Let's look at it this way.. The suggestion is that Congress codify the exact ruling in Roe v. Wade and subsequent cases that had any clarifications. Congress does this. How do you challenge the constitutionality of a law that was written based on the constitutional decision of the Surpeme Court? You would have to relitigate the case which raises the issue of whether this is a state interest overriding individual interest. Congress cannot write a law involving CONSTITUTIONAL RIGHTS and then claim that THIS SPECIFIC LAW is immune from SC appeals because the case Pie is relying on was 100% on a political decision about Reconstruction. In the case that is almost 200 years old The Supreme Court agreed to hear McCardle’s appeal, and the Radical Republicans envisioned a repetition of Ex Parte Milligan, in which the court limited the jurisdiction of military tribunals. Fearing that the court might declare the Reconstruction Acts (which mandated military occupation of the South) unconstitutional, the Radicals passed a law stripping the court of its power of judicial review with regard to Reconstruction measures. President Andrew Johnson vetoed the bill, but Congress overrode the veto. Congress puled the jurisdiction of the SC on the Reconstruction Act because it was a political act on post Civil War South and was focused on undoing slavery and succession crimes. Congress did not want the SC weighing in on a purely political issue of reconstruction. abortion is not a purely political issue becuase it iinvolves the rights of a person over their body and there is a long precedent of government limitations on interfering on individual rights with respect to their personal choice and body (Loving v. Virginia, Griswold v. Connecticut, Lawrence v. Texas etc.. Therefore in a case like abortion, completely different than the McCardle case from 1867 which had a clear political issue and was about whether the military can arrest someone for supposed crimes in violation of the reconstruction act, the constitutional issues were already determined to be highly involving Constitutional rights of the Due Proces clause of the 14th amendment. The reconstruction act did not touch upon any constitutional rights and Congress in 1867 did not want the SC legislating on this issue.
The lower court is not needed. What bears on the Supreme Court does so on the lower federal courts as well. Congress has the power to make exceptions to the Supreme Courts Appellate Jurisdiction. There has been, it turns out, one test of this power, as given by the Constitution in direct and unambiguous language. In that case, during Reconstruction, Congress was concerned that a conservative Court would interfere with plans for reconstruction and so contrived to prevent the Court from hearing an Appeal based on their legislation. Chief Justice Chase specifically acknowledged Congress' right to make exceptions to the Court's, otherwise general, Appellate jurisdiction. As a result the Court refused to consider the case beyond it's initial hearing. This is a rather stunning illustration of Congress' awesome power in this regard. The Court had already heard arguments, but Congress prevented the Court from going further to issue an opinion. This stands as an unambiguous confirmation of Congress' power to restrict the Court's Appellate jurisdiction, exactly as clearly stated under Article III. Incidentally, I learned that there was in fact considerable discussion of this provision in the Federalists papers. Hamilton favored giving the Court general appellate jurisdiction, and also recognized that the exception clause created a potential conflict, as this clause, that could not be more clearly constructed, made the Congress Superior to the Court. It followed then, that in subsequent instances where the Court might have appellate jurisdiction over Congress' statutes and even possibly reject them as unconstitutional -- exactly as happened a few years later in Marbury (1803) -- the situation would then have arisen whereby an inferior body might void the work of a superior body. This occasioned some arm waving on Hamilton's part as he seems to have been trying to reconciled himself to this dilemma by concluding (I looked this up): ...Nor does this conclusion [i.e., the conclusion that the Court could end up voiding an act of Congress] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. [Federalist Paper 78, I think. I have misplaced this somewhere in my office.] A fine example of arm waving, I would say. What do you think?
I think you have nicely summarized the issue. And that was a really nice summary of the Reconstruction case where the clause was invoked by Congress. However I don't think I'd agree that the power of Congress to make exceptions to the Courts Appellate Jurisdiction is in anyway limited to "political matters." Aren't all legislative matters "political matters". The clause is written in strong, clear, unambiguous words, and there are no constraints with regard to the type of legislation that may be subjected to the Clause. As I read the discussion in the Federalist papers (I think it is 78, not certain) it was intended that the Congress have a broad sweeping power in this respect. I am definitely not an originalist, but here we seem to have a case where no difference in interpretation between the 18th and 21st Centuries is required to make sense of what is written. As you mentioned, the danger of course can come from re-litigation! And we do know, although rare, that the Court sometimes changes it's mind with respect to cases heard in the past. The possibility of this happening can be headed off by adding eleven words at the end of a statute, to wit: The Supreme Court shall not have Appellate Jurisdiction over this Statute. Would including these words make the statute now considered any more difficult to get through both Houses. I would think perhaps a little. But we know it is already going to be impossible, in the case of HR-1, to get it through the Senate without dumping the Cloakroom filibuster. And it may be almost as difficult (not quite) to get a codified Roe through. I say put the words in, and if we can't get it through without deleting those words, then delete them. These are both bills having to do with critical, fundamental rights, and as such they deserve the extra protection afforded by the "Appellate Jurisdiction exception clause" of our Constitution under Article III. You write: The reconstruction act did not touch upon any constitutional rights... and I think I would agree though this is open to interpretation. But isn't it exactly when constitutional rights are at stake that we should most need the protection of the Appellate Jurisdiction exception clause? A benign Court will not impinge on our rights, but what if the Court is not benign? What if it is a real Court constructed for the real purpose of challenging fundamental rights of the citizens, such as the right to vote, and Women's right to choose when and if they will bear a child. What if it is a Court constructed upon teachings of a religious sect rather than upon secular law? What then?
Excellent discussion! To cut to the chase I dont think Congress will be successful in codifying Roe v. Wade because well its Congress and they cant get anything right even when one party has a majority. I think Texas opponents will find another way to challenge this quickly and a big battle is coming.
When Obama came into office 1/20/09 he had the House and a filibuster proof 60 votes in the senate...looking back the Democrats under-valued that control. They could have done Roe then....instead they tried to use the voting power for Obamacare that so far has not had more then 25 million members a year
Can another state rush a law through state congress paying bounties on those who snitch on straw purchases and/or private party gun sales w/o running background checks using this precedent? Or make something illegal that's unconstitutional (heartbeat vs viability (roe v. wade) so you can snitch on gun owners. Maybe a "training requirement" per the "well regulated militia" clause. If you didn't attend classes, you get snitched on. Easiest way to throw out a law is using it in the same way for something the other party opposes.
Bottom line though is many of these anti-abortion laws are immoral and eventually even the most backwards states in the US will have to get with the program. These laws would never have a chance in Canada we got past this bs many decades ago it's really a women's rights issue. One new thing for me is I hadn't realized how backwards Texas and Florida were in some regards.
i try to be nice... buy you are such fucking fool when it comes to the law... and economics.. what a clown show you just put on. Lots of words.. . you even got close to it... when typed some words about it but its clear you did do not comprehend what the court did in marbury vs madison... and its subsequent line of cases. page after page of stupidity... just went by. Judicial Review... understand the concept... There is a reason why nobody is arguing that congress can pass abortion laws a then make them non "reviewable". ----- The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803). About the Supreme Court | United States Courts - USCourts.gov
It's not an appellate jurisdiction question Mortimer. The court has original jurisdiction and also the power of judicial review. Your arguments are ridiculous and novice in nature.