July 28, 2004

Where do State Courts Get Their Power?

Eugene Volokh chimes in on the constitutionality of jurisdiction stripping and finds that it's probably constitutional but might be a bad idea because state supreme courts might come to conclusions that are aberrant and there is no trumping them in the federal system at that point. According to Prof. Volokh pro-traditional marriage majorities are then out of luck.

But I'm reasonably sure that this is not so, at least not in all cases. First of all, some state supreme courts can be recalled or are subject to election. California's Supreme Court comes to mind. Another remedy is jurisdiction stripping in the state courts. Here is a simple legislative device that should take care of much of what concerns Prof. Volokh on behalf of traditionalists.

The state judicial power shall not extend to interpreting federal constitutional issues that cannot be reviewed by the federal judiciary. In such cases that the Congress has stripped jurisdiction in order to give primacy to the individual states in accordance with the 9th and 10th amendments, only our own Constitution and subsidiary laws shall be considered for judicial purposes.

This language should take care of both the problem of state courts interpreting the US Constitution in aberrant ways without federal appeal remedy and enforcing out of state judgments that do not conform to local law on the subject. In essence, it acts as an firewall against jurisdiction shopping in order to leverage social change on states that do not want it.

Posted by TMLutas at July 28, 2004 12:09 PM