JURISDICTION-STRIPPING: Jack Balkin

[Have edited out my brief-but-unwieldy reply, as I'm still mulling. For a different view, go here. --Eve]

...This, in a nutshell, captures the basic problem with jurisdiction stripping statutes of this kind, particularly when they affect constitutional questions. There are many legitimate reasons for Congress to limit the jurisdiction of the federal courts. But one reason that is not legitimate is the one that Sensenbrenner offered-- to ensure that each state gets to decide for itself what is consistent with the Federal Constitution and what is not. Legislation passed for this purpose violates a key structural principle, because it strips the Supreme Court of appellate jurisdiction in these cases.

The Supreme Court plays an important structural role in our constitutional system. It provides the possibility of uniformity in the interpretation of federal law, and particularly the interpretation of federal Constitution. To play that role it does not have to enforce uniformity immediately whenever a conflict arises. Indeed, in some situations, imposing immediate uniformity may not be desirable. First, it may be a good idea if the Court lets issues percolate for some time in the lower courts and the state courts. Second, "protestant" constitutional interpretations from various courts, legislators, and members of social movements, play an important role in the formation of constitutional understandings and the shape of constitutional doctrine over time. The circulation of multiple constitutional interpretations in the public sphere is part of how the system works. Nevertheless, the Supreme Court (or a federal court equivalent) has to be available, in the last instance, to harmonize conflicting decisions by state and lower federal courts about questions of federal law and particularly federal constitutional law. Although different interpretations about a particular question might circulate for some time, the Supreme Court would always be available to provide a single judicial construction when necessary.

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posted by Eve at 8:49 PM | link

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