Marriage and the Judiciary: Reign in the Courts--for the Interest and Liberty of the People

Marriage and the Judiciary:
Rein in the Courts--for the Interest and Liberty of the People.

Steven Montgomery
Thursday, February 26, 2004

A great constitutionalist, J. Reuben Clark, once observed that the checks and balances designed into the Constitution of the United States constituted its "marvelous genius" and was the result of "divine inspiration." If then, the United States Constitution was the result of marvelous genius and divine inspiration, why is it that there are so many proposals to alter the document with amendments? For example, in recent years we have seen calls for constitutional amendments to deal with:

  • Abortion
  • Term limits
  • Balanced budgets
  • Flag burning
  • Forced busing
  • School prayer
  • And others

And now, just recently, calls for a Constitutional Amendment that would ban gay marriages and define marriage as between one man and one woman. Those who love freedom identify with these issues and will usually agree that these are all issues that must be dealt with. Because of the way that certain activist Federal Judges and the Supreme Court have ruled on these various issues, many who understand the moral basis of free societies, feel backed up to a wall, thinking that only a Constitutional Amendment will properly restrict abortion, balance the budget, or whatever the latest call might be to restore morality, common sense and freedom.

And now, President President Bush has joined the fray. On Tuesday, February 24th, 2004, he came out in support of a constitutional amendment which would ban gay marriages and stated, that because of a "few judges and local authorities" that "Their action has created confusion on an issue that requires clarity." Yes indeed, President Bush, this issue does deserve clarity. The proposed Constitutional Amendment banning gay marriages however will only serve to promote obfuscation and cloudiness. Let me explain why.

The Constitution is not flawed

The Constitution, is not flawed, and in need of amending, activist Federal judges are. The Constitution has a well suited mechanism to deal with activist judges--which I'll get to in a moment.

Why is amending the Constitution a bad idea? Marriage historically and constitutionally has always been either the province of churches or of individual state governments. The mere fact of having a marriage amendment will introduce the Federal Government into this sacred institution. It will tend to greatly enlarge the size and scope of the Federal Government. Will there now be a bloated and bureaucratic Department of Family and Marriage security, for instance? Do we really want to give the Federal Government this much power?

What if, say in ten or twenty years, due to the deteriorating decline in the attitudes and morals of the American people, the amendment is itself modified to include same sex marriages? The history of prohibition should certainly give one pause to consider that such would be a possibility, if not certainty.

Besides, the amendment process being a cumbersome and tedious chore, it offers little hope for success. Law Professor Jules B. Gerard of Washington University explains why:

The claim that amending the Constitution is the proper remedy for bad decisions is not a legitimate response. That requires super-majorities at every stage of the process. But why should society have to shoulder the burden of mustering super-majorities to overturn decisions like the abortion and death penalty cases, decisions without even a semblance of an anchor in the language, structure, or history of the Constitution? Amending the Constitution was designed to provide for unanticipated changes in our society, not to be a corrective for abuses of judicial power. Furthermore, resorting to the amendment process lends an aura of respectability to such decisions that they on no account deserve. It implies that the problems are created by the Constitution instead of by the judicial usurpations of legislative power, and regular resort to the amending process is bound to encourage rather than discourage misbehavior by the courts.

The Constitutional Solution

More importantly, It diverts attention from a far more effective and less troublesome method for dealing with judicial irresponsibility. The solution offered by the Constitution itself in Article III, Section 2, which states, "In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a 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." In other words, Congress may, by simple majority vote of both the House and Senate (and approval by the President), strip the Supreme Court and the inferior federal courts (established by Congress under Article III, Section 1) of their authority to hear cases on appeal, thus leaving the resolution of such cases to state courts. A perfect mechanism for checking judicial activism. The sacredness of the marriage institution can be preserved--without an amendment.


There is a whole train of judicial witnesses that this power--to make exceptions and limitations on jurisdiction--is a legitimate and viable one. First, here is what founding father, John Marshall, said about this power during Virginia's ratifying debate:

Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people."--John Marshall, during the State of Virginia's ratifying debate.
Next, Chief Justice Oliver Ellsworth, whose opinion is especially noteworthy because he was a delegate at the Constitutional Convention and a member of the committee of detail which drafted the exceptions clause, remarked in Wiscart v. Daushy (1796):
. . . even the [Court's] appellate jurisdiction is qualified; inasmuch as it is given 'with such exceptions, and under such regulations, as Congress shall make. . . If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.

Then, John Marshall, after he became Chief Justice of the Supreme Court in United States v. More (1805):

As the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its power must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described.

John Marshall, once more, in Durousseau v. United States (1810):

When the first legislature of the union proceeded to carry the third article into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court.

Roger B. Taney, as Chief Justice in 1847, when he observed in Barry v. Mercein:

By the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred, be exercised in any other form, or by any other mode of proceeding, than that which the law prescribes.

Salmon P. Chase, Chief Justice in 1869, wrote, in Ex Parte McCardle, for the unanimous court, that the Court had no choice but to decline jurisdiction because Congress had stripped the Supreme Court of Jurisdiction in this particular case:

. . . the power to make exceptions to the appellate jurisdiction of this court is given by express words .... Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

Chief Justice Morrison R. Waite, in the Francis Wright case, (1881), remarked that the Court's appellate powers:

shall be [and] to what extent they shall be exercised, are, and always have been proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes be kept out of the jurisdiction altogether but particular classes of questions may be subjected to reexamination and review, while others are not. . . the rule, which has always been acted on since, that while the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe.

Justice Wiley Rutledge, in Yakus v. United States (1944):

Congress has plenary power to confer or withhold appellate jurisdiction.

Justice Rutledge, who, by the way, opposed the power Congress held to make exceptions or limit jurisdiction, and knew it would take a constititutional amendment to abolish the power. Likewise, Justice Owen J. Roberts, opposed the power but remarked there was nothing he could do about it in the American Bar Association Journal, (January 1949):

What is there to prevent Congress taking away, bit by bit, all the appellate jurisdiction of the Supreme Court of the United States? ... I see nothing. I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court.

Want me to go on? But, I think you get the point--this particular power that Congress holds under Article III, Section 2 is valid and begs to be used.

In speaking of how this power could be used, Notre Dame Law Professor, Dr. Charles E. Rice, declared:

The constitutional system of checks and balances, was designed to operate with respect to the judiciary, as well as in other matters. Congress has the power to control the entire jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court .... While Congress has not used this power since the Civil War period, it is clear from the 1869 case of Ex Parte McCardle, and from numerous statements in Supreme Court opinions, that Article III, Section 2, means what it says.

By limiting the Court it would remove a vast "breeding ground" of false judicial doctrine which has been spawned over the years. At the very least it would send a very strong message to these courts. It could teach the Supreme Court, or other activist Federal judges, a lesson. One advantage of a withdrawal of jurisdiction is that it would not permanently change the constitution as an amendment would. As Dr. Charles E. Rice, of Notre Dame University noted, appellate jurisdiction could be easily restored whenever Congress decided that the courts "showed signs of a return to sanity."

Critics of the Article III, Section 2 option, often cite that litigants would be denied "due process" or "equal protection" of the law were such legislation limiting or denying jurisdiction to Federal Courts ever passed. However, as Dr. Ralph Rossum, dean of the faculty of Claremont McKenna College and former chairman of its Department of Government wrote in a Monograph entitled, "Congressional Control of the Judiciary: The Article III Option," that even if you limited the jurisdiction of the Supreme Court and the lower federal courts, or took away their appellate jurisdiction entirely, it would not deny due process as litigants appeals could still be heard by state courts, as they are also bound by oath to sustain the U.S. Constitution as the supreme law of the land. It is a critical and important point. Noting that, "Independent judicial hearings need not necessarily occur at the Supreme Court level. The requirements of the Due Process Clause can be fully satisfied in the lower Federal and State courts, even if the Congress were to strip the Supreme Court of its entire appellate jurisdiction."

To restate, Congress's power under Article III, Section 2, doesn't prevent Federal Issues from reaching a judicial forum, since both the State and Federal Courts Justices have sworn to uphold the Constitution of the United States, it only gives Congress the power to decide how to funnel these issues between the Federal and State court systems. As long as Congress doesn't discriminate between litigants, it has the power to pass legislation that funnels litigation between either the Federal or State Court systems based on the type of issue, all without fear of the Constitutions equal protection provision.

Other critics argue that, under the "full faith and credit" clause (Article IV, Section 1) of the Constitution, that gay marriages legal in one state would have to be recognized by all the other states. This is a weak argument however, when currently, there is no state in the Union which sanctions gay marriages. Not even Massachusetts, California, or Hawaii. In fact, 38 States have Constitutional Amendments defining marriage as between one man and one women. The other states are similarly opposed. Therefore, the "full faith and credit" argument is moot. It's a non-issue. Even in "hot spots" like Boston or San Francisco, the governors of those states have said that gay marriages are illegal. Arnold Schwarznegger said so. Mitt Romney also. Left to the states, it is hardly likely that they would legislate against traditional marriage.

Finally, during the ratification debates of 1789, nearly everyone agreed that "consolidated" government was to be avoided. If Congress utilizes their power under Article III, Section 2, it will help us return to our original constitutional system, which will restore "confederated" government, and avoid the evils of "consolidated" government we have been getting for the last several decades.

Yes, defending the sanctity of marriage takes clarity. This proposed Marriage Amendment however serves those promoting obfuscation. Clarity deserves something better. Isn't it about time to utilize this little known check, found in Article III, Section 2, and provide this much needed brightness against judicial darkness and tyranny?


The Constitution: A Heavenly Banner, by Ezra Taft Benson.

The New American magazine, published biweekly by American Opinion Publishing Inc., a wholly owned subsidiary of the John Birch Society.