Buchanan and Jurisdiction Stripping

Apparently before Ron Paul made this suggestion (I thought he was the first prominent figure to do so), Pat Buchanan suggested that Congress strip federal courts of jurisdiction on the gay marriage issue:

“Congress should re-enact the Defense of Marriage Act and amend it to deny the Supreme Court any right of review. Congress' power to restrict the appellate review jurisdiction of the Supreme Court was granted in Article III of the Constitution for a purpose. This is it.”

Brigham Young University law professor, and anti-gay marriage advocate Richard Wilkins, thinks this is a bad idea. His surface rationale for opposing jurisdiction stripping in this circumstance is because this would, “give us the decision of Massachusetts as the ‘final’ reading of the U.S. Constitution.” Yes, the US Constitution. State courts may still invoke the federal constitution while interpreting this and other issues. And with federal courts out of the picture on the federal constitutionality of gay marriage, state courts could have the final say on gay marriage’s constitutionality not only under each state’s constitution, but also under the federal Constitution. According to Wilkins, “this approach mandates that the Constitution will mean 50 different things in the 50 different states.”

Wilkins does inform us that even on other issues, he is against this type of jurisdiction stripping, that he probably would think it’s a bad idea if tried anywhere:

“’Jurisdiction stripping’ has been the proposed ‘fix’ for everything from school prayer to abortion to the Ten Commandments dispute to marriage. But in the past 50 years, close to 100 such proposals (on busing, school prayer, abortion and flag burning) have been introduced, subjected to hearings and often intense debates – with never a single instance of success.”

That last point is an important one: This idea, although invoked many times, has never been done; it’s never been successful.

Jon Rauch’s proposed Constitutional Amendment, of course, would solve this problem by preventing state courts from invoking the federal Constitution on this issue, while still giving states full rights to implement gay marriage, even in the manner that Massachusetts did it.

Somehow I don’t think that Wilkins would go for Rauch’s solution. I have a suspicion that for all of his talk about state courts interpreting the federal constitution, that Wilkins just doesn’t want gay marriage recognized anywhere in the US, period.