Constitutional scholars testified yesterday that no law or Supreme Court ruling prevents Congress from stripping the courts of jurisdiction over abortion, school prayer, busing or any other controversial issue.
In fact, witnesses testifying on such legislation before a Senate subcommittee, even those who vigorously oppose the bills, emphasized that Congress' power under the Constitution to limit court jurisdiction are extremely broad.
It was an "unfortunate mistake" made by the framers of the Constitution, said Northwestern Law School Professor Martin H. Redish, who opposes the bills, "a troubling constitutional authority" he said he hoped Congress would not exercise.
At least 20 bills to trim judicial authority are before Congress. Most are designed to counteract Supreme Court rulings of the past decade legalizing aborton and banning state-sponsored prayer and court-ordered busing. One would remove court jurisdiction over exclusion of women from the draft, currently before the Supreme Court.
Redish, Duke University Law Professor William Van Alstyne, Notre Dame University Law Professor Charles Rice and former White House counsel Lloyd N. Cutler testified before the Senate Judiciary subcommittee on the Constitution, chaired by Sen. Orrin G. Hatch (R-Utah), in a second day of hearings.
They said that such sweeping bills, though proposed many times before, have never been tested by enactment. All but Rice pleaded with the subcommittee not to provoke such a test now.
The impact of the bills, if passed, would be to allow only state courts to rule on these issues, they said.The result could be different laws in different states and an end to the nationwide uniformity currently maintained by the Supreme Court, they said.
All but Rice objected to that outcome, sayin git would bring chaos to America's system of government, "citizenship confusion," in Van Alstyne's words.
"There is no constitutional right to uniformity," Rice said. If there was too much chaos, he said, Congress could always change its mind at a later time. The bills are a surgical technique, he said, better than "tampering with the Constitutional" by amending it and one which could "teach the [Supreme] Court a lesson."
Congress' authority to remove jurisdiction stems from Article III of the Constitutional: "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."
The breadth of the words "such exceptions" has never been fully tested in the Supreme Court, the scholars said. And, though each had his own opinion about how far Congress can go, Redish said, "If Congress truly desires, it can do almost anything it wants to the jurisdiction of the lwer federal courts or to the appellate jurisdiction of the Supreme Court."
"It may seem striking to the lay members of the audience that the role of the Supreme Court was not much discussed by the farmers," Van Alstyne said. "Congress' power is very broad . . . but once we begin, we may have a hell of a time knowing where to stop."
"If taken to the extreme," Cutler said, "such expansion of congressional power . . . could destroy the balance of constitutional authority among our three branches of government."
In the past few years, opponents of these measures gave them little chance of passage. With the change in administrations and the slant of Congress, however, groups like the American Civil Liberties Union have made defeat of the jurisdiction limitation bills a primary lobbying goal.
For the other side, the bills are part of a multi-pronged congressional effort this year to trim what it considers unbridled federal court power without having to go through the more difficult process of amending the Constitution.
The proposed "human life" bill designed to treat abortion as murder by establishing through legislation that life begins with conception, is one of the prongs.