How to protect marriage: the threat of redefining marriage to include same-sex unions stems from activist judges, not state or federal constitutions. Thus the proper solution must be to limit the courts.

Popular mythology holds that the only way to curtail the reckless adventurism of the Supreme Court and the rest of the federal judiciary is to amend the Constitution to undo bad decisions and to prevent the courts from making new ones. The myth ignores the founders' foresight, which provided a remedy, short of a constitutional amendment, to rein in a runaway judiciary. It is found in Article III, Section 2.

A most stunning and timely illustration of the misunderstandings surrounding this popular myth is the effort to amend the Constitution for the purpose of preventing the federal judiciary from declaring homosexual "marriages" to be constitutionally protected. Senate Joint Resolution 40, sponsored by Senator Wayne Allard (R-Colo.), would propose such an amendment to the Constitution. It is two sentences in length. The first one provides that marriage constitutes "a legal union between one man and one woman." The second declares that "neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Speaking in support of S. J. Res. 40, President Bush declared: "A constitutional amendment should never be undertaken lightly, yet to defend marriage, our nation has no other choice." Mr. Bush is of course correct in saying that "a constitutional amendment should never be undertaken lightly," but is wrong in saying that our "nation has no other choice" and wrong in portraying S. J. Res. 40 as a workable solution.

Catastrophic "Solution"

To take effect, a constitutional amendment must be passed by both the House and the Senate by a two-thirds majority vote, and then ratified by three-fourths (38) of the states. Ratification is a lengthy, tedious process. The Founding Fathers purposely made amending the Constitution much more difficult than enacting legislation. They did not want the Constitution to be easily changed, and they wanted to allow time for careful thought and deliberation. Thus, even if the marriage amendment were the correct solution to the same-sex "marriage" problem, it is likely that it would not even be enacted until the federal courts have wreaked havoc on the Constitution again.

However, even if S. J. Res. 40 were to become part of the Constitution, its effect could be an explosive backfire. Marriage law, a matter now belonging exclusively to the states, would become part of the Constitution--and this would give federal courts an opportunity to redefine and reshape marriage as a part of federal law, thereby overriding state authority for marriage law. Amending the Constitution to define marriage is like using a stick of dynamite to extract a bad tooth; it is the wrong tool and the collateral damage is catastrophic.

"The powers delegated by the ... Constitution to the federal government are few and defined," James Madison noted in The Federalist, No. 45. "Those which are to re main in the State governments are numerous and indefinite." Marriage laws belong to the second category. The Founding Fathers wanted the federal government to exercise only those powers that could not be effectively handled by the individual states acting separately, and, in general, they wanted to keep government as close as possible to the people.

This separation of powers between the federal government and state governments --like the separation of powers among the three branches of the federal government -- provides an important barrier against an accumulation of power leading to tyranny. The earth-shaking issue regarding the marriage amendment is not the definition of marriage (we should all agree on that!) but preserving state jurisdiction over marriage so that the federal government does not interject itself even further into our lives.

Christian and religious organizations have put enormous pressure on the president to advocate S. J. Res. 40. Mr. Bush has acceded to their demands, seeing an opportunity to solidify his electoral power base among religious people. He also has the opportunity to paint Senators John Kerry and John Edwards as failing to support family values.

But this latest push for a constitutional amendment to counter activist court rulings actually reinforces the myth that judges can proclaim that the law--including the Constitution--says whatever they want it to say, and that the only way to undo their usurpations is through the constitutional amendment process. Reinforcement of this myth invites more judicial activism, not less, thereby further imperiling family values.

It is very likely that if activist courts had their jurisdictions restricted years earlier --when they decreed that abortion was a constitutional right or that school prayer was unconstitutional--marriage would not be seriously threatened today by judicial activism. Unfortunately, many moral Americans who want to preserve marriage have been led astray into supporting a counter-productive solution.

Reining In Rogue Courts

Article III, Section 2 provides a way to protect marriage. It empowers Congress to determine the appellate jurisdiction of the Supreme Court and, by extension, all federal courts. * After defining the court's original jurisdiction, this section declares that "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." This section empowers Congress to place restraints upon the court's ability to hear appeals, and to remove some kinds of appeals entirely from the court's consideration.

Congress can use this authority to pass a bill prohibiting the court from hearing same-sex "marriage" cases. Enacting such a bill would be enormously easier than proposing a constitutional amendment--no super-majorities and no ratifications by the states. In a procedural vote on S. J. Res. 40 on July 14, the Senate supporters could muster only 48 votes. If S. J. Res. 40 had been written as an Article III, Section 2 statute, it would have needed only three more votes to insure passage. But since S. J. Res. 40 was proposed as a constitutional amendment, it lacked 19 votes to attain passage, if all senators answered the roll call.

By choosing the constitutional amendment route, the project was doomed to failure. Several senators expressed support for preserving the sanctity of marriage, but were reluctant to tamper with the Constitution. Not surprisingly, liberals who routinely vote for a larger federal role in areas not authorized by the Constitution suddenly--and cynically--"discovered" states' rights and the principle of federalism.

Of course, a bill limiting federal court jurisdiction would not prevent radical rulings by state courts. Nor would it nullify the Supreme Judicial Court of Massachusetts' outrageous decision that homosexual "marriages" are protected by the constitution of that state. But a bill based on the authority of Article III, Section 2 could be written in such a way to contain the impact of state court decisions to those states--where the citizens of those states would be able to apply remedies based their own state laws to address the problem.

The needed federal legislation would state two things:

* The appellate jurisdiction of the Supreme Court would not extend to state laws defining marriage, nor to requiring any state to give "full faith and credit" to an out-of-state marriage contrary to the public policy of that state. The reference to "full faith and credit" comes from Article IV, Section 1 of the Constitution, which requires states to honor the acts and proceedings of other states. A marriage falls under this category.

* The jurisdictions of all inferior federal courts would be similarly restricted.

This legislative remedy would place the controls where they are needed--on the courts, not on the Constitution.

The same approach could be used in other areas where the courts have perverted the Constitution--abortion, school prayer, anti-sodomy laws, the presence of religious symbols on public buildings and on U.S. currency and coins, reciting the "Pledge of Allegiance" in the public schools, laws against flag burning, etc. This is not a comprehensive list. Although one statute might restrict the federal courts from hearing cases regarding all of these subjects, prudent political craftsmanship suggests using a separate statute for each subject, or perhaps combining a few related subjects in one bill.

The Neglected Check on the Judicial Branch

It is not clear why Congress has been reluctant to limit the jurisdiction of the federal courts--particularly considering there is no misunderstanding the meaning of this congressional power and there is ample precedent for using it.

Regarding the meaning of the provision, John Marshall, who was a delegate to the Virginia convention that ratified the Constitution and later became chief justice of the United States, remarked during the convention debates:

   Congress is empowered to make exceptions
   to the appellate jurisdiction,
   as to law and fact of the Supreme
   Court. These exceptions certainly go
   as far as the legislature [Congress]
   may think proper for the interest and
   liberty of the people.

Chief Justice Oliver Ellsworth, in Wiscart v. Daushy (1796), opined,

   [E]ven the [court's] appellate jurisdiction
   is qualified inasmuch as it is
   given "with such exceptions, and
   under such regulations, as Congress
   shall make." ... If Congress has provided
   no rule to regulate our proceedings,
   we cannot exercise an
   appellate jurisdiction; and if the
   rule is provided, we cannot depart
   from it.

Dr. Ralph Rossum, dean of the faculty of Claremont McKenna College in Virginia, and a former chairman of its Department of Government, has pointed out that "Ellsworth's opinion is especially weighty, as he had been a delegate to the Federal Convention and had served on the very Committee of Detail that had drafted the Exceptions Clause."

In two Supreme Court opinions, John Marshall as chief justice, reaffirmed the view he had expressed at the Virginia ratifying convention. In United States v. More (1805), he said, "As the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its power must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described." And in Durousseau v. United States (1810), he declared: "When the first legislature of the union [Congress] proceeded to carry the third article into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court."

The landmark case is Ex Parte McCardle (1869). An 1867 federal statute had granted appellate jurisdiction to the Supreme Court in habeas corpus cases involving petitioners who were in custody contrary to the Constitution, treaties or federal laws. A newspaper editor, who had been imprisoned during the Civil War for publishing "incendiary and libelous" articles, filed for a writ under the 1867 statute. But before the appeal reached the Supreme Court, Congress repealed the statute, thereby removing the Supreme Court's appellate jurisdiction in the proceeding. The Supreme Court was forced to dismiss the appeal for lack of jurisdiction. In the court decision, Chief Justice Salmon P. Chase wrote:

   We are not at liberty to inquire into
   the motives of the Legislature [Congress].
   We can only examine into its
   power under the Constitution; and the
   power to make exceptions to the appellate
   jurisdiction of this court is
   given by express words.... Without jurisdiction
   the court cannot proceed at
   all in any cause. Jurisdiction is the
   power to declare the law, and when it
   ceases to exist, the only function remaining
   to the court is that of announcing
   the fact and dismissing the
   cause.

In his majority opinion in the 1944 case Yakus v. United States, Justice Wiley Rutledge wrote: "Congress has plenary power to confer or withhold appellate jurisdiction." Retired Justice Owen J. Roberts offered a similar view in the January 1949 American Bar Association Journal:

   What is there to prevent Congress
   taking away, bit by bit, all the appellate
   jurisdiction of the Supreme Court
   of the United States? ... I see nothing.
   I do not see any reason why Congress
   cannot, if it elects to do so, take away
   entirely the appellate jurisdiction of
   the Supreme Court.

Article III, Section 2 has mostly lain dormant, though this dormancy does not affect the viability of the power. In the current Congress, Rep. John Hostettler (R-Ind.) has introduced a bill (H.R. 3313) relying on this power. Specifically, H.R. 3313 would prevent federal courts from hearing challenges to Title 28, Sec. 1738c of the U.S. Code, which defines marriage as the "legal union between one man and one woman." The House Judiciary Committee cleared the bill on July 14 by a vote of 21 to 13. The purpose of Sec. 1738c is to prevent homosexual couples from claiming federally administered marriage benefits. It is clear that both Sec. 1738c and H.R. 3313 have a very narrow scope and neither accomplishes the task of removing from the court's appellate jurisdiction any claim of authority to declare homosexual unions as having protection directly from the Constitution. Nevertheless, it is a beginning.

The good news, regardless of the out come of H.R. 3313, is that some congressional attention is now being paid to the congressional power to limit the appellate jurisdiction of the court. Every informed citizen should work to keep this power forever in the minds of all members of Congress so that, instead of sinking into oblivion once again, it will be used to curb the court's abuses.

* The U.S. Constitution only created a "supreme Court," while empowering Congress to create lower federal courts. Congress, which created the lower federal courts, can determine their jurisdictions, and can even abolish them if it so chooses.

Mr. Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.