WHAT DEVELOPMENT on the Hill has constitutional scholars profoundly worried and legal bigwigs warning about the prospect of a crisis in the government? It is the introduction of legislation in Congress to limit the jurisdiction of the federal courts to decide constitutional questions. Sen. Max Baucus of Montana has referred to this issue as "the single most important item on our nation's non-economic agenda in the 1980s," and he is not alone in this view.
More than 30 bills have now been introduced in the House and Senate that would take from the federal courts the power to decide certain cases. Most of the bills are responding to controversial Supreme Court decisions on subjects such as prayer in the schools, busing and abortion. These rulings, because they are grounded in the Constitution itself, cannot be overturned by statute. A constitutional amendment would be required in each instance, but amending the Constitution takes time and great political strength. Amendments must be proposed by a two-thirds vote of each house of Congress and then ratified by the legislatures of three-fourths of the states. Because each of the single-issue constituencies opposing a Supreme Court decision would find it difficult to mobilize enough support to amend the Constitution, their leaders in Congress have proposed another tactic designed to accomplish the same result. They would pass a law--by simple majority vote--removing a certain class of cases from the jurisdiction of the federal courts, thus, leaving constitutional questions in sensitive areas up to the 50 individual state courts.
This approach to constitutional law, like the Roosevelt court-packing plan of the '30s, seeks to control the decisions of the courts by undermining their very structure. If the strategy succeeds, the judiciary would no longer be an independent and equal branch of government, and no rights would endure without the consent of Congress.
David Brink, the president of the American Bar Association, warns, "If we permit Congress, or even the people, to avoid (the amendment) process at will by simple majorities, we have . . . lost our Constitution as the supreme law of the land." Four former attorneys general and three former solicitors general have advised members of the House and Senate judiciary committees that "Congress is not empowered by the Constitution selectively to restrict the jurisdiction of the federal courts."
Tipping the balance of power so carefully crafted by the Founding Fathers is a dangerous game, and Congress should refuse to play.