Unintended consequences

[libertango]

I've been mulling over the possibilities about the recent passage by the House of Representatives of H.R. 2028 -- the bill that strips the US Supreme Court's jurisdiction to decide cases regarding the "under God" clause of the Pledge of Allegiance in relation to the Constitution's First Amendment.

My first inclination is to say such a bill is unconstitutional. Indeed, over at damiana_swan's LJ, I have.  This is because the bill rests upon Article III's outlining of those cases in which the Court has original jurisdiction, and then going on to say, "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."  I would argue that the First Amendment's clause prohibiting Congress' ability to make laws regarding an "establishment of religion" limits Congress' right to regulate the Court on this particular topic.

But the other problem, as I thought about it, was the unintended consequences such a bill might have.  That is, having stripped the Court's jurisdiction to review such cases, the bill basically tosses the issue out to the state courts, where each State Supreme Court can decide as they wish, willy-nilly.  I can think of more than a few states where their Courts might decide this in the secular way the Amendment is written. (Let alone Jesus' injunction in Matthew 22:21.)

Well, turns out Eugene Volokh thought of this, too.  Eugene is a law professor at UCLA, a former clerk to Justice O'Connor, and a fellow member of LASFS.  He goes into more detail, and believes the current Court might well uphold "under God", making the irony of the bill all the greater, given that the states would probably vary compared to a single Federal decision.

Comments

[bella-peligrosa.livejournal.com]

I was reading about this last night, remembering my con law, remembering that Congress has the power to limit the jurisdiction of the Court, in everything but original jurisdiction. I remember when I first read it, it seemed so counterproductive to the constitution. My gut reaction is to cry foul. But it is precisely the consitution that allows this. It's actually a favorite trick question on the bar exam. It just goes against the instincts of the Constitution. You would think that we shouldn't limit the court's authority of review of constitutional questions, especially those within the establishment clause.