Sunday, July 25, 2004

ex parte McCardle

A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court. . . . The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. . . . The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else.

-Oliver Wendell Holmes
  January 8, 1897
  Boston University School of Law

Robert P. George so quotes Justice Holmes in the April 2001 issue of First Things in a piece titled “What is Law? A Century of Arguments”.  George goes on to say that Holmes was probably being provocative in the sense that he wanted to stimulate argument regarding the meaning of law and not that he thought prediction was the end all and be all of the law. But prediction is an important aspect of the law, for how else can we judge what consequences our actions may have before the law? Without one having a reasonable chance of predicting how one might be treated by the courts, the law would degenerate into something resembling a TV quiz show with reward or punishment meted out on some random basis. This might more closely suit today’s cultural predilections but it would then not be anything even remotely resembling a just legal system. Islamic Sharia law would by comparison seem merciful.

While reading a recent article by Robert Robb of the Arizona Republic, “If states will say 'I do,' can gay marriage work?”, I came to realize that there may be a means other than Constitutional amending that might be used to prevent the Supreme Court from upsetting the states’ current, exclusive role in defining and regulating marriage. As I said before, I want the states to retain that role and the federal judicial, executive and legislative branches should butt out. According to Mr. Robb my having that same opinion regarding abortion puts me in a minority of one on that other subject of Constitutional import. But when he mentioned that the question of gay marriage could be left to the discretion of the states through either “a different constitutional amendment reserving the definition of marriage to the states, or more expeditiously by exercising Congress' power to remove a matter from the U.S. Supreme Court's appellate jurisdiction.” Oh, really?  What’s “Congress' power to remove a matter from the U.S. Supreme Court's appellate jurisdiction”? So, I wrote to Mr. Robb and asked him to elucidate. He responded by saying that although he didn’t have his personal copy available to quote, it was right there in the section of the Constitution setting up the courts. Not having memorized the document under discussion, I got my copy out and sure enough, in Article III, Section 2, 2nd paragraph it says, “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.”

Well, golly gee, I didn’t know Congress could do that! Well, they can and they can’t. And the sad state of affairs is that in this situation one can find almost any argument one wishes regarding whether or not Congress’ power to control the Supreme Court’s jurisdiction regarding gay marriage would or would not apply. And who would decide whether or not it did? The Supreme Court? Hmmm., wouldn’t that be what is commonly referred to as circular reasoning? There’s at least one fellow, Jon Roland, who thinks the sentence refers only to Congress’ power to decide whether or not the Supreme Court has, in any constitutionally non-specified instance, appellate or original jurisdiction. Not whether or not it has any jurisdiction at all. If that’s the case, then there is no case for Congress’ power to regulate the appellate jurisdiction of the Supreme Court.

But of course, things couldn’t be that simple – now could they? Nosireebob. Doing a bit deeper digging I discovered what, for me at least, is the ultimate source on this subject. At the Duke University law archive there is access to “A Critical Guide to ex parte McCardle” as a downloadable .pdf file of an Arizona Law Review article by William W. Van Alstyne. “Ex parte McCardle” is to Congressional authority over Supreme Court appellate jurisdiction what “Marbury vs. Madison” is to the Supremes’ judicial review of Congressional lawmaking – that is, considered the defining case. If you think I’m confused now, you should have seen me while reading, glancingly, the forty-two pages with footnotes of enlightenment this provided. When all is said and done, there is some possibility, however much I know not, that Congress could cap the gay marriage issue at the state level by using this clause of the Constitution. But as the conclusion to the law review article even states, as a possible outcome of such Congressional action, that this might create more issues than it resolves.

As far as the predictability of the law is concerned, who knows?

And another thing…oh, to heck with it!


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