Rule by law: conservatives yearning to rein in the courts have a long-neglected tool ready at hand

National Review, Feb 26, 1996 by Robert P. George, Ramesh Ponnuru

CONGRESSIONAL conservatives have an ambitious agenda: limiting government, promoting economic growth, reforming social policy. Fighting the considerable resistance to that agenda has occupied most of their time and energies. It's understandable, then, that until recently another important conservative goal has not received much attention. That long-term project is nothing less than the restoration of America's constitutional order.

Judging from this year's paeans to the Tenth Amendment, Republicans recognize the troubling divergence between current governmental practice and sound constitutional principle. But the Tenth Amendment is hardly the only part of the Constitution that has fallen into desuetude; and the federal judiciary bears the main responsibility for this state of affairs. Courts have repeatedly imposed liberals' pet policies on everything from abortion to welfare, in defiance both of their constitutional mandate and of public opinion. In so doing, they have not only frequently enacted unjust and counterproductive policies. They have also narrowed the scope of democracy in American life.

Conservatives need, therefore, to devise a strategy for reining in the courts. It's important, of course, for Congress to block the appointment of judges who confuse themselves with legislators; and the next Republican President, one hopes, will appoint judges who understand their proper role. But the disappointing performance of several Reagan and Bush appointees to the Supreme Court testifies to the limitations of that strategy. External restraints are also necessary.

To his credit, Pat Buchanan has incorporated this idea into his presidential campaign. Speaking before the Heritage Foundation in late January, he proposed a series of judicial reforms, including: an end to lifetime tenure for federal judges; voter recall of judges; congressional restrictions on the Supreme Court's jurisdiction; and national referenda on major Supreme Court decisions. Many of these proposals, whatever their merits, would require constitutional amendments. But one of them, as Buchanan noted, is an unwisely neglected provision already in the Constitution.

UNDER Article III, Section 2 of the Constitution, the Congress has the power to make exceptions to and regulate the appellate jurisdiction of the Supreme Court. When the Justices overstep their bounds, Congress can strip them of jurisdiction. Since the "inferior" federal courts are created by Congress, their jurisdiction is also subject to congressional limitation. Congress has largely failed to perform this regulatory duty. But a Congress that is serious about reclaiming the Constitution could rehabilitate Article III, Section 2 by regulating the federal judiciary's jurisdiction in three strategic areas: prison management, school prayer, and term limitation.

Prison management is perhaps the easiest place to start limiting judicial power. Many judges now realize that even if they had a constitutional mandate to micromanage prisons, they lack the capacity to do so intelligently. And they have a bad conscience over the mess they have made in this area. As well they should: in Philadelphia alone, over one hundred people have been murdered by criminals set free by court-ordered prison population caps. Responding to justified public outrage over such travesties, House Republicans have proposed limiting the remedies available to the courts in prison-related cases. They should go further, and stipulate what conditions and policies of prisons should be beyond the review of the courts.

Republicans in Congress who support a constitutional amendment allowing school prayer should consider using Article III, Section 2 to achieve the same result. The political argument for this method is simple: stripping the courts of the ability to review state and local policies on school prayer requires a simple statutory majority, whereas a constitutional amendment requires a two-thirds majority and ratification by three-quarters of state legislatures. Conservatives have a more important reason to prefer the statutory approach: they have never believed that the First Amendment, properly construed, prohibits states, localities, and school districts from permitting school prayer. It would violate a principle of economy to amend the Constitution to put back something that is already there. Indeed, to do so could be construed to concede that the Supreme Court was right in its interpretation of the Constitution as it stands.

Removing the courts' jurisdiction over state term limits would reverse the Supreme Court's disappointing decision on that issue and thereby affirm American federalism. It is abundantly clear that term limits do not enjoy two-thirds support in the current Congress; no constitutional amendment on the subject, however watered down, is going to pass. Republicans committed to the idea should therefore content themselves with establishing the legality of those limits already put in place by the voters of various states. Even Republicans with reservations about the wisdom of term limits might come on board, in deference to the popular will. And while any defense of term limits will be a tough sell to some Republican incumbents, all Republicans should realize that the movement for term limitation is large, it is energetic, and it is not going to fade away. Because of the Supreme Court's decision, the cause of term limits is in a worse position now than it was before the Republican Congress convened. And that Congress has already defeated a term-limits measure. True, 85 per cent of Republicans supported that bill. But the GOP Congress will bear the brunt of many voters' wrath anyway -- unless it takes action now.