From: "Peter D. Junger" <junger@upaya.multiverse.com>
Date: Thu, 18 Sep 1997 17:13:47 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: National Security Committee amendments to SAFE
In-Reply-To: <3.0.3.32.19970917150154.00879b70@mail.io.com>
Message-ID: <199709180905.FAA32738@upaya.multiverse.com>
MIME-Version: 1.0
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Greg Broiles writes:

: Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_
: which are challenges to a statutory/regulatory scheme on the grounds that
: it is unconstitutional. The only way to avoid/eliminate judicial review of
: a constitutional challenge to a statute is to amend the constitution
: itself. (cf. the "no offensive flag-burning" amendments which are discussed
: from time to time, which are unconstitutional when expressed as ordinary
: statutes or as administrative regulations, see _Texas v. Johnson_ and _US
: v. Eichman_.) 

I do not want to give Congress any ideas, but there is also the
possibility that they could take away the federal courts' jurisdiction
to hear constitutional questions without amending the constitution.
On the other hand it is possible that the courts would find a way to
hold that that limitation on their jurisdiction is unconstitutional.

Under the first judiciary act the federal courts did not have original
jurisdiction over civil claims arising under federal law (which would
include the constitution).

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists