Coequal

There's a move afoot to use Article III, Section 2, Clause 2 of the Constitution, which states:

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.

Say what?

That means, basically, that Congress has the authority to tell the Supreme Court what its juridictional authority is. Which means, for example, that Congress can tell the court it may not hear cases about gay marriage or the Pledge of Allegiance, which is what some members of Congress are, indeed, trying to do.

Now, for a moment, let's set aside the meaning of the Constitution in this particular case, and whether that interpretation is valid. I do welcome comments on the matter, but I want to get to something a bit more interesting to me.

In an article on CBS, attorney Andrew Cohen says that this is wrong not because the Constitution says it is wrong, but because of the "Constitutional principle" of three coequal branches of government that does not allow for Congress to tell the Court what cases it can and cannot hear.

It is popularly understood that the three branches of government are coequal. But as is often the case, popular opinion is incorrect.

It's self-evidently incorrectly from any reading of the Constitution. Every important executive act requires Congressional approval, or can be overridden by Congress. The only court that can exist without Congressional approval if the Supreme Court, and even then, they only judge what the law says: if the Congress dislikes the decision, they can change the law (with or without the help of the executive branch, including amending the Constitution itself [although that requires the States]).

And this legislative "predominance" was recognized before the Constitution was ever ratified, as James Madison wrote in Federalist 51:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

Note that the title there, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments," is not Madison's. It was added much later. In fact, the words "check" and "balance" do not appear together in the Constitution, and neither does the word "coequal," which also does not appear in the Federalist.

Indeed, "check" and "balance" appear together in the Federalist only once, in No. 9 by Hamilton, and he -- just as Madison is above -- is talking about the two houses of Congress checking and balancing each other.

Let's collectively face the facts: the three branches have never been equal, have never balanced each other, and were never intended to. They do perform various checks on each other, but Congress still predominates.

Now, back to Article III, Section 2, Clause 2. I am undecided about this. We know that the court has previously ruled that when Congress has authority, it should be interpreted broadly. And we know the Constitution says the court's jurisdiction is subject to exceptions and regulations from Congress. Taking that, I don't see how one could rule this is an abuse of Congress' power, since that power is specifically granted by the Constitution. And all the arguments against it that I've seen amount to ridiculous whining about a Constitutional principle of coequality and balance that does not exist.

Note that this power has been exercised before, and was respected by the Supreme Court. (I especially like the part where Senator Byrd tried to do almost the exact same thing, 25 years ago.)

Now, I know that there are fears this power could be abused. But that is beside the point here, which is what the power is, and whether or not it is Constitutional. Whether that power should be exercised is, for my concern here, largely tangential, and would be framed primarily by a greater understanding of the power at issue, which I do not yet have.