JB

Last week Alabama's Sen. Richard Shelby (R-AL) and Rep. Robert Aderholt (R-Haleyville) began a full scale assault on the American Constitution. The grossly misnamed "Constitution Restoration Act of 2004" is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

The first feature of the bill prevents courts from passing on questions concerning certain government establishments of religion:

`Sec. 1260. Matters not reviewable

`Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'.

Although Congress has the power to change the Court's appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge "God as the sovereign source of law, liberty or government" are shielded from judicial review, while actions which specifically denounce or reject "God as the sovereign source of law, liberty or government" may be reviewed under the Establishment Clause. (An example of the latter would be erecting a momument to atheism or placing the words "There is no God" on the state's flag). Since both types of acts may violate the Establishment Clause, the jurisdictional bar is based on the content of the government official's viewpoint. This would be akin to Congress denying jurisdiction to review cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining judicial review in cases where government officials punish someone for supporting the war. Such a statute would also be an unconstitutional withdrawal of jurisdiction.

The second feature of the act restricts the ways that federal courts may interpret law:

SEC. 201. INTERPRETATION OF THE CONSTITUTION.

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.

This provision is pretty obviously aimed at the Court's citation of international law in Lawrence v. Texas. It violates the separation of powers because it usurps the judicial power under Article III. Once again, according to Marbury, it is the duty of courts to say what the law is, and although Congress may remove certain elements of their jurisdiction, they may not dictate how judges may interpret law or decide cases, which is a core judicial function.

Quite apart from its unconstitutionality, the act also reflects the xenophobia characteristic of the far right wing of the Republican party.

The third part of the act attempts to remove precedental value from all decisions that define Establishment Clause violations in ways contrary to the act:

SEC. 301. EXTRAJURISDICTIONAL CASES NOT BINDING ON STATES.

Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court.

This provision also violates the separation of powers by attempting to modify how state courts are bound by Supreme Court precedents. This is in violation of the principle announced in Martin v. Hunter's Lessee that state courts are bound by decisions of the U.S. Supreme Court. It is especially problematic because it applies retroactively to decisions made before the Act takes effect.

The fourth part of the Act states that a violation of the Act's provisions constitutes an impeachable offense and withdraws the constitutional protection of life tenure under Article III, section 1, which states that judges "shall hold their offices during good behaviour":

SEC. 302. IMPEACHMENT, CONVICTION, AND REMOVAL OF JUDGES FOR CERTAIN EXTRAJURISDICTIONAL ACTIVITIES.

To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--

(1) an offense for which the judge may be removed upon impeachment and conviction; and

(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.

I express no opinion on whether Congress may statutorily define impeachable offenses before the fact, or whether it may define what conduct constitutes good behavior. However, regardless of how good behavior is defined by statute, judges may not be removed from life tenured positions unless they are impeached and convicted by the Senate under Article II, section 4. Moreover, Congress may not define conduct to be an impeachable offense on the basis of an unconstitutional statute because such a statute is beyond Congress's power to enact. (Note that this does not limit the possible *reasons* why Congress may choose to impeach and convict judges, it limits only the use of an unconstitutional *statute* to define those reasons). Because the other provisions of the statute violate the First Amendment and the separation of powers, this part of the statute is also unconstitutional.

I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.