Jurisdiction Stripping: Church-State Issues"Congress may not . consistent with the Constitution, make 'exceptions' to Supreme Court jurisdiction which would intrude upon the core functions of the Supreme Court as an independent and equal branch in our system of separation of powers."
— Letter of Attorney General William French Smith to Senate Judiciary Chairman Strom Thurmond, May 6, 1982. Smith served under President Reagan. The House of Representatives has considered measures that would prevent the Supreme Court and other federal courts from reviewing cases involving church-state questions — for instance, whether the phrase “under God” may be required in the Pledge of Allegiance, or whether the Ten Commandments may be displayed on federal property. As with other efforts, these actions are designed to undermine the court’s ability to fulfill its longstanding duty to enforce the Constitution. Those who would strip the courts of authority to hear certain cases are engaged in radical, nearly unprecedented action (it would be bizarre to call such efforts “conservative”). The last time Congress enacted jurisdiction stripping legislation was nearly 150 years ago, in 1868. "When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy."
— Georgetown University Law Center Professor Chai Feldblum, in a letter to members of Congress, July 2004. |
— Sen. Barry Goldwater, R-Ariz., speaking against proposed jurisdiction-stripping legislation in 1982.
In our system, it is for the courts to say what the law is, to decide whether legislation is unconstitutional and to enforce constitutional rights. Stripping the courts of jurisdiction disables an important “check” in the constitutional framework designed by the nation’s founders. Instead of checks and balances, we’d run the risk of tyranny, with power concentrated in the legislative and/or executive branches of government.