H. R. 2028 unwise, unconstitutional

H. R. 2028 is an attempt by Congress to prevent certain decisions by the Federal Courts by restricting their jurisdiction, using the precedent of Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). The Bill has been cosponsored by over 200 members of Congress

Kent Snyder The Liberty Committee

Like most simple solutions, this one, H. R. 2028, is misguided, and deceptively so. It is also unconstitutional itself.

The problem is not jurisdiction. To meet the requirement that people have the right to petition for redress of grievances, there must always be courts available that can hear and decide any judicial question on its merits. The problem is not that federal courts hear and decide the cases, but the ways they decide them, both procedurally and substantively.

The main problem with the federal courts is not that they overturn congressional legislation, but that they sustain too much of it. Almost all of the decisions that find congressional legislation unconstitutional are correct. Many if not most of the decisions that find congressional legislation constitutional are not correct. If the federal courts were faithful to the Constitution, they would strike down most of the federal legislation enacted in the 20th and 21st centuries. As for reviewing state court decisions, that is mainly done in a way that is an outgrowth of judicial precedents that may need to be revisited. Trying to restrict jurisdiction to hear such cases doesn't address the problems created by the precedents, or by the ways congressional legislation enacted under the authority of the 14th Amendment has been worded.

There are several reforms that need to be made, none of which are addressed in this proposed legislation, and therein lies the deception.

The first reform is to deprecate the influence of the doctrine of stare decisis. This might be done by requiring that judges, in making a decision, exhaustively examine text, legislative history, and prevailing usage and practices at the time of enactment, before considering judicial precedents, and then only by citation of the reasoning used, not by treating the precedent as though it were itself an enactment. Stability in jurisprudence is not more important than fidelity to the written Constitution as originally understood.

The second reform is to reverse the presumption of constitutionality of legislation, and deference to the legislative judgment of Congress, and to require strict proof of the constitutionality and statutory authority for any official act, presuming the lack of such authority. Any official undertaking to exercise any power must be required, if that authority is challenged, to provide an unbroken logical chain of authority leading back to the U.S. Constitution, or for state official acts, to the state constitution as well. It needs to be logic that can be verified by a computer program, not the "informal reasoning" favored by lawyers that can accept logical contradictions.

The third reform would be to have all federal cases decided by tribunals of at least three judges, with the right to a jury at the first trial level, and a right to a review of appellate decisions by an independent grand jury. The panels should be selected by sortition, that is, at random. And the voting rule should be that the panel must be unanimous to sustain a claim of a power by a government official over the claim by an individual of a right not to have that power exercised. In other words, the presumption should always be on the side of the individual against the government.

The fourth reform would be to require all points of law be argued in the presence of a jury, in a jury trial, with the jury provided copies of all pleadings of points of law, and access to an adequate law library with instructions how to use it. This is especially important when the government is a party as plaintiff or prosecutor, and there may be a bias on the part of the presiding magistrate in favor of the government.

The fifth reform would be to remove all impediments to private criminal prosecutions in federal courts, especially in public corruption cases. This means the public and private prosecutors must have direct access to grand juries who are not so overburdened with cases that they do not have time to adequately investigate questions the public may raise.

The sixth reform would be to increase the size of the U.S. Supreme Court to, say, 27, and provide for most cases to be heard and decided by randomly drawn panels of three members, with appeal to panels of nine, from which there could be one final appeal to an en banc panel of all 27. The U.S. Supreme Court can today do justice to only about 80 cases a year, out of about 8000 that are filed with it, and too many of the 99% of those cases that are not heard have merit and deserve to be decided on their merits. Having the cases decided by panels of three would increase the throughput, while diminishing the weight of the precedent that such decision might tend to establish. Right now the U.S. Supreme Court is a bottleneck at the top.

The seventh reform would be to provide a screening process for nominees to the federal bench that would emphasize expertise in constitutional history and analysis, not just the study of precedents, the way the subject is now taught in the law schools. Judges need to know what Madison understood the provisions of the U.S. Constitution to mean when he helped draft them.

I urge the defeat of H.R. 2028 as presently drafted, or substitution into it of language that would accomplish all of the reforms listed above.


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