[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
_____________________________________________________________________
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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
                                 ------                                

                    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

                              ----------                              

                             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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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




                                 
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