Saturday, September 25, 2004

jurisdiction stripping

I originally wrote this as an email to Eugene Volokh, but then I decided to change the wording and post it also:

Eugene Volokh has column on glennreynolds.com arguing that the act of stripping jurisdiction over the pledge from federal courts might have the opposite effect of that intended. He makes passing reference to people who were trying to "make a political statement". But he did not address my own view --the one I believe is behind this movement.

Frankly, I don't care if those two words are removed from the pledge. In fact I'm sympathetic to the arguments of the people who want it removed. But in my view, the purpose of this law is not really to protect the pledge, or even to just make a political statement; it is to begin the process of taking the federal courts out of the political arena.

The courts have become a political entity, largely serving the interests of the political left. Yet it is risky to try to limit their powers because Americans, for very good reasons, want an independent court protecting their rights against the government. Americans, myself included, are very worried about the process going too far and leaving the courts toothless against an overbearing federal government. That's why the first step has to be very popular, and very innocuous.

It's really quite a dangerous step to take. We don't want to do it. But many of use feel that the courts have left us no choice. If they had upheld their oaths of office, none of this would be necessary.

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