HOUSE CONCURRENT RESOLUTION NO. 57

(By Delegates L. Smith, Anderson, Angotti, Armstead, Azinger, Boggs, Border, Calvert, Cann, Capito, Coleman, Ennis, Evans, Faircloth, Fletcher, Hall, Harrison, Leggett, Louisos, Modesitt, Overington, Pettit, Riggs, Schadler, Smirl, Stalnaker, Stemple, Trump, Warner, Webb, L. White and Facemyer)




Appealing to Congress to limit the appellate jurisdiction of the federal courts regarding the medical practice of partial-birth abortions.

Whereas, West Virginia is one of 30 States which has recently prohibited the specific medical procedure termed "partial-birth abortions"; and
Whereas, Numerous other States are working this legislative session to enact the same ban; and
Whereas, Federal district courts have thus far struck down laws in 19 different States, effectively declaring that partial-birth abortions cannot be banned; and
Whereas, This intrusion of the federal courts into these State decisions concerning this medical procedure can be remedied only by federal congressional action to limit the jurisdiction of these federal courts; and
 Whereas, The Constitution does not create or regulate these inferior federal courts, but instead explicitly gives Congress the power to do so; and
 Whereas, The Constitution makes the jurisdiction of the federal courts subject to congressional proscription through Article III, Section 2, paragraph 2 by declaring that federal courts "shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as Congress shall make"; and
Whereas, The intent of the framers of our documents was clear on this power of Congress, such as when Samuel Chase (a signer of the Declaration of Independence and a U. S Supreme Court Justice appointed by President George Washington) declared, "The notion has frequently been entertained that the federal courts derive their judicial power immediately from the Constitution; but the political truth is that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise"; and
Whereas, Justice Joseph Story, in his authoritative Commentaries on the Constitution, similarly declares, "In all cases where the judicial power of the United States is to be exercised, it is for Congress alone to furnish the rules of proceeding, to direct the process, to declare the nature and effect of the process, and the mode, in which the judgments, consequent thereon, shall be executed... And if Congress may confer power, they may repeal it...(The power of Congress is) complete to make exceptions"; and
Whereas, This position is confirmed not only by the signers of the Constitution themselves, such as George Washington and James Madison, but also by other leading Constitutional experts and jurists of the day, including Chief-Justice John Rutledge, Chief- Justice Oliver Ellsworth, Chief-Justice John Marshall, Richard Henry Lee, Robert Yates, George Mason and John Randolph; and
Whereas, The United States Supreme Court has long recognized and affirmed this power of Congress to limit the appellate jurisdiction of the federal courts, as in 1847 when the Court declared that the "Court possesses no appellate power in any case unless conferred upon it by act of Congress" and in 1865 when it declared "it is for Congress to determine how far. Appellate jurisdiction shall be given; and when conferred, it can be exercised only to the extent and in the manner prescribed by law"; and
Whereas, Congress has on numerous occasions exercised this power to limit the jurisdiction of federal courts, and the Supreme Court has consistently upheld this power of Congress in rulings over the last two centuries, including cases in 1847, 1866, 1868, 1876, 1878, 1882, 1893, 1898, 1901, 1904, 1906, 1908, 1910, 1922, 1926, 1948, 1952, 1966, 1973, 1977, etc.; and
Whereas, It is Congress alone which can remedy this current crisis and return to the States the power to make their own decisions on partial-birth abortions by excepting this issue from the appellate jurisdiction of the federal courts; therefore, be it
 Resolved by the Legislature of West Virginia:
That the Legislature of the State of West Virginia respectfully appeals to the Congress of these United States to limit the appellate jurisdiction of the federal courts regarding the specific medical practice of partial-birth abortions; and, be it
Further Resolved, That the Clerk of the House of Delegates is directed to send a copy of this resolution to the congressional delegation of this state.