Plenary no longer: how the Fourteenth Amendment "amended" congressional jurisdiction-stripping power.

• Author: McKinley, Maggie

INTRODUCTION I. REVIEW A. The Orthodox View B. Modifications to the Orthodox View 1. Internal constraint theories 2. External constraint theories C. External Constraints and the Fourteenth Amendment II. THE FOURTEENTH AMENDMENT'S LIMITATION ON CONGRESSIONAL JURISDICTION-STRIPPING POWERS A. The Fourteenth Amendment's "Implicit" Amendment B. The Fourteenth Amendment and Framing Intent 1. The Civil Rights Act of 1866 2. The Fourteenth Amendment 3. The Ku Klux Klan Act of 1871 C. A (Con)textualist Analysis 1. An intertextualist interpretive framework 2. Intertextualism and constitutional amendment 3. The extrasituational context of the Fourteenth Amendment 4. Contextualization cues of the Fourteenth Amendment 5. Prior texts: the Bingham Amendment 6. Shifted context, shifted meaning: "No State shall" 7. The factual presupposition of lower federal courts CONCLUSION INTRODUCTION

On March 15, 2011, Representative Ron Paul of Texas reintroduced the Sanctity of Life Act of 2011. (1) This was the fourth time Representative Paul had introduced this bill to the House in the last six years. (2) At each introduction the content of the Sanctity of Life Act has remained the same. According to its summary: "[H]uman life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and ... the term 'person' shall include all [such] human life...." (3) Moreover, the bill "recognizes that each State has the authority to protect lives of unborn children residing in the jurisdiction of that State." (4) It may seem confusing that Representative Paul would expend any energy introducing a bill--numerous times, in fact--that is in fundamental conflict with a well established federal right: the Fourteenth Amendment due process right to an abortion, as defined in Roe v. Wade (5) and affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey. (6) Should Congress pass the bill and should a state attempt to enact legislation pursuant to its new federal authority "to protect the lives of unborn children" by banning abortion in violation of Roe v. Wade, the state legislation would be reviewed and overturned as unconstitutional, rendering Representative Paul's efforts entirely futile. The answer to the puzzle of why Representative Paul would introduce such seemingly toothless legislation lies in the second half of the bill. In addition to defining the point at which human life begins as at conception and granting states the authority to protect that life, the bill also includes provisions to limit federal court jurisdiction:

Sec. 3. Limitation on Appellate Jurisdiction.

... [T]he Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any statute, ordinance, rule, regulation, practice, or any part thereof, ... on the grounds that such statute, ordinance, rule, regulation, practice, act, or part thereof--

(1) protects the rights of human persons between conception and birth; or

(2) prohibits, limits, or regulates--

(A) the performance of abortions; or

(B) the provision of public expense of funds, facilities, personnel, or other assistance for the performance of abortions.

Sec. 4. Limitation on District Court Jurisdiction.

... Notwithstanding any other provision of law, the district courts shall not have jurisdiction of any case or question which the Supreme Court does not have jurisdiction to review under section 1260 of this title. (7)

This provision invokes Congress's power under Article III, Section 1, (8) and the Exceptions Clause (9) to limit the jurisdiction of lower federal courts and the appellate jurisdiction of the Supreme Court, commonly known as "jurisdiction stripping." The bill transparently attempts to limit the federal due process right to an abortion by endorsing state legislation in violation of that right and concurrently disallowing federal review to vindicate deprivation of that right.

Hypothetically, should such a bill become law, a claimant who wished to challenge state legislation depriving her of her federal right to an abortion would be barred from bringing a [section] 1983 claim--or other action--in federal court. However, she would still be allowed access to a state forum. State courts, like federal courts, are equally bound under the Supremacy Clause to apply all federal law, including Supreme Court precedent. While these forums may differ slightly in procedure and geography, the federal rights would presumably remain the same regardless of where the federal claim was brought. Yet, if these forums are truly equal under the Supremacy Clause, why would Representative Paul seek to introduce a bill that purports to limit a federal right by denying access to a federal forum? The answer is simple. The proposed legislation capitalizes on the belief that a state court, with its deeper local attachments and accountability, might not continue to enforce the federal right in the absence of federal review. If that belief is correct, without access to a lower federal court or appellate review in the Supreme Court, claimants would be left without access to a forum that would enforce their federal right against unconstitutional state laws, allowing the unconstitutional laws to stand. (10)

In March of 2011, the Sanctity of Life Act of 2011 was referred to the House Committee on the Judiciary, where it will likely sit until expiration. (11) This fourth effort at passage will likely be as unsuccessful as the first three. But the question remains: is it possible that such a flagrant attempt at circumventing federal rights could ever become law?

Under Article III, Section 1, Congress was designated with the power of creating lower courts "from time to time"; (12) and under Section 2, commonly known as the Exceptions Clause, Congress was granted the right to create exceptions and regulations pertaining to Supreme Court appellate jurisdiction. (13) The Supreme Court has yet to fully interpret this constitutional text and the scope of its grant of congressional power to control federal jurisdiction. However, the orthodox view, sprouted primarily from the academy over the last forty years, has interpreted these provisions to mean that Congress's power to strip original jurisdiction from lower federal courts and appellate jurisdiction from the Supreme Court is plenary and virtually limitless. (14)

This Note proposes one possible solution to the long-standing concern of federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. (15) Proponents of this view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by the Supremacy Clause, would suffice as arbiters of federal constitutional rights. In his famous Dialogue analyzing jurisdiction stripping, Hart explains: "In the scheme of the Constitution, [the state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones." (16) In response to an inquiry on whether the Constitution would guarantee a federal forum for vindication of federal rights, rather than leave the matter to a state forum, Hart exclaims:

It's hard to see how the answer can be anything but no, in view of cases like Sheldon v. Sill and Lauf v. E. G. Shinner & Co., and in view of the language and history of the Constitution itself. Congress seems to have plenary power to limit federal jurisdiction when the consequence is merely to force proceedings to be brought, if at all, in a state court. (17) In contrast, this Note argues that the Fourteenth Amendment--an undoubted alteration of the original document in many ways (18)--also amended Article III, Section 1, and the Exceptions Clause, withdrawing Congress's plenary power to strip jurisdiction from the lower federal courts and appellate jurisdiction from the Supreme Court over claims brought pursuant to the Fourteenth Amendment. Through an analysis of the original intent behind the Fourteenth Amendment, this Note explores the undertheorized field of how amendments to the Constitution affect the meaning of the original document, (19) and through this analysis also defines the limits added by a second framing generation to restrict the earlier broad grant of jurisdiction-stripping power.

Part I of this Note provides a short overview of the debate surrounding Congress's jurisdiction-stripping power. Part I.A reviews the most commonly held and broadly supported "orthodox view" that congressional jurisdiction-stripping power is plenary. Part I.B reviews the two primary modifications to the orthodox view suggested by the scholarly literature, internal and external constraint theories. Finally, Part I.C explores external constraint theories derived from the Fourteenth Amendment, particularly a theory proffered by Laurence Tribe.

Part II presents three arguments in support of the theory that the Fourteenth Amendment amended Congress's power to strip jurisdiction from the federal courts, so that this power is no longer truly plenary. Part II.A presents an overview of how the Fourteenth Amendment has already been widely accepted as implicitly amending other parts of the Constitution. In particular, the Supreme Court has acknowledged the effects of the Fourteenth Amendment on the Eleventh Amendment in its assumed abrogation of state sovereign immunity and broad shift of federal-state power. (20) Part II.B describes the framing intent behind the passage of the Fourteenth Amendment. This second major framing generation drafted just after our...