberg holds the Asness Chair in Applied Liberty at the American Enterprise Institute and is a senior editor of National Review. His new book, The Suicide of The West, is on sale now. @jonahnro

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