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Wednesday, September 21, 2005
Tyranny of the majority
I think the Pledge suit is bad policy and bad politics. Most Democrats, correctly, ignore the suit. I suspect most Republicans are doing the same. The FRC, however, is trumpeting some very bad ideas:
As Supreme Court nominee John Roberts acknowledged during his hearings, we need not be powerless to the whims of lone activists like Mr. Newdow or activist judges like Judge Karlton. The Pledge Protection Act, introduced by Congressman Todd Akin (R-MO), would restrict the jurisdiction of the federal courts from ruling on the constitutionality of the Pledge.
Although Congress has the power to establish the jurisdiction of the federal courts, I don't think it is constitutional to limit jurisdiction on an ala carte basis. Consider this. The First Amendment says that Congress shall make no law ... abridging the freedom of speech. According to Perkins's view of the Constitution, Congress could make any law it wanted abridging freedom of speech, so long as they also restricted the purview of the Courts from hearing such cases. Example:
- No citizen of the several states shall speak ill of Mike Tice on a Monday.
- The federal courts shall not have the authority to decide any cases regarding criticisms of Mike Tice.
At bottom, Congress must act within the Constitution. Congress may never exceed the Constitution and then bar the Courts from vacating their acts. It's an awful idea. You really have to believe in a permanent legislative majority to ever think such an abuse of power is a good idea.
