There’ve been a lot of insightful comments on my latest piece, and a lot of questions have been raised over whether or not the Pledge Protection Act is constitutional or not. Unfortunately, this isn’t an easy question to answer, and readers have probably noticed that my column is concerned more with exploring the question of whether or not Congress should restrict the Supreme Court’s appellate jurisdiction with regard to the Pledge, rather than whether or not it is permitted to do so by the Constitution. The short answer to the question of the Pledge Protection Act’s constitutionality is a “yes” followed by a small “but”; the long answer is an unsatisfyingly vague “probably” with an even bigger “but”.

The Constitution says (Article III, section 2, clause 2):

“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 [hear cases on appeal], both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make (emphasis added).”

Clearly, Congress is allowed to place some statutory restrictions on the appellate jurisdiction of the Supreme Court (most of the Court’s cases today fall under appellate jurisdiction, as most Americans are neither “Ambassadors, other public Ministers and Consuls”, or “States”). The most famous example of this is the Judiciary Act of 1789, which became the heart of the controversy in Marbury v. Madison, in which the Court established the principle of judicial review (it’s a long, complicated story). Congress has subsequently restricted the Court’s appellate jurisdiction numerous times (though such restrictions have not always been permanent), most importantly to prevent the Court from hearing cases where two parties from different states are suing each other, or to consider appeals cases where a lower state court had upheld the application of federal laws.

But does Congress have the power to restrict the Court’s appellate jurisdiction with respect to just one particular kind of case (such as Pledge cases)? A casual reading of Art. III.2.2 would suggest “yes”, and certainly the authors of the Pledge Protection Act believe they’re acting within the bounds of constitutionality. However, read this excerpt from Martin v. Hunter’s Lessee, in which Justice Story asks us to look at the

necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different States, and might perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable…

Many legal scholars (and judges as well) argue that it is important to maintain the Supreme Court’s supremacy on matters of the application of federal law to ensure that there are not competing interpretations working through the various lower-level courts. Consequently, the restriction of the Court’s appellate jurisdiction in non-federal cases is appropriate, but it must be allowed jurisdiction in cases involving federal law (the Pledge as we now know it was created by an act of Congress). Otherwise the original meaning and content of the Constitution is obscured and the application of federal law (and precedents established by federal courts) becomes inconsistent.

This is an argument rooted in democratic theory, not the textual interpretation of the Constitution. Congress may have to power to pass such a bill, but in the interest of federalism and allowing the Supreme Court to provide the republic with a clear understanding of the Constitution it would do far better to allow the Court to make its own decision in the matter. It seems pretty clear to me that Sensenbrenner et al aren’t so much interested in that, however, as they are in election-year pandering and using a nonessential piece of legislation to demonize those members of Congress who still feel they have a duty to uphold the Constitution.