JURISDICTION, CONFIDENCE, AND EXCEPTIONS: Justin Katz replies to Josh Chafetz on Marriage Protection Act

Josh Chafetz declares--with a bit more confidence than circumstances (or the law) merit--that the Marriage Protection Act, already passed by the House, is unconstitutional:

"Congress cannot strip the federal judiciary of the ability to hear or decide any question pertainint to the interpretation of, or the validity under the Constitution of, the Defense of Marriage Act. Sorry, guys."

...The reality is that the question of Congress's power over the judiciary is very much open to debate, with legal precedent to support both claims, right down to varying interpretations allowed by the Constitution itself. ...

To come to the objective conclusion that the Marriage Protection Act is constitutional, one must clear the highest hurdle that Chafetz notes: "People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power 'shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority' doesn't actually mean that the federal judicial power shall extend to all such cases."

The crux of Chafetz's preceding analysis is that the Constitution extends powers to the judiciary as a whole, such that "some federal court is given jurisdiction over those questions"; where appellate jurisdiction is impossible, it transforms into original jurisdiction. At the very least, one can opine that, had that reading been their intention, the Founders could have phrased the concept in much more direct terms. As it is, hinging on the phrase "shall extend," I don't think the language justifies such a sweeping interpretation.

As I see it, Article III, Section 2, is structured to describe the reach of the judiciary and then to specify how that reach applies. The jurisdiction of the only court created by the Constitution extends to Set A inalienably and to Set B subject to regulation and exception. Chafetz emphasizes that "shall extend" is different from "may extend," but as important a distinction as that may be, it does not mean that "shall" is equivalent to "under all circumstances and with no exceptions." That the Constitution lists all areas of reach need mean only that the Court's jurisdiction over them is meant to be the negatable default, not that it is sacrosanct. ...

I'll concede that the matter is legitimately arguable, and it will be interesting to see what happens should the Supreme Court assert jurisdiction over a statute that claims to be free of its jurisdiction. But given the legitimacy of debate, which no honest disputants can deny, I'm inclined to err in the direction that favors the two branches of government manifested in hundreds of elected officials, rather than the one with nine life-tenured judges. Frankly, I continue to marvel at the general inclination--which I see as anathematic to the spirit of our representative democracy--to err in the other direction.

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