A Most Inconvenient Constitutional Truth
The proposals to repeal birthright citizenship by act of Congress have spawned responses saying the law would never be upheld by the courts, that it would take a Constitutional amendment, and so on. For some reason, lots of people never actually bother to read the Constitution, even though it’s not a very long document. This is what it says in Article III, Section 2:
[emphasis added]In all the other Cases before mentioned, 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.
So, Congress can pass a law and exclude it from judicial review, just by saying so. Has this ever happened? Oh yes. Consular decisions and many agency actions are exempt. Ever wonder why the Alaska Pipeline and no-knock drug searches were never challenged in court? Exempt. So birthright citizenship can be repealed by act of Congress, and if the law says it’s exempt from judicial review, then it is.
Why is this power there? It’s one of the few checks and balances on the judiciary. And removing it would take a Constitutional amendment (although we could create a nice legal Mobius strip by passing a law repealing it, and exempting it from judicial review!)
Why isn’t it used more often? Probably fear of retaliation. If one party can make its acts exempt, and it gets swept out of power, then the other party could repeal all the exemptions and put its own in place. It’s only an act of Congress, after all, and can be repealed. The late Barry Goldwater was opposed to overly promiscuous use even for conservative causes for that reason. Wanna bet the present Tea Party crop isn’t so inhibited? (What I wouldn’t give now for a few Goldwaters!)
So if school prayer and abortion could be dealt with by simple legislative fiat, why hasn’t it happened? As the math books say, that’s left as an exercise to the reader. Be very cynical.
I’ve noticed that some people on LGF go into full bore denial mode over anything they don’t want to hear, even if it’s a warning. So feel free not to believe this. Just search “Exempt from judicial review” and read some of the articles.
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A somewhat different inconvenient truth: in the wake of the Supreme Court ruling on campaign finance laws, lots of people have asked where it says in the Constitution that corporations have free speech. Apart from the fact that the First Amendment says NO law abridging freedom of speech, and the Ninth and Tenth Amendments that say anything not specifically prohibited is permitted, that is?
But where does the Constitution say that corporations are persons? Nowhere. But, this is what Federal Law says:
In determining the meaning of any Act of Congress, unless the context indicates otherwise - …. the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
That’s Title 1, Chapter 1, Section 1 of the United States Code. The very first page of Federal Law. Feel free to get it changed.