When the Congress enacted the bipartisan Defense of Marriage Act (DOMA) in 1996 or the historic Bipartisan Campaign Reform Act (popularly known as the “McCain-Feingold bill”) in 2002, the members of Congress who voted in favor of these bills presumably believed that these legislative measures were consistent with the text, history, and structure of the U.S. Constitution. Yet in both cases, private lobby groups who were against these laws–James Madison would have called them “factions“–filed and financed several lawsuits challenging the constitutionality of these laws in federal court, and these groups were able to accomplish in the courts what they were unable to accomplish in the political arena: they were eventually able to persuade at least five Justices of the Supreme Court to declare these laws unconstitutional. This is a recurring pattern in American politics. Now, here is our thought experiment. What if the Congress had included an arbitration clause in DOMA or in the McCain-Feingold bill requiring any party wishing to challenge the constitutionality of these laws to submit their dispute to a bipartisan (or non-partisan) arbitration panel consisting of ordinary citizens–not lawyers or judges with partisan agendas–instead of an Article III court? Would private arbitrators show more deference, on balance, to legislation and be less willing to use the open-textured provisions of the Constitution to strike down popular laws? (Or would private arbitrators be more likely to upset the legislative apple cart in the name of constitutional principles?) Also, does the Congress have the authority to require arbitration of constitutional cases? After all, Article III of the Constitution confers jurisdiction on federal courts over all cases arising under the Constitution, but at the same time, the Congress arguably has limited authority to engage in “jurisdiction-stripping” as well. In any case, this is just a thought experiment. We will be thinking about the intersection between judicial review and arbitration as we prepare to present our work-in-progress “The Coasian Constitution” at the Sixth Annual Constitutional Law Colloquium in Chicago next month.
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