John C. Harrison (University of Virginia School of Law) has posted The Power of Congress to Make the Supreme Court More Like a Council of Revision on SSRN. Here is the abstract:
This essay asks whether, and to what extent, Congress can by law restructure the American judicial system so that the Supreme Court more closely resembles the Council of Revision that was considered and rejected by the Federal Convention. A Council of Revision, as conceived in this essay, considers constitutional issues as part of the legislative process. Before becoming a law, a bill is submitted to the Council so that the Council can measure the bill against those constitutional limitations that can be applied in the abstract, without information about specific circumstances. If the Council rejects the bill, it does not become a law, but if the Council approves the bill, it becomes a law and the constitutional issues the Council considered are not reconsidered by the ordinary courts in the process of deciding cases. Under the actual Constitution, Congress can make the Supreme Court somewhat like a Council of Revision as described above, but Congress faces important limits. This essay discusses two of those limits. First, with its powers over the jurisdiction of inferior federal courts and state courts, Congress can centralize in the Supreme Court of the United States the function of deciding constitutional questions. Congress cannot, however, reproduce the way in which a Council of Revision operates wholly prospectively. When the Constitution nullifies an enactment, nullification happens at the time of enactment, not the later time when a court decides a case. Because courts frequently decided cases involving events that have already taken place, actual judicial review is inevitably to some extent retrospective. Second, the legislature cannot require the federal executive to wait for the Supreme Court to decide a constitutional issue, as it can require lower courts to do. Executive review follows from the Constitution for the same reasons judicial review follows, and the executive is independent of the courts. A Council of Revision’s conclusions would bind executive officials by contributing to the law-making process. Courts expound the law, and do not make it.
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