It’s time to return the federal court system to its original jurisdiction UPDATED

“Originalism” describes a judicial approach to constitutional interpretation, but to save America, the entire federal judicial system must return to its original jurisdiction.

The Tennessee legislature passed a law separating kids from “adult cabaret entertainment” (“ACE”) that involves men posing as women. Everyone knows what ACE is in the context of women’s performances, so they certainly know what it means in the context of men’s performances. Drag shows involve men simulating female sexuality. It’s not complicated. Most drag shows focus on the men’s fake T&A, and the dancing and dialogue are lewd (and usually obsessed with fecal matter…go figure!).

Now, though, a federal district court judge has announced that the legislation is “both unconstitutionally vague and substantially overbroad.” In other words, this Trump appointee, having closely examined his navel, just doesn’t like the law. Don’t believe me? Read this from the Epoch Times:

[Judge] Parker zeroed in on the standard outlined for “harmful to minors,” a standard state law defines as “U.S. District Judge Thomas Parkerany description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance” would “appeal predominantly to the prurient, shameful or morbid interests of [minors],” was “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors,” and “taken as whole lacks serious literary, artistic, political or scientific values for minors.”

That standard “applies to minors of all ages, so it fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement,” Parker ruled. He also said the law was “substantially overbroad because it applies to public property or ‘anywhere’ a minor could be present.”

Don’t ever doubt that, if this law involved strippers on public streets, it would be patently clear, and nothing would be “substantially overbroad.” There have long been societal norms, and what’s sauce for the goose is surely sauce for the deviant gander pretending to be a goose.

If you read venom in my writing, you’re reading correctly—and, for once, the venom isn’t directed against the “drag” and “transgender” communities for the existential lies they tell and the grooming they push. Instead, it’s against judges.

Oh, wait! That’s familiar to you, too, at least if you’re a long-time reader. Subject to exactly five exceptions (Justices Thomas and Alito, plus three judges I know or knew personally), I despise judges. Years of working on litigation in California left me understanding that each is a mini-God, pretending to follow the law but, in reality, following his or her desires and dressing those desires up in a patchwork of cases and statutes. It’s only rigorous judges, who try to stay in the narrowest lane possible (e.g., Thomas and Alito), who mostly avoid this sin.

It’s time to drag the role of federal judges back to a pre-Marbury v. Madison time. It was Marbury v. Madison, which Chief Justice John Marshall wrote in 1803, that saw Marshall arrogate to himself (and the Supreme Court, into eternity) the right to decide anything that could be shaped into a constitutional question.

The Marbury case arose because of a dispute between John Adams (leaving office) and Thomas Jefferson (entering office). Two days before his term ended, Adams appointed several of his preferred people to the federal court. The Senate confirmed those judges. However, Marshall, then Secretary of State, didn’t deliver the confirmations in a timely manner, so Jefferson claimed the judicial appointments were invalid. One of the appointees disputed that claimed invalidity.

Marshall, of course, ought to have recused himself from the case, given that his failure to act in a timely manner lay at the heart of the case. Instead, he announced that the Supreme Court was suddenly the most powerful of the three branches of government: “It is emphatically the province and duty of the Judicial Department to say what the law is.” In the ensuing 220 years, the Supreme Court has gone from “saying what the law is” (a power it lacked) to writing the law (a power it’s stolen from Congress and the American people). This ill-gotten power is one of the reasons politics has gotten so ugly, as the parties struggle to control who sits on the Supreme Court, which is improperly elevated to the pinnacle of American power. (Remember “borking”?)

Armed with this power, Marshall announced that Congress, to which the Constitution explicitly vested the authority to form inferior courts, had done it wrong. Again, consider that Marshall was doing everything in his power to rule in his own favor about a situation he created.

The best summary of Marshall’s egregious conduct comes from a Law Review article that the late Lino A. Graglia, one of the last staunch conservative law professors, wrote back in the 1990s. (Sadly, although I attended the University of Texas School of Law, where Graglia taught, I never had a class with him.) In the note—Originalism and the Constitution: Does Originalism Always Provide the Answer?—Graglia explains just how bad Marshall really was:

There could hardly be a more purely or egregiously political decision than Marbury. Chief Justice John Marshall sat on a case in which he was personally involved, and berated his political opponent President Jefferson, by finding a violation of a plaintiff’s rights in a case in which the Court lacked jurisdiction. He then seized the occasion, probably concocted, to establish judicial review by fabricating a statutory provision that did not exist to find that it violated a constitutional prohibition that also did not exist. In Marbury, Chief Justice Marshall established not only judicial review, the power of judges to invalidate policy choices made by other government officials, but also that the ordinary standards of integrity, truth, and logic do not apply to Supreme Court decisionmaking. Judicial review was born in sin and has rarely risen above the circumstances of its birth.

Exactly! For the first hundred years, Supreme Court justices didn’t flex (too much) the muscle that Marshall gave them. Of course, that didn’t stop them from willingly deciding cases using that falsely awarded jurisdiction. Things got bad in the 20th century when the Progressives sank their claws into the Court. Since that time, throughout the 20th century, and with increasing energy and lack of discipline into the 21st century, the Supreme Court has decided that it, not the elected legislature, is responsible for socially engineering and otherwise fine-tuning America.

Every one of the Supreme Court’s activist decisions has had profoundly deleterious effects on society. Roe v. Wade caused the most obvious damage, but all the cases regarding race, education, homosexuality, employment, unions, etc., have riven society because they’ve overridden Congress. The Supreme Court has made a mockery of representative democracy. Moreover, the lower courts, which claim much of the same make-it-up-as-you-go-along power as the Supreme Court, are doing the same…which is how we get to that Tennessee decision with which I opened this discussion.

It’s time for the federal courts to return to the limitations that controlled all courts in the 18th century. Back then, judges did not determine social questions. That was a job for the church and the legislature or Parliament. Judges were limited to trying criminal cases, business and financial disputes, probate cases, torts, contract disputes, maritime problems, and defamation cases, and they did so by relying on statutes that they did not denounce and prior case decisions.

You can get a good sense of the parameters within which courts operated by looking at Article III, which established the Supreme Court:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Supreme Court was to decide cases under the law. It was not to decide the law itself. That is solely Congress’s role because Congress, not the Court (and its lower branches), represents the will of the American people. It’s also implicit that the Founders, when they ratified the Constitution, had in mind courts that stayed in their traditional lane, rather than venturing into matters of law and policy.

Until the correct balance is restored, America will continue to careen out of control. When Republicans finally (God willing) control the Presidency and Congress, they must relegate the Supreme Court to its rightful, constitutional place, one that does not see it routinely legislating the law of the land and setting America’s policy.

UPDATE: I realized later that I was not careful enough in my reading of Art. III, sec. 2, which really is insanely overly broad. In light of a Florida district court judge announcing as “fact” that “gender identity is real,” I wrote a post at American Thinker with a more careful analysis. You can read the whole post here, but I’ve embedded the key bits below:

History matters here, but I’ll try to be brief. The Constitution, in Article III, Sec. 2, was vague about the federal judiciary’s powers, holding that they extended “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority….” George Mason immediately pointed out that the language has no “limitation whatsoever, with respect to the nature or jurisdiction of [the federal] court.” James Madison, who liked the language, explained that “the judicial power [of the national government] should correspond with the legislative.”

Image: Supreme Court (edited) by Philosophicalswag. CC BY-SA 3.0.

Although the language may be broad, it’s worthwhile remembering the generally limited nature of the judiciary in the late 18th and early 19th centuries. It was not concerned with questions going to the heart of societal values.

Back then, social questions went to houses of worship and the legislature (or Parliament). and even to juries. Judges were limited to trying things such as criminal cases, business and financial disputes, probate cases, torts, contract disputes, maritime problems, and defamation cases. Indeed, in England, if a public policy case was before the Court, the judge left it to the jury to decide the ultimate outcome, although he would explain to the jury the ramifications of their decision. (See, e.g., the John Wilkes case in 1763, which greatly affected Colonial America.)

Now that judicial activists have gotten their claws into the system, though, the Supreme Court has taken upon itself the sole authority to determine issues that aren’t constitutional at all but, instead, represent the values of the American people, something previously reserved to Congress. As the Supreme Court has decided more and more public policy issues, we find ourselves in a dangerous kritocracy, i.e., a tyranny of unelected judges.

Every one of the Supreme Court’s activist decisions has had profoundly deleterious effects on society. Roe v. Wade caused the most obvious damage because it has taken over as the single most dispositive issue in any election, no matter the other issues at stake. However, all the Supreme Court cases regarding policies connected to race, education, homosexuality, employment, unions, etc., have also riven society because they’ve overridden the people’s voices.

Now, in 2023, the Supreme Court has made a mockery of representative democracy. Moreover, the lower courts, which claim much of the same make-it-up-as-you-go-along power as the Supreme Court, are doing the same…which is how you get a federal judge who announces, contrary to the will of Floridians, that “gender identity is real” (a highly contested claim, scientifically, socially, and morally) and then proceeds to void duly passed legislation.

It’s time for Congress to act to claw back from the federal judiciary its outsized voice on questions of public policy.