24 February 2004


one of the favorite "spelling bee" words in the 1960s, would be a clear and easy concept compared to the Shelby bill to "restore the Constitution" that was recently introduced. As Professor Balkin notes, the bill

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 Unconstitutional Restoration Act" (24 Feb 04). He concludes that

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.


The real problem is that the sponsors of the bill are unwilling to admit that what they want to do involves constitutional change, regardless of whether that is "restoration" or not. The Constitution, as the Judicial Power (Article III, § 2) has developed, has come to include a great deal more than the mere text of the constitution; the text is the starting point for interpretation, but not always the endpoint. The problem with the Shelby bill will be a little clearer when it is placed in a less-emotional context. Consider, for example, some recent calls to return to Lochner, which was overturned in the 1930s. Under Lochner, it would be virtually impossible to regulate working conditions, because such regulations would impair the "freedom of contract" of the individual laborers. Let's hypothesize a bill that, perhaps without naming Lochner itself, in practice reverses almost seventy years of doctrine. The logical question here is whether that would represent "constitutional change." If it does, then the proper means of accomplishing it is by amending the Constitution. The concept of "supremacy within respective spheres of action" governs here. Congress cannot by statute overrule a provision in the Constitution. If the Judicial Power means anything at all, Congress cannot by statute overrule a Supreme Court decision interpreting the Constitution.

The real point is that Shelby et al. would rather have the Judicial Power mean nothing at all. They instead want the Constitution to be interpreted solely through (their vision of) the current majority rule. To them, that this contradicts virtually everything in Article III that is designed to keep the courts from becoming playthings of mob rule is irrelevant; to me, it is the point.

Shelby and his cronies did not have the intellectual honesty to admit that they want to change the Constitution. If they did, they would have introduced an amendment to accomplish the same purposes. That this would have been politically inexpedient, because it admits that change is required (regardless of whether the change is to "correct" misinterpretation), and their position is that change simply shouldn't happen. Which, of course, leaves the question of why the Constitution has provisions built into it regarding amendment.