Monday, September 27, 2004


Readers, it would seem that the new trend in the House of Representatives is to attempt to create de facto consitutional amendments. A measure to amend the Constitution to ban gay marraige was defeated in the Senate by a coalition of Democrats and Republicans, so the Republicans in the House who had backed it wholeheartedly decided to get clever. They drafted H.R. 3133, the Marriage Protection Act, which is the spiritual forerunner of the Pledge Protection Act. It is, however, slightly more insidious in its unconstitutionality. It attacks one very specific area of the Constitution (one dealing with states recognizing each others' acts, records, and judicial proceedings) by ignoring it, then attacking another, somewhat weaker area discussing the jurisdiction of courts in order to produce a loophole diverting the potential of a legal battle regarding the area that it really wants to attack. Sound convoluted? It is, but let me try to explain.

The Marriage Protection Act is very simply designed to protect states from being forced to recognize a marriage license issued in another state. That's unconstitutional. And I quote: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The bill limits the jurisdiction of the courts to hear cases which might question the constitutionality of a state not conforming to that particular clause with regard to marriage. This is tantamount to the House passing a bill that says "Criminals who violate federal law cannot be tried in federal court." Rep. Hostettler (R-IN), the bill's chief sponsor, has done an excellent job of citing constitutional sources for limiting the jurisdiction of courts, however, he exploits a potential reading of the Constitution to produce an intentional loophole. Art. III Sec. 2 reads:

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.

The key words here are: "...with such Exceptions, and under such Regulations as the Congress shall make." Now, here's where things get tricky in my opinion. Hostettler is assuming that the phrase that I just quoted applies to the first sentence as well. (i.e. Congress can make Exceptions and Regulations in Cases to which a State is Party.) It seems to me that the Founders were trying to give Congress the right to create additional areas in which the Supreme Court would have original jurisdiction. The reason I say this is simple. If for whatever reason the state of Indiana sued the state of Virginia and Congress had passed one of these "Protection Acts" regarding the subject of the lawsuit, who would decide? The state courts? They can't. The federal courts? They couldn't either. Judge Judy? I don't think so. Again, blocking cases where specific issues are at stake threatens to create a logical error of the type that would cause a computer to crash.

If reading the constitution in one fashon produces a smooth flow of logic (even if you don't like the outcome) it must be more correct than a reading which produces potential unresolvable conflicts. Let's try to keep in mind that our Founders were the children of the Enlightenment, and Reason was the founding principle to which they subscribed, not religion. If you find yourself in doubt of that simply read virtually anything Thomas Jefferson or James Madison ever wrote.

Thomas Jefferson instructed us that when reading the constitution we should try to imagine the original intent of the founders. Given that the founders were all men of reason, I doubt very much that they intended for us to view the Constitution as a fortress which we are to besiege with crafty legal wrangling. That's all this is, readers, this is a legal and political attack laid according to Sun Tzu's Art of War. They are choosing which portion of the Constitution to engage and altering the battlefield so that they will never have to engage the portion which they cannot defeat. The document establishing our government was not meant to be attacked or defended in segments, divided so that it may be conquered. It was meant to face honorable men face to face. Perhaps our founders placed to much faith in their succeeding generations.

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