An Alternative to Amendments: Many Americans, Tired of Federal Courts Meddling in Their Lives, Have Resorted to Trying to Add New Amendments to the Constitution, but There's a Better Solution
Detweiler, George, The New American
Interest is multiplying both in and out of Congress to use Article III, Section 2 of the U.S. Constitution as an alternative to the constitutional amendment process for curbing the excesses of runaway federal courts. The Pledge Protection Act of 2006, introduced by Rep. Todd Akin (R-Mo.), passed the House on July 19 and now faces an uncertain future in the Senate. It would strip federal courts of jurisdiction to rule on the constitutionality of the words "under God" in the pledge of allegiance to the flag. A companion bill in the Senate, introduced by Jon Kyl (R-Ariz.), has gone nowhere, and if the matter is to become law this year, the House bill will be the one to watch (and support with letters to your senators).
Rep. Chris Cannon (R-Utah) filed a bill in the House of Representatives on June 5, 2006, H.R. 5528, denominated the Pornography Jurisdiction Act, which provides, in part, "No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide a question of whether a State pornography law imposes a constitutionally invalid restriction on the freedom of expression." The bill also provides that no decision on point by a federal court shall be binding on state courts. Federal courts have struck down some state laws regulating pornography, ruling that the First Amendment prohibits what the courts have described as the "freedom of expression." The language of H.R. 5528 is similar to that used in other bills currently in Congress which limit federal judicial jurisdictions on a variety of other subjects.
The First Amendment states, "Congress shall make no law ... abridging the freedom of speech, or of the press." The drafters intended to leave the citizenry free to engage in political speech, in particular, and to protect the free flow of information necessary to a free people. Nothing indicates an intent to protect access to smut or those who peddle it. Nevertheless an out-of-control federal judiciary has taken liberties with the Constitution to recast the document as they would have it become, a process which its proponents call an evolving, "living" Constitution.
Proponents of a "living" Constitution faced many obstacles in implementing their will and rewriting our Constitution piecemeal. Their first hurdle came from the first five words of the First Amendment, "Congress shall make no law." State pornography laws are enacted by state legislatures, not by Congress. To overcome this limitation on federal judicial power, an activist Supreme Court developed a line of cases holding that the 14th Amendment was the conduit that allows it to impose the federal restrictions of the Bill of Rights (amendments one through 10) upon state action. The 14th Amendment provides in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law." Once they extended the applicability of the 14th Amendment to state action, it stuck. The 14th Amendment was intended only to protect former slaves from state action which might infringe on their new status of full citizenship, but this limited intent was ignored in favor of an expanded scope far beyond the drafters' intent.
The second hurdle involved bundling the freedoms of speech and of the press into a "freedom of expression" that went far beyond speech or news reporting to include sexually explicit photography.
But activist judges still don't have everything their own way. The Founding Fathers provided a remedy, a check and balance of such judicial excesses. Article III, Section 2 creates the jurisdiction of the Supreme Court, specifically giving Congress the authority to make "Exceptions [to] and ... Regulations" of the court's appellate jurisdiction. Since the great bulk of the cases coming before the court are appeals from inferior federal courts and from state courts, the impact of these exceptions and regulations can be great. …