July 23, 2004

Article 3 Section 2 Comes Alive

Via Outside the Beltway comes notice that the US Congress has been reduced to the use of blunt force instruments to restrain the judiciary. Clause 2 of Article 3, Section 2 of the US Constitution reads as follows:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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.

In short, the Congress has always had the power but has never had the courage to limit the judiciary. The judiciary has usually had the good sense to reign in their wilder impulses before Congress gets around to passing an Article 3 limitation law. It looks like the gay marriage issue is going to cross the line.

In a way it's pretty sad. the Exceptions and Regulations clause was always viewed as an "in case of emergency, break glass" type of Congressional power. I'd have hoped never to have to see the day it was used. If it passes, look for more and more political factions to try to replicate it.

Posted by TMLutas at July 23, 2004 12:21 PM