- Historic Sites
Taking Another Look At The Constitutional Blueprint
May/June 1987 | Volume 38, Issue 4
Obviously, the importance of this provision is that it empowers Congress to take cases away from the Supreme Court and leave them to the states to decide. For example, the Supreme Court—unconstitutionally—struck down the anti-abortion laws with the Roe v. Wade decision in 1973. Under Article III, Section 2, Congress could remove Supreme Court jurisdiction over abortion cases and thereby allow the states to enforce their traditional anti-abortion laws.
Through similar legislative enactments Congress could restore voluntary school prayer and severely limit forced school busing. There are other areas in which Congress could act as well, reining in activist federal judges more bent on imposing their own views than in applying the law.
This approach is fully consistent with what the framers had in mind when they drafted Article III, Section 2. In The Federalist, No. 80, Alexander Hamilton wrote: “If some partial inconveniences should appear to be connected with the incorporation of any of them [judicial powers] into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”
John Marshall—later Chief Justice of the United States—said at the Virginia ratifying convention: “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”
Senator Ervin and I were convinced long ago that the interest and liberty of the American people have been put in jeopardy by modern federal judges in any number of areas. Likewise it is clear that the framers knew what they were doing when they empowered Congress to act to curb judicial usurpations. The question pending for future Congresses is whether they will have the courage to act.
-Jesse Helms United States Senator, North Carolina.
I would like to see some restraint placed upon the policymaking power arrogated by the United States Supreme Court in particular and the American judiciary in general. This change cannot be achieved by formal amendment. What is needed to prevent further judicial subversion of the principle of self-government is strong public pressure from an informed citizenry and legislative reassertion of a coordinate right and duty to interpret the Constitution. My views, I should add, are substantially those expressed by Abraham Lincoln in his first inaugural address.
-Don E. Fehrenbacher William R. Coe Professor of American History Emeritus, Stanford University.
It had my druthers, I think I would like to see a change in Article III defining the judicial power of the United States and most specifically in Section 2, the clauses pertaining to controversies between two or more states and most particularly between a state and citizens of another state, and between citizens of different states, and between citizens of the same state claiming lands and grants of different states. In all these instances such cases have to begin in a federal district court. This situation works against individuals, small businesses, and associations—particularly in the Western states—involved in litigation. It means that they might have to travel hundreds or more miles, establish residence, hire legal counsel other than their local attorney, et cetera, in order to engage in expensive litigation that might go on to a higher court, which means further traveling and further expenses.
In short, taking a case through the federal court system could bankrupt all but the wealthiest of individuals. If the Constitution could be amended to allow these types of federal cases to be tried in state courts, where evidence and circumstances were available and applicable, the change could actually enhance the functioning of our judicial system.
-Richard Lowitt Chairman, Department of History, Iowa State University, Ames.
The extraordinary scope of the policy-making power claimed by the judicial branch in recent decades constitutes one of the most serious political and constitutional problems facing the country today. In their exercise of power the courts have far exceeded the limited political role intended by the framers of the Constitution. In a fundamental sense the problem is constitutional in nature, but it is not necessary to pass a constitutional amendment to deal with it. Congress can and ought to exercise its clearly delegated power to regulate the appellate jurisdiction of the Supreme Court and of inferior federal courts. In this way Congress could help restore the courts to their proper constitutional purpose of settling cases and controversies arising under the Constitution, laws, and treaties of the United States.
-Herman Belz Professor of Constitutional History, University of Maryland.
Make English Official
I should like to see an amendment stating that American English is the official language of the United States, the only one to be used in the transaction of all public affairs, including voting. My reasons are as follows: