Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young

Abstract

THEODORE J. WEIMAN On July 22, 2004, the House of Representatives passed the Marriage Protection Act of 2004, a bill that would strip the federal courts of jurisdiction over cases challenging the constitutionality of the 1996 Defense of Marriage Act. Two months later, the House passed a similar bill that would curtail federal court jurisdiction for challenges to the constitutionality of the Pledge of Allegiance or its recitation. Though perhaps unlikely to pass the Senate, the bills represent an attempt by Congress to avoid potential federal court determination of issues involving important areas of constitutional law with the hope of