Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation

By Pfander, James E. | Northwestern University Law Review, Winter 2007 | Go to article overview

Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation


Pfander, James E., Northwestern University Law Review


Neither Congress nor the British Parliament nor the Vermont legislature has power to confer jurisdiction upon the New York courts.[dagger]

To confer the power of determining [federal] causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power.[double dagger]

INTRODUCTION

The House of Representatives has considered and adopted a wide range of jurisdiction-stripping legislation in the last few years.1 Touching such subjects as gay and lesbian marriage, the Pledge of Allegiance, and official acknowledgment of God by public officials, the bills follow a consistent pattern: They deny the lower federal courts jurisdiction over certain controversial issues of constitutional law, and forbid the Supreme Court from exercising appellate jurisdiction over those same issues. By proposing to strip the federal courts of all power to hear disputed issues, the legislation would make the state courts the final arbiter of the meaning of the Constitution.2 The bills draw on provisions in Article III that confer powers of uncertain and untested scope on Congress to limit the jurisdiction of the federal courts.3

Apart from investing the state courts with initial and final decisionmaking authority, certain of the bills would introduce new wrinkles. One of the bills would free the state courts from any obligation to respect the legal precedents of the federal courts on the issues over which federal jurisdiction has been curtailed." The bills thus attempt to answer the nettlesome (and up to now, largely academic) question whether old Supreme Court precedents would continue to bind the state courts in the wake of legislation restricting the Court's appellate jurisdiction.5 In addition, some of the bills would threaten federal judges with impeachment if they exercise jurisdiction denied them by the legislation.6 These features of the bills seek to counter the familiar principle that the federal courts have jurisdiction to determine their own jurisdiction and can decide whether the Constitution imposes any limits on Congress's power to adopt jurisdiction-stripping legislation.7 By threatening non-compliant judges with impeachment, the legislation raises the stakes for any federal judges called upon to consider challenges to the constitutionality of the bills.

Although the bills have not moved forward in the Senate, the adoption of jurisdiction-stripping legislation by the House marks something of a watershed in the history of Congress's relationship with the federal courts. Jurisdiction-stripping bills are no strangers to Capitol Hill; past bills would have foreclosed federal jurisdiction over questions of abortion, school busing, and school prayer.8 But such legislation has rarely gained a hearing in the House Judiciary Committee and has even more rarely passed the House or Senate.9 Recent legislation, however, has come nearer to passing,10 and the current political climate may produce further initiatives." Indeed, House members have questioned the need for an independent federal judiciary.12

If the bills were to pass, the Supreme Court would eventually face questions about the scope of Congress's jurisdiction-stripping authority. Apart from a few well-known landmarks, we know little about how the Court might analyze the legislation. On the one hand, the Court has suggested a willingness to tolerate restrictions on the jurisdiction of the lower federal courts, in keeping with the notion that Congress has broad power over their continued existence and the scope of their jurisdiction.13 On the other hand, the Court has suggested that it might view restrictions on its own appellate jurisdiction with a measure of suspicion.14 Not only has the Court adopted somewhat strained readings of restrictions on its appellate jurisdiction, it has done so to avoid the constitutional question that would arise from legislation proposing to curtail such appellate authority. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.