Rep. Robert W. Kastenmeier (D-Wis.) contended that federal courts must remain supreme ["Perspectives," April 16]. His purpose for writing was to bolster his viewpoint that the Supreme Court is immune from congressional review. On the contrary, the Constitution must remain supreme. That inspired document specifically obligates Congress to check the judiciary when it steps beyond constitutional limits, just as the executive branch can use the veto to prevent congressional excesses. The majesty of the constitutional framework is that no branch is permitted to become supreme.
The drafters of the Constitution carefully composed Article III to place with Congress the responsibility to ensure that personal liberties are not endangered by an errant or arrogant judiciary. Section 2 lists the kinds of cases that the Supreme Court has the exclusive right to decide and then proceeds: "In the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, with such exceptions, and under such regulations as the Congress shall make."
With this language, the supreme Constitution charged Congress to regulate which cases the federal courts could hear on appeal from state courts. A legislative decision to make an exception in federal court appellate jurisdiction would give effect to the last article of the Bill of Rights, which reserves to the states and the people all matters not specifically delegated by the Constitution to the national government. Disputes would be settled by more accountable state and local decision-makers rather than by national mandate.
Even Alexander Hamilton, known for his predisposition to favor centralized governance, reassured those who feared the potential reach of the federal judiciary by affirming that "the national legislature will have ample authority to make such exceptions and prescribe such regulations as will be calculated to obviate or remove, these inconveniences." In Hamilton's estimation, a mere "inconvenience" would warrant a use of the specific constitutional check on the federal judiciary.
Substantial groups who feel that the Supreme Court has abridged their rights are now petitioning Congress to recognize its constitutional role. They contend that, under the guise of interpretation, the Supreme Court has been amending the Constitution to jeopardize their rights. For instance, a single amendment (the 14th) of the Constitution has been stretched by the court into a number of controversial decisions. That single amendment has been employed to wrest from states and localities the decision of which school a child should attend, to permit programs favoring one race over another and to reverse more than 150 years of exclusive state discretion over apportionment of congressonal districts. On occasion, the tribunal has not even bothered to interpret the Constitution itself, but only its penumbrae, to declare that children are not persons before birth. Moreover, only a constitutional amendment by the prescribed Article V method would be sufficient to alter these doctrines promulgated by five out of nine judges. Fortunately, the approval of two-thirds of Congress and three-fourths of the states is not the only way to cause five judges to reconsider their actions.
In weighing whether to employ its authority to protect individual rights, Congress need not rely solely on these errant opinions.
On one occasion, the court branded a court of conduct it had pursued for nearly a century "an unconstitutional assumption of power by the courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." If the court, by its own admission, had unconstitutionally assumed authority for almost 100 years, Congress is justified in asking what it might not have yet confessed.
When Congress did withdraw appellate jurisdiction, the Supreme Court itself acknowledged Congress' authority by immediately dismissing the questioned case. This was the famous exparte mcCardle case concerning a habeas corpus petition following the Civil War. The court stated conclusively: "We are not at liberty to inquire into the motive of the legislature. We can only examine into its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this court is given by express words." The Supreme Court itself would seem to take issue with Rep. Kastenmeier's reading of the exceptions clause.
Before writing out of the Constitution this check on federal court supremacy, the congressman should recall that the Supreme Court once ruled that a black man is not a person (similar to the ruling about unborn children) and could be regarded as property. More recently, the court decided that Japanese Americans could be incarcerated during World War II, simply on the basis of their national origin. If a future court wanted to return to those precedents, we would all be more secure knowing that Congress could halt the legal abrogation of rights.
The federal judiciary has been courting constitutional disaster by reading its own predilections into the nation's foundational document. The Supreme Court is the body charged with policing the bounds drawn by the Constitution. When the policeman violates the law, a higher authority must undertake to protect freedoms. The Constitution is that higher authority and has outlined the means to prevent overreaching. Jefferson provided the most graphic expression for this dilemma: "It is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
The Constitution is supreme, not the court. We should all be grateful that the Constitution includes checks to ensure that individual liberties do not fall prey to any single ambitious branch of government.