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The Political Origins of Judicial Power

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An error in this article about Steve King’s discriminatory jurisdiction-stripping bill allows me to explain something about the foundations of judicial power in the U.S. that many people aren’t aware of:

King’s bill strips way Article III of the Constitution, which gives federal courts the jurisdiction to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage.

Although this is counterintiutive, King’s bill “doesn’t strip away Article III.” It actually seeks to exercise powers given to Congress by Article III:

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 Court repeatedly held in the 19th century that the exceptions clause permitted Congress to strip jurisdiction from federal courts, even in cases involving rights as fundamental as habeas corpus. As some of you know, Congess used these powers in 1932 to stop federal courts from issuing injunctions in most labor disputes.

This is not to say that King’s proposed bill is constitutional. Stripping jurisdiction to target a particular class of people raises obvious 5th Amendment problems, and Hamdan v. Rumsfeld at the very least undermines the logic of Ex Parte McCardle. And, evidently, King’s bill is a disgrace on the merits. But judicial authority rests much less on fixed Article III powers than most people imagine: the size of the Supreme Court, not only the size but the existence of lower federal courts, and the appellate jurisdiction of federal courts are all subject to control by Congress. Judicial authority has grown because members of Congress generally support judicial authority (which is one reason why King’s bill will be DOA even though a majority of members of the House presumably agree with its substantive ends.) Statutes like the Judiciary Act of 1789 are infinitely more important to the establishment of judicial power than Marbury v. Madison was.

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