Time to Checkmate Federal Courts on Same-Sex Marriage and More

At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— . . . —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction. As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. [Emphasis added.]

(In Federalist Nos. 79 and 81 Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)

In the modern era, various efforts have been made to use congressional control over court jurisdiction to check sweeping liberal decisions of the Supreme Court. The subjects addressed have included Court rulings which sanctioned large-scale busing as a remedy to public school segregation, banned traditional group prayer in public schools, and overturned longstanding state criminal laws restricting abortion. Other efforts to curb jurisdiction have involved religious liberty questions, recitation of the Pledge of Allegiance, display of the Ten Commandments, and state marriage laws reflecting the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair.

Recently some members of Congress have focused on the need to restrain federal judges from imposing their will over state marriage laws – to protect the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair. Congressman Steve King (R-IA) has led a handful of his colleagues in seeking such legislation in the current Congress. See Rep. King’s bill entitled “Restrain the Judges on Marriage Act of 2015,” H.R. 1968, 114th Congress, 1st Session (2015). Most Republican congressmen appear to be overly timid and have been unwilling to join this effort. Only 10 members have signed on as co-sponsors: Brian Babin (R-TX), Jeff Duncan (R-SC), Louie Gohmert (R-TX), Doug LaMalfa (R-CA), Thomas Massie (R-KY), Steven Palazzo (R-MS), Glenn Thompson (R-PA), Tim Walberg (R-MI), Ted Yoho (R-FL), and Walter Jones (R-NC). Are these the only Republican House members who have the courage of their convictions on marriage?

Sen. Ted Cruz (R-TX) introduced a companion bill to Mr. King’s bill in the Senate, S.1080, “Protect Marriage from the Courts Act of 2015.” He has zero co-sponsors at this point. Are there no other Republican Senators who support traditional marriage?

In the 1970s and 1980s, Sen. Jesse Helms (R-NC) had some success in the Senate with court limitation amendments on school prayer. But he too faced opposition from some Republican colleagues.

In April 1979, with a 58-member Democratic majority, Helms won approval of court limitation twice (with votes of 47 to 37 and 51 to 40), only to see the legislation die after parliamentary maneuvers and inaction in the Democratic House. In August 1982, when Republicans held 53-member majority in the Senate, Helms offered a similar court limitation amendment, which by a 47-53 vote survived a motion to table (or kill). Lacking 60 votes for cloture, though, the legislation did not clear the Senate. Helms tried again in September 1985. By then not only did he face liberal Democratic opponents, but key Republicans, including Senators John Danforth (R-MO), Pete Domenici (R-NM), Barry Goldwater (R-AZ), Orrin Hatch (R-UT), and Richard Lugar (R-IN), joined them to table the amendment by vote of 62 to 36.

Congressman John Hostettler (R-IN) led a winning effort in the House in 2004, when Republicans held a slim majority. His Marriage Protection Act removed all jurisdiction from lower federal courts and appellate jurisdiction of the Supreme Court over the Defense of Marriage Act. DOMA, enacted in 1996 by veto-proof majorities of both houses of Congress, allowed states not to recognize same-sex marriages from other states (sec. 2) and defined marriage for federal purposes as only between a man and a woman (sec. 3). After the House Judiciary Committee, chaired by Congressman Jim Sensenbrenner (R-WI), cleared Hostettler’s bill, it passed the full House in July 2004, on a vote of 233 to 194. Despite Republican control, the Senate failed to take action. The bill had been referred to the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, who had earlier opposed the Helms legislation limiting court jurisdiction over school prayer. If Hostettler’s legislation had been enacted in 2004, the case of United States v. Windsor, 133 Sup. Ct. 2675 (2013), striking down sec. 3 of DOMA as unconstitutional by 5-to-4 vote, would likely never have been decided.

In Federalist No. 78 (1788) Alexander Hamilton reckoned the judiciary the “least dangerous” and “weakest” branch of the federal government. Unlike the executive or legislative branches, the judiciary, he noted, lacked the sword and the purse. He thought that while “individual oppression” may proceed from courts, danger to the “general liberty of the people” exceeded the judicial power.

Brilliant though he was, Hamilton failed to see what might happen when most of the checks and balances applicable to the judiciary under the Constitution were allowed to lie dormant for half a century and more. He overlooked the dangers that an extra-constitutional ethos might grow up, encouraged by the Court’s own extravagant jurisprudence, holding that the constitutional text and the Court’s interpretations are functionally equivalent, and thus irreformable except by the Court itself.

Moreover, it is certain that the original and later constitutional framers never envisioned Supreme Court justices growing so arrogant as to engage in wholesale usurpations against customary state legislative powers. They surely never imagined that federal courts would turn the killing of an unborn son or daughter into a constitutionally protected right. But see Roe v. Wade, 410 U.S. 113 (1973). The framers did not dream that such courts would transform what was “the crime against nature,” homosexual sodomy, into protected behavior. But see Lawrence v. Texas, 539 U.S. 558 (2003). And nothing the framers included in the Constitution contemplates a right for the oxymoronic concept of same-sex marriage, yet lower courts have forced this unnatural relationship upon the states and upended millennia of civilizing law.

Despite what they may not have foreseen, Ben Franklin and other constitutional drafters did leave us the tools of self-government, more than ample to stop judicial hubris and other legal chicanery. Thus we have the means to preserve our republic and its historic values. Do we have the will?


Thomas J. Ashcraft is a lawyer in Charlotte, North Carolina. He served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and as U.S. Attorney for the Western District of North Carolina, 1987-93. Email him at tashcraft@bellsouth.net.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.