[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 24, 2004
__________
Serial No. 92
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
________
U.S. GOVERNMENT PRINTING OFFICE
94-458 WASHINGTON : 2004
_____________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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JUNE 24, 2004
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 4
The Honorable John N. Hostettler, a Representative in Congress
From the State of Indiana...................................... 5
WITNESSES
Mrs. Phyllis Schlafly, Founder and President, Eagle Forum
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Mr. Michael Gerhardt, Arthur B. Hanson Professor of Law, William
and Mary Law School
Oral Testimony................................................. 14
Prepared Statement............................................. 15
Mr. Martin H. Redish, Louis and Harriet Ancel Professor of Law
and Public Policy, Northwestern Law School
Oral Testimony................................................. 20
Prepared Statement............................................. 21
The Honorable William E. Dannemeyer, former U.S. Representative
Oral Testimony................................................. 26
Prepared Statement............................................. 27
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Steve Chabot, a
Representative in Congress From the State of Ohio, and
Chairman, Subcommittee on the Constitution..................... 3
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Professor Charles E. Rice, Professor
Emeritus of Law, Notre Dame Law School, submitted by Rep. Steve
Chabot......................................................... 89
Boston College Law Review Article, Volume XXVI, Number 5,
September 1985, submitted by Rep. Steve Chabot................. 95
Prepared Statement of the Honorable Spencer Bachus, a
Representative in Congress From the State of Alabama........... 136
Prepared Statement of the Honorable Steve King, a Representative
in Congress From the State of Iowa............................. 136
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress From the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 137
Three letters submitted by the Honorable John N. Hostettler, a
Representative in Congress From the State of Indiana........... 138
Letter from witness Professor Michael Gerhardt to the Honorable
Tom Feeney, a Representative in Congress From the State of
Florida........................................................ 141
CBO Report submitted by the Honorable Tammy Baldwin, a
Representative in Congress From the State of Wisconsin......... 146
LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES
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THURSDAY, JUNE 24, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in Room
2141, Rayburn House Office Building, Hon. Steve Chabot (Chair
of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. Good morning.
This is the Subcommittee on the Constitution. This is the
fourth hearing that we've had relative to the issue at hand.
When the Supreme Court in Lawrence v. Texas struck down a
State law criminalizing same-sex sodomy last year, Justice
Scalia in his dissent pointed out that, quote, ``State laws
against bigamy, same-sex marriage, adult incest, prostitution,
adultery, fornication, bestiality and obscenity'' are all
``called into question'' by the Court's decision. That is a
very disturbing prospect, and it should concern legislators
nationwide.
The threat posed to traditional marriage by Federal judges
whose decisions can have an impact across State boundaries has
renewed concern over the abuse of power by Federal judges. This
concern has roots as old and venerable as our Nation's history.
Thomas Jefferson lamented that, quote, ``the germ of
dissolution of our Federal Government is in the constitution of
the Federal judiciary; . . . advancing its noiseless step like
a thief over the field of jurisdiction until all shall be
usurped . . .'' Jefferson wrote of Federal judges, quote,
``Their power is the more dangerous as they are in office for
life and not responsible . . . to the elective control,''
unquote. And Abraham Lincoln said in his first inaugural
address in 1861, quote, ``The candid citizen must confess that
if the policy of the Government, upon vital questions,
affecting the whole people, is to be irrevocably fixed by
decisions of the Supreme Court, the people will have ceased to
be their own rulers, having, to that extent, practically
resigned their Government into the hands of that eminent
tribunal,'' unquote.
A remedy to abuses by Federal judges has long been
understood to lie, among other places, in Congress' authority
to limit Federal court jurisdiction, and that is the subject of
our hearing today.
Regarding the Federal courts below the Supreme Court,
article III of the Constitution provides that, quote, ``the
judicial power of the United States shall be vested in one
Supreme Court and in such inferior courts as the Congress may
from time to time ordain and establish.'' Regarding the Supreme
Court, article III provides that, quote, ``in all cases
affecting Ambassadors, other Public Ministers and Consuls, and
those in which a State shall be Party, the Supreme Court shall
have original Jurisdiction. In all other cases the Supreme
Court shall have appellate Jurisdiction with such Exceptions
and under such Regulations as the Congress shall make,''
unquote.
Consequently the Constitution provides that the lower
Federal courts are entirely creatures of Congress, as is the
appellate jurisdiction of the Supreme Court, excluding only its
very limited original jurisdiction; that is, cases involving
ambassadors or in which one of the States is a party.
In Federalist Paper No. 80, Alexander Hamilton made clear
the broad nature of Congress' authority to amend Federal court
jurisdiction to remedy perceived abuse. He wrote, describing
the Constitution, that, quote, ``it ought to be recollected
that the national legislature,'' us, the Congress, ``will have
ample authority to make such exceptions, and to prescribe such
regulations as will be calculated to obviate or remove the
inconveniences'' posed by the decisions of the Federal
judiciary.
That understanding prevails today. As a leading treatise on
Federal court jurisdiction has pointed out, quote, ``Beginning
with the first Judiciary Act in 1789, Congress has never vested
the Federal courts with the entire 'judicial power' that would
be permitted by article III'' of the Constitution. And as
eminent Federal jurisdiction scholar Herbert Wechsler has
stated, ``Congress has the power by enactment of a statute to
strike at what it deems judicial excess by delimitations of the
jurisdiction of the lower courts and of the Supreme Court's
appellate jurisdiction. . . .''
Limiting Federal court jurisdiction to avoid abuses is not
a partisan issue. Senate Minority Leader Daschle has supported
provisions that would deny all Federal courts jurisdiction over
the procedures governing timber projects in order to expedite
forest clearing. Democratic Senator Robert Byrd introduced an
amendment to a Senate bill during the 96th Congress which was
adopted by a Senate controlled by Democrats with large
bipartisan support. That amendment provided that neither the
lower Federal courts nor the Supreme Court would have
jurisdiction to review any case arising out of State laws
relating to voluntary prayers in public schools and buildings.
In this Congress, several similar bills limiting Federal court
jurisdiction are pending, including H.R. 3313, the Marriage
Protection Act, which was introduced by Mr. Hostettler from
Indiana, who serves on this Subcommittee. H.R. 3313 would
remove from Federal court jurisdiction certain cases involving
the Federal Defense of Marriage Act.
Federal legislation that precludes Federal court
jurisdiction over certain constitutional claims to remedy
perceived abuses and to preserve for the States and their
courts the authority to determine constitutional issues rests
comfortably within our constitutional system. The Supreme Court
has clearly rejected claims that State courts are less
competent to decide Federal constitutional issues than Federal
courts. Even Justice William Brennan has written, in an opinion
joined by Justices Marshall, Blackmun and Stevens, that, quote,
``virtually all matters that might be heard in article III
courts could be also be left by Congress to State courts,''
unquote.
Far from violating the ``separation of powers,''
legislation that reserves to State courts jurisdiction to
decide certain classes of cases would be an exercise of one of
the very ``checks and balances'' provided for in the
Constitution. No branch of the Federal Government can be
entrusted with absolute power, and certainly not a handful of
tenured judges appointed for life. The Constitution allows the
Supreme Court to exercise ``judicial power,'' but it does not
grant the Supreme Court unchecked power to define the limits of
its own power. Integral to the American constitutional system
is each branch of Government's responsibility to use its powers
to prevent overreaching by the other branches.
We look forward to hearing from all of the witnesses here
this morning, and I'll now yield to the Ranking Member of the
Committee, the gentleman from New York Mr. Nadler for his
opening statement.
[The prepared statement of Mr. Chabot follows:]
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress From the State of Ohio, and Chairman, Subcommittee on the
Constitution
When the Supreme Court in Lawrence v. Texas struck down a state law
criminalizing same-sex sodomy last year, Justice Scalia, in his
dissent, pointed out that--quote--``[s]tate laws against bigamy, same-
sex marriage, adult incest, prostitution . . . adultery, fornication,
bestiality, and obscenity'' are all ``called into question'' by the
Court's decision. That is a very disturbing prospect, and it should
concern legislators nationwide.
The threat posed to traditional marriage by federal judges whose
decisions can have an impact across state boundaries has renewed
concern over the abuse of power by federal judges. This concern has
roots as old and venerable as our Nation's history.
Thomas Jefferson lamented that--quote--``the germ of dissolution of
our federal government is in the constitution of the federal judiciary;
. . . advancing its noiseless step like a thief, over the field of
jurisdiction, until all shall be usurped . . .'' Jefferson wrote of
federal judges--quote--``their power [is] the more dangerous as they
are in office for life and not responsible . . . to the elective
control.''
And Abraham Lincoln said in his first inaugural address in 1861--
quote--``The candid citizen must confess that if the policy of the
government, upon vital questions, affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court . . . the people
will have ceased to be their own rulers having, to that extent,
practically resigned their government into the hands of that eminent
tribunal.''
A remedy to abuses by federal judges has long been understood to
lie, among other places, in Congress' authority to limit federal court
jurisdiction, and that is the subject of our hearing today.
Regarding the federal courts below the Supreme Court, Article III
of the Constitution provides that ``The judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.''
Regarding the Supreme Court, Article III provides that ``[i]n all cases
affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases . . . the supreme Court shall have
appellate Jurisdiction . . . with such Exceptions, and under such
Regulations as the Congress shall make.''
Consequently, the Constitution provides that the lower federal
courts are entirely creatures of Congress, as is the appellate
jurisdiction of the Supreme Court, excluding only its very limited
original jurisdiction.
In Federalist Paper No. 80, Alexander Hamilton made clear the broad
nature of Congress' authority to amend federal court jurisdiction to
remedy perceived abuse. He wrote, describing the Constitution, that
``it ought to be recollected that the national legislature will have
ample authority to make such exceptions, and to prescribe such
regulations as will be calculated to obviate or remove the
inconveniences'' posed by decisions of the federal judiciary.
That understanding prevails today. As a leading treatise on federal
court jurisdiction has pointed out, ``Beginning with the first
Judiciary Act in 1789, Congress has never vested the federal courts
with the entire `judicial Power' that would be permitted by Article
III'' of the Constitution. And as eminent federal jurisdiction scholar
Herbert Wechsler (pronounced Wex-ler) has stated, ``Congress has the
power by enactment of a statute to strike at what it deems judicial
excess by delimitations of the jurisdiction of the lower courts and of
the Supreme Court's appellate jurisdiction . . .''
Limiting federal court jurisdiction to avoid abuses is not a
partisan issue. Senate Minority Leader Daschle has supported provisions
that would deny all federal courts jurisdiction over the procedures
governing timber projects in order to expedite forest clearing.
Democratic Senator Robert Byrd introduced an amendment to a Senate bill
during the 96th Congress which was adopted by a Senate controlled by
Democrats with large bipartisan support. That amendment provided that
neither the lower federal courts nor the Supreme Court would have
jurisdiction to review any case arising out of state laws relating to
voluntary prayers in public schools and buildings. In this Congress,
several similar bills limiting federal court jurisdiction are pending,
including H.R. 3313, the Marriage Protection Act, which was introduced
by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R.
3313 would remove from federal court jurisdiction certain cases
involving the federal Defense of Marriage Act.
Federal legislation that precludes federal court jurisdiction over
certain constitutional claims to remedy perceived abuses, and to
preserve for the states and their courts the authority to determine
constitutional issues, rests comfortably within our constitutional
system. The Supreme Court has clearly rejected claims that state courts
are less competent to decide federal constitutional issues than federal
courts. Even Justice William Brennan has written, in an opinion joined
by Justices Marshall, Blackmun, and Stevens, that--quote--``virtually
all matters that might be heard in Article III courts could also be
left by Congress to state courts.''
Far from violating the ``separation of powers,'' legislation that
reserves to state courts jurisdiction to decide certain classes of
cases would be an exercise of one of the very ``checks and balances''
provided for in the Constitution. No branch of the federal government
can be entrusted with absolute power, and certainly not a handful of
tenured judges appointed for life. The Constitution allows the Supreme
Court to exercise ``judicial power,'' but it does not grant the Supreme
Court unchecked power to define the limits of its own power. Integral
to the American constitutional system is each branch of government's
responsibility to use its powers to prevent overreaching by the other
branches.
I look forward to hearing from all our witnesses today.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, today we begin our fourth in a series of five
hearings on the topic of same-sex marriage. We have already
devoted more time in this Committee to this topic than to the
means by which we might preserve our democratic form of
Government if terrorists wipe out our Government. One would
think that the possibility that somewhere a lesbian or gay
couple might live out their years peacefully and happily were a
greater threat to the United States than is al Qaeda.
Today, however, the topic is a very serious one. The
hysteria over the marriage question has brought some to the
point of suggesting that Congress should strip the Federal
courts of the jurisdiction to hear cases involving alleged
violations of an individual's rights protected under the
Constitution. These proposals are neither good law nor good
public policy. Past attempts to restrict court jurisdiction
have followed many civil rights decisions, including the
reapportionment cases. Fortunately, cooler heads in Congress
prevailed at the time, and the decisions that gave rise to
these outlandish proposals are now no longer controversial for
the most part. Unless I am greatly mistaken, no one in this
room would question the constitutional protection of one
person, one vote. I trust that decades from now these debates
will find their way into the textbooks next to the
segregationist backlash, the Court-packing plan of the 1930's
and other attacks on our system of Government.
The disabilities that lesbian and gay families suffer are
widely known. Today I will be introducing the Equal Access to
Social Security Act, for example, that would allow same-sex
couples to receive the same Social Security benefits as every
other couple, that would allow the children of same-sex couples
to receive survivors' benefits and disability benefits,
benefits for which these people pay taxes just the same as
everyone else. While this would address only a small portion of
the more than 1,000 benefits denied to same-sex families, it
would correct one terrible injustice.
In today's hearing, Mr. Chairman, it is our very system of
Government and the constitutional system of checks and balances
that are under attack. If the Congress by statute were to
prevent the Federal courts from applying the Constitution to
any subject matter it chooses, then the protections of an
independent judiciary, the protections to our individual
liberties afforded by the institution of the independent
judiciary and by the existence of the Bill of Rights would be
no more than a puff of smoke. The Bill of Rights, in other
words, could be undone by a simple refusal by Congress to allow
the courts jurisdiction to enforce any particular one of the
Bill of Rights.
Imagine if we passed a bill stripping the courts of
jurisdiction to hear alleged violations of the freedom of the
press or freedom of religion. It would be unpopular minorities,
of course, whether religious minorities, political minorities,
lesbians or gays, or whoever is unpopular at the moment, who
will lose their rights. After all, it is the unpopular whose
rights must be protected from the majority by a Bill of Rights.
The majority rarely needs its rights protected.
As Hamilton said in Federalist No. 78, the complete
independence of the courts of justice is peculiarly essential
in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to
the legislative authority; such, for instance, as that it
should pass no bills of attainder, no ex post facto laws and
the like. Limitations of this kind can be preserved in practice
no other way than through the medium of courts of justice whose
duty it must be to declare all acts contrary to the manifest
tenor of the Constitution void. Without this, all reservations
of particular rights or privileges would amount to nothing.
Gay marriage does not threaten the future of this country.
The evisceration of our Constitution and the Bill of Rights
does threaten the future of the liberties of our citizens. We
are playing with fire at this hearing, and that fire could
destroy our liberties. I hope we don't use that fire.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you.
It's my understanding that the gentleman from Indiana would
like to make an opening statement. He's the principal sponsor
of 3313.
Mr. Hostettler. I thank the Chairman.
Mr. Chairman, as a nonlawyer, I count it a high privilege
to serve as a Member of this Subcommittee. However, as a
student of the United States Constitution, I would not be
truthful if I said that I have always understood as perceived
by this nonlawyer to be a disconnect between the plain wording
and construction of the Constitution and the opinions handed
down by the Federal judiciary as, quote, ``constitutional,''
end quote.
But this perceived disconnect was explained to me with such
clarity by, and rightfully so, a lawyer when I read the
testimony of Dr. Leo Graglia, before the House of
Representatives Judiciary Committee's Subcommittee on Courts
and Intellectual Property, of May 15, 1997. Dr. Graglia, who is
the A. Dalton Cross Professor of Law at the University of Texas
law school, profoundly observed that, quote, ``the first and
most important thing to know about constitutional law is that
it has virtually nothing to do with the Constitution,'' end
quote. At that point, the scales fell from my eyes, and I
realized that I cannot confuse what is taught in our Nation's
law schools and what is expounded by so-called constitutional
scholars on the 24-hour news talk shows with the work of folks
like Madison, Hamilton, Jay, and Washington, and others at
Philadelphia in 1787, or for that matter the first Congress in
1789 or the 39th Congress in 1866.
While we will hear today what is considered to be, quote,
``constitutional,'' end quote, according to the desires of the
Federal judiciary, this is not the House Subcommittee on
Constitutional Law. This is the House Subcommittee on the
Constitution. Today we will hear a wide range of means by which
we can deal with the situation of a judiciary that has time and
time again worked outside of its boundaries, and that response
can be everything from doing nothing to an amendment to the
Constitution. And that amendment to the Constitution can be, in
the most extreme case, repeal of article III of the
Constitution itself.
Now, I am not suggesting that we go that far, but rather,
we are to know that the Constitution grants Congress the
authority, a wide range of authority, from impeachment of
justices and judges to the limitation of funds for the
enforcement of their decisions, to the limitation of
jurisdiction, as well as constitutional amendments.
My bill, H.R. 3313, employs one of those checks on the
judiciary, a constitutional check, a constitutional check that
is found explicitly, not implicitly, but explicitly, in the
Constitution itself, in article III, section 2 of the
Constitution; for example, where it says, ``in all cases
affecting ambassadors, other public ministers and consuls, and
those in which a State shall be a party the Supreme Court shall
have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction
both as to law and fact, with such exceptions and under such
regulations as the Congress shall make,'' end quote.
The word ``all'' is very clear even to this nonlawyer,
that, in fact, the Supreme Court's appellate jurisdiction can
be limited in all other cases before mentioned, and those cases
are mentioned in article III, section 2, subsection 1. Congress
has the authority to limit the jurisdiction of the--the
appellate jurisdiction of the United States Supreme Court in
all the other cases that have been mentioned in article III,
section 2, and because the lower courts are creations of the
Congress, as a result of article I, section 8, and article III,
section 1, it is obvious that Congress has the authority; if we
have the authority to create these inferior Federal courts by
statute, then we have also the constitutional authority by our
lawmaking powers to eliminate these inferior Federal courts.
And so, from the spectrum of creating courts as well as
eliminating courts, there can be assumed within that spectrum
the idea of limiting the jurisdiction of the inferior Federal
courts. And so if we can, according to the plain text of the
Constitution, limit the Federal jurisdiction, limit the
jurisdiction of inferior Federal courts, and we have by
explicit wording of article III of the Constitution the power
to limit the appellate jurisdiction of the Supreme Court, it is
obvious that the Marriage Protection Act is something that
Congress can do. The idea that it is something that Congress
should do is going to be a matter of debate of this
Subcommittee, the full Committee and this House, but it is my
hope that after today's hearing we will conclude that it is
definitely something that the Constitution grants Congress the
power to do.
Yield back the balance of my time.
Mr. Chabot. I thank the gentleman.
Without objection, all Members will have 5 days to submit
written opening statements.
Also I'd ask unanimous consent that the gentlelady from
Wisconsin, although she's not a Member of this Subcommittee,
have the opportunity to question the witnesses like any other
Member. Without objection, so ordered.
And we will now introduce our witnesses here this morning.
Our first witness today is Phyllis Schlafly, the founder and
president of the Eagle Forum, a national organization of
volunteer citizens who participate in the public policymaking
process. Mrs. Schlafly is a Phi Beta Kappa graduate of
Washington University, and she received her master's in
government from Harvard University. Mrs. Schlafly is the author
or editor of 20 books on subjects as varied as family and
feminism, history, education and child care, and her radio
commentaries are heard daily on 460 stations. She was named one
of the 100 most important women in the 20th century by Ladies
Home Journal.
We welcome you here this morning, Mrs. Schlafly.
Our second witness is Michael Gerhardt, a Hanson Professor
of Law at the William and Mary School of Law. I want to
especially welcome Professor Gerhardt here since I'm a product
of not William and Mary's law school, but an undergraduate;
spent 4 of the best years of my life there and enjoyed it
tremendously. It's a tremendous university. And we welcome you
here this morning. We may not necessarily agree on all our
views on everything, but I certainly think you picked a great
school to teach law at.
Professor Gerhardt clerked for Judge Gilbert Merritt of the
U.S. Court of Appeals for the Sixth Circuit, and he has
practiced law at Miller, Cassidy, Larocca & Lewin in
Washington, D.C. He has also served as dean of Case Western
University School of Law, taught at Wake Forest University
School of Law, and he has been a visiting professor at Cornell
and Duke University law schools.
And we welcome you here this morning, Professor.
Our third witness is Martin Redish, the Louis and Harriet
Ancel Professor of Law and Public Policy at Northwestern
University School of Law. Professor Redish is a nationally
renowned authority on the subject of Federal jurisdiction. He
received his A.B. With honors, with highest honors, in
political science from the University of Pennsylvania and his
J.D. Magna cum laude from Harvard law school. He has been
described in a review of his book, The Federal Courts in the
Political Order, as quote, ``without a doubt the foremost
scholar on issues of Federal court jurisdiction in this
generation,'' unquote.
Professor Redish is the author or coauthor of 70 articles
and 13 books, including Federal Jurisdiction: Tensions in the
Allocation of Federal Power. He was recently included on a list
of the 100 most cited legal scholars of all time.
And we welcome you here this morning, Professor.
And our fourth and final witness is William ``Bill''
Dannemeyer. Mr. Dannemeyer was first elected to the U.S. House
of Representatives in 1978 where he served 7 terms, 14 years,
serving on the Budget, Judiciary and Energy and Commerce
Committees. He also was elected Chairman of the Republican
Study Committee. Mr. Dannemeyer is a graduate of Valparaiso
University and the Hastings College of Law. He has served as a
special agent in the Army Counterintelligence Corps during the
Korean War. He has also been a lawyer in private practice, a
deputy district attorney, and judge pro tem and a California
State assemblyman. In January 1995, Mr. Dannemeyer helped
organize Americans for Voluntary School Prayer.
We welcome all our witnesses here today. And it's the
practice of the Committee to swear in all witnesses appearing
before it, so if you would please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Chabot. Okay. We thank all the witnesses for being
here, and as a number of you have testified here before, as you
know, we have a 5-minute rule, and there is a lighting system,
so the green light will be on for 4 minutes. The yellow light
will be on when you have 1 minute to wrap up. When the red
light comes on, we'd appreciate it if you would stop close to
that time. We will give you a little leeway, but if you could
stay within the 5 minutes, and then we have to stay within
those same 5 minutes ourselves, so we expect nothing less of
the folks up here.
So we will begin with you, Mrs. Schlafly. You are
recognized for 5 minutes.
TESTIMONY OF PHYLLIS SCHLAFLY, FOUNDER AND PRESIDENT, EAGLE
FORUM
Mrs. Schlafly. Thank you, Mr. Chairman and Members of the
Committee. The assault on the Defense of Marriage Act has
already begun. A lawsuit claiming that the Federal DOMA
violates the U.S. Constitution was filed last month in Federal
district court in Miami. A similar case claiming that a State
DOMA violates the U.S. Constitution is pending in Federal
district court in Nebraska, where a Clinton-appointed Federal
judge ruled that the case can proceed to trial. The very idea
that unelected, unaccountable judges could nullify both other
branches of Government and the will of the American people is
an offense against our right of self-government and must not be
tolerated.
DOMA was adopted 8 years ago by an overwhelming majority of
both Houses of Congress and signed by President Clinton. DOMA
provides that whenever the word ``marriage'' or ``spouse'' is
used in Federal law, marriage means only a legal union between
one man and one woman as husband and wife, and spouse refers
only to a person of the opposite sex who is a husband or a
wife.
DOMA also protects each State's right to adopt the same
traditional definition of marriage, and so at least 39 States
have passed State DOMAs which refuse recognition to same-sex
marriages performed elsewhere.
DOMA is a splendid, well-written law that fully comports
with our great Constitution. So what's the problem? You said at
the last hearing on May 13, Mr. Chairman, that it is
increasingly clear that activist judges will probably declare
Federal and State DOMAs unconstitutional. When you polled the
witnesses at last month's hearing, all agreed that DOMA would
not be given its intended effect by the Federal courts.
President Bush says repeatedly in his speeches around the
country, ``We will not stand for judges who undermine democracy
by legislating from the bench and try to remake the culture of
America by court order.'' He's right. We won't stand for such
judicial arrogance.
Congress must back up this rhetoric with action. The
American people expect Congress to use every constitutional
weapon at its disposal to protect marriage from attack.
Congress cannot stand by and let activist judges cause havoc in
our system of marriage law. The General Accounting Office has
compiled a list of over 1,000 Federal rights and
responsibilities that are contingent on DOMA's definition of
marriage. This GAO report states that the marital relationship
is ``integral'' to Social Security and ``pervasive'' to our
system of taxation.
We know that Congress has the unquestioned power to prevent
an activist judge from doing what your previous witnesses have
predicted. In 2002, Congress passed Senator Daschle's law
taking away jurisdiction from the Federal courts to hear
lawsuits about brush-clearing in South Dakota. Surely the
definition of marriage is as important as brush-clearing in
South Dakota.
The long list of Federal statutes in which Congress
successfully restricted the jurisdiction of the Federal courts
includes the Norris-LaGuardia Act of 1932, the Emergency Price
Control Act of 1942, the Portal-to-Portal Pay Act of 1947, the
1965 Medicare Act, the Voting Rights Act of 1965, and the 1996
immigration amendments. Isn't the protection of marriage just
as important as any of those issues on which Congress
effectively withdrew jurisdiction from the Federal courts? I
think the American people think so.
I urge Congress to protect us from the judicial outrage
that your previous witnesses have predicted by passing
legislation providing that no court of the United States shall
have jurisdiction to hear or determine any question pertaining
to the interpretation or validity of the Defense of Marriage
Act or any State law that limits the definition or recognition
of marriage to the union of one man and one woman. It is urgent
that this law be passed now. This is Congress' proper way to
dismiss the pending lawsuits challenging marriage, exactly like
the Daschle law that terminated pending lawsuits about brush-
clearing.
The Founding Fathers gave Congress the power to curb the
judicial supremacists by deciding what cases they can or cannot
hear. We don't trust the courts to respect the wishes of the
Congress or of the American people on the matter of marriage.
Instead of basing their rulings on the U.S. Constitution,
activist judges are more likely to use unconstitutional
criteria such as ``emerging awareness,'' used in Lawrence v.
Texas, or ``evolving paradigm,'' used in Goodrich v. Department
of Public Health.
My written testimony recites the long historical record
which conclusively proves that Congress has the power to
regulate and limit court jurisdiction, that Congress has used
this power repeatedly, and that the courts have consistently
accepted Congress' exercise of this power. This record is
impressive, authoritative and unquestioned.
And thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
[The prepared statement of Mrs. Schlafly follows:]
Prepared Statement of Phyllis Schlafly
The assault on the Defense of Marriage Act (DOMA) has already
begun. A lawsuit claiming that the federal DOMA violates the U.S.
Constitution was filed last month in federal district court in Miami,
Florida. A similar case claiming that a state DOMA violates the U.S.
Constitution is pending in federal district court in Nebraska, where a
Clinton-appointed federal judge ruled on November 12, 2003 that the
case has legal sufficiency to proceed to trial.
The very idea that unelected, unaccountable judges could nullify
both other branches of government and the will of the American people
is an offense against our right of self-government that must not be
tolerated.
The federal Defense of Marriage Act (DOMA) was adopted eight years
ago by an overwhelming majority of both Houses of Congress and signed
by President Clinton.\1\ DOMA provides that whenever the word
``marriage'' or ``spouse'' is used in federal law, ``marriage means
only a legal union between one man and one woman as husband and wife,''
and ``spouse refers only to a person of the opposite sex who is a
husband or a wife.'' \2\
---------------------------------------------------------------------------
\1\ Public Law 104-199 (Sep. 21, 1996)
\2\ 1 U.S.C. Sec 7
---------------------------------------------------------------------------
DOMA also protects each state's right to adopt the same traditional
definition of marriage.\3\ In response to the shelter offered by the
federal DOMA, at least 39 states passed state DOMAs, which refuse
recognition to same-sex marriages performed elsewhere. Four state DOMAs
have been put in state constitutions; proposals to do likewise are on
the ballot in several other states this year.
---------------------------------------------------------------------------
\3\ 28 U.S.C. Sec 1738C
---------------------------------------------------------------------------
DOMA is a splendid, well-written law that fully comports with our
great U.S. Constitution. So, what's the problem? You said at the last
hearing on May 13, Mr. Chairman, that it is ``increasingly clear'' that
activist judges will probably declare federal and state DOMAs
unconstitutional. When you polled the witnesses at last month's
hearing, all agreed that DOMA would not be given its intended effect by
the federal courts.
President Bush says repeatedly in his speeches around the country:
``We will not stand for judges who undermine democracy by legislating
from the bench and try to remake the culture of America by court
order.'' \4\ He's right--we won't stand for such judicial arrogance.
---------------------------------------------------------------------------
\4\ Dallas, March 8, 2004
---------------------------------------------------------------------------
Congress must back up this rhetoric with action! The American
people expect Congress to use every constitutional weapon at its
disposal to protect marriage from attack.
Congress cannot stand by and let one activist judge cause havoc in
our system of marriage law. The General Accounting Office has compiled
a 58-page list of 1,049 (since revised to 1,138) \5\ federal rights and
responsibilities that are contingent on DOMA's definition of marriage.
The GAO report states that the man-woman marital relationship is
``integral'' to the Social Security system and ``pervasive'' to our
system of taxation. The widespread social and familial consequences of
DOMA also impact on adoption, child custody, veterans benefits, and the
tax-free inheritance of a spouse's estate.
---------------------------------------------------------------------------
\5\ GAO-04-353R (Feb. 24, 2004), revising and updating GAO/OGC-97-
16 (Jan. 31, 1997)
---------------------------------------------------------------------------
We know that Congress has the unquestioned power to prevent an
activist judge from doing what all your previous witnesses have
predicted. For example, in 2002, Congress passed a law at Senator Tom
Daschle's urging to prohibit all federal courts from hearing lawsuits
challenging brush clearing in the Black Hills of South Dakota. Surely
the definition of marriage is as important as brush fires in South
Dakota! \6\
---------------------------------------------------------------------------
\6\ The Daschle law about brush clearing, Public Law 107-206, Sec.
706(j), states: ``Any action authorized by this section shall not be
subject to judicial review by any court of the United States.'' The law
authorized the Interior Department to clear timber in the Black Hills
of South Dakota in order to fight and prevent forest fires.
Environmental groups had filed several lawsuits to stop timber
clearing. At least one court had issued an order and other suits were
pending. The Daschle law terminated all these suits so that timber
clearing could continue without judicial interference.
---------------------------------------------------------------------------
The long list of federal statutes in which Congress successfully
restricted the jurisdiction of the federal courts (restrictions upheld
by the federal courts) includes the Norris-LaGuardia Act of 1932, the
Emergency Price Control Act of 1942, the Portal-to-Portal Pay Act of
1947, the 1965 Medicare Act, the Voting Rights Act of 1965, and the
1996 Immigration Amendments. The Voting Rights Act of 1965 is a
dramatic manifestation of what Congress can constitutionally do when it
wants to limit court jurisdiction. This law denied jurisdiction to
southern federal district courts, requiring the southern states to
bring their cases in the District Court for the District of Columbia.
Isn't the protection of marriage just as important as any of the
issues on which Congress effectively withdrew jurisdiction from the
federal courts? The American people think so.
I urge Congress to protect us from the judicial outrage that your
previous witnesses have predicted by passing legislation providing that
no court of the United States shall have jurisdiction to hear or
determine any question pertaining to the interpretation or validity of
the Defense of Marriage Act or any state law that limits the definition
or recognition of marriage to the union of one man and one woman.
It is urgent that this legislation be passed now. This is
Congress's proper way to dismiss the pending lawsuits challenging
marriage exactly as the Daschle law terminated pending lawsuits about
brush clearing.
The Founding Fathers in their wisdom put into the United States
Constitution the power for Congress to curb the power of the judicial
supremacists by deciding what cases they can or cannot hear. The
argument will be made that such legislation means we don't trust the
federal courts or the Supreme Court, and that's exactly right--we don't
trust the courts to respect the wishes of Congress or of the American
people on the matter of marriage. Instead of basing their rulings on
the U.S. Constitution, activist judges are more likely to use
unconstitutional criteria such as ``emerging awareness'' (as in
Lawrence v. Texas \7\) or ``evolving paradigm'' (as in Goodridge v.
Department of Public Health \8\).
---------------------------------------------------------------------------
\7\ Lawrence v. Texas, 539 U.S. 558 (2003)
\8\ Goodridge v. Department of Public Health, 440 Mass. 309 (2003)
---------------------------------------------------------------------------
My written testimony recites the long historical record which
conclusively proves that Congress has the power to regulate and limit
court jurisdiction, that Congress has used this power repeatedly, and
that the courts have consistently accepted Congress's exercise of this
power. The record is impressive, authoritative, and unquestioned.
The record supports Congress's power to limit court jurisdiction
In Turner v. Bank of North America (1799),\9\ Justice Chase
commented: ``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 if Congress has not given the power to us, or to any
other Court, it still remains at the legislative disposal.''
---------------------------------------------------------------------------
\9\ Turner v. President, Directors and Company, of the Bank of
North America, 4 U.S. 8 (1799)
---------------------------------------------------------------------------
Even Chief Justice John Marshall, who defined the power of judicial
review in Marbury v. Madison,\10\ made similar assertions. For example,
in Ex parte Bollman (1807),\11\ Marshall said that ``courts which are
created by written law, and whose jurisdiction is defined by written
law, cannot transcend that jurisdiction.''
---------------------------------------------------------------------------
\10\ Marbury v. Madison, 5 U.S. 137 (1803)
\11\ Ex parte Bollman, 8 U.S. 75 (1807)
---------------------------------------------------------------------------
Early decisions of the Supreme Court were sprinkled with the
assumption that the power of Congress to create inferior federal courts
necessarily implied, as stated in U.S. v. Hudson & Goodwin (1812),\12\
``the power to limit jurisdiction of those Courts to particular
objects.'' The Court stated, ``All other Courts [except the Supreme
Court] created by the general Government possess no jurisdiction but
what is given them by the power that creates them.''
---------------------------------------------------------------------------
\12\ United States v. Hudson and Goodwin, 11 U.S. 32 (1812)
---------------------------------------------------------------------------
The Supreme Court held unanimously in Sheldon v. Sill (1850) \13\
that because the Constitution did not create inferior federal courts
but rather authorized Congress to create them, Congress was also
empowered to define their jurisdiction and to withhold jurisdiction of
any of the enumerated cases and controversies. This case has been cited
and reaffirmed numerous times. It was applied in the Voting Rights Act
of 1965,\14\ in which Congress required covered states that wished to
be relieved of coverage to bring their actions in the District Court
for the District of Columbia.
---------------------------------------------------------------------------
\13\ Sheldon v. Sill, 49 U.S. 441 (1850)
\14\ 42 U.S.C. Sec. 1973c
---------------------------------------------------------------------------
The Supreme Court broadly upheld Congress's constitutional power to
define the limitations of the Supreme Court ``with such Exceptions, and
under such Regulations as the Congress shall make'' in Ex parte
McCardle (1869).\15\ Congress had enacted a provision repealing the act
that authorized the appeal McCardle had taken. Although the Court had
already heard argument on the merits, it dismissed the case for want of
jurisdiction: ``We are not at liberty to inquire into the motives of
the legislature. We can only examine into its power under the
Constitution; and the power to make exceptions to the appellate
jurisdiction of this court is given by express words.''
---------------------------------------------------------------------------
\15\ Ex parte McCardle, 74 U.S. 506 (1869)
---------------------------------------------------------------------------
McCardle grew out of the stresses of Reconstruction, but the
principle there applied has been affirmed and applied in later cases.
For example, in 1948 Justice Frankfurter commented: ``Congress need not
give this Court any appellate power; it may withdraw appellate
jurisdiction once conferred and it may do so even while a case is sub
judice [already before the court].'' \16\
---------------------------------------------------------------------------
\16\ National Mutual Insurance Co. v. Tidewater Transfer Co., 337
U.S. 582 (1949)
---------------------------------------------------------------------------
In The Francis Wright (1882),\17\ the Court said: ``While the
appellate power of this court under the Constitution extends to all
cases within the judicial power of the United States, actual
jurisdiction under the power is confined within such limits as Congress
sees fit to prescribe. . . . What those powers shall be, and to what
extent they shall be exercised, are, and always have been, proper
subjects of legislative control. . . . Not only may whole classes of
cases be kept out of the jurisdiction altogether, but particular
classes of questions may be subjected to re-examination and review,
while others are not.''
---------------------------------------------------------------------------
\17\ The Francis Wright, 105 U.S. 381 (1881)
---------------------------------------------------------------------------
Numerous restrictions on the exercise of appellate jurisdiction
have been upheld. For example, Congress for a hundred years did not
allow a right of appeal to the Supreme Court in criminal cases except
upon a certification of divided circuit courts.
In the 1930s, liberals in Congress thought the federal courts were
too pro-business to fairly handle cases involving labor strikes. In
1932 Congress passed the Norris-LaGuardia Act \18\ removing
jurisdiction in this field from the federal courts, and the Supreme
Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co.
(1938).\19\ The Supreme Court declared, ``There can be no question of
the power of Congress thus to define and limit the jurisdiction of the
inferior courts of the United States.''
---------------------------------------------------------------------------
\18\ 29 U.S.C. Sec. 101-115
\19\ Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938)
---------------------------------------------------------------------------
Liberals followed the same procedure when they passed the Hiram
Johnson Acts in order to remove jurisdiction from the federal courts
over public utility rates and state tax rates. These laws worked well
and no one has suggested they be repealed.
Another celebrated example was the Emergency Price Control Act of
1942, in which Congress removed from federal courts the jurisdiction to
consider the validity of any price-control regulation. In the test case
upholding this law in Lockerty v. Phillips (1943),\20\ the Supreme
Court held that Congress has the power of ``withholding jurisdiction
from them [the federal courts] in the exact degrees and character which
to Congress may seem proper for the public good.''
---------------------------------------------------------------------------
\20\ Lockerty v. Phillips, 319 U.S. 182 (1943)
---------------------------------------------------------------------------
After the Supreme Court ruled in Tennessee Coal v. Muscoda (1944)
\21\ that employers had to pay retroactive wages for coal miners'
underground travel to and from their work station, Congress passed the
Portal-to-Portal Act of 1947 \22\ prohibiting any court from enforcing
such liability.
---------------------------------------------------------------------------
\21\ Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,
321 U.S. 590 (1944)
\22\ 29 U.S.C. Sec. 252(d)
---------------------------------------------------------------------------
Even one of the leading judicial activists, Justice William
Brennan, acknowledged Congress's constitutional power to limit the
jurisdiction of the federal courts. In 1982 he wrote for the Court in
Northern Pipeline Construction Co. v. Marathon Pipe Line Co.: \23\ ``Of
course, virtually all matters that might be heard in Art. III courts
could also be left by Congress to state courts . . . [and] the
principle of separation of powers is not threatened by leaving the
adjudication of federal disputes to such judges.''
---------------------------------------------------------------------------
\23\ Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982)
---------------------------------------------------------------------------
In 1999 the Supreme Court upheld Congress's power to restrict the
jurisdiction of the federal courts to interfere in certain immigration
disputes (Reno v. American-Arab Anti-Discrimination Committee).\24\ In
2003 the Supreme Court upheld a 1996 law signed by President Clinton
that gave exclusive authority to the U.S. Attorney General to deport
certain illegal aliens and specified that federal courts have no
jurisdiction to review such removal orders (Hatami v. Ridge).\25\
---------------------------------------------------------------------------
\24\ Reno v. American Arab Anti-Discrimination Committee, 525 U.S.
471 (1999)
\25\ Hatami v. Ridge, 270 F. Supp. 2d 763 (E.D. Va. 2003)
---------------------------------------------------------------------------
Another statute that prohibits judicial review is the Medicare
law,\26\ on which nearly everyone over age 65 relies for health care.
Congress mandated that ``there shall be no administrative or judicial
review'' of administrative decisions about many aspects of the Medicare
payment system. When someone sued in federal court anyway, the court
dismissed the lawsuit based on this prohibition of judicial review
(American Society of Dermatology v. Shalala, 1996).\27\
---------------------------------------------------------------------------
\26\ 42 U.S.C. Sec. 1395w-4(i)(1)
\27\ American Society of Dermatology v. Shalala, 962 F. Supp. 141
(D.D.C. 1996)
---------------------------------------------------------------------------
Article I, Section 8 of the Constitution states: ``The Congress
shall have power . . . to constitute tribunals inferior to the Supreme
Court.'' Article III, Section 1 states: ``The judicial power of the
United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and
establish.'' These two sections mean that all federal courts except the
Supreme Court were created by Congress, which defined their powers and
prescribed what kind of cases they can hear. Whatever Congress created
it can uncreate, abolish, limit or regulate.
The Supreme Court explained this in Lockerty v. Phillips (1943)20:
``All federal courts, other than the Supreme Court, derive their
jurisdiction wholly from the exercise of the authority to `ordain and
establish' inferior courts, conferred on Congress by Article III, 1, of
the Constitution. Article III left Congress free to establish inferior
federal courts or not as it thought appropriate. It could have declined
to create any such courts, leaving suitors to the remedies afforded by
state courts, with such appellate review by this Court as Congress
might prescribe. . . . The Congressional power to ordain and establish
inferior courts includes the power `of investing them with jurisdiction
either limited, concurrent, or exclusive, and of withholding
jurisdiction from them in the exact degrees and character which to
Congress may seem proper for the public good.' ''
Article III, Section 2 states: ``The Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such exceptions,
and under such regulations as the Congress shall make.'' This section
means that Congress can make ``exceptions'' to the types of cases that
the Supreme Court can decide. This is the most important way that
Congress can and should bring an end to the reign of judges legislating
from the bench.
The American people expect Congress to use its constitutional power
so clearly available, and the voters are currently alienated because of
Congress's failure to put down the attacks on marriage. We believe it
is Congress's constitutional duty to protect the American people from
judicial supremacists who might commit the outrage of overruling the
federal and all state laws about marriage. Do we have self-government
by our elected representatives, or don't we?
The argument will be made that we should accept any activist
judge's ruling as ``the law of the land'' and that it is impertinent
for Congress to preempt the courts. However, House Judiciary Committee
Chairman Sensenbrenner made it clear in a speech to the U.S. Judicial
Conference on March 16 of this year that he stands up for Congress's
``constitutionally authorized'' and ``appropriate'' powers over the
judiciary. Mr. Sensenbrenner was not referring to the subject of this
hearing, but it seems to me that the principle is the same. Congress
must not shrink from subjecting activist judges to criticism or from
Congress's use of its ``constitutionally authorized'' powers.
It is imperative that Congress to stop federal judges from
asserting judicial supremacy over our rights of self-government.
Mr. Chabot. Professor Gerhardt, you're recognized for 5
minutes.
TESTIMONY OF MICHAEL GERHARDT, ARTHUR B. HANSON PROFESSOR OF
LAW, WILLIAM AND MARY LAW SCHOOL
Mr. Gerhardt. Thank you, Mr. Chair. It's a great privilege
to be here this morning. I appreciate the opportunity to be
here and to be on a panel of such distinguished people,
including someone I would certainly acknowledge as one of the
Nation's leading experts on Federal jurisdiction.
You've got my written statement. I will only make a few
comments that reiterate the points therein.
While the Supreme Court has broad authority to regulate
Federal jurisdiction, this power is not unlimited. There's
nothing magical about the power to regulate Federal
jurisdiction
Mr. Nadler. Excuse me, Professor. You said the Supreme
Court. I assume you meant Congress has authority.
Mr. Gerhardt. I'm sorry. Forgive me. That's correct. I'm
sorry. That is certainly correct. There is certainly nothing
magical about this great body's power to regulate Federal
jurisdiction. It is susceptible to the same limits as all the
other great powers that this body has got. It is limited by
federalism, it is limited by separation of powers, it is
limited by due process, it is limited by equal protection.
Hence, if Congress acts with the purpose and effect of
violating a constitutional right, that violates the
Constitution. If Congress acts in a way to prevent the Federal
courts from ensuring a State complies with the Constitution,
that violates article VI of the Constitution. If Congress keeps
article III courts from invalidating an unconstitutional law,
that violates separation of powers. If Congress withdraws
jurisdiction in such a way that eviscerates the Supreme Court's
basic function in deciding cases arising under the Constitution
and ensuring finality and uniformity in the interpretation and
enforcement of Federal law, that, too, violates separation of
powers. If Congress withdraws Federal jurisdiction for a
particular class of American citizens or based on their
exercise of fundamental rights, that violates the fifth
amendment.
In short, Congress cannot use its power to regulate Federal
jurisdictions in ways that violate rights and equal protection,
offends federalism, or infringes separation of powers.
A few other points bear repeating. First, I think it is
noteworthy that Congress has shown admirable restraint in the
past in not endorsing numerous proposals for withdrawing
Federal jurisdiction in particular classes pertaining to
constitutional claims or particular plaintiffs. Moreover,
Congress needs a neutral justification to withdraw Federal
jurisdiction, I think, in classes with respect to particular
classes of constitutional claims or particular plaintiffs.
Distrust of unelected judges is not a neutral
justification. Unelected judges in the form of our Federal
judiciary are integral to protecting the rule of law in our
legal system, the balance of power among the branches, and
protecting unpopular minorities from the tyranny of the
majority. For good reason the Supreme Court has never upheld
efforts to use the regulatory power over Federal jurisdictions
to regulate substantive constitutional law. At the same time, I
think that it would be impermissible for you to relegate a
particular class of citizens of the United States, gays and
lesbians, to litigate their claims in retaliation against
either them or judicial decisions that might conceivably be in
their favor. With all due respect, I urge the Committee not
today to do as its predecessors have done in recognizing the
benefits of our constitutional systems of separation of powers
and federalism far outweigh whatever their costs.
Thank you.
Mr. Chabot. Thank you, Professor.
[The prepared statement of Mr. Gerhardt follows:]
Prepared Statement of Michael J. Gerhardt
It is an enormous privilege to participate in today's hearing,
``Limiting Federal Court Jurisdiction to Protect Marriage for the
States.'' I understand the purpose of today's oversight hearing is to
examine the Congress' power to limit federal jurisdiction, or to employ
what are commonly called jurisdiction-stripping measures, in response
to recent court decisions on marriage. As members of this Committee
well know, jurisdiction-stripping raises some profound questions of
constitutional law. While the Supreme Court acknowledges that the
Congress has broad power to regulate federal jurisdiction, this power
is not unlimited. In my judgment, the Congress cannot exercise any of
its powers under the Constitution--not the power to regulate interstate
commerce, not the Spending power, and not the authority to define
federal jurisdiction--in a manner that violates the Constitution. If
Congress acts with the purpose and effect of violating a constitutional
right, that violates the Constitution. If Congress acts in a way that
prevents the federal courts from ensuring state law complies with the
Constitution, that violates Article VI of the Constitution. If Congress
keeps Article III courts from invalidating an unconstitutional law,
that violates basic separation of powers. If Congress withdraws
jurisdiction in such a way that eviscerates the Supreme Court's basic
function in deciding cases arising under the Constitution and ensuring
finality and uniformity in the interpretation and enforcement of
federal law, that, too, violates separation of powers. If Congress
withdraws or restricts federal jurisdiction for a particular class of
American citizens or based on the exercise of fundamental rights, that
violates the Fifth Amendment. In short, Congress cannot use its power
to restrict federal jurisdiction in ways that violate rights and equal
protection, offends federalism, or infringes separation of powers.
Distrust of ``unelected judges'' does not qualify as a legitimate
basis, much less a compelling justification, for congressional action.
``Unelected judges,'' in the form of our federal judiciary, are
integral to protecting the rule of law in our legal system, balance of
power among the branches, and protecting unpopular minorities from the
tyranny of the majority. For good reason, the Supreme Court has never
upheld efforts to use the regulatory power over federal jurisdiction to
regulate substantive constitutional law. With all due respect, I urge
the Committee today to do as its predecessors have done in recognizing
the benefits of our constitutional systems of separation of powers and
federalism far outweigh whatever their costs. Below, I explain in
greater detail the basic principles restricting congressional
regulations of jurisdiction in retaliation against, or in efforts to
influence, substantive judicial outcomes.
i. general principles
The Constitution allows judicial decisions on constitutional means
to be displaced by two means and two means only. The first is by a
constitutional amendment. Article V of the Constitution sets forth the
requirements for amending the Constitution. In our history,
constitutional amendments have overruled only a few constitutional
decisions, including both the Eleventh and Fourteenth Amendments. Thus,
it would not be constitutional for the Congress to enact a statute to
overrule a court's decision on constitutional law. For instance, it
would be unconstitutional for the Congress to seek to overrule even an
inferior court's decision on the Second Amendment by means of a
statute. The second means for displacing an erroneous constitutional
decision is by a court's overruling its own decisions or by a superior
court. For instance, the United States Supreme Court has expressly
overruled more than a hundred of its constitutional decisions. On
countless other occasions, the Court has modified, clarified, but not
overruled its prior decisions on constitutional law. It is perfectly
legitimate to ask the Court, but not to command it, to reconsider a
constitutional decision.
To be sure, Article III grants the Congress authority to regulate
federal jurisdiction. This power is acknowledged almost universally as
a broad grant of authority, but it is not unlimited. The Congress has
no authority to overrule a judicial decision on constitutional law,
even under the guise of regulating federal jurisdiction. Indeed, the
Supreme Court has long recognized that the Congress may not use its
power to regulate jurisdiction--or, for that matter, any other of its
powers--in an effort to influence substantive judicial outcomes. See,
e.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Dickerson v.
United States, 530 U.S. 428 (2000). See also Ex Parte Klein, 80 U.S.
128 (1871). Efforts, taken in response to or retaliation against
judicial decisions, to withdraw all federal jurisdiction or even
jurisdiction of inferior federal courts on questions of constitutional
law are transparent attempts to influence, or displace, substantive
judicial outcomes. For several decades, the Congress, for good reason,
has refrained from enacting such laws. The closest the Congress has
come to doing this has been in insulating certain war-time measures
from judicial review, but I am unaware of any jurisdiction-stripping
proposals pending in the House designed to protect national security.
Moreover, proposals that would limit the methods available to
Article III courts to remedy constitutional injuries are
constitutionally problematic. The problem with such restrictions is
that, as the Task Force of the Courts Initiative of the Constitution
Project found, ``remedies are essential if rights are to have meaning
and effect.'' Indeed, the bipartisan Task Force was unanimous ``there
are constitutional limits on the ability of legislatures to preclude
remedies. At the federal level, where the Constitution is interpreted
to vest individual rights, it is unconstitutional for Congress to
preclude the courts from effectively remedying deprivations of those
rights.'' While Congress clearly may use its power to regulate
jurisdiction to provide for particular procedures and remedies in
inferior federal courts, it may do so in order to increase the
efficiency of Article III courts not to undermine those courts. The
Congress needs a neutral reason for procedural or remedial reform.
While national security and promoting the efficiency of the federal
courts qualify plainly as such reasons, distrust of the federal
judiciary does not.
ii. restricting all federal jurisdiction over
particular federal laws or claims
Sometimes the House considers proposals to restrict all federal
jurisdiction with respect to certain federal laws (or actions). For
instance, bills have been introduced to preclude inferior federal
courts from deciding cases involving abortion rights, school prayer,
and gay marriage. In effect, such proposals would restrict both
inferior federal courts and the Supreme Court from enforcing,
interpreting, or adjudicating certain substantive matters.
Consequently, the courts of last resort for interpreting, enforcing or
entertaining challenges to laws restricting federal jurisdiction over
such matters are the highest courts in each of the fifty states.
Any proposal to withdraw all federal jurisdiction over a particular
federal law has several constitutional defects, in my judgment. The
first is that it eviscerates an essential function of the United States
Supreme Court--namely, to declare what the Constitution means in
``cases arising under the Constitution.'' Perhaps the most famous
statement of this principle can be found is Professor Henry Hart's
observation a half century ago that restrictions on federal
jurisdiction are unconstitutional when ``they destroy the essential
role of the Supreme Court in the constitutional system.'' Henry Hart,
The Power of Congress to Limit the Jurisdiction of Federal Courts: An
Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953). The Court's
essential function includes at the very least, as the Supreme Court
famously declared in Marbury v. Madison, 5 U.S. 137 (1803), to ``say
what the law is,'' particularly in cases involving the interpretation
of the Constitution or federal law; \1\ and Congress may not undermine
this function under the guise of regulating federal jurisdiction.\2\ As
the Task Force of the Courts Initiative of the Constitution Project
recognized, ``legislation precluding court jurisdiction that prevents
the judiciary from invalidating unconstitutional laws is impermissible.
Neither Congress nor state legislatures may use their powers to keep
courts from performing their essential functions of upholding the
Constitution.''
---------------------------------------------------------------------------
\1\ For more elaborate discussions of the Court's essential
functions, see, e.g., Leonard Ratner, Majoritarian Constraints on
Judicial Review: Congressional Control of Supreme Court Jurisdiction,
27 Vill. L. Rev. 929 (1982); Lawrence Sager, Forward: Constitutional
Limitations on Congress' Authority to Regulate the Jurisdiction of the
Federal Courts, 95 Harv. L. Rev. 1 (1981); Leonard Ratner,
Congressional Power Over the Appellate Jurisdiction of the Supreme
Court, 109 U. Pa. L. Rev. 157 (1960).
\2\ Some authorities suggest a different, or additional basis, for
the unconstitutionality of excluding all federal jurisdiction over a
particular federal law or constitutional claim. In Martin v. Hunter's
Lessee, 14 U.S. (1 Wheat.) (1816), Justice Story construed the vesting
clause of Article III as requiring, inter alia, ``the whole judicial
power of the United States should be, at all times, vested in an
original or appellate form, in some courts created under its
authority.'' His point was that at least some article III court ought
to be empowered to wield the entire judicial power of the United
States. Yale Law School professor Akhil Amar has modifed this argument.
He contends that article III requires that ``all'' cases arising under
federal law, ``all'' cases affecting ambassadors, and ``all'' cases of
admiralty or maritime jurisdiction must be vested, either as an
original or appellate matter, in some Article III court. Akhil Amar, A
Neo-Federalist View of Article III: Separating the Two Tiers of Federal
Jurisdiction, 65 Boston U. L. Rev. 205 (1985).
---------------------------------------------------------------------------
Moreover, Congress cannot vest jurisdiction in courts to enforce a
law but prohibit it from considering the constitutionality of the law
that it is enforcing. The Task Force of the Courts Initiative of the
Constitution Project unanimously concluded ``that the Constitution's
structure would be compromised if Congress could enact a law and
immunize that law from constitutional judicial review.'' This is
precisely what a measure excluding all federal jurisdiction with
respect to a federal enactment seeks to do. For instance, it would be
unconstitutional for a legislature to assign the courts with enforcing
a criminal statute but preclude them from deciding the
constitutionality of this law. It would be equally unlawful to immunize
any piece of federal legislation from constitutional judicial review.
If Congress could immunize its laws from the Court's judicial review,
then this power could be used to insulate every piece of federal
legislation from Supreme Court review. For instance, it is telling that
in response to a Supreme Court decision striking down a federal law
criminalizing flag-burning, many members of the Congress proposed
amending the Constitution. This was an appropriate response allowed by
the Constitution, but enacting the same bill but restricting federal
jurisdiction over it would be unconstitutional.
In addition, courts must have the authority to enjoin ongoing
violations of constitutional law. For example, the Congress may not
preclude courts from enjoining laws that violate the First Amendment's
guarantee of freedom of speech. If an article III court concludes that
a federal law violates constitutional law, it would shirk its duty if
it failed to declare the inconsistency between the law and the
Constitution and proceed accordingly.
Proposals to exclude all federal jurisdiction would, if enacted,
open the door to another, equally disastrous constitutional result--
allowing the Congress to command the federal courts on how they should
resolve constitutional results. In Ex Parte Klein, 80 U.S. at 146-47,
the Supreme Court declared that it
seems to us that it is not an exercise of the acknowledged
power of Congress to make exceptions and prescribe regulations
to the appellate power . . . What is this but to prescribe a
rule for the decision of a cause in a particular way? . . . Can
we do so without allowing that the legislature may prescribe
rules of decision to the Judicial Department or the government
in cases pending before it? . . . We think not . . . We must
think that Congress has inadvertently passed the limit which
separates the legislature from the judicial power.
The law at issue in Ex Parte Klein attempted to foreclose the intended
effect of both a presidential pardon and an earlier Supreme Court
decision recognizing that effect. The Court struck the law down. In all
likelihood, the same outcome would arise with respect to any other law
excluding all federal jurisdiction, for such a law is no different than
a law commanding the courts to uphold the law in question, a command no
doubt Article III courts would strike down even if they thought the law
in question was constitutional. There is no constitutionally meaningful
difference between these laws, because the result of a law excluding
all federal jurisdiction over a federal law and a command for the
courts to uphold the law are precisely the same--preserving the
constitutionality of the law in question.
A proposal to withdraw all federal jurisdiction with respect to a
particular federal matter conflicts with a second, significant
limitation on the Congress' power to regulate jurisdiction: The
Congress may not use its power to regulate jurisdiction to control
substantive judicial outcomes. The obvious effect of a prohibition of
all federal jurisdiction is to make it nearly impossible for the law to
be struck down in every part of the United States. The jurisdictional
restriction seeks to increase the likelihood that the federal statute
will not be fully struck down.
Moreover, a proposal excluding all federal jurisdiction regarding a
particular federal question undermines the Supreme Court's ability to
ensure the uniformity of federal law. In effect, such a proposal would
allow the highest courts in each of the fifty states to become courts
of last resort for interpreting, enforcing, or adjudicating challenges
to the law. This allows for the possibility that different state courts
will construe the law differently, and no review in a higher tribunal
is possible. The Court's essential functions include ensuring finality
and uniformity across the United States in the enforcement and
interpretation of federal law.
The third major problem with a proposal to exclude all federal
jurisdiction is that it may violate the equal protection component of
the Fifth Amendment Due Process Clause. See Bolling v. Sharpe, 347 U.S.
497 (1954) (recognizing, inter alia, that congruence requires the
federal government to follow the same constitutional standard as the
Fourteenth Amendment Equal Protection Clause requires states to
follow). The Court will subject to strict scrutiny any classifications
that explicitly burden a suspect class or fundamental right. A federal
law restricting all federal jurisdiction with respect to it or some
other federal law does both. First, it may be based on a suspect
classification. A jurisdictional regulation restricting access by
African-Americans, or a particular religious group, to Article III
courts to vindicate certain interests ostensibly because of mistrust of
``unelected judges'' plainly lacks a compelling justification and thus
violates the equal protection class. While the usual constitutional
measure of a jurisdictional regulation is the rational basis test, a
court might find that even that has not been satisfied if the court
finds the argument in support of burdening African-Americans, women, or
Jews is illegitimate. While the Court has not employed strict scrutiny
to analyze the constitutionality of laws burdening gays and lesbians,
the Court has found two such fail even to satisfy the rational basis
test. A court analyzing whether a classification precluding a gay or
lesbian citizen from petitioning any Article III court would probably
conclude that such a restriction is no more rational than the
classification struck down by the Supreme Court in Romer v. Evans, 517
U.S. 620 (1996). In Romer, the Court found that the state referendum
disadvantaging gays and lesbians failed to pass the rational basis
test, because it had been motivated by animus. In all likelihood, a
majority of the Supreme Court would strike down such a measure as
having been driven by the same illegitimate concerns, or attitudes,
that it rejected in that case.
A federal law restricting all federal jurisdiction may also run
afoul of the Fifth Amendment by violating a fundamental right. Such is
the case with a proposal restricting all federal jurisdiction over flag
burning or school prayer. It is unlikely that the Court would find a
compelling justification for burdening fundamental rights. I cannot
imagine that the justices would agree that distrusting ``unelected
judges'' qualifies as a compelling justification. Nor is a regulation
excluding all federal jurisdiction over a matter involving the exercise
of fundamental rights, for it precludes Article III courts even from
enforcing the law.
In addition, a proposal excluding all federal jurisdiction may
violate the Fifth Amendment's Due Process Clause's guarantee of
procedural fairness. Over a century ago, the Court declared that due
process ``is a restraint on the legislative as well as the executive
and judicial powers of the government, and cannot be construed to leave
congress free to make `any due process of law,' by its mere will.'' For
instance, the Court has explained ``that the Due Process Clause
protects civil litigants who seek recourse in the courts, either as
defendants hoping to protect their property or as plaintiffs seeking to
redress grievances.'' A proposal excluding all federal jurisdiction
effectively denies a federal forum to plaintiffs whose constitutional
interests have been impeded by the law, even though Article III courts,
including the Supreme Court, have been designed to provide a special
forum for the vindication of federal interests.
Excluding all federal jurisdiction with respect to some federal law
forces litigants into state courts, which are often thought to be
hostile or unsympathetic to federal interests. To the extent that the
federal law burdens federal constitutional rights, it is problematic
both for the burdens it imposes and for violating due process. Basic
due process requires independent judicial determinations of federal
constitutional rights (including the ``life, liberty, and property''
interests protected explicitly by the Fifth Amendment). Because state
courts are possibly hostile to federal interests and rights and under
some circumstances are not open to claims based on those rights, due
process requires an Article III forum.
Last but not least, as the authors of a leading casebook on federal
jurisdiction have observed, ``At least since the 1930s, no bill that
has been interpreted to withdraw all federal court jurisdiction with
respect to a particular substantive area has become law.'' R. Fallon,
D. Meltzer, D. Shapiro, Hart and Wechsler's The Federal Courts and the
Federal System 322 (2003). This refusal, for good reasons, constitutes
a significant historical practice that argues for, rather than against,
precluding all federal jurisdiction in retaliation against judicial
decision(s).
iii. restricting the jurisdiction of inferior federal courts
Another kind of proposal sometimes made in the Congress is to
preclude the jurisdiction of the inferior federal courts. Unlike the
kinds of laws considered in the prior section, this kinds of law allows
for the possibility of Supreme Court review albeit by way of petition
for certiorari from the state courts. Nevertheless, this proposal has
at least three constitutional defects. First, this proposal may violate
the equal protection component of the Fifth Amendment Due Process
Clause because it may burden a suspect class without a compelling
justification or narrow tailoring. It is well settled that a group, or
class, that is characterized by its exercise of a fundamental right is
a suspect class. Hence, a bill that barred inferior federal courts from
hearing any constitutional challenges may be directed at a suspect
class, particularly if the group it burdens is defined by its exercise
of a fundamental right that the restriction at issue is burdening.
The second major problem with withdrawing jurisdiction over a
particular class of cases from inferior federal courts is that it may
violate separation of powers.\3\ Imagine, for instance, that an
inferior court had struck down a state law prohibiting flag-burning
before the Supreme Court had decided on the constitutionality of that
law. If Congress had enacted a law precluding any other inferior courts
jurisdiction over the flag, its law would be unconstitutional for both
attempting to override the effects of a substantive judicial decision
and for hindering the exercise of a first amendment right.
---------------------------------------------------------------------------
\3\ Professor Theodore Eisenberg has argued that the Framers
understood ``that the federal courts, whatever their form, could be
expected to hear any litigant whose case was within the federal
constitutional jurisdiction, either at trial or on appeal.'' Theodore
Eisenberg, Congressional Authority to Restrict Lower Federal Court
Jurisdiction, 83 Yale L.J. 498 (1974). He suggests that the Framers
assumed that the Supreme Court could accomplish this objective, but
argues, as do many other scholars, that this assumption is no longer
practical. Eisenberg argues that Congress may exclude cases from
federal jurisdiction for ``neutral'' policy reasons, such as to avoid
case overloads or promote the efficiency of federal courts.
---------------------------------------------------------------------------
The third problem with a proposal undertaken in retaliation against
the federal judiciary is that it may violate the Fifth Amendment due
process clause. The Congress' power to regulate jurisdiction may
withdraw jurisdiction in Article III courts for neutral reasons, such
as promoting their efficiency, national security, or improving the
administration of justice. Neither mistrust of the federal judiciary
nor hostility to particular substantive judicial decisions (or to
particular rights) qualifies as a neutral justification that could
uphold a congressional regulation of federal jurisdiction. It is hard
to imagine why an Article III court, even the Supreme Court, would
treat such distrust as satisfying the rational basis test required for
most legislation. By design, Article III judges have special
attributes--life tenure and guarantee of undiminished compensation--
that are supposed to insulate them from majoritarian retaliation. They
are also supposed to be expert in dealing with federal law and more
sympathetic to federal claims than their state counterparts. See Martin
v. Hunters' Lessee, 14 U.S. 304 (1816). Yet, a proposal that excludes
inferior federal court jurisdiction is ill-designed to achieve its
purported purpose, because it still allows state courts to hear
challenges to the Pledge of Allegiance and retains possible
jurisdiction over those challenges in the Supreme Court. As long as
Supreme Court review is possible (and it appears to be), ``unelected''
justices will decide the merits of the challenges. It is hard to see
that there is even a rational basis for believing that the ``unelected
judges'' on the nation's inferior federal courts--all nominated by
presidents and confirmed by the Senate (with the exception of two
recess appointees)--cannot be trusted to perform their duties in
adjudicating claims relating to the Pledge of Allegiance. If a district
court judge fails to do this or an appellate federal court fails to do
this, their decisions may be appealed to higher courts.
Congress has shown admirable restraint in the past when it has not
approved legislation aimed at placing certain substantive restrictions
on the inferior federal courts. (I note that pending before the Court
is the question whether the President's, rather than the Congress',
authority to preclude all jurisdiction over claims brought by people
detained in Guantanemo Bay based on their detention.) Over the years,
there have been numerous proposals restricting jurisdiction in the
inferior courts in retaliation against judicial decisions, but the
Congress has not enacted them. The Congress has further refused since
1869 not to expand or contract the size of the Court in order to
benefit one party rather than another. These refusals, just like those
against withdrawing all federal jurisdiction in a particular class of
constitutional claims, constitute a significant historical practice--
even a tradition--that argues against, rather than for, withdrawing
jurisdiction from inferior courts over particular classes of
constitutional claims.
______
Beyond the constitutional defects with proposals to exclude certain
cases from all federal jurisdiction or inferior federal courts, they
may not be good policy. They may send the wrong signals to the American
people and to people around the world. Under current circumstances,
they express hostility to Article III courts, in spite of their special
function in upholding constitutional rights and enforcing and
interpreting federal law. If a branch of our government demonstrates a
lack of respect for federal courts, our citizens and citizens in other
countries may have a hard time figuring out why they should do
otherwise. Rejecting proposals to exclude all federal jurisdiction or
inferior court jurisdiction for some constitutional claims extends an
admirable tradition within the Congress and reminds the world of our
hard-won, justifiable confidence in the special role performed by
Article III courts throughout our history in vindicating the rule of
law.
Mr. Chabot. Professor Redish, you're recognized for 5
minutes.
TESTIMONY OF MARTIN H. REDISH, LOUIS AND HARRIET ANCEL
PROFESSOR OF LAW AND PUBLIC POLICY, NORTHWESTERN LAW SCHOOL
Mr. Redish. Thank you, Mr. Chairman.
I believe that as a matter of constitutional text,
structure and history, many of the issues that we are
discussing today are far simpler than numerous complex
constitutional issues that the courts deal with. The power of
this Congress to limit the jurisdiction of the Federal courts
is clear. It is equally clear, however, and I cannot emphasize
this enough, about the absence of this Congress' power to
exclude all judicial review of constitutional issues. If this
Congress limits the jurisdiction of the Federal courts, and as
I said before, I believe that power is extremely broad, it must
recognize that there still must be available a constitutionally
adequate judicial forum to adjudicate constitutional rights and
interpret the Constitution.
This is clearly the plan of the Constitution. There was a
reason that the Federal judiciary was insulated from direct
popular election and power to be regulated by the majoritarian
branches. However, if this Congress limits the jurisdiction of
the Federal courts, the State courts may provide that
constitutionally adequate forum.
As I tell my students, the State courts are soldiers in the
Federal judicial army. They are both empowered and obligated
under article VI, clause 2, the supremacy clause, to interpret
and enforce the Constitution. However, this Congress should not
limit Federal court jurisdiction in the very mistaken belief
that it can exclude all judicial review.
As to the power of this Congress over the jurisdiction of
the Federal courts, I believe the text and the history are both
quite clear that it is not necessarily the way I would have
chosen to structure it, but when the text and the history are
inexorable, we have no choice. It's what I refer to as the ``I
just work here'' view of constitutional interpretation.
Article III explicitly vests in Congress the power not to
have created lower Federal courts in the first place. The
Framers' assumption was quite clear that if Congress chose not
to create the lower Federal courts, the State courts could
provide an adequate forum to interpret and enforce Federal law,
including the Federal Constitution. While this Congress did
create the lower Federal courts immediately, it is well
established in the case law that that power to, from time to
time, ordain and establish the lower Federal courts includes
the power to abolish the lower Federal courts, and the greater
power to abolish the lower Federal courts logically subsumes
within it the power to leave the courts in existence, but limit
their jurisdictions.
Similarly, as Congressman Hostettler quite accurately
pointed out, the Exceptions Clause in article III inescapably
says that this Congress may make exceptions to the Supreme
Court's appellate jurisdiction. There are external
constitutional limits on this power; the Due Process Clause,
the concept of separation of powers, and the equal protection
directive in the fifth amendment apply. However, there are no
internal constitutional limits, no limits in article III on
Congress' power. Its power is plenary.
There have been respected constitutional scholars, and I
include certainly Professor Gerhardt in this category, who have
suggested that Congress may not use its power to limit the so-
called essential functions of the Federal judiciary. I find
that to be a textual phantom. I consider it to be the
equivalent of constitutional wishful thinking. There is nothing
that refers to any limit on essential functions from--on this
Congress' power. If this Congress wishes to combine its power
over the article III lower courts and the Supreme Court under
the exceptions clause, the end result is that it can completely
exclude Federal judicial power over pretty much any issue, as
long as the State courts remain available.
Despite the extent of this power, I consider it as a matter
of the American political process highly inadvisable to
exercise it. My view has nothing to do with my particular views
on the substantive merits of the issue of gay marriage. I claim
no expertise on that, and you wouldn't be interested in my
views anyway. I'm referring more to the broader issues of
American judicial and political process.
I think this Congress should view its power to be the moral
equivalent of nuclear war to take away Supreme Court and lower
court jurisdiction. There are serious negative consequences.
And we would be left with 50 State supreme court
interpretations of Federal law. I don't think that's an
unconstitutional result. I consider it an inadvisable result.
Thank you.
Mr. Chabot. Thank you, Professor.
[The prepared statement of Mr. Redish follows:]
Prepared Statement of Martin H. Redish
introduction
I have been asked to express my views concerning the scope of
Congress's constitutional power to limit federal court jurisdiction
over particular classes of cases. While I have both taught and written
about the subject on numerous occasions over the last thirty years, I
must concede at the outset that it is virtually impossible to say
definitively what the outer limits of this congressional power actually
are. This confusion results from the relatively limited case law that
exists on the subject. In a certain sense, of course, the lack of
doctrinal development on this subject may well be a good thing, because
the issue arises in the courts only when the judicial and legislative
branches are involved in a tense political confrontation, a situation
that has occurred only rarely in the nation's history. Yet the fact
remains that relatively few decisions have considered the issue, and
what little doctrine does exist is occasionally vague or inconsistent.
Adding to the confusing state of the law are the dramatically different
views expressed by federal jurisdiction scholars over the years. Thus,
the most I can do today is to provide my own theoretical take on the
subject. While I believe that this approach flows inexorably from both
the text and structure of the Constitution and is consistent with what
little case law exists, for purposes of full disclosure I must concede
that many respected scholars, both current and past, would disagree
with all or part of the approach I suggest here.
In this testimony, I plan to describe my approach to the question
and explain why I believe it derives from constitutional text and
structure. I will then briefly describe alternative theoretical models,
and explain why I consider them to be unacceptable.
conclusions
I believe that, at least as a constitutional matter, the issue of
congressional power to control federal jurisdiction is far simpler than
many other scholars think. The text and internal logic of Article III
of the Constitution make clear that congressional power to control the
jurisdiction of the lower federal courts and the appellate jurisdiction
of the Supreme Court is extremely broad. There is nothing in the
provision's text that in any way confines congressional authority in
either area. It is highly likely, however, that the federal courts
would construe congressionally imposed, substantively based
restrictions on their jurisdiction in a highly grudging manner. Thus,
if Congress wishes to exercise its vast authority, it would be advised
to state its intent explicitly in the text of the relevant statutes.
To be sure, several other guarantees contained in the
Constitution--due process, separation of powers, and equal protection--
may well impose limitations on the scope of congressional power. The
Due Process Clause of the Fifth Amendment requires that a neutral,
independent and competent judicial forum remain available in cases in
which the liberty or property interests of an individual or entity are
at stake. But as long as the state courts remain available and adequate
forums to adjudicate federal law and protect federal rights, it is
difficult to see how the Due Process Clause would restrict
congressional power to exclude federal judicial authority to adjudicate
a category of cases, even one that is substantively based. Separation
of powers, on the other hand, imposes more far reaching restrictions.
That doctrine prevents Congress from (1) itself adjudicating individual
litigations, (2) directing a federal court how to decide a particular
case, (3) employing the federal courts for purposes of enforcement
without simultaneously allowing them to interpret the law being
enforced or consider its constitutionality, or (4) overturning
individual decisions or classes of decisions already handed down by a
federal court. However, it is difficult to see how any of those
constitutional guarantees would restrict congressional authority
completely to exclude substantively based categories of future or
presently undecided cases from either the jurisdiction of the lower
federal courts or the appellate jurisdiction of the Supreme Court. The
constitutional directive of equal protection restricts congressional
power to employ its power to restrict jurisdiction in an
unconstitutionally discriminatory manner
It should be noted that the fact that Congress possesses such broad
constitutional power in no way implies that it would be either wise or
appropriate, as a matter of the American political process, for
Congress to exercise its authority to remove specific categories of
substantive cases from federal jurisdiction. Purely as a matter of
policy, I believe that Congress should begin with a very strong
presumption against seeking to manipulate judicial decisions indirectly
by selectively restricting federal judicial authority. I also firmly
believe that were Congress to take such action it would risk
undermining public faith in both Congress and the federal courts. Due
to their constitutionally granted independence and insulation from the
majoritarian branches of the federal government, the judiciary
possesses a unique ability to provide legitimacy to governmental action
in the eyes of the populace. Congressional manipulation of federal
judicial authority therefore threatens the legitimacy of federal
political actions. Moreover, to exclude federal judicial power to
interpret or enforce substantive federal law undermines the vitally
important function performed by the federal judiciary in the American
political system. The expertise and uniformity in interpretation of
federal law that is provided by the federal judiciary should generally
not be undermined.
congressional power to control the jurisdiction
of the lower federal courts
Article III, section 1 of the Constitution provides that ``[t]he
judicial power of the United States, shall be vested in one supreme
court, and in such inferior courts as the Congress may from time to
time ordain and establish.'' On its face, this language vests in
Congress complete discretion whether or not to create the lower federal
courts, and the established historical understanding of the so-called
``Madisonian Compromise'' makes clear that this view is accurate. For
an extended discussion of the Madisonian Compromise, see Martin H.
Redish & Curtis Woods, Congressional Power to Control the Jurisdiction
of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U.
Pa. L. Rev. 45, 52-55 (1975). The framers' assumption appears to have
been that were Congress to have chosen not to create the lower federal
courts, the state courts--who are explicitly bound to enforce federal
law under the Constitution's Supremacy Clause, Article VI, cl. 2--would
be available to serve as the trial forums for the adjudication of
claims arising under federal law. See generally Martin H. Redish, 15
Moore's Federal Practice sec. 100.20 (3d ed. 1997). The Supreme Court
has proceeded on the logical assumption that if Congress possessed
discretion not to create lower federal courts in the first place, it
also has the power to abolish the lower federal courts. See, e.g.,
Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8
How.) 441 (1850). Since it has been assumed that Congress possesses the
authority to abolish the lower federal courts completely, the Court has
assumed that it has the logically lesser power to ``abolish'' them as
to only certain cases by limiting their jurisdiction.
Scholars have on occasion raised questions about the validity of
the assumption that the power to create the lower courts logically
dictates a corresponding power to abolish them. See, e.g., Ronald
Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower
Federal Courts and the Problem of School Busing, 64 Geo. L.J. 839, 842-
43 (1976). Nevertheless, since the constitutional text provides
Congress with the power ``from time to time'' to ordain and establish
the lower courts, I believe it is reasonable to infer from this
language the power periodically to alter what Congress has already
created. And if one accepts congressional power to abolish the lower
courts, the power to leave them in existence but simultaneously
restrict their jurisdiction seems to flow inexorably. If Congress
possesses such authority, it is difficult to see how Article III itself
implicitly imposes any restrictions on how that authority is to be
employed. Thus, Article III would seem to provide no constitutional bar
to the congressional exclusion of substantively based categories of
cases from the jurisdiction of the lower federal courts.
Early in the nation's history, Justice Joseph Story argued that the
words, ``shall be vested'' in Article III dictate that the lower
federal courts must exist to exercise judicial power in those cases
constitutionally excluded from both the highly limited original
jurisdiction of the Supreme Court and the jurisdiction of the state
courts. Were the jurisdiction of the lower federal courts not to exist
in such cases, the command of Article III that some federal court be
available to adjudicate the case--either a lower court or the Supreme
Court--would be violated. However, even if Story were correct in his
assumption that the words, ``shall be vested'' are to be construed to
be a command--by no means an obviously correct construction--he ignored
the fact that, given the nature of the Madisonian Compromise that led
to the drafting of Article III, there are absolutely no federal cases
constitutionally excluded from state court jurisdictional authority.
Thus, the entire logic of Story's theory breaks down. It is therefore
not surprising that, while the theory has acquired some modern
scholarly support, it has been virtually ignored by the courts. See
Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal
Courts and Jurisdiction 7-9 (Matthew Bender 1998).
congressional power to control the appellate jurisdiction
of the supreme court
Article III, section 2 of the Constitution extends extremely
limited original jurisdiction to the United States Supreme Court. In
all other cases to which the federal judicial power is extended, the
Court is given appellate jurisdiction, ``both as to law and fact, with
such exceptions, and under such regulations as the Congress shall
make.'' On its face, this provision provides seemingly unrestrained
congressional authority to exclude categories of cases from the Supreme
Court's appellate jurisdiction. In Ex parte McCardle, 74 U.S. (7 Wall.)
506 (1868), the post-Civil War Supreme Court appeared to recognize the
unlimited authority explicitly authorized in the text. See Martin H.
Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial
Power 25-27 (2d ed. 1990). However, in a subsequent decision the same
year, the Court construed McCardle narrowly, leaving open the
possibility that the Exceptions Clause is not to be extended as far as
its text suggests. Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868). See
also Felker v. Turpin, 518 U.S. 651 (1996). Nevertheless, the Supreme
Court has to this day not resolved the outer reaches of the Exceptions
Clause, and I fail to comprehend how a textually unlimited power to
make exceptions to the Supreme Court's appellate jurisdiction can be
construed to be limited in any way. While it is at least conceivable
that other constitutional provisions might confine this congressional
power, at least the text of the Exceptions Clause itself does not do
so.
suggested scholarly limitations on congressional power
to control federal jurisdiction
As I have already indicated, I believe that the textual directives
of Article III make clear, on their face, that Congress possesses broad
constitutional authority to control the jurisdiction of both the lower
federal courts and the United States Supreme Court. Nevertheless,
several respected scholars have questioned the text's seemingly clear
directives. However, none of these scholarly theories can withstand
careful critical analysis. Ultimately, all of them amount to what I
have described as a form of ``constitutional wishful thinking.''
Redish, Tensions, supra at 28. My prior work has provided detailed
critiques of each of these theories (see the previously cited sources).
Here I will briefly describe those theories and the fundamental
problems with each.
Henry Hart's ``Essential Functions'' Thesis
Many years ago, Henry Hart cryptically suggested that the
Exceptions Clause is somehow restrained by a textually nonexistent
limitation that prevents Congress from interfering with the ``essential
functions'' of the Supreme Court. Henry Hart, The Power of Congress to
Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66
Harv. L. Rev. 1362, 1365 (1953). Though Hart never explained either
what those supposedly essential functions actually are or from where in
the Constitution he derived them, it appears from subsequent work by
his supporters that the concept is intended to include the unifying
function of federal law interpretation and the policing of state court
interpretations of federal law. See Leonard Ratner, Congressional Power
Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L.
Rev. 157, 201-02 (1960). As I have previously argued, however, the
historical evidence relied upon to support the ``essential functions''
thesis is ``[a]t best . . . speculative and at worst . . . simply
useless.'' Martin H. Redish, Congressional Power to Regulate Supreme
Court Appellate Jurisdiction Under the Exceptions Clause: An Internal
and External Examination, 27 Vill. L. Rev. 900, 908 (1982). In any
event, as already noted, the text provides absolutely no suggestion of
such a limitation, regardless of what the history demonstrates.
Akhil Amar's Theory
Professor Akhil Amar has suggested an alternative theory that
provides that for certain categories of cases to which the federal
judicial power is extended in Article III, section 2, Congress may not
revoke all federal judicial jurisdiction. Unlike Professor Hart (who
confined his constitutional restriction on congressional power to the
Supreme Court's appellate jurisdiction), Professor Amar asserts that at
least one level--the lower federal courts or the Supreme Court--(but
not necessarily both) must remain open to adjudicate any category of
cases delineated in Article III, section 2 preceded by the word,
``all.'' He reasons that the selective use of that word, combined with
the mandatory ``shall be vested'' language at the start of section 1,
provides a textual basis for his conclusion. See generally Akhil Amar,
The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L.
Rev. 1569 (1990).
If Professor Amar's theory were accepted (and I am unaware of any
support for it in the modern case law), it would severely restrict
congressional power to remove simultaneously from both the lower
federal courts and the Supreme Court cases that arise under federal
law, since that is one of the categories preceded by the ``all''
qualifier. However, it is difficult to imagine that the drafters of
Article III would have attempted to reach the result Professor Amar
advocates simply by the cryptic and selective use of the word, ``all.''
This is especially true, when at the very same time they explicitly
provided Congress with unlimited discretion not to create the lower
federal courts in the first place and to make exceptions to the Supreme
Court's appellate jurisdiction.
In any event, purely as a matter of textual construction, Amar's
theory makes no sense: If the words, ``shall be vested'' are, in fact,
intended to be mandatory, all of the categories of cases enumerated in
Article III, section 2, are modified by it. This is so, whether or not
those categories are preceded by the word, ``all.'' Thus, if we are to
take seriously Amar's out-of-context focus on the words, ``shall be
vested,'' his textual argument must logically lead to the conclusion
that every category of cases enumerated in Article III, section 2 must
be heard by some Article III court, regardless of whether or not it is
preceded by the word, ``all.'' For my detailed critique of Professor
Amar's theory, see Martin H. Redish, Text, Structure, and Common Sense
in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990).
See also John Harrison, The Power of Congress to Limit the Jurisdiction
of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203
(1997) (criticizing Amar's theory). For a defense of Amar's theory,
however, see Robert Pushaw, Congressional Power Over Federal Court
Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article
III, 1997 B.Y.U. L. Rev. 847.
Professor Sager's Theory
Professor Lawrence Sager has argued that Congress may not use its
authority to revoke jurisdiction from both the Supreme Court and the
lower federal courts in a substantively selective manner. Lawrence
Sager, The Supreme Court 1980 Term, Foreword: Constitutional
Limitations on Congress' Authority to Regulate the Jurisdiction of the
Lower Federal Courts, 95 Harv. L. Rev. 17 (1981). However, for the most
part Professor Sager's focus appears to be on jurisdictional exclusions
for state behavior when constitutional rights are at stake. See id. at
69. Thus, were Congress to exclude the jurisdiction of all Article III
federal courts in cases involving questions of purely sub-
constitutional law not involving state action, Sager's theory is at
best of diluted force. In any event, I have argued that Sager's theory
ignores the clear textual directives of Article III. See Martin H.
Redish, Constitutional Limitations on Congressional Power to Control
Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev.
143 (1982). For further criticism of Sager's theory, see Gerald
Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An
Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 915
(1984).
relevance of other constitutional protections
Due Process
While the outer reaches of the right remain somewhat unclear, it is
established that the Due Process Clause requires adjudication by a
neutral, independent forum before government may revoke protected
liberty or property interests. See, e.g., Tumey v. Ohio, 273 U.S. 510
(1927). See generally Martin H. Redish & Lawrence C. Marshall,
Adjudicatory Independence and the Values of Procedural Due Process, 95
Yale L.J. 455 (1986). Thus, where constitutional rights are at stake,
Congress may not revoke all forms of access to an independent judicial
forum. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). But even the
exclusion of both lower federal court and Supreme Court jurisdiction
would not bring about such a result, as long as the state courts remain
a viable alternative. I have long expressed concern about exactly how
viable the state court remedy is (see Redish, 77 Nw. U. L. Rev. 143;
Redish & Marshall, supra), but the case law is quite clear that the
state courts are deemed to satisfy the due process requirement of a
neutral judicial forum. Thus, as long as state courts remain open,
congressional exclusion of federal jurisdiction raises no issue of due
process.
Separation of Powers
The separation-of-powers limitations on congressional power to
control federal jurisdiction are somewhat more complex than the due
process limitation. Derived from both the text and structure of Article
III, the separation-of-powers doctrine imposes significant restrictions
on congressional authority. Before exploring those restrictions,
however, it is important to note that as long as Congress completely
excludes federal court jurisdiction over a particular category of
cases, including the enforcement power, generally separation-of-powers
problems are unlikely to arise. The only concern would be were Congress
to exclude federal court jurisdiction and itself attempt to adjudicate
individual cases, a clearly unconstitutional usurpation of the judicial
power by the legislative branch.
Most of the difficulties occur, however, primarily when Congress
vests jurisdiction in the federal courts (lower courts or Supreme
Court) while simultaneously imposing restriction on federal judicial
ability to interpret the law being enforced or to review its
constitutionality. See generally United States v. Klein, 80 U.S. (13
Wall.) 128 (1871). For a more detailed description of the case and its
implications, See Redish, Tensions, supra at 48-49. This limitation
flows from the theory of the ``quid pro quo:'' the notion that where
Congress wishes to invoke the unique legitimacy that the independent
federal judiciary possesses, it must allow the judiciary full authority
to interpret and review the law that it is asked to enforce. In
addition, the Supreme Court has made clear that while Congress may
alter the general substantive sub-constitutional law to be applied by
the federal courts, it may not reverse specific judgments already
entered by the federal courts. Plaut v. Spendthrift Farm, Inc., 514
U.S. 211 (1995).
Equal Protection
The equal protection directive, deemed to be implicit in the Due
Process Clause of the Fifth Amendment, can conceivably also play a role
in limiting congressional power to control federal jurisdiction.
Despite its seemingly unlimited authority under Article III, Congress
quite clearly may not revoke or confine federal jurisdiction in a
discriminatory manner. For example, Congress could not successfully
argue that its greater constitutional power to exclude federal judicial
power completely logically subsumes the lesser power of excluding
federal judicial power, for example, in cases brought by African
Americans, Jews, or Women.
political process considerations
It is clear to me that Article III of the Constitution vests broad
power in Congress to exclude the jurisdiction of both the Supreme Court
and the lower federal courts. While externally derived constitutional
doctrines impose distinct limits on that power, I can see absolutely no
textual or structural basis for denying Congress power completely to
exclude substantive categories of cases from the jurisdiction of the
federal courts. This is true, even in cases in which constitutional
rights are at stake, as long as an alternative adequate judicial forum
has been made available.
It does not follow, however, that Congress should choose to
exercise this power. To the contrary, I firmly believe that Congress
should choose to exercise this power virtually never. There has long
existed a delicate balance between the authority of the federal
judiciary and Congress, and the exclusion of substantively selective
authority from all federal courts seriously threatens that balance. I
firmly believe, therefore, that whatever the scope of its
constitutional power, Congress should be extremely reluctant to
exercise that power.
Mr. Chabot. And, Congressman Dannemeyer, you're recognized
for 5 minutes.
TESTIMONY OF THE HONORABLE WILLIAM E. DANNEMEYER, FORMER U.S.
REPRESENTATIVE
Mr. Dannemeyer. Thank you, Mr. Chairman.
I think it's appropriate to put this whole issue in the
perspective of why we are here this morning in that there is an
intense cultural war waging in this Nation over values, and the
issue for the political leadership of this country is whether
you, the elected Members of Congress, will have the courage to
affirm that God exists. That's the issue. This issue over how
we define marriage is an important aspect of that cultural war.
Another issue that deserves attention by this Congress
deals with whether or not we will affirm in the Pledge of
Allegiance and the national motto that God exists.
There's no question that the homosexual political movement
is a powerful force in this culture not because of its numbers,
but because of the people controlling the media of this country
who look upon that movement as an idea and a civil right whose
time has come. We need to recognize this.
And so, what exists in the system to correct this effort
for political power? This political movement of homosexuals has
chosen the judiciary of America as the means of achieving their
goals. Why? Because they know they can't get their agenda
through the elected representatives in the State legislatures
and in the Congress of the United States, and so they've chosen
a judiciary in the State of Massachusetts as a happy hunting
ground for their goal. And then they rely upon provision of
Full Faith and Credit Clause of the U.S. Constitution which
says that anybody that goes to Massachusetts and gets a
marriage and is married must be recognized in every other State
of the Union.
And then DOMA comes along and says a State has a right to
not do that, and then we recognize the reality that the U.S.
Supreme Court may pass upon the constitutionality of DOMA, and
they may turn it down. We don't know. That's where this place,
the Congress of the United States, under the Constitution, can
come forward and affirm the values that God created for mankind
that have controlled civilizations from the beginning of time.
Marriage exists of a man and a woman who form a family, and
that's how we provide for the next generation.
In addition, our laws should provide that we will teach in
the public schools of this Nation that God exists who created
rules for man to live by. This body, Congress, can use article
III, section 2 of the Constitution to acxcept these areas of
the jurisdiction of the Federal court system. I would urge it
to do so.
The other alternative, of course, that the professor has
talked about is that this would leave judicial inquiry to State
legislature--State judicial courts. I acknowledge that. Well,
the answer to that is a constitutional amendment. But do we
have two-thirds of the votes in the House and in the Senate to
get a constitutional amendment? I don't think so.
So the move at this time, at this--in this Congress is to
use article III, section 2, and then if the Supreme Court turns
that down, what other recourse do we then have to achieve the
goal of affirming that marriage exists and we'll have God in
the Pledge of Allegiance is a constitutional amendment? I hope
it doesn't come to that. But I think Congress at this time
should take that step.
For example, I just--if I have time left here, Members, the
use of article III, section 2 by Congress is not something with
which they are unfamiliar. In the last Congress it was used 12
times, and I submit that if it was used 12 times in the last
Congress, it can be used 1 time in this current Congress. There
have been a number of articles that have been written by
distinguished scholars on the use of article III, section 2,
and I would hope that the Members of this Subcommittee and the
full Subcommittee will give due consideration to them.
Thank you.
Mr. Chabot. Thank you very much, Congressman.
[The prepared statement of Mr. Dannemeyer follows:]
Prepared Statement of the Honorable William E. Dannemeyer
Mr. Chairman and members of the Subcommittee:
Thomas Jefferson is generally recognized by most historians as the
principle author of the Declaration of Independence. Our Founding
Fathers created a federal system of three branches, Executive,
Legislative and Judicial.
On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed
his fear that, of the three branches of government which were created,
the one he feared the most was the federal judiciary in these words:
``The federal judiciary is working like gravity by night and by
day, gaining a little today and a little tomorrow, and
advancing its noiseless step like a thief over the field of
jurisdiction until all shall be usurped from the States, and
the government of all be consolidated into one (i.e.,
federalization).''
Decisions of the federal judiciary over the last half century have
resulted in the theft of our Judeo-Christian heritage, a brief sampling
is as follows:
Enacting ``a wall of separation between church and
state''
Banning nondenominational prayer from public schools
Removing the Ten Commandments from public school
walls
Removing God from the Pledge of Allegiance
Congress should use Article III, Section 2, clause 2 of the U.S.
Constitution to recover what has been stolen. Under the heading
``Jurisdiction of Supreme and Appellate Courts,'' the clause says:
``In all cases affecting ambassadors, other public ministers
and consuls, and those in which a state shall be party, the
Supreme Court shall have original jurisdiction. In all the
other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress shall
make.''
Over the last 200 years, Congress has exercised this authority to
except certain areas from the jurisdiction of the federal court system.
In Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799)), the
Supreme Court concluded that the federal courts derive their judicial
power from Congress, not the Constitution.
In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made
final the decision of the secretary of the Treasury in certain tax
deductions. The statute was challenged as an unconstitutional
deprivation of the judicial power of the courts. The Supreme Court
concluded that the jurisdiction of the federal courts (inferior to the
Supreme Court) was in the sole power of Congress.
In Sheldon vs. Sill 8 How (49 U.S. 441(1850)), involved the
validity of the assignee clause of the Judicial Act of 1789 restricting
such action to establish federal court jurisdictions. The Supreme Court
sustained the power of Congress to limit the jurisdiction of the
inferior federal courts.
In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1 868), the Supreme
Court accepted review on certiorari of a denial of a petition for a
writ of habeas corpus by the circuit court. Congress, fearful the
Supreme Court would honor the writ, passed a law repealing the act
which authorized the appeal. The Supreme Court dismissed the case for
lack of jurisdiction.
In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the
Supreme Court upheld the power of Congress to define and limit the
jurisdiction of the inferior courts of the United States in the form
restrictions on the issuance of injunctions in labor disputes under the
Norris-La Guardia Act of 1932.
In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for
a special court to appeal price control decisions under the Emergency
Price Control Act of 1942. The Supreme Court sustained this
restriction.
One of the outstanding Constitutional scholars in the Senate is
Robert Byrd, West Virginia Democrat. In 1979, in order to once again
allow voluntary prayer in public schools, he introduced a law to except
this subject from the federal court system under Article III, 2.2.
Unfortunately, it was not enacted into law.
In the 107th Congress (2001-2002), Congress used the authority of
Article III, Section 2, clause 2 on 12 occasions to limit the
jurisdiction of the federal courts.
Sen. Thomas A. Daschle, South Dakota Democrat, used the exception
authority of Article III, 2.2 in order to cut some timber in South
Dakota.
ATTACHMENTS
Mr. Chabot. At this time the Committee Members have 5
minutes each to ask questions of the panel, and I recognize
myself for that purpose for 5 minutes.
Professor Redish, let me begin with you. You've written
that, quote, ``the States' courts have, since the Nation's
beginning, been deemed both fully capable of and obligated
under the supremacy clause to enforce Federal law. I am quoting
the Constitution. Congress has complete authority to have
constitutional rights enforced exclusively in the State
courts,'' unquote. And I think you basically reiterated that
here this morning.
In your opinion, why did the Founders leave open the
possibility that State courts could be the ultimate arbiters of
constitutional questions, or at least some constitutional
questions?
Mr. Redish. Mr. Chairman, the history is surprisingly well
documented on that part of the Constitution. There was a
struggle between the States' righters who wanted no lower
Federal courts created and only State courts having power to
interpret and enforce Federal law with Supreme Court review,
and then the pro-Federal wing wanted to dictate the requirement
that lower Federal courts be created. And Madison came up with
what is now appropriately referred to as the Madisonian
Compromise, which was basically to punt to the first Congress.
Congress had the power to create them, but was not compelled to
create them. It was really the outgrowth of a political
deadlock at the convention.
Mr. Chabot. Thank you.
Let me follow up. How does the Judiciary Act of 1789 then
form an understanding of the original meaning of Congress'
authority over Federal court jurisdiction?
Mr. Redish. Well, it shows that the original Congress
recognized that it had this so-called greater includes the
lesser power. They did create lower Federal courts immediately.
That's certainly true. But they excluded from their
jurisdiction numerous issues. So it was clearly the
understanding of the initial Congress postframing that they had
authority to limit Federal court jurisdiction.
At the time, for purposes of context, I should indicate the
power to interpret Federal law was not really an important
issue, because there was so little substantive Federal
legislation. Most things were left to the States anyway, but at
least in theory it clearly underscores my--the interpretation
that I'm giving you of article III.
Mr. Chabot. Thank you.
Professor Gerhardt, let me turn to you. Do you agree that
under the Constitution State courts have full and coequal
authority with Federal courts to decide Federal constitutional
questions? And if not, why not?
Mr. Gerhardt. Well, if I understand the question, I think
clearly State courts can adjudicate constitutional claims. I
don't think there's any doubt about that. I don't know that
that's what we're really concerned with here today though. I
think that if you leave the State courts alone, without any
possible review in the United States Supreme Court, the
constitutional claim, then I think you do have a constitutional
problem.
I think there's no question that State courts, as I said,
and as Professor Redish has said, can adjudicate these claims.
But you move into a much different realm if you're withdrawing
Federal jurisdiction in retaliation against their judicial
decisions or aimed at a particular class of citizens. I think
those present constitutional difficulties.
Mr. Chabot. Thank you.
Now, Mrs. Schlafly, let me turn to you at this point. Is
H.R. 3313, the Marriage Protection Act, consistent with a
traditional understanding of congressional authority over
Federal court jurisdiction?
Mrs. Schlafly. Oh, absolutely. It is consistent with it.
And I think everything we've heard here today shows that
Congress does have the power to limit and regulate the
authority of the Federal courts on this issue.
I think that the bill that you referred to is somewhat
limited. I think, as I said in my testimony, that we should
also remove jurisdiction from Federal courts to hear a
challenge to State DOMAs because we already have a case filed
on that. And it's very important that the Federal courts not
have the opportunity to override the legislatures and the
Congress on this issue of marriage.
We heard a lot of talk about the separation of powers here
today, but under the separation of powers, we expect these
decisions to be made by our elected representatives, not by
some activist judge.
Mr. Chabot. Thank you very much.
And unfortunately, my time is going to run out in 5
seconds, so I'll terminate my time at this time.
The gentleman from New York is recognized for 5 minutes.
Mr. Nadler. Thank you.
Mrs. Schlafly, you stated in your testimony, you quoted
approvingly Professor--excuse me--President Bush in which he
said, quote, ``we will not stand for judges who undermine
democracy by legislating from the bench and trying to remake
the culture of America by court order,'' close quote. You go on
to say ``he's right, we won't stand for such judicial
arrogance.'' Brown v. Board of Education of Topeka, 1954, which
outlawed Jim Crow, the segregation of public schools, changed
the culture of a third of the United States, said that what
they had been doing for 100 years was unconstitutional. Do you
have the same disapproval? Was that remaking the culture of
America by court order? And was that illegitimate, in your
opinion?
Mrs. Schlafly. No, it was not.
Mr. Nadler. Because? How do you distinguish it?
Mrs. Schlafly. I would distinguish it because what Brown
did was to overrule Plessy. And if you take the position that
the Constitution is whatever the Supreme Court says it is, then
you have to accept Dred Scott and Plessy v. Ferguson. And Brown
came along and overturned that, and that was the right thing to
do.
Mr. Nadler. And that may have been the right thing to do,
but that wasn't remaking the culture of America by court order?
Mrs. Schlafly. No. It was correcting a previous bad
mistake.
Mr. Nadler. And how about Loving v. Virginia that
outlawed--that allowed interracial--that said States couldn't
outlaw interracial marriages, which is probably more to the
point here?
Mrs. Schlafly. Yes. Well----
Mr. Nadler. Was that remaking the culture of America by
court order?
Mrs. Schlafly. No, it wasn't. I think it was----
Mr. Nadler. Okay. Professor Redish, Judge McDougal of the
Southern District of Slobovia has just come down with a
decision that I find outrageous and has promised to come down
with more such decisions. So I am introducing a bill to
eliminate the Southern District of Slobovia. Do we--under our
plenary power to create or abolish Federal courts, can we
abolish a particular Federal court because we don't like that
judge? And if we can, how does that square with the
constitutional power, with the constitutional prohibition about
limiting tenure of judges?
Mr. Redish. I assume you don't intend to eliminate the
judge in any way other than----
Mr. Nadler. He can still be there. He just won't--he'll be
a judge in a nonexistent court.
Mr. Redish. I think it's well established. I don't think it
would be controversial at all that you have power to rearrange
the Federal courts. This Congress created the 11th circuit out
of the fifth circuit.
Mr. Nadler. No, I'm not talking about that.
Mr. Redish. Oh, you're saying based on that action.
Mr. Nadler. I don't like--in South Dakota they only have
one district. They've only got three judges, let's say. I don't
know if that's true. But, for example--and I'm going to abolish
the district of South Dakota. They won't have any Federal
judges in South Dakota because I don't like the three judges.
Mr. Redish. Well, the citizens of South Dakota would have
to have access to some independent judicial forum. Either you
have to put them into Federal courts in North Dakota or assign
the jurisdiction to the State courts. But if what you're
suggesting is does the fact that you're doing it out of an
animosity toward a particular----
Mr. Nadler. No, no, no. I'm saying--forget the motive. I am
saying do we have the power to abolish a court and abolish, in
effect, the judge as a judge by abolishing the court?
Mr. Redish. Sure. They have life tenure under article III.
Mr. Nadler. So they would have life tenure in a nonexistent
court.
Mr. Redish. I've seen baseball managers have long-term
contracts after they've been fired.
Mr. Nadler. Okay. Let me change the subject. You've--I'm
trying--you disagreed with Professor Gerhardt about the power
of Congress, about the phantom constitutional restriction on
our power to limit jurisdiction. Do you disagree that if we
were to say that the Federal courts have no jurisdiction to
hear claims of religious discrimination against Jews or
Quakers, could we do that?
Mr. Redish. I certainly agree that the equal protection
component of the fifth amendment limits this Congress' power.
You could not say Jews do not have access to Federal courts,
African Americans do not have access to Federal courts.
Mr. Nadler. And we could not say that the Federal courts
have no jurisdiction to judge the constitutionality of the law
that you said couldn't have intermarriage between two different
religious groups.
Mr. Redish. No, I don't agree with that. I see a big
distinction there. There was a Supreme Court decision in the
1970's named Geduldig v. Aiello, which suggested that it is
quite a different thing to discriminate directly as opposed to
discriminating indirectly. As long as individuals who wanted to
challenge whatever laws are involved to protect their rights
have access to an independent forum, I see----
Mr. Nadler. So you think we could do that.
Mr. Redish. It would depend on exactly how it's phrased,
but, yeah, I think you certainly would have the power.
Mr. Nadler. Mr. Gerhardt, could you comment to that?
Mr. Gerhardt. Well, I guess a couple of comments. I mean,
the first is I think clearly if you, this body, Congress,
passes a law, it gets evaluated under the Equal Protection
Clause and relatively--I should say equal protection component
of the fifth amendment--in a relatively straightforward manner.
You ask whether there was a suspect classification. You ask
whether or not it impedes a fundamental right. You also might
ask whether or not it passes, in the absence of either of those
things, the rational basis test. It's conceivable you may have
a law that's passed that the Supreme Court evaluates under the
rational basis test and strikes down. That's exactly Evans v.
Roemer.
Mr. Chabot. The gentleman's time has expired, but you can
continue your answer.
Mr. Gerhardt. The only other comment I would then make is
that I think if Congress abolishes an article III court in
which there is a sitting judge, that's plainly violation of
separation of powers. If this body were to eviscerate the
Presidency, subpoena the President to testify, for example,
that might well be unconstitutional. So I think that the
invasion, the exercise of a power to undermine the
effectiveness of another branch, violates separation of powers.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. And I thank the Chairman
for holding these hearings, and I thank the witnesses for their
testimony, and apologize for not being here to absorb it all. I
will read the text of this subsequent to that.
I'm very interested in this issue, and interested in the
response of Professor Gerhardt. As I read the Constitution, and
it establishes clearly that the inferior courts are established
by Congress. So I won't be a response to the position that if
Congress establishes all inferior courts, then
constitutionally, what Congress gives, Congress can take away.
If there is a branch of--or not a branch of Government, but if
there's a department that's established by Congress, and we
decide to abolish that department--an example a decade ago
would be the Department of Education--constitutionally we could
abolish that, then why could not Congress abolish the inferior
courts that are established by Congress?
Mr. Gerhardt. Well, I think there are a few limitations
on--that will arise. And we have mentioned them today. The
first one is separation of powers. If you abolish a court in
which there is a sitting judge, I think that that does raise
very serious separation of powers concerns. Moreover, I think
you are going to raise concerns under article III because that
judge's life tenure may be put in jeopardy as well.
Beyond that, I think that you may have other concerns
depending on what--whether or not that withdrawal has been in
retaliation against a judicial decision. Say that the lower
court has--say the Supreme Court has not reached the question
on flag burning, whether or not that is something that is a
first amendment right, but the Circuit Court has done that. You
then withdraw, try to withdraw jurisdiction in that case,
that's effectively trying to overrule that court. I think
that's not a permissible exercise of power.
Mr. King. But, Professor, if Congress grants power to a
court, a court that is defined as an inferior court in the
Constitution, then why could they not withdraw that power
constitutionally?
Mr. Gerhardt. Because there are limits on exercise of
power.
Mr. King. And the basis of those limits would be what?
Mr. Gerhardt. The Constitution.
Mr. King. And if the Constitution grants us power to
establish that--let's say, for example, then Congress--this
definition, this line of the separation of powers between these
two branches of Government that are in question here, Congress
established the courts, and by precedent we allow the judicial
branch to take jurisdiction over any number of subject matter
and law. And as that jurisdiction grows, and the influence of
the courts grow, and we're very well aware the expansiveness of
that interest and the activeness of the courts, then as that
grows, then, would you then prescribe for us at what point
Congress might intervene, under what circumstances legally, and
also with public opinion in mind?
Mr. Gerhardt. Well, as I suggest in my statement, I think
one would analyze that would be that Congress has got to have a
neutral reason to contract jurisdiction. It's one thing to
expand it, but once you get into the business of contracting,
withdrawing jurisdiction, you need a neutral justification,
such as national security, judicial efficiency. But I don't
think distrust of Federal judges qualifies as a neutral
justification. I don't think hostility to the fundamental right
that may be adjudicated in a particular case also constitutes
neutral justification.
Mr. King. Who will define neutral justification?
Mr. Gerhardt. Ultimately the courts.
Mr. King. Correct. So eventually we're around that
tautological logic that brings us back to where we began; that
is, that if Congress can't make definitions, if they can't
define the subject matter, eventually the courts can then be
linked--they can link the logic back together and do whatever
they will, without congressional intervention.
Mr. Gerhardt. Congressman, we just may have a respectful
disagreement here, but I think that you've characterized it as
do whatever they say. They will, of course, I believe in good
faith, construe the Constitution, and I believe they would
likely construe the Constitution in the way that would protect
the vitality of the Federal court system. But how--but I don't
think--I don't view their activity as an unlicensed one.
Mr. King. And I'm not willing myself to concede the good
faith argument, because I think that's been breached many times
in the past. And probably the most obvious one would be Dred
Scott, and there's a series of those and the linkage of those
cases that get us to this point. I mean, I would go back then
to say, for example, Griswold v. Connecticut and the
establishment of the right to privacy that wasn't conceived by
our Founders, and how that was built upon to get us to this
point where we have a constitutional right to partial-birth
abortion. I mean, the Founders didn't envision this, and the
logic of the courts support this. The logic of the Congress
does not. And so at some point we must find a way to intervene.
And I'd turn to Mrs. Schlafly on, again, a final
recommendation on how we might do that definitively.
Mrs. Schlafly. Well, I would urge that you pass legislation
that takes away from the Federal courts the power to hear
challenges to the traditional definition of marriage. And I'm
very fascinated by Professor Gerhardt's continual references to
separation of powers. The clearest thing about the separation
of powers is that all legislative power is in the hands of
Congress. And what we're confronted with here is that judges
are trying to override the specific definition about the
definition of marriage that has to be decided by our elected
Representatives, and that is what the separation of powers
means.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia Mr. Scott is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. And I'd like to kind of
follow up on that, because if we're talking about legislative
powers and the abuse of the judiciary and the havoc raised by
these unelected judges, Mrs. Schlafly, I'd like you to comment
on the havoc created when these unelected judges required
Virginia to recognize marriages of people of different races.
[11 a.m.]
Mrs. Schlafly. Well, we all know that race is in a
particular category in our country, and the courts have done
some helpful things on that. As I pointed out, the main case
that people talk about, Brown, was simply correction of a
previous mistake, and it was one of the greatest examples of
judicial supremacy when they started the whole bad line of
cases with Dred Scott.
Mr. Scott. You agree with that list of cases, but these are
unelected judges, not the legislative branch. If we waited for
the legislative branch to allow mixed marriages, it would still
be prohibited in Virginia.
Mrs. Schlafly. Well, most of the other States did allow
mixed marriages so it was not--it was just some States.
Mr. Scott. But in that, the unelected judges imposing their
will did not wreak havoc because--you agree?
Mrs. Schlafly. I am not saying all courts' decisions are
bad, just lots of them. I think it is a perfectly valid,
neutral argument to say we do not trust the judges in the issue
of marriage.
Mr. Scott. And if we set a policy that we did not trust the
judges, then that ruling could not have been made; is that
right?
Mrs. Schlafly. Yes, but we did not do that. The American
people were perfectly acceptable of that. But it is clear we do
not trust the judges on the issue of marriage.
Mr. Scott. That was an issue of marriage.
Let me ask Professor Gerhardt, you are talking about a
neutral justification for court stripping. Does motive make a
difference if it has the effect of eliminating the jurisdiction
on a constitutional issue?
Mr. Gerhardt. Well, it sometimes might. The critical thing
is the purpose and effect of a law, and sometimes the court
will infer that from just looking at the law itself, and
sometimes it looks at the context in which the law is passed.
But looking at either context or effect might well bring you to
an illegitimate purpose or motivation, at which point I think
courts strike laws down.
Mr. Scott. Professor Redish, you have indicated if
something unconstitutional is going on, you have to have access
to some court. Would you have an appeal to the Supreme Court at
some point even though Congress has stripped it of, or tried to
strip it of jurisdiction?
Mr. Redish. That is actually a fascinating question. My
answer I think is no, because the right to an adequate judicial
forum derives from the Due Process Clause. The Supreme Court
itself has made clear that due process requires no right of
appeal. There is no constitutionally dictated right of
appellate review. So as long as you had an adequate and
independent trial forum, who possessed sufficient power to
enforce its decrees, there would be no due process violation
from excluding Supreme Court review power.
Mr. Scott. The Supreme Court has jurisdiction over
consideration of constitutional issues. That is part of article
III.
Mr. Redish. Absolutely. But all of its appellate power
under article III and its power over most constitutional issues
which comes within its appellate power, is qualified by the
Exceptions Clause. And I see no way to read that other than
this Congress may make plenary exceptions to that jurisdiction.
Mr. Scott. So if something unconstitutional is going on in
Virginia, and Congress allowed it to happen, as long as
Virginia courts approved it there would be no access to fix it?
Mr. Redish. That is right. I should emphasize that nothing
in the Exceptions Clause empowers, allows this Congress to
overrule a preexisting Supreme Court decision. Ironically, to
the contrary, it locks it in because the only court that can
change a Supreme Court decision is the Supreme Court. But the
whole notion of the Exceptions Clause and the power over lower
Federal courts is premised on the notion that the State courts
are going to be good-faith protectors of Federal rights.
Whether that is empirically true one could debate, but it
certainly was the assumption of the framers.
Mr. Scott. Mr. Gerhardt, would you like to comment on that?
If something is unconstitutional in Virginia, you would have no
Federal remedy as long as Congress just allowed it to happen?
Mr. Gerhardt. I would read the Supreme Court doctrine
differently and read constitutional law differently. I think
that there certainly are circumstances in which the Supreme
Court of the United States will not trust the State courts as
final adjudicators of certain Federal or constitutional claims.
You might go as far as Martin v. Hunters Lessee as one example
of that. I don't think the Constitution generally sets up the
State courts in a position to be the final adjudicators of
Federal law. I don't think that situation would be consistent
with how constitutional law has grown over time.
It just bears repeating: I don't believe there is any
unlimited power that is granted in the Constitution to any
branch. The Supreme Court and other Federal courts, might well
make mistakes. The Constitution prescribes the methods for
overruling those mistakes if they happen to pertain to
constitutional law, and those are limited.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized
for 5 minutes.
Mr. Hostettler. I thank the Chairman.
As we contemplate the issue of same-sex marriage and the
notion of an independent judiciary, I think it is important to
look at the Supreme Court case which has brought us to this
point to be very concerned about the future of traditional
marriage in America.
In Lawrence v. Texas, the Supreme Court determined that for
a variety of reasons a Texas sodomy law was unconstitutional.
But what is intriguing in the opinion of the majority, as
written by Justice Kennedy and the concurring opinion by
Justice O'Connor, is the idea of speaking to the issue of
marriage. Now, the case of Lawrence v. Texas did not have
anything to do with marriage. It is my understanding of the
facts of the case with regard to the arrest that was made, that
the individuals involved in the case were not involved in a
wedding ceremony at the time of the arrest. But rather, the
case, Lawrence v. Texas, does speak to the issue of same-sex
marriage, and that is intriguing to me in that Justice Kennedy
implicitly speaks to the issue when he says, ``The present case
does not involve whether the Government must give formal
recognition to any relationship that homosexual persons seek to
enter.'' obviously what other type of relationship is he
talking about but the issue, in my opinion, of same-sex
marriage, because it is more explicitly brought out in Justice
O'Connor's concurring opinion when she says that ``Texas cannot
assert any legitimate State interest here, such as preserving
the traditional institution of marriage.''
Once again, the case was not about marriage but the court
seems, for whatever reason, to want to talk about the issue of
marriage. She goes on to say, ``Unlike the moral disapproval of
same-sex relations, other reasons exist to promote the
institution of marriage beyond mere moral disapproval of an
excluded group.''
So the Court both implicitly and explicitly speaks to the
fact that they are not talking about same-sex marriage, and by
the wording of their opinions, at least Kennedy and O'Connor
seem to tell us that they would not be in favor of expanding
these rights to include same-sex marriage.
I wanted to clarify that and ask Professor Gerhardt some
questions. I find, like Mrs. Schlafly, your discussion of
separation of powers intriguing.
Do you believe that the power to impeach and remove from
office of Congress is a violation of separation of powers?
Mr. Gerhardt. You are asking whether the impeachment and
removal of a Senator or Member of Congress is a violation of
separation of powers? I want to make sure I understand the
question. You are asking if Congress sets out to impeach and
remove a Member of Congress----
Mr. Hostettler. No. Impeachment is done in the House,
removal is done in the Senate. And we impeach and remove from
office officers of the Government: President, Vice President,
judges, justices, anyone. I am asking if that is a violation of
separation of powers, in your opinion.
Mr. Gerhardt. The impeachment of whom, is what I am trying
to find out.
Mr. Hostettler. The Constitution says the House shall have
sole power of impeachment. Let us say the impeachment of, say,
a Federal judge and the removal of that Federal judge by the
Senate. Do you believe that is a violation of separation of
powers?
Mr. Gerhardt. The way you phrase it, I would probably have
to say no; but I would have to know what the Federal judge had
done to give you a fuller answer.
Mr. Hostettler. Are you saying that the House cannot
impeach----
Mr. Gerhardt. Yes, the House can impeach Federal judges. It
has done that.
Mr. Hostettler. But you are saying except for something
else?
Mr. Gerhardt. If you are asking if the power of impeachment
can ever exceed its limitations, I suppose the answer is yes.
If the House impeached a private citizen----
Mr. Hostettler. I understand what you are saying. I don't
know how we would do that. That is intriguing.
Mr. Gerhardt. I would hope you wouldn't.
Mr. Hostettler. Do you think the power to pardon after a
Supreme Court has upheld a lower court's ruling with regard to
an individual, do you think the power to pardon by the
President is a violation of separation of powers? When the
courts have determined that an individual has violated a
Federal law and the Supreme Court has upheld the conviction, do
you believe that the pardon is----
Mr. Gerhardt. Given what you have suggested, no, I would
not think that would be a problem. If it is a Federal offense,
obviously the pardon power does not pertain to State offenses
but it pertains to Federal offenses. The President has been
given that authority, so if the President exercises that
authority, as Presidents have done, I am not sure there is a
problem there.
Mr. Hostettler. I ask unanimous consent for one additional
minute.
Mr. Chabot. Without objection.
Mr. Hostettler. Do you believe the power of Congress to
repeal a previously enacted statute is a violation of
separation of powers?
Mr. Gerhardt. I can answer that question generally as
probably yes. But again, we have to understand that the
particulars may make a great deal of difference to the answer.
Mr. Hostettler. You are saying it is a violation of
separation?
Mr. Gerhardt. No, I said generally it would not be; but
obviously I would need to know the particulars. There may be
withdrawals of jurisdiction and other statutory entitlements
and how that is done may make a great deal of difference to the
answer.
Mr. Chabot. The gentleman's time has expired.
The gentleman from California, Mr. Schiff, is recognized
for 5 minutes.
Mr. Schiff. Thank you, Mr. Chairman. This is now the fourth
of five hearings on the subject, and I think on this side of
the aisle we do not wish to be outdone. We would like to
propose five more hearings on this subject, because Lord knows
there is nothing else to have a hearing on in the Congress.
I have been trying now for 2\1/2\ years to get a hearing on
whether the Constitution permits the President to detain
American citizens without access to counsel, without access to
judicial review, based on its sole determination that an
American is an unlawful enemy combatant. I have not been able
to get a hearing on that in almost 3 years, and we now have had
five hearings on this subject. We have not been able to get a
hearing on whether we should have a constitutional amendment to
continue the Government if we were obliterated in a terrorist
attack, but we do have time for five hearings on this subject,
and I would like to propose that we have five more hearings.
I would like to ask some of the witnesses where their
theory of the Constitution leads them. Mrs. Schlafly, you say
that you do not trust the Federal courts to decide some of
these questions, and you have greater trust in the State
courts, so you would like to remove some of the Federal courts'
jurisdiction and give it to the State courts?
Mrs. Schlafly. Well, the Congress cannot legislate about
the State courts. We are only considering here today the
limiting of the Federal courts.
Mr. Schiff. Mrs. Schlafly, you would remove the Federal
courts' jurisdiction over the marriage issue and allow the
State courts to decide that?
Mrs. Schlafly. Yes, I would. Marriage has always been a
State matter.
Mr. Schiff. So you would be content with the Massachusetts
Supreme Court deciding that issue rather than the U.S. Supreme
Court?
Mrs. Schlafly. I am not content with Massachusetts, no; but
I would not be encouraged to think that the Supreme Court would
do the right thing, and I don't think they should be handling
it. Personally, I think the people of Massachusetts should take
care of their problem, just like the people of Hawaii and
Alaska took care of their courts.
Mr. Schiff. If the people of Massachusetts decided to amend
their constitution to make it abundantly clear that they
supported gay marriage, and--are you a citizen of Florida?
Mrs. Schlafly. Missouri.
Mr. Schiff. I'm sorry; Missouri. Do you think the people of
Massachusetts have that right, and would you find that has a
place in the federalist system?
Mrs. Schlafly. I think they have the right but I don't
think it would possibly happen.
Mr. Schiff. But you are willing to allow the people of
Massachusetts to make that decision for themselves?
Mrs. Schlafly. Yes. There are a lot of people who are not
apparently willing to let the people of Massachusetts, because
the legislature did everything that they could to keep that
from going to the people. I think it is clear that the American
people do not want to legislate same-sex marriage.
Mr. Schiff. Mrs. Schlafly, then you probably would not be
comfortable with the current proposed constitutional amendment
because that precludes a State constitution from allowing any
marriage other than that between a man and a woman; you would
not want to prohibit a State from writing that in their
constitution or writing the converse, correct?
Mrs. Schlafly. I would not object to that, if the American
people want to have an amendment on that, providing we know
exactly what it does. I mean, I believe in the legislative
process.
Mr. Schiff. If you believe that the people of Missouri
should not decide for the people of Massachusetts what kind of
constitutional laws they should have, then I would think that
you would not want a constitutional amendment that precludes
the people of Massachusetts from doing that, would you?
Mrs. Schlafly. There are a number of instances where States
had made certain determinations but we decided we wanted to
make it a national rule. If the American people want to have a
marriage amendment, I would support that.
Mr. Schiff. But at the moment, I am asking what you want.
Do you want the people of Missouri to be able to determine what
the people of Massachusetts have for their own marriage laws?
Mrs. Schlafly. At the moment, I want you to fix it so the
Federal courts cannot overturn the laws of the State of
Missouri, because we have a good State DOMA law, and we do not
want Federal judges interfering with it.
Mr. Schiff. Mr. Dannemeyer, you would have us remove
Federal court jurisdiction over marriage and over the Pledge of
Allegiance as well; is that correct?
Mr. Dannemeyer. Yes.
Mr. Schiff. Would you have us remove Federal court
jurisdiction over legal tender so they could not remove ``In
God We Trust'' from legal tender?
Mr. Dannemeyer. Well, I think if the issue is we
acknowledge keeping the motto ``In God We Trust,'' I think we
should keep that motto.
Mr. Schiff. I think we should keep that motto, too, and I
think we should keep ``under God'' in the Pledge of Allegiance.
But my question is: Should we remove jurisdiction from the
Federal courts in case they might decide otherwise?
Mr. Dannemeyer. Well, yes, I do. I think Congress has the
authority.
Mr. Schiff. I am not asking whether we have the authority,
I am asking whether you think we should do this; assuming we
have the authority, should we remove the Federal court
jurisdiction over abortion?
Mr. Dannemeyer. I think that article III, section 2
presents a good opportunity for reaching that very issue. In
fact Roe v. Wade of 1973 was based on a premise that was
created out of thin air for justification of the Constitution.
Mr. Schiff. I ask unanimous consent for an additional
minute.
Mr. Chabot. Without objection.
Mr. Schiff. Thank you, Mr. Chairman.
Mr. Dannemeyer, would you propose, then, since many of
these issues that we have talked about, the Pledge, ``In God We
Trust'' on legal tender, are issues regarding separation of
church and State, shall we remove the Federal court
jurisdiction over the first amendment of the Bill of Rights
that provides, ``Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof,'' and in my view, that amendment does not preclude
having ``under God'' in the Pledge, which I support, but just
in case some court may find otherwise, shall we remove the
jurisdiction of the Federal courts over the first amendment
just to be safe?
Mr. Dannemeyer. No, I don't think that we should give a
broad reach of that nature. I think in this instance we are
dealing with correcting. For example, we should make clear that
people have the ability to express faith in public, which is
what voluntary prayer in public schools is all about. We should
be able to post the Ten Commandments on the walls of public
buildings, and on that issue it is just as important as having
the Ten Commandments on walls of public buildings.
Mr. Chabot. The gentleman's time has expired. Does the
gentleman wish an additional 30 seconds?
Mr. Schiff. Yes, thank you.
So rather than completely removing the jurisdiction of
Federal courts over the first amendment, you would merely
enumerate all of the first amendment issues involving the
Pledge of Allegiance or abortion or--well, that involves a
different amendment, I suppose--really, any separation of
church and State issues within the first amendment, you simply
enumerate those and remove those from the Federal Government?
Mr. Dannemeyer. I would say to the gentleman from
California that H.R. 3799 by Congressman Aderholt from Alabama
is now pending before this Committee and should be adopted. It
speaks to the specific issues that you described. It would
allow retaining God in the Pledge of Allegiance, God in the
national motto. It would allow expressions of faith, voluntary
prayer in school, it would allow displaying the Ten
Commandments on the walls of public buildings, and I hope you
would support it.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman.
Professor Gerhardt, as I understand it your position is
that Congress, having the article I and article III power to
create lower courts, we do not necessarily have the automatic
plenary authority, as Professor Redish suggests, to abolish
those Federal courts; is that right?
Mr. Gerhardt. It depends on the circumstances. With respect
to abolition, I think it depends on whether or not the court
itself is vacant. If it is not vacant, I think there is a
constitutional problem.
Mr. Feeney. Would you agree that in Lockerty v. Phillips
and Sheldon v. Sill, the U.S. Supreme Court has, on several
occasions, suggested that having created the lower courts, that
Congress has the implied power to repeal or abolish those
courts?
Mr. Gerhardt. I would respectfully read those decisions
differently, but the bottom line for me is if you are talking--
I think the withdrawal of the jurisdiction is itself subject to
various constitutional limitations.
Mr. Feeney. My question is about abolishing what we have
created. You are basically saying there may be restraints on
abolishing things that we had the power to create under certain
circumstances?
Mr. Gerhardt. We created a lower court.
Mr. Feeney. But we do not necessarily have the automatic
right to repeal or abolish that court, is what your position
is. And would that be true with respect to creating an
executive agency? If we created a Cabinet officer, the nanny
State baby-sitter Cabinet officer, if we decided that did not
work out, would we be limited in our ability to abolish what we
created in the legislative branch just like in the judicial
branch?
Mr. Gerhardt. I think in that particular circumstance it is
likely to be different. I think you could have something like
the Department of Homeland Security where you reorganize
things.
Mr. Feeney. Having created an executive agency, would we
potentially be limited if we decided to abolish what we
created?
Mr. Gerhardt. I am not sure you would be limited in doing
that.
Mr. Feeney. So when we create a Federal or an executive
agency to repeal what we have done we are not limited, but with
respect to the judicial branch they may be depending on the
circumstances?
Mr. Gerhardt. I assume you have a neutral justification
with regard to the executive agency. But if you have a neutral
justification, you can reorganize jurisdiction. But if you do
not have a neutral jurisdiction, in my opinion----
Mr. Feeney. I would ask you in writing to tell us where in
the text of the Constitution our powers are limited with
respect to abolishing a judicial agency or entity we created,
whereas it is different from the article II power, agencies
that we have created.
Look, the fundamental issue is here, who creates
constitutional rights. Some of us believe deeply when the 13
States ratified the Constitution, the people of those States
spoke through their republican forms of Government. That is how
constitutional rights were established and guaranteed to the
people of the country. When new States adopted the Constitution
as they became part of our Constitution, when constitutional
amendments pursuant to article V were adopted pursuant to the
provisions of the Constitution, that is how constitutional
rights are created.
But I would like the professors to follow with me, because
the problem here is when the Massachusetts Supreme Court, out
of thin air, after 250 years of interpretation and history and
tradition, its own constitution decides there is suddenly some
new inherent right to marriage--I want to ask the professors to
follow with me because I think this hypothetical gets to the
text. This gets to the fundamental issue here: How are these
rights created, and what do we do about run-away courts?
Supposing sometime in the future, five or more justices on
the United States Supreme Court--maybe they decide to import
foreign laws, as the Lawrence case did; maybe they cite a
European human rights decision; supposing they decided the 14th
amendment Equal Protection Clause guarantees pedophiles the
right to have relations with minor children at all times in all
places, that they are constitutionally protected in this
behavior and it is a fundamental right. Notwithstanding the
fact that 50 States may have antipedophilia laws, the
Constitution may have antipedophilia law, what is the remedy,
Professor Gerhardt, and then Professor Redish, what is the
remedy of the people? And I would ask you to cite in light of
article IV, section 4, the Constitution, guaranteeing that we
live under a republican form of Government--meaning we get to
select the people that make and establish our laws--what would
be the remedy if five justices decided to create a new right to
pedophilia-type behavior tomorrow?
Mr. Gerhardt. Frankly, I think it would not be unlike Dred
Scott. The remedy there was the 14th amendment. That is how
Dred Scott got overruled. That is one of the ways prescribed
under the Constitution.
A second way is you try, once people leave the Court, you
might try to appoint people with different views.
A third way is you go back to the Court itself and try to
convince them they are wrong. That is some of the ways that the
Constitution allows.
Mr. Chabot. The gentleman's time has expired.
Mr. Feeney. Mr. Speaker, I ask unanimous consent for 30
seconds for Professor Redish to answer.
Mr. Chabot. Without objection.
Mr. Redish. I believe the Dred Scott case is one
illustration. The other illustration is a case called Chisolm
v. Georgia, where the very early Supreme Court construed
article III to revoke State sovereign immunity; and very
rapidly an amendment, the 11th amendment, was adopted
overruling Chisolm v. Georgia. And I am sure in the example you
give, there would be outrage throughout the Nation when we are
dealing with a decision of that kind of unpopularity, a
constitutional amendment would follow at least as rapidly as
the 11th amendment did.
Mr. Chabot. The gentleman's time has expired. The
gentlewoman from Wisconsin is recognized for 5 minutes.
Ms. Baldwin. Thank you, Mr. Chairman.
Before turning to questions, I wanted to ask, Mr. Chairman,
unanimous consent to submit for the record a report received
earlier this week addressed to you from the Congressional
Budget Office entitled the ``Potential Budgetary Impact of
Recognizing Same Sex Marriages.''
Mr. Chabot. Without objection.
Ms. Baldwin. Thank you. I offer that for the record, based
in part on two of our prior hearings. I know there was a lot of
questioning back and forth about the potential cost to the
Federal Government, were the States and the Federal Government
to someday recognize same-sex marriages. This report goes
through some estimating and looks at effects on Federal
revenues, income tax revenues, estate tax revenues. It further
looks at effects on outlays and concludes, while the numbers
are very negligible, a slight boon to the U.S. economy or the
Federal Government were those relationships to be recognized
sometime in the future. I am glad to have their thinking on the
topic added to the record of this Committee as we look at the
issue.
Turning to today's topic, I had occasion to review the
Congressional Research Service report on court stripping, and
one of the things that they note is that there are all sorts of
legislative proposals that could be characterized as court
stripping: abolishing courts, limiting remedies in certain
cases. But here today we are looking at a particular type of
what is known as court stripping: proposals that have been made
to limit the jurisdiction of Federal courts to hear cases in
particular areas of constitutional law. Oftentimes the
proposals that are brought forward in Congress, or most of the
times they are brought forward in response to what can be
characterized as a controversial court ruling. Issues that have
resulted in court stripping proposals in Congress include
rulings on busing, abortion, prayer in school and, recently,
the reciting of the Pledge of Allegiance, and clearly the issue
that brings us here today.
Because most of these proposals historically have not
passed through Congress and been signed into law, an analysis
of the constitutionality of these really relies predominantly
on very, very old case law, a textual analysis of the
Constitution and sort of scholarly discussion about what might
happen given the lack of clear and recent precedent.
I wanted to direct my questions to our two law professors,
and sort of expanding on Congressman Nadler's questions about
the equal protection limits to this court stripping practice. I
know our two professors draw that line in a different place.
Professor Redish, I was pleased to hear your commentary
about whether this is constitutional or not, a lot of these
court stripping bills would be unwise because they would have
an impact on the legitimacy and public confidence in the
Congress and the Federal courts. But your analysis in your
testimony clearly says that the constitutional directive of
equal protection restricts congressional power to employ its
power to reject or restrict jurisdiction in an
unconstitutionally discriminatory manner. And later on you
elaborate that you could not, for example, exclude Federal
judicial power in cases brought by African Americans, Jews or
women.
I am wondering how much further, since there is a
corollary--and you had that question a little bit before, of
combining or revoking Federal jurisdiction in substantive
matters which disproportionately affect those same protected
classes. And I would also like to hear Professor Gerhardt's
comments on where that line is in his analysis.
Mr. Redish. My understanding of the equal protection law is
that outside the area of race, the disproportionate impact for
facially neutral aspects of the law do not render it a
violation of equal protection. That was the Goodridge case I
referred to earlier, where the Supreme Court said a law not
including pregnancy in certain health benefits, although
obviously it could only have an impact on women, was not a
violation of equal protection.
So I believe under existing constitutional doctrine as I
read it, that a law that said women or African Americans or
Jews would not have access to the Federal courts would be
unconstitutional. A law that restricted jurisdiction over a
particular issue that happened to indirectly impact only women
or Jews, African Americans, I believe is a different issue, I
would say would not violate equal protection.
Mr. Chabot. The gentlewoman's time has expired.
Ms. Baldwin. If Professor Gerhardt could also be allowed to
respond?
Mr. Chabot. Without objection.
Mr. Gerhardt. I think if the law were directed plainly at
women, then it gets heightened scrutiny in Federal court and it
is only going to be upheld if it has substantial justification.
Even if the law does not mention plainly that it is
directed against women, the court has held in other context,
for example, a race-specific provision--and this is out of
Washington, Washington v. Seattle, the court subjected that law
to strict scrutiny because it could only have been African
Americans who would have been disadvantaged by that law. If you
have a law that is directed at burdening gays and lesbians and
it is inevitable that they would be the plaintiffs in
challenging DOMAs, then it is the natural inference that is
what the law is directed against. The court would have to at
least subject that to a rational-basis test, and in Evans v.
Romer, for example, has struck it down for lacking a legitimate
or neutral justification.
Mr. Chabot. The gentlewoman's time has expired. The
gentleman from Virginia, Mr. Forbes, is recognized for 5
minutes.
Mr. Forbes. Mr. Chairman, I thank the panel for their
comments today. Mr. Nadler and Mr. Schiff have suggested that
we have spent too much time on dealing with the marriage issue.
In all due respect, there are some of us on this Subcommittee
who believe, rightly or wrongly, that this is a major issue
impacting families as we know them in America. Likewise, there
are some of us on this Committee who feel that the American
family unit is so crucial to the success of America, and
America so crucial to the concept of freedom throughout the
world, that it merits a significant amount of time to be spent
on it.
I know none of my colleagues would make recommendations
that they did not believe in, so if we need to have five more
hearings, let us have five more hearings on this issue until we
flesh it out and make sure that we make the right decisions.
I have heard many of you on the panel today being asked all
kinds of questions other than the questions that you came
prepared to answer. I could probably ask you about how you feel
about the New York Yankees or the Washington Redskins, but we
are here to look at the issue of marriage in this particular
legislation. It may be simple, but it comes down to two basic
issues: Can we as Congress limit this jurisdiction? And the
second question is, should we?
Mrs. Schlafly, you have indicated that you feel, one, we
can; and two, we should; is that a fair statement?
Mrs. Schlafly. That is absolutely correct. I think it is
clear from this panel and the historical record that you can do
it. The issue is you have a wonderful law. DOMA is a well
written, elegantly written law, that says what the American
people want. We are faced with the possibility, through various
litigation, that some activist judges may throw it out, and you
have had predictions that judges will do that.
I would suggest that it is up to Congress to prevent that
from happening by using the power that we know you have. We do
believe that these major decisions should be made by elected
representatives, and the whole idea of unelected, lifetime
judges to be able to overrule the fine law that Congress
passed, and similar laws in all of the other States, is simply
not tolerable in a democratic system of self-government.
Mr. Forbes. Mr. Gerhardt, thank you for your thoughts
today. If you can help me today or submit your answer later in
writing, my question is the concept that Mr. Feeney was talking
about a little bit, that even though Congress has no mandate to
create courts or jurisdiction or give them jurisdiction, that
somehow once we have done that, whether in this area or the
bankruptcy court or whatever, that we cannot withdraw that
jurisdiction subsequently, if we decide to do that, without a
motive or basis that the court approves. I am just wondering if
you can at some point in time tell me not other court cases but
just the constitutional principle upon which you base that
statement?
Mr. Gerhardt. Well, I think it is, for example, the fifth
amendment, and that amendment would require, among other
things, that if you undertake a legislative action, it has to
comply with the equal protection standard. That would then lead
us down a particular path, depending on what the classification
is, that this withdrawal of jurisdiction seeks to effectuate.
So I think that is one limitation. I think every congressional
power is subject to some limitation, just like Presidential
powers are, and even judicial powers are subject to
limitations.
I think it would be incorrect, at least in my judgment, to
believe that there is such a thing as an unlimited
congressional power.
Mr. Forbes. Mr. Redish, as I understand your comments
today, you believe that we have the authority to do what is in
this legislation, but that we should not exercise that
authority in this way at this time?
Mr. Redish. Yes. And I should emphasize once again, that
has nothing to do with my views on the substantive merits of
this particular law. It is my belief, just as a matter of the
American political and judicial process, this is a very
powerful authority this Congress has with some very negative
consequences that can flow from its exercise, and great caution
should be used before it is employed in any substantive area of
law.
Mr. Forbes. Mr. Dannemeyer, you believe that we have the
authority and that we should exercise the authority; is that a
fair summation? I am out of time.
Mr. Dannemeyer. Yes. Yes, I do.
Mr. Chabot. Thank you. The gentleman's time has expired.
I would ask unanimous consent that the Ranking Member be
granted the time to ask one final question.
Without objection.
Mr. Nadler. Thank you, Mr. Chairman.
This is a factual question for Professor Redish, I suppose.
Have we ever adopted a constitutional amendment or has Congress
ever proposed to the States a constitutional amendment to
overturn an anticipated court decision that had not yet
occurred?
Mr. Redish. Nothing occurs to me off the top of my head.
That has not yet occurred?
Mr. Nadler. Has not at the time it was proposed.
Mr. Hostettler. Would the gentleman yield? Such as the Bill
of Rights?
Mr. Redish. Well, I am not sure that was designed to fend
off a particular court decision. It was a broad-based,
categorical, normative directive as to what the rights should
be; but I don't think it was grounded in any concern that
otherwise courts would decide something that Congress did not
like.
Mr. Nadler. I thank the gentleman.
Mr. Chabot. I think that is a very good response. Without
objection, Members will have 5 days to include additional
responses.
I want to thank the panel. I thought this was excellent
testimony on behalf of all four of the witnesses. I want to
thank the Members for being here in such high numbers.
If there is no further business to come before the
Committee, we are adjourned. Thank you.
[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of Charles E. Rice
The subject of this hearing is the power of Congress over the
jurisdiction of lower federal courts and its power over the appellate
jurisdiction of the Supreme Court. This issue arises in the context of
H.R. 3313, which provides:
`No court created by Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no appellate
jurisdiction, to hear or determine any question pertaining to
the interpretation of section 1738c of this title or of this
section. Neither the Supreme Court nor any court created by Act
of Congress shall have any appellate jurisdiction to hear or
determine any question pertaining to the interpretation of
section 7 of Title 1.' \1\
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\1\ 108th Cong., 1st Sess.; Section 1738c, of Title 28, is the
Defense of Marriage Act; Section 7 of Title 1, of the Constitution is
the Full Faith and Credit Clause.
This statement, however, offers a general analysis of the power of
Congress to remove classes of cases from federal court jurisdiction
rather than a specific and detailed analysis of H.R. 3313.
the power of congress over the jurisdiction of lower federal courts
The Constitution [Art III, Sec. 1) provides, ``The juridical power
of the United States, shall be vested in one supreme court, and in such
inferior courts as the Congress may from time to time ordain and
establish.'' The Constitution itself did not create the lower federal
courts. Instead it left to Congress the decision whether to create such
courts and, if Congress chose to create them, how much of the
jurisdiction encompassed within the federal judicial power it ought to
confer upon them. Congress need not have created such lower courts at
all. Having created them, it need not vest in them jurisdiction to
decide the full range of cases within the federal judicial power. For
instance, until 1875, the lower federal courts had no general
jurisdiction in cases arising under the Constitution or laws of the
United States. \2\ Today, the jurisdiction of the lower federal courts
is limited in some respects by the requirement of jurisdictional amount
and in other respects as to the classes of cases in which they are
empowered to exercise jurisdiction. The Norris La Guardia Act, for
example, withdrew from the lower federal courts jurisdiction to issue
injunctions in labor disputes. The constitutionality of the Norris La
Guardia Act was sustained by the Supreme Court in Lauf v. E. G. Shinner
and Co. \3\
---------------------------------------------------------------------------
\2\ See Hart and Wechaler, The Federal Courts and the Federal
System ()1953), 727-33.
\3\ 303 U.S. 323, 330 (1938).
---------------------------------------------------------------------------
In an extensive dictum in Palmore v. U.S. \4\ the Supreme Court
summarized the status of the lower federal courts under Article III:
---------------------------------------------------------------------------
\4\ 411 U.S. 389, 400-402 (1973).
Article III describes the judicial power as extending to all
cases, among others, arising under the laws of the United
States; but, aside from this Court, the power is vested ``in
such interior Courts as the Congress may from time to time
ordain and establish.'' The decision with respect to inferior
federal courts, as well as the task of defining their
jurisdiction, was left to the discretion of Congress. That body
was not constitutionally required to create inferior Art. III
courts to hear and decide cases within the juridical power of
the United States, including those criminal cases arising under
the laws of the United States. Nor, if inferior federal courts
were created, was it required to invest them with all the
jurisdiction it was authorized to bestow under Art III. ``[T]he
juridical power of the United States . . . is (except in
enumerated instances, applicable exclusively to this court)
dependent for its distribution and organization, and for the
modes of its exercise, entirely upon the action of Congress,
who possess the sole power of creating the tribunals (inferior
to the Supreme Court) . . . and of investing them with
jurisdiction either limited, concurrent, or exclusive, and of
withholding jurisdiction from them in the exact degrees and
character which to Congress may seem proper for the public
good.'' Cary v. Curtis, 3 How 236, 245, 11 L.Ed. 576 (1845).
[9] Congress plainly understood this, for until 1875 Congress
refrained from providing the lower federal courts with general
federal-question jurisdiction. Until that time, the state
courts provided the only forum for vindicating many important
federal claims. Even then, with exceptions, the state courts
remained the sole forum for the trial of federal cases not
involving the required jurisdictional amount, and for the most
part retained concurrent jurisdiction of federal claims
---------------------------------------------------------------------------
properly within the jurisdiction of the lower federal courts.
9. This was the view of the Court prior to Martin v.
Hunter's Lessee, 1 Wheat 304, 4 L.Ed. 97 (1816). Turner v. Bank
of North America, 4 Dall 8, 1 L.Ed.718, (1799); United States
v. Hudson, 7 Cranch 32, 3 L.Ed.259 (1812). And the contrary
statements in Hunter's Lessee, supra, at 327-339, 4 L.Ed. 97,
did not survive later cases. See for example, in addition to
Cary v. Curtis, 3 How 236, 11 L.Ed. 576 (1845), quoted in the
text, Rhode Island v. Massachusetts, 12 Pet 657, 721-722, 9
L.Ed. 1233 (1838); Sheldon v. Sill, 8 How 441, 12 L.Ed. 1147
(1850); Case of the Sewing Machine Companies, 18 Wall 553, 577-
578, 21 L.Ed. 914 (1874); Kline v. Burke Construction Co., 260
U.S. 226, 233-234, 67 L.Ed. 226, 43 S.Ct. 79, 24 ALR 1077
(1922).
While various theories have been advanced to argue for restrictions
on Congress' power over the jurisdiction of the lower federal courts,
none of them is supported by the Supreme Court. Not only does the
greater discretion to create, or not, the federal courts themselves
include the lesser power to define their jurisdiction, the evident
intent of the framers was to vest in the Congress the capacity to make
the prudential judgment as to which courts, state or federal, should
decide constitutional cases on the lower and intermediate levels.
A statute withdrawing a particular class of cases from the lower
federal courts or forbidding those courts to issue specified types of
order, would clearly be within the constitutional power of Congress to
enact.
the power of congress over the appellate jurisdiction of the supreme
court
The Exceptions Clause of Article III, Section 2, provides that
``the Supreme Court shall have appellate jurisdiction, both as to Law
and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.'' This was intended, according to Alexander
Hamilton, to give ``the national legislature . . . ample authority to
make such exceptions, and to prescribe such regulations as will be
calculated to obviate or remove'' the ``inconveniences'' which might
arise from the powers given in the Constitution to the federal
judiciary. \5\ There was evidently concern in the Constitutional
Convention and in some of the ratifying conventions that the Supreme
Court would exercise appellate power to reverse jury verdicts on issues
of fact. Nevertheless, the language of Article III, Section 2,
explicitly give the Supreme Court ``appellate Jurisdiction, both as to
Law and Fact.'' And it is evident that the power of Congress to make
exceptions to that appellate jurisdiction extends to the Court's power
to review questions of law as well as questions of fact. As Hamilton
observed in The Federalist, no. 81, ``the Supreme Court will possess an
appellate jurisdiction both as to law and fact, in all cases referred
to [the subordinate tribunals], both subject to any exceptions and
regulations which may be thought advisable.'' \6\
---------------------------------------------------------------------------
\5\ The Federalist, No. 80. Emphasis in original.
\6\ Emphasis in original.
---------------------------------------------------------------------------
This power of Congress was so broadly interpreted that a specific
authorization by Congress of appellate jurisdiction was construed by
the Supreme Court to imply that such jurisdiction was excluded in all
other cases. This ``negative pregnant'' doctrine was enunciated by
Chief Justice John Marshall in U.S. v. More, in which the Court held
that it had no criminal appellate jurisdiction because none had been
expressly stated by Congress. Marshall, speaking for the Court, said:
. . . an affirmative description of its powers must be
understood as a regulation, under the Constitution, prohibiting
the exercise of other powers than those described. \7\
---------------------------------------------------------------------------
\7\ 7 U.S. (3 Cranch) 159, 172 (1805).
It is interesting to note that no criminal cases were appealable to
the Supreme Court until 1891, simply because until then Congress had
not specified that they could be so appealed. The only way a criminal
case could be brought to the Supreme Court was ``by certificate of
division of opinion'' in the Circuit Court ``upon specific questions of
law.'' \8\
---------------------------------------------------------------------------
\8\ U.S. v. Sanges, 144 U.S. 310, 319 (1892); see also U.S. v.
Cross, 145 U.S. 571 (1892); Ex parte Bigelow, 113 U.S. 328, 329 (1885).
---------------------------------------------------------------------------
In 1810, in Durousseau v. U.S., \9\ Chief Justice Marshall
emphasized that the Court is bound even by implied exceptions to its
appellate jurisdiction, so that, in effect, it can exercise it only
where expressly granted by Congress.'' The ``first legislature of the
union,'' he said, ``have not declared, that the appellate power of the
court shall not extend to certain cases; but they have described
affirmatively its jurisdiction, and this affirmative description has
been understood to imply a negative in the exercise of such appellate
power as is not comprehended within it.'' When Chief Justice Taney
spoke to the issue in Barry v. Mercein, he said, ``By the constitution
of the United States, the Supreme Court possesses no appellate power in
any case, unless conferred upon it by act of Congress; nor can it, when
conferred be exercised in any other form, or by any other mode of
proceeding than that which the law prescribes.'' \10\
---------------------------------------------------------------------------
\9\ 10 U.S. (6 Cranch) 307, 314 (1810).
\10\ 46 U.S. (5 How.) 103, 119 (1847).
---------------------------------------------------------------------------
Prior to 1868, the Supreme Court never had to decide the validity
of an act of Congress making a specific exception to its appellate
jurisdiction. But when William H. McCardle, a Mississippi editor, was
imprisoned by the federal reconstruction authorities on account of
statements he had made, he sought a writ of habeas corpus from the
federal circuit court, asking that court to rule that his detention was
invalid. When this petition was denied he appealed to the Supreme Court
under a statute specifically permitting such appeals. After the Supreme
Court heard arguments on the case and while the Court was deliberating,
Congress enacted a statute repealing that part of the prior statute
which had given the Supreme Court jurisdiction to hear such appeals
from the circuit court. The Court, in confronting for the first time
the issue of the positive congressional exception to the appellate
jurisdiction, dismissed the petition for what of jurisdiction, even
though the case had already been argued and was before the Court. ``We
are not at liberty to inquire into the motives of the legislature,''
said the Court. ``We can only examine into its power under the
Constitution; and the power to make exceptions to the appellate
jurisdiction of this court is given by express words . . . without
jurisdiction the court cannot proceed at all in any case. Jurisdiction
is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and
dismissing the case. And this is not less clear upon authority than
upon principle.'' \11\
---------------------------------------------------------------------------
\11\ Ex parte McCurdle, 74 U.S. (7 Wall.) 506, 513-14 (1868).
---------------------------------------------------------------------------
It is true that the statute upheld in McCardle did not bar the
Supreme Court from reviewing all habeas corpus cases. Rather, it only
barred review sought under the 1867 statute which had provided an
avenue of review of such cases from the circuit court. The Supreme
Court retained the habeas corpus review power which had been given it
by the Judiciary Act of 1789 and which Congress had chosen not to
withdraw. Later in 1868, the Court applied this distinction in Ex parte
Yerger, \12\ where the Court held that the 1868 statute left untouched
the Supreme Court's power to issue its own writ of habeas corpus to a
lower court as provided in the Judiciary Act of 1789. But neither in
McCardle nor in Yerger is there any indication whatever that the Court
would not have upheld an act withdrawing appellate jurisdiction in all
habeas corpus cases from the Court.
---------------------------------------------------------------------------
\12\ 75 U.S. (8 Wall.) 85 (1868).
---------------------------------------------------------------------------
Four years later, in U.S. v. Klein, \13\ the Court had occasion to
spell out one important limitation of the Exceptions Clause. Klein is
the only Supreme Court decision ever to strike down a statute enacted
under the Exceptions Clause. The claimant in Klein, who had been a
Confederate, sued in the Court of Claims to recover the proceeds from
the sale of his property seized and sold by the Union forces. He had
received a full presidential pardon for his Confederate activities, and
the Court of Claims ruled in his favor for that reason. If he had not
received a pardon, the governing statute would have prevented his
recovery. While the appeal of his case was pending before the Supreme
Court, a state was enacted which provided that, whenever it appears
that a judgment of the Court of Claims has been founded on such
presidential pardons, without other proof of loyalty, the Supreme Court
shall have no further jurisdiction of the case. The statute further
declared that every pardon granted to a suitor in the Court of Claims
which recited that he has been guilty of any act of rebellion or
disloyalty, shall, if accepted by him in writing without disclaimer of
those recitals, be taken as conclusive evidence of such act of
rebellion or disloyalty and his suit shall be dismissed. While
declaring the statute unconstitutional, the Supreme Court expressly
reiterated that Congress does have the power to deny appellate
jurisdiction ``in a particular class of cases'':
---------------------------------------------------------------------------
\13\ 80 U.S. (13 Wall.) 128, 145-46 (1872).
Undoubtedly the legislature has complete control over the
organization and existence of that court and may confer or
withhold the right to appeal from its decisions. And if this
act did nothing more, it would be our duty to give it effect.
If it simply denied the right of appeal in a particular class
of cases, there could be no doubt that it must be regarded as
an exercise of the power of Congress to make ``such exceptions
from the appellate jurisdiction'' as should seem to it
expedient. \14\
---------------------------------------------------------------------------
\14\ Emphasis added.
The statute in Klein attempted to dictate to the Court how and by
what processes it should decide the outcome of a particular class of
cases under the guise of limiting it jurisdiction. The Court lost
jurisdiction only when the Court of Claims judgment was founded on a
particular type of evidence, that is, a pardon. And the statute further
prescribed that the effect of the pardon would be such that the
recitals in the pardon of acts of rebellion and disloyalty would be
conclusive proof of those acts. ``What is this,'' said the Court, ``but
to prescribe a rule for the decision of a cause in a particular way?''
It is difficult to imagine a more flagrant intrusion upon the judicial
process than this effort to dictate the rules to be used in deciding
cases. Moreover, the statute in Klein intruded upon the President's
pardoning power by attempting ``to deny to pardons granted by the
President the effect which this court had adjudged them to have.'' In
these major respects the statute involved in Klein was wholly different
from a statute simply withdrawing appellate jurisdiction over a certain
class of cases.
Since the Klein case, the Supreme Court has not had occasion to
define further any limits to the Exceptions Clause. In The ``Francis
Wright,'' \15\ the Court said that what the ``appellate powers'' of the
Supreme Court ``shall be, and to what extent they shall be exercised,
are, and always have been, proper subjects of legislative control.
Authority to limit the jurisdiction necessarily carries with it
authority to limit the use of the jurisdiction. Not only may whole
classes of cases be kept out of the jurisdiction altogether, but
particular classes of questions may be subjected to re-examination and
review, while others are not.'' Chief Justice Waite, in his opinion for
the Court in The ``Francis Wright'' referred to ``the rule, which has
always been acted on since, that while the appellate power of this
court under the Constitution extends to all cases within the judicial
power of the United States, actual jurisdiction under the power is
confined within such limits as Congress sees fit to prescribe.'' \16\
Several statements of individual justices in the intervening years
reinforce this conclusion. Thus Justice Frankfurter, in his dissenting
opinion in National Insurance Co. v. Tidewater Co. \17\ Noted that
``Congress need not establish inferior courts; Congress need not grant
the full scope of jurisdiction which it is empowered to vest in them;
Congress need not give this Court any appellate power; it may withdraw
appellate jurisdiction once conferred and it may do so even while a
case is sub judice. Ex parte McCardle, 7 Wall. 506.'' \18\
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\15\ 105 U.S. 381, 386 (1881).
\16\ 105 U.S. at 385 (emphasis added).
\17\ 337 U.S. 582, 655 (1949).
\18\ See also the opinion of Justice Harlan in Glidden v. Zdanok,
370 U.S. 567-68 (1962); and see the concurring opinion of Justice
Douglas in Flast v. Cohen, 392 U.S. 83, 109 (1968), stating that ``As
respects our appellate jurisdiction, Congress may largely fashion it as
Congress desires by reason of the express provisions of Section 2, Art.
III. See Ex parte McCardle, 7 Wall. 506.''
---------------------------------------------------------------------------
In summary, the holdings of the Supreme Court and the statements of
various individual justices compel the conclusion that Congress clearly
has power under the Exceptions Clause to withdraw appellate
jurisdiction from the Supreme Court in particular classes of cases.
Indeed, this power is so strong that an exception will be implied in
cases where Congress has not specifically ``granted'' appellate
jurisdiction to the Court.
It will be useful here to mention some arguments that have been
advanced against the use of the exception power by Congress. It has
been urged, as Professor Henry Hart put it, that the exceptions ``must
not be such as to destroy the essential role of the Supreme Court in
the constitutional plan.'' \19\ In addition to the difficulty of
determining what is the Supreme Court's ``essential role,'' that test
would make the Court itself the final arbiter as to the extent of its
powers. Despite the clear grant of power to Congress in the Exceptions
Clause, no statute could deprive the Court if its ``essential role;''
but that role would be whatever the court said it was. It is hardly in
keeping with the spirit of checks and balances to read such a virtually
unlimited power into the Constitution. If the Framers intended so to
permit the Supreme Court to define its own jurisdiction even against
the will of Congress, it is fair to say that they would have made that
intention explicit.
---------------------------------------------------------------------------
\19\ Henry Hart, ``The Power of Congress to Limit the Jurisdiction
of the Federal Courts: An Exercise in Dialectic,'' 66 Harv. L. Rev.
1362, 1365 (1953).
---------------------------------------------------------------------------
Furthermore, the ``essential role'' test was advanced by Professor
Hart in response to the suggestion that Congress could satisfy the
Exceptions Clause by removing all but a ``residuum of jurisdiction,''
for example, by withdrawing appellate jurisdiction in ``everything but
patent cases.'' Whatever the cogency of Professor Hart's ``essential
role'' test would be to a wholesale withdrawal of jurisdiction, if it
were ever attempted by Congress, his test cannot properly be applied to
narrowly drawn withdrawals of jurisdiction over particular types of
cases. It could hardly be argued that the ``essential role'' of the
Supreme Court depends on its exercising appellate jurisdiction in every
type of case involving constitutional rights. Such a contention would
be contrary to the clear language of the Exceptions Clause and to the
consistent indications given by the Supreme Court itself.
A related but more substantial argument against the exercise of
Congress' Exceptions Clause power is that Supreme Court review of cases
involving important constitutional rights is necessary to ensure
uniformity of interpretation and the supremacy of federal statutes over
state laws.
The argument that fundamental rights should not be allowed to vary
from state to state begs the question of whether there is a fundamental
right to uniformity of interpretation by the Supreme Court on every
issue involving fundamental rights. The argument overlooks the fact
that the Exceptions Clause is itself part of the Constitution. As
Alexander Hamilton wrote in No. 80 of the Federalist, the Exceptions
Clause is a salutary means ``to obviate and remove'' the
``inconveniences'' resulting from the exercise of the federal judicial
power. Judging from what the Supreme Court has said about it over the
years, it is not only an important element of the system of checks and
balances, but one which grants a wide discretion to Congress in its
exercise. There is, in short, a fundamental right to have the system of
checks and balances maintained in working order. Without that system,
the more dramatic personal rights, such as speech, privacy, free
exercise of religion, would quickly be reduced to nullities. This right
to preservation of the system of checks and balances is itself one of
our most important constitutional rights.
If it be contended that the Exceptions Clause cannot be used to
deprive the Supreme Court of appellate jurisdiction in cases involving
fundamental constitutional rights, it must be replied that such a
limitation can be found neither in the language of the clause nor in
its explications by the Supreme Court. Indeed, the Supreme Court's
conclusion, prior to 1891, that there was no general right of appeal to
that Court in criminal cases surely involved the denial of the right to
appeal in cases involving constitutional rights. For what
constitutional right is more fundamental than the Fifth Amendment right
not to be deprived of life or liberty without due process of law?
A withdrawal of Supreme Court appellate jurisdiction and lower
federal court jurisdiction over a subject such as same-sex marriage,
school prayer or whatever, would not reverse any rulings the Supreme
Court had already made on the subject. Some state courts might apply
previous Supreme Court decisions but others might not. The
constitutional commitment of complete discretion to Congress as to
whether even to create lower federal courts, the resulting discretion
of Congress to limit that jurisdiction, and the explicitly conferred
control of Congress over the appellate jurisdiction, all combine to
compel the conclusion that there is no constitutional right to
uniformity of interpretation among the states as to constitutional
rights. There would therefore be no constitutional obstacle to the
effect of H.R. 3313 in permitting each state to make its own decision
on the definition and legal incidents of marriage.
In his First Inaugural Address, President Abraham Lincoln warned
that ``the candid citizen must confess that if the policy of the
Government upon vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court, the instant they
are made, in ordinary litigation between parties in personal actions
the people will have ceased to be their own rulers, having to that
extent practically resigned the government into the hands of that
eminent tribunal.'' Supreme Court decisions in several areas are
distortions of the constitutional intent in matters of substantial
importance. It is within the power--and it is the duty--of Congress, to
remedy this wrong. The withdrawal of jurisdiction would be a measured
and appropriate response. It would be preferable to a constitutional
amendment in that it would have no permanent impact on the
Constitution. If experience showed it to be unwise, it could be readily
repealed by a statute. But it would restore the balance of governmental
powers and help to undo some of the unfortunate consequences of
judicial excess.
Boston College Law Review Article, Volume XXVI, Number 5, September
1985
Prepared Statement of the Honorable Spencer Bachus, a Representative in
Congress From the State of Alabama
Thank you Chairman Cabot for holding this very important hearing
today on ``Limiting Federal Court Jurisdiction to Protect Marriage for
the States.'' I would also like to thank the witnesses for giving their
time to be here today. You should know that this is an issue that is
personally important to me, as well as many of my constituents.
The circumstances that we find ourselves in are occasioned by an
increasingly intrusive and tyrannical judiciary, who through recent
court decisions are redefining for all Americans the institution of
marriage. These decisions demonstrate a judiciary out of touch with the
intent of the Framers as well as the moral norms of society.
I believe that marriage is a sacred commitment between a man and a
woman and that it is this commitment that is the foundation of all
families. Children deserve to be raised and nurtured by parents who are
spiritually devoted to one another. Recognizing that past government
studies indicate that giving same-sex couples the same benefits as
married heterosexual couples could cost the federal Treasury billions
of dollars, it is important that we remember that the consequences of
legally recognizing same-sex marriage extend beyond healthcare,
insurance, pensions, and taxes. These consequences include:
discouraging the rearing of children in two-parent biological families,
the creation of fatherless or motherless families by design and the
further erosion of an institution that has proved to be a crucial
social stabilizer. The fact that these consequences may fall upon some
of the most vulnerable members of society--our children--makes it
incumbent upon us to act to preserve the institution of marriage which
is dedicated to protecting them.
Congress, as an elected body of the people, has a duty to defend
marriage against assaults by the judiciary. I will continue to work
with my colleagues to prevent activist judges from standing our
Constitution on its head.
__________
Prepared Statement of the Honorable Steve King, a Representative in
Congress From the State of Iowa
Thank you, Mr. Chairman, for holding this hearing today. It has
become increasingly clear in recent times that our federal judiciary no
longer sees a line between itself and the legislature. From the Supreme
Court's decision in Lawrence v. Texas to the Partial Birth Abortion Ban
decision in San Francisco, the courts are proving to us that they are
sitting as super-legislatures, and challenging us to do something about
it.
Our Founders created a system of checks and balances, in which each
branch would keep the others in line and, in turn, be kept in line by
the others. Thomas Jefferson discussed these checks and balances as
they relate to the judiciary. In essence, he stated that, if the
judiciary is always given the final say on constitutional issues, there
is no one to check that power. This is why it is so important for the
535 Members of Congress, elected by the people, to reassert our power
and perform our constitutional duties.
Whenever jurisdiction limitation is discussed, the argument that
the judiciary is the final arbiter of the Constitution is sure to
arise. It is time for this Congress to ask who gave the courts this
right? The answer is the Supreme Court itself, in Marbury v. Madison.
Over the last 200 years, however, the judiciary has continued to seize
legislative powers, and the legislature has done little to stop that
confiscation. I think the words of Thomas Jefferson sum this up best:
``Our judges are as honest as other men and not more so. . . . [T]heir
power [is] the more dangerous as they are in office for life and not
responsible, as the other functionaries are, to the elective control.''
In other words, there is no reason to believe that the judiciary can be
trusted more to ensure that our laws reflect our Constitution than the
legislature. It is very likely that the status of the federal judiciary
as unelected officials might allow judges to interject more of their
personal beliefs into their decisions.
The role of the Supreme Court is to determine whether laws are
consistent with the Constitution of the United States. Legislators and
the people who elect them get to decide if laws are unwise or
unpopular, not judges and justices. It is our duty, on behalf of the
American people, to rein in the federal judiciary and prevent them from
usurping the role of elected legislatures. Thank you, Mr. Chairman.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan, and Ranking Member, Committee
on the Judiciary
I should thank my Republican colleagues for one thing; for the
first time, I truly understand the phrase ``beating a dead horse.''
This is the fourth of five hearings on whether we should pass an
amendment enshrining discrimination into the Constitution. All we have
heard in this tedium is that right-wing conservatives really, really
want a discriminatory amendment in the Constitution.
The fact is, though, that such an amendment does not have the two-
thirds support it needs to pass in Congress. That begs the question of
why we are even discussing it. To most Americans, the answer is clear:
the Republican leadership wants to score political points with its
right-wing base in an election year.
The point of this particular hearing is for Republicans to
reiterate their opinion that federal judges do not share the values of
mainstream Americans and thus should not hear cases involving same sex
marriage. I think the word ``reiterate'' is important because whenever
a federal court issues a ruling that conflicts with their conservative
leanings, the Republicans try to strip federal courts from hearing
similar cases. They did not like the Ten Commandments or Pledge of
Allegiance decisions, so they introduced numerous bills to prevent
federal courts from hearing cases on those two declarations. They also
severely limited the ability of federal courts to issue writs of habeas
corpus for state convictions.
What is confusing is that Republicans strongly favor federal court
jurisdiction in other instances. Last year, they made it a federal
offense for a doctor to comply with a woman's right to choose. In the
1980's, the Republicans clogged up federal courts with new drug
prosecutions that were normally handled at the state level. For at
least a decade, they have been trying to move all tort cases from state
to federal courts.
Finally, but for the highest federal court in the land overruling a
state court and the will of the people, George W. Bush would not be the
current occupant of the White House. I do not hear my conservative
colleagues complaining about that instance of federal court
overreaching.
My careful analysis of this matter shows that Republicans favor
federal court jurisdiction when state courts and juries issue rulings
that conservatives do not like. These areas generally include crime,
torts, and presidential elections in which the Democratic candidate has
won.
Three letters submitted by the the Honorable John N. Hostettler, a
Representative in Congress From the State of Indiana
Letter from witness Professor Michael Gerhardt to the Honorable Tom
Feeney, a Representative in Congress From the State of Florida
CBO Report submitted by the Honorable Tammy Baldwin, a Representative
in Congress From the State of Wisconsin