The Death of Morality? Second-guessing democracy.

National Review Online ^ | July 2, 2003 | Jonathan F. Cohn

[RRWCC]

Again..
Article III, section 2, paragraph 2
"...the court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Congress can place the Defence of Marriage act out of the Supreme Courts jurisdiction. They simply could not even hear a challenge.

I am not aware of a time where the Congress had used this portion of the Constitution, but they could. In reading the Federalist & anti-Federalist Papers, I discovered that the Supreme Court, as APPOINTED not ELECTED officials were to be the WEAKEST of the three branches. It is time that we require the Congress to reign in the Supreme Court and forbid it to legislate.

[RRWCC]

"a reasonable Supreme Court. "

It's not up to them.

[aristeides]

This Supreme Court could find that such legislation would violate parties' rights to due process. Fifth Amendment, being later in time, could be found by this Supreme Court to trump that sentence in Article III.

The Supreme Court that backed down when the Reconstruction Congress did the same thing in McCardle was a Supreme Court that had had its wings clipped by the Civil War and the discrediting of Dred Scott. Not the case now. I was taught at Yale Law School that the kind of legislation you are suggesting might well be unconstitutional. So that's a widespread opinion in the legal establishment. This Supreme Court, being so full of amour propre (institutional self-regard, see Casey,) would probably find it unconstitutional.

[ggekko]

The Supreme Court has been acting as an umelected legislature for the past thtiry years. There is saying among jurists which is along the following lines (I forgot the Latin version of this): "The good Jurist always works to expand his Jurisdiction.".

If the Supreme Court insists on acting as de facto legislature then they need to be shown that political results always provoke political reations. Removing Church-State issues and issue surrounding the regaulation of sexual mores would be a great start in restoring the Court to its Constitutionally mandated role.

[x]

Article III, section 2, paragraph 2
"...the court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

I didn't know that. Live and learn! Could Congress take the initiative on a matter like homosexual marriage, and exclude cases on that subject from the federal courts? If the court really thinks a question of constitutional rights is involved, could it overturn the Congress's exclusion of the matter from its jurisdiction?

[RRWCC]

"could it overturn the Congress's exclusion of the matter from its jurisdiction?"

No it could not. There is no Constitutional provision for the court to do so. The judges are appointed NOT elected. It was the founders intention that THE PEOPLE control the government.

I doubt very seriously if you could find enough legislators with the courage to do this though.