When Roberts was special assistant to the attorney general during the Reagan administration, he wrote a 27-page document defending the constitutional power of Congress to limit federal court jurisdiction. Proving that Supreme Court justices recognize this power over the courts, he pointed out that former Justice Owen Roberts (no relation) had proposed an "amendment of the Constitution to remove Congress' exceptions power."
The Roberts amendment was passed by the Senate in 1953 but then tabled by the House.
John Roberts concluded that Congress's constitutional authority to make exceptions to federal court jurisdiction is so clear that only a new constitutional amendment could deny it.
Last fall, Congress proved again that it has the power to define court jurisdiction by giving immunity to gun manufacturers and owners from lawsuits that try to impose liability on them for the criminal misuse of their weapons by others. This Protection of Lawful Commerce in Arms Act was promptly signed by President George W. Bush.
This act sensibly prevents gun manufacturers from having to pay the penalty for crimes for which they were blameless. While this law was based on Congress's commerce power, the effect is the same as if the legislation had cited the Article III "exceptions" clause.
Congress also used Article III to order completion of a fence on the U.S.-Mexico border near San Diego that had been held up for 10 years by environmental lawsuits. In the REAL ID Act, which took effect May 11, 2005, Congress legislated that the fence should go forward with "expeditious construction" and that "no court ... shall have jurisdiction to hear any cause or claim" to stop it.
This law has already been upheld as constitutional by one federal court. The American people are waiting for the 2006 Congress to pass legislation defining the jurisdiction of the federal courts so that supremacist judges will be prevented from banning the Pledge of Allegiance, the Ten Commandments, the Boy Scouts, or the traditional definition of marriage as the union of a man and a woman.
When liberals rant about the need for an independent judiciary, what they really want is a judiciary independent of the Constitution. Because Samuel Alito said during his interrogation that he respects the "text" of the U.S. Constitution, we trust he means what he said and will not succumb to the liberal equivocation that the Constitution is an evolving document that judges can reinterpret.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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