[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CONSTITUTION RESTORATION ACT OF 2004
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.R. 3799
__________
SEPTEMBER 13, 2004
__________
Serial No. 105
__________
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
95-803 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
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Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
MARK GREEN, Wisconsin MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
MELISSA A. HART, Pennsylvania ROBERT WEXLER, Florida
MIKE PENCE, Indiana TAMMY BALDWIN, Wisconsin
J. RANDY FORBES, Virginia ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas
Blaine Merritt, Chief Counsel
David Whitney, Counsel
Joe Keeley, Counsel
Alec French, Minority Counsel
C O N T E N T S
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SEPTEMBER 13, 2004
OPENING STATEMENT
Page
The Honorable Lamar Smith, a Representative in Congress From the
State of Texas, and Chairman, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 1
The Honorable Howard L. Berman, a Representative in Congress From
the State of California, and Ranking Member, Subcommittee on
Courts, the Internet, and Intellectual Property................ 2
The Honorable Robert B. Aderholt, a Representative in Congress
From the State of Alabama...................................... 4
WITNESSES
Mr. Michael J. Gerhardt, Professor of Law, The College of William
& Mary, School of Law
Oral Testimony................................................. 6
Prepared Statement............................................. 7
Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh
School of Law
Oral Testimony................................................. 14
Prepared Statement............................................. 17
The Honorable William E. Dannemeyer, Member of Congress, 1979-92
Oral Testimony................................................. 32
Prepared Statement............................................. 33
The Honorable Roy S. Moore, Foundation for Moral Law, Inc.
Oral Testimony................................................. 74
Prepared Statement............................................. 77
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Berman................ 123
Prepared Statement of the Honorable John Conyers, Jr............. 124
Supplemental Prepared Statement of the Honorable Roy S. Moore.... 125
Letter to the Honorable Lamar Smith, Chairman, Subcommittee on
Courts, the Internet and Intellectual Property and the
Honorable Howard Berman, Ranking Member, Subcommittee on
Courts, the Internet and Intellectual Property from Mr. Michael
J. Gerhardt, The College of William & Mary, School of Law...... 127
CONSTITUTION RESTORATION ACT OF 2004
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MONDAY, SEPTEMBER 13, 2004
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:40 p.m., in
Room 2141, Rayburn House Office Building, Hon. Lamar Smith
(Chair of the Subcommittee) presiding.
Mr. Smith. This Subcommittee on Courts, the Internet, and
Intellectual Property will come to order. Today's hearing is on
H.R. 3799, the ``Constitution Restoration Act of 2004.'' I am
going to recognize myself for an opening statement, then the
Ranking Minority Member, Mr. Berman, and then proceed to
introduce the witnesses. Without objection, all Members will be
able to submit their opening statements for the record. And
also without objection we will include the entire testimony of
all witnesses today since, as they know, we are limited to 5
minutes for each of their testimonies.
Today's hearing addresses an important subject matter, the
right of Congress to prevent the Supreme Court and the lower
Federal courts from reviewing a specialized category of cases
that touches upon religious faith. The legislation before us
that facilitates this also imposes a tough penalty, impeachment
on any Federal judge who ignores Congress's directive. The bill
addresses tangential but related issues as well, including the
obligation of State courts to observe Federal precedence and
the ability of Federal judges to use foreign legal services--
excuse me, foreign legal sources when interpreting the
Constitution.
H.R. 3799 is the latest in a series of legislative and
oversight responses to questionable, or at least controversial
Federal court decisions. For the most part, I subscribe to the
notion that the American justice system is the envy of the
world. But it is far from perfect, as the behavior of
unprincipled trial lawyers and activist judges attest.
Religious faith and practice are part of the American culture.
Many of our ancestors fled to the colonies that became this
country to avoid religious persecution. Hundreds of years
later, our respective faiths inform and influence our behavior
as individuals and as a Nation.
I firmly believe that Americans are the most prosperous and
caring people in world history, largely because we are a
religious people. But our status as the leader of the free and
civilized world is also based on our commitment to the rule of
law. All are bound by it from presidents to truck drivers to
judges to waitresses. We cannot function as a society if some
citizens are beyond the law's reach. We cannot pick and choose
those laws we will obey.
Academics, legislators, and other interested parties are
divided as to whether court-stripping bills are
constitutionally sound. We look forward to our hearing because
we have a balanced panel of experienced and learned witnesses,
and I am confident that our discussion this afternoon will be
both informative and constructive.
That concludes my opening remarks. And the gentleman from
California, Mr. Berman, is recognized for his.
Mr. Berman. Thank you very much, Mr. Chairman.
I am not sure whether the greater irony is that this bill
is called the Constitutional Restoration Act when it does the
opposite of restoring the Constitution's integrity. Or that
this hearing is taking place days before the Jewish High
Holidays, a time in which Jews spend days reciting prayers
replete with acknowledgment of God and his sovereignty.
America was founded by those attempting to escape religious
persecution. The pilgrims set forth to a new continent in the
hope of establishing what was at the time a radical idea, a
society free from the tyranny of religious discrimination. This
tradition led the framers of the first amendment to our
Constitution to insist on the principle of separation of church
and State. They enshrined in our founding document the twin
pillars of our country's policy toward religion, a commitment
to allow freedom of religious expression and a rejection of the
State's establishment of religion. They entrusted our courts
with the ability to differentiate between the two.
H.R. 3799 is a reactionary piece of legislation. It is
borne out of an attempt to politicize recent decisions of the
supreme court and lower Federal courts. And the most egregious
part, H.R. 3799, would seemly make it an impeachable offense
for a Federal judge to decide that H.R. 3799 or a specific
portion of it violates the U.S. Constitution.
This bill attempts to circumvent the only available process
for legislators to reverse the effects of judicial decisions
concerning the Constitution. That process is called a
constitutional amendment. The Framers deliberately made it
difficult to achieve because it did not want legislators
repeatedly tinkering with the founding document.
Supporters of this bill have repeatedly promoted the
concept of court stripping in an effort to give legislators the
power to take decisions out of the hands of judges, an approach
that is thoroughly at odds with what the Framers of the
Constitution intended. I'm surprised at it in an age where we
are trying to eradicate the Taliban, a group that infused a
fundamentalist interpretation of their religion in every aspect
of public life; we are here now talking about removing Federal
judicial oversight in some religion cases.
The Constitution created the most delicate balance between
the branches of Government. We must protect the sanctity of the
autonomous nature of our judiciary. By giving Congress power to
overturn the judiciary's core function of constitutional
interpretation, this bill would fundamentally alter that
constitutional balance.
The bill is not about freedom of expression, as some might
proclaim. It is a mockery of what our Founders considered to be
an integral part of our system of Government, the separation of
powers, and the system of checks and balances between the
branches of Government. Are we to chain the hands of the
judicial branch of the Federal Government so that they merely
serve as a rubber stamp for the political mores of the moment?
Ironically, while supporters of H.R. 3799 seek to assert
greater congressional control over review of the laws it
passes, making State courts the primary avenue for challenges
to Federal legislation actually erodes Congress's control over
judicial review. Unlike with the Federal judiciary, Congress
has no impeachment power over State judges or authority to
regulate State courts, and the Senate has no power to advise
and consent in their selection.
Speaking of our Framers, are we now to question the
influence foreign law played in the development of the
Constitution? And what about the usage of foreign law in
decisions that the sponsor presumably likes? As Professor
Gerhardt states in his written testimony, if this bill were law
in 1986, then the majority in the Bowers v. Hardwick case
presumably would have been subject to impeachment for their
reliance on the judiciums on Western civilization and the
Judeo-Christian civilization.
The attack on usage of foreign law is said to be a way to
clamp down on unacceptable judicial activism. But the
opposition to judicial activism is selective, limited to a
specific type of decision with which the sponsor disagrees. The
sponsors are content to allow other examples of judicial
activism to pass unchallenged. For example, of relevance to
this Subcommittee but not at all addressed in the bill is the
judicial activism evident in the Florida prepaid cases.
In those cases, the Supreme Court based its decisions not
on the text of the Constitution, but rather on fundamental
postulates that directly contradict the actual language of the
11th amendment. Apparently, the sponsors of this bill are only
opposed to judicial activism when it runs counter to their
political ideology. This legislation would give asking the
power that our Founding Fathers specifically intended to deny
the political branches; namely, the power to ensure that
judicial decisions aren't held postage to prevailing political
sentiment in the country. That is not the role the Founding
Fathers intended for Congress or the independent Federal
judiciary. That Congress would threaten to impeach Federal
judges because of the substance of their constitutional
decisions is itself an abuse of power and one which our system
of Government cannot tolerate.
Other than that, I remain open-minded on this bill. Thank
you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Berman. And your voice was
running out concurrent with the 5 minutes, I think.
Let me say that we have been joined by a colleague of ours
from Alabama, Representative Aderholt. And I am going to
recognize him to introduce a former colleague of ours and a
constituent of his, and then I will proceed to introduce the
remaining witnesses. Representative Aderholt.
Ms. Lofgren. Could I just very quickly--I don't have an
opening statement, but I do have--I am hosting a briefing at
the Science Committee at 5:00, and I wanted to apologize to the
witnesses. I have read the testimony.
Mr. Smith. I didn't see that the gentlewoman was seeking to
be recognized. But she is. And are you--but you are not seeking
to make an opening statement?
Ms. Lofgren. No. I am just apologizing to the witnesses in
advance, and letting them know I have read the written
testimony, and I appreciate it and I can't get out of my 5:00
meeting.
Mr. Smith. Okay. Thank you.
Representative Aderholt.
Mr. Aderholt. Good afternoon, Chairman Smith, Members of
the Subcommittee, distinguished guests, and members of the
public. I thank you for this opportunity to join in with you
here in the Judiciary Committee to introduce the Former Chief
Justice of the Alabama Supreme Court, Roy Moore.
Judge Moore has been at the heart of controversy
surrounding the display of the Ten Commandments in the State of
Alabama. Anyone who has followed the series of events regarding
the public display of the Ten Commandments in Alabama knows Roy
Moore.
Many Government buildings across the Nation have displayed
the Ten Commandments since this Nation was born as a reminder
that the laws of this Nation acknowledge God as a sovereign
source of law and liberty. Shortly after being appointed
circuit judge, Roy Moore displayed a copy of the Ten
Commandments in his assigned courtroom at the Etowah County
Courthouse. He did this without fanfare or a desire for media
attention.
The acknowledgment of God has been at the heart of the top
Government that was set in place by our Founding Fathers going
back to the 1700's. A brief reading of the writings of the
Founders on the way they incorporated opening prayer for the
United States House of Representatives and the United States
Senate are clear examples that our laws were built on this type
of acknowledgment. It is that acknowledgment that has set the
United States of America apart from all other republics in the
history of man kind.
I say acknowledgment of God because acknowledgment of God
should not be confused with the establishment of religion. I
think everyone here agrees that establishment of religion was
not favored by the Founders just as it is not favored by those
who will be testifying this afternoon.
The legislation that is at the focus today is the
Constitutional Restoration Act, H.R. 3799. Since there has been
hostility toward even the acknowledgment of God over the past
several years by the Federal courts, this legislation would
remove from the jurisdiction of the Federal court system any
case involving acknowledgment of God by a public official. The
acknowledgment of God as a sovereign source of law, liberty,
and Government is contained within the Declaration of
Independence which is cited as the organic law of our country
by the United States Code Annotated.
Furthermore, the Constitution of every State in the union
acknowledges God and his sovereignty as do the three branches
of the Federal Government.
The Constitutional Restoration Act, which will be discussed
by Judge Moore, would restore the balance of power among the
various branches of Government and restore the fundamental
precepts upon which our Constitution and Government is based.
To prohibit a State official from acknowledging God is a
violation of the tenth amendment as well as the first amendment
of the United States Constitution as completely contrary to the
intent of our Founding Fathers. Because of the comprehensive
nature of this legislation, it addresses several issues, such
as the pledge, the Ten Commandments, our national motto, ``In
God We Trust.'' and other acknowledgments of God. The public
recognition of God by State and Federal authorities exist today
in oaths, mottos, documents, prayers, monuments, and various
other medium.
Judge Moore is a native of Etowah County, Alabama. He
graduated from Etowah High School in 1965 and obtained a
bachelor of science degree in 1969 from the United States
Military Academy at West Point. After military service, Judge
Moore returned to Alabama where he completed his juris
doctorate degree in 1977 from the University Alabama school of
law. Judge Moore served our country as captain in the military
police corps of the United States Army. During his professional
career, he became the first full-time deputy district attorney
in Etowah County and served in this position from 1977 until
1982.
In 1984, he undertook private practice in the city of
Gadsden until his appointment to the circuit bench in 1992.
Judge Moore served in this capacity until his election as chief
justice of the Supreme Court of Alabama in November of 2000,
where he served until 2000--November of 2003. Judge Moore
currently travels throughout the United States speaking about
America's history and our right to acknowledge God. He also
serves as chairman of the Moral Law Foundation, an organization
in Montgomery, Alabama dedicated to the defending of the public
acknowledgment of God.
I think the Committee will find Judge Moore's testimony
enlightening this afternoon, and see that this is an issue that
Judge Moore believes in with all sincerity.
Mr. Smith. Thank you, Mr. Aderholt. And let me say, you are
welcome to stay and join us and listen to the hearing as well.
Mr. Aderholt. Thank you.
Mr. Smith. Our next witness is the Honorable William E.
Dannemeyer, an alumnus of our Committee while a Member of
Congress from 1979 to 1992. He also served on the Budget and
Energy and Commerce Committees, and chaired the Republican
Study Committee. Mr. Dannemeyer worked as a special agent in
the Army counterintelligence corps during the Korean War. He
has also practiced law and served as the deputy district
attorney, a State judge, and a member of the California State
assembly. Mr. Dannemeyer is a graduate of Valparaiso University
and the Hastings college of law.
Our next witness is Professor Arthur D. Hellman of the
Pittsburgh school of law. He possesses expertise in the areas
of Federal courts and constitutional law, and is a familiar
witness to Members of our Subcommittee. Professor Hellman
received his bachelor's degree from Harvard with high honors
and his law degree from Yale.
Our last witness is Michael J. Gerhardt, professor of law
at William and Mary, who is currently a visiting professor of
law at the University of Minnesota. He is the author of several
books, including The Federal Impeachment Process. Professor
Gerhardt has served as a special consultant to the National
Commission on Judicial Discipline and Removal, and the 1992
presidential transition team. He has also taught law at
Princeton, Cornell, and Duke. Professor Gerhardt received his
bachelor's degree from Yale, a master's from the London School
of Economics, and a law degree from the University of Chicago.
We welcome you all. And as I mentioned a while ago, your
full testimony will be made a part of the record. It is a
tradition with the full Committee and with the Subcommittee
that we swear in witnesses, so I would like to ask you all to
stand and take the oath. If you will raise your right hand,
please.
[witnesses sworn.]
Mr. Smith. Thank you. Please take your seats.
Professor Gerhardt, we are going to begin with you.
STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW, WILLIAM &
MARY LAW SCHOOL
Mr. Gerhardt. Thank you very much, Mr. Chairman; and also
thank you to Congressman Berman and the whole Subcommittee for
the great privilege of being able to appear today.
You have my written statement, and I won't try your
patience by going through it in any detail here. But it does
amplify some of the points that I hope to make briefly right
now.
As I have suggested, one of the things that struck me when
I first read the Constitution Restoration Act of 2004 was a
quote from Justice Antonin Scalia. In his prescient dissent in
Morrison versus Olsen, Justice Scalia described the Independent
Counsel Act as a wolf that comes as a wolf. And my concern with
this statute is that this statute comes as a wolf before this
Committee. It is very clear what the purpose of this statute
is, and at least to me I think it is very clear the
constitutional problems with it.
Very briefly, the first is that it attempts to dilute
several constitutional precedents of article III courts. As we
all know, there are only two ways in which to overturn or to
eradicate article III courts' decisions that we don't like. One
is by constitutional amendment, and the other is by asking the
courts that rendered them to overturn them. In a case of an
inferior court and a superior court, the superior court might
reverse the lower court. But this statute, of course, doesn't
satisfy those conditions. This statute, by its very name, I
think, is attempting to do something that is only permissible
through those means I just described. If there are any problems
with the particular precedents of article III courts, they
cannot be, as I said, diluted or diminished by statutory means.
And by requiring that--or by allowing every State court the
judge not to be bound by precedents that might touch upon the
substance of this Act, I think this Act essentially allows
State courts to have final word on the application of the
United States Supreme Court precedent. And I don't think that's
consistent with the United States Constitution.
Secondly, I think the Act does intrude upon the core
functioning of article III judges. That core functioning does
include the power to say what the law is, and the power to say
what the law is includes within it the power to determine
appropriate sources on which to rely. Reference to, for
example, a foreign law, might well arise or might well be
appropriate in the course of constitution adjudication. We have
seen that reliance, for example, in Bowers versus Hardwick, we
have seen it in very few other cases. One of the few other
cases in which we do see it is Lawrence v. Texas.
But as Congressman Berman just pointed out, the application
of this statute would allow for, I think, a use of impeachment
that goes far beyond anything the Framers of the Constitution
permit. I don't think that it is appropriate for people to be
impeached and removed from office because of something they
have written or declared in the course of rendering a judicial
opinion. That exercise of power, that act lies well within the
core functioning of an article III judge, and the judiciary is
constitutionally independent from political interference.
Moreover, this Act, I think, does raise some problems under
the fifth amendment due process clause. That clause, at the
very least, would require a neutral justification for this Act,
and I am at a loss to know what that neutral justification is.
As far as I can tell, the objective or the animating force
behind this Act is distrust of the Federal judiciary, and I
don't think that's an appropriate objective for Congress to
pursue through statutory means.
There are other difficulties with this statute, but, of
course, I have limited time, and I am happy to amplify those
later. Thank you.
Mr. Smith. Thank you, Professor Gerhardt.
[The prepared statement of Mr. Gerhardt follows:]
Prepared Statement of Michael J. Gerhardt
I appreciate greatly the honor and privilege of being allowed to
participate in today's hearing on ``The Constitution Restoration Act of
2004'' (hereafter ``the Act''). I understand the purpose of today's
hearing is to examine the constitutionality of Congress' power to limit
all federal jurisdiction with respect to ``any matter to the extent
relief is sought against an element of Federal, State, or local
government, or against an officer of Federal, State, or local
government (whether or not acting in official capacity), by reason of
that element's or officer's acknowledgment of G-d as the sovereign
source of law, liberty, or government.'' As I pondered the
constitutionality of this proposed bill, I could not help but think of
Justice Antonin Scalia's prescient defense in Morrison v. Olsen.\1\
There, in a memorable turn of phrase, he denounced the now-defunct
Independent Counsel Act as ``a wolf that comes as a wolf.'' \2\ With
all due respect, I think that the same could be said of the
``Constitution Restoration Act of 2004.'' It is a wolf that comes
before this Subcommittee as wolf. The name of the Act alone admit to an
unconstitutional objective; Congress has no constitutional authority to
overturn, or dilute, the constitutional opinions of Article III courts
through any of its legislative powers. This bill is a transparent
attempt to diminish if not eliminate the status of certain
constitutional decisions of Article III courts as constitutional law,
to weaken the independence of the federal judiciary, and to subject
certain constitutional claims and claimants to disparate treatment.
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\1\ 487 U.S. 654 (1988).
\2\ Id. at 698 (Scalia, J., dissenting).
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In my opinion, there is nothing magical about Congress' power to
regulate federal jurisdiction. It is tempting to construe this power as
unlimited; it has never been clear whether Article III sets any limits
on this power. Scholars have long disagreed about whether Article III
imposes any so-called ``internal'' constraints on the Congress' power
to regulate federal jurisdiction. But it is a major mistake to read
Article III as if the only constraints on it are those that may be set
forth in Article III. It is a further mistake to read it as if it were
not affected by subsequent constitutional amendments. Both the Fifth
Amendment Due Process Clause and its equal protection component
constrain how Congress may withdraw federal jurisdiction. There is no
question, for instance, it may not force African-Americans, women, or
Jews to litigate their constitutional claims in state courts, while
leaving everyone else access to Article III courts for their
constitutional claims.
It should go without saying that the Congress has no unlimited
powers. Nor, for that matter, do any other constitutional actors have
unlimited powers. Congress' power to regulate federal jurisdiction is
subject to the same constitutional limitations as every other plenary
power, even those pertaining to war. If the invocation of the war
powers were not a ``blank check'' to do as Congress or the President
pleases (as Justice O'Connor declared at the end of last Term), this is
no less true for every other power, including the power to regulate
federal jurisdiction. Consequently, the latter is subject to separation
of powers and federalism limitations and to the individual rights
guarantees set forth in the Bill of Rights.
An especially troubling aspect of this bill is that it appears to
lack a legitimate objective. At the very least, the Fifth Amendment
requires that every congressional enactment must at least have a
legitimate objective, but it is not possible to find one for the Act.
It is motivated by distrust of the federal judiciary. Distrust of the
federal judiciary is, however, not a legitimate objective. Nor is
either disagreement with certain constitutional precedents of the
courts or a desire to displace those decisions a legitimate objective.
Under our Constitution, the federal judiciary is 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 Subcommittee to do
as its illustrious predecessors have done in recognizing the benefits
of our constitutional systems of separation of powers, federalism, and
due process far outweigh whatever their costs. Below, I explain the
principal grounds on which I believe this proposed bill is
unconstitutional.
I.
GENERAL PRINCIPLES
A few general principles should guide our consideration of the
constitutionality of the Constitution Restoration Act of 2004. I
discuss each briefly before considering how the proposed bill threatens
each of them.
A. The Constitution Restricts the Means by which Article III
Courts' Constitutional Decisions May Be Overturned. The United States
Constitution allows the decisions of Article III courts on
constitutional issues to be overturned 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 superior court or by a court's overruling its own
decisions. Since the Constitution places the Supreme Court at the apex
of the federal judicial system, it has no superior; it is the only
Article III court that may overturn its constitutional decisions. And
it has done so expressly in more than a 150 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 Supreme Court--or any other
court, for that matter--to reconsider a constitutional decision.
It follows that the Congress may not, even through the exercise of
its plenary power to regulate federal jurisdiction, to overrule a
federal court's decision on constitutional law or to require inferior
courts not to follow it. Nor, for that matter, may Congress direct the
Court to ignore, or not to rely on or make reference to, some of its
constitutional opinions. 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 override
substantive judicial decisions. See, e.g., City of Boerne v. Flores,\3\
Dickerson v. United States,\4\ and Eichman v. United States.\5\
Efforts, taken in response to or retaliation against judicial
decisions, to withdraw all federal jurisdiction 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 restricting judicial review with respect to certain war-time
measures, but I am unaware of any jurisdiction-stripping proposals
pending in the House designed to protect national security.
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\3\ 521 U.S. 507 (1997).
\4\ 530 U.S. 428 (2000).
\5\ 496 U.S. 310 (1990).
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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.
Indeed, the Fifth Amendment Due Process requires that the Congress must
have a neutral justification, or legitimate objective, for every piece
of legislation that it enacts. While national security and promoting
the efficiency of the federal courts qualify plainly as neutral
justifications, distrust of the federal judiciary does not.
B. Constitutional Precedents Have the Status of Constitutional Law.
It is tempting to think that when the Supreme Court makes a mistake
that its mistake is not entitled to inclusion as a part of
constitutional law. The mistake is to yield to this temptation. The
fact is that the major sources of constitutional meaning--text,
original understanding, structure, and historical practice--support
treating all the Supreme Court's constitutional opinions as
constitutional law, which only may be altered in by either a
constitutional amendment or the Court's change of mind.
First, the Constitution extends ``the judicial Power'' of the
United States over certain ``cases'' or ``controversies.'' Judicially
decided cases or controversies constitute precedents. Article V sets
forth the requirements for the ratifications of amendments overturning
erroneous precedents. The fact that amendments have been
chronologically added to the Constitution, rather than integrated
within the original text (with appropriate deletions), suggests that
constitutional law remains static unless or until such time as
amendments are ratified.
Second, ``the judicial Power'' set forth in Article III of the
Constitution was understood historically to include a power to create
precedents of some degree of binding force. In Federalist Number 78,
Alexander Hamilton specifically referred to rules of precedent and
their essential connection to the judicial power of the United States:
``To avoid an arbitrary discretion in the courts, it is indispensable
that they should be bound by strict rules and precedents . . .''
Indeed, legal scholars have found that the doctrine of precedent either
was established or becoming established in state courts by the time of
the Constitutional Convention.'' \6\ The framers, in other words, were
familiar with reliance on precedent as a source of constitutional
decision.
---------------------------------------------------------------------------
\6\ See, e.g., Morton J. Horwitz, The Transformation of American
Law, 1780-1860, at 8-9 (1977). See also Thomas Lee, Stare Decisis in
Historical Perspective: From the Founding Era to the Rehnquist Court,
52 Vand. L. Rev. 647, 659 (1999) (``legal historians generally agree
that the doctrine of stare decisis [was] of relatively recent origin''
at the time of the Founding and had begun to resemble its modern form
only during the eighteenth century).
---------------------------------------------------------------------------
Third, historical practices uniformly support treating precedents
as constitutional law and thus unalterable except through extraordinary
constitutional mechanisms. As one of my colleagues and a distinguished
critic of the doctrine of stare decisis has acknowledged, ``the idea
that `the judicial Power' establishes precedents as binding law,
obligatory in future cases,'' traces at least to the early nineteenth
century, ``perhaps presaged by certain Marshall Court opinions.'' \7\
Another commentator recently found that the framers rejected ``the
notion of a diminished standard of deference to constitutional
precedent'' as distinguished from common-law precedents.'' Justice
Joseph Story agreed that the ``conclusive effect of [constitutional
adjudication] was in the full view of the Framers of the
Constitution.''
---------------------------------------------------------------------------
\7\ Michael Stokes Paulsen, Abrogating Stare Decisis by Statute:
May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale
L.J. 1535,1578 n.115 (2000).
---------------------------------------------------------------------------
Fourth, constitutional structure supports the status of
constitutional precedents as constitutional law. As one of the nation's
foremost authorities on constitutional law and federal jurisdiction,
Richard Fallon of Harvard Law School, has observed, ``Under the
Constitution, the judiciary, like the executive branch, has certain
core powers not subject to congressional regulation under the Necessary
and Proper Clause. For example, it is settled that the judicial power
to resolve cases encompasses a power to invest judgments with
`finality'; congressional legislation purporting to reopen final
judgments therefore violate Article III. And there can be little doubt
that the Constitution makes Supreme Court precedents binding on lower
courts. If higher court precedents bind lower courts, there is no
structural anomaly in the view that judicial precedents also enjoy
limited constitutional authority in the courts that rendered them.''
\8\
---------------------------------------------------------------------------
\8\ Richard H. Fallon, Jr., Stare Decisis and the Constitution: An
Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 579 (2001)
(footnotes and citations omitted).
---------------------------------------------------------------------------
It follows that any attempt by the Congress to dilute the authority
of Supreme Court opinions on constitutional law within the federal
court system would be plainly unconstitutional. Congress could not, for
instance, enact a statute directing the Court either to ignore its
precedents on abortion rights as a source of decision altogether or to
forego ever reconsidering certain 11th amendment precedents. Either
enactment would be unconstitutional.
C. The Constitution Guarantees The Independence of Federal Judges
from Political Reprisals. The Constitution vests Article III judges and
justices with life tenure and undiminished compensation in order to
ensure that they may decide cases or controversies without fear of
political retaliation. The independence from political reprisals that
federal judges enjoy includes the authority to prioritize sources of
constitutional meaning. This authority is at the core of the judicial
function. As Professor Fallon has argued, ``The power to say what the
Constitution means or requires--recognized in Marbury v. Madison--
implies a power to determine the sources on which constitutional
rulings may properly rest. To recognize a congressional power to
determine the weight to be accorded to [the Court's] precedent--no less
than to recognize congressional authority to prescribe the significance
that should attach to the original understanding--would infringe that
core judicial function.'' \9\
---------------------------------------------------------------------------
\9\ Id. at 592.
---------------------------------------------------------------------------
D. The Supreme Court is Essential for Ensuring the Uniformity and
Finality of Constitutional Law. Referring to the Court's decision in
Martin v. Hunter's Lessee,\10\ Justice Oliver Wendell Holmes remarked,
``I do not think that the United States would come to an end if we
[judges] lost our power to declare an Act of Congress void. I do think
that the Union would be imperiled if we could not make that declaration
as to the laws of the several states.'' \11\ Without the authority to
review state court judgments on federal law recognized in Martin (and
ever since), there would be no means by which to ensure uniformity and
finality in the application of federal law across the United States.
This would be particularly disastrous for constitutional law. Federal
rights, for instance, would cease to mean the same thing in every
state. States could dilute or refuse to recognize these rights without
any fear of reversal; they would have no incentive to follow the same
constitutional law. Indeed, many state court judges are subject to
majoritarian pressure to rule against federal rights, particularly
those whose enforcement would result in a diminishment in state
sovereignty. The Fourteenth Amendment would amount to nothing if
Congress were to leave to state courts alone the discretion to
recognize and vindicate the rights guaranteed by the Fourteenth
Amendment. Judicial review within the federal courts is indispensable
to the uniform, resolute, final application of federal rights protected
by the Fourteenth Amendment.
---------------------------------------------------------------------------
\10\ 14 U.S. (1 Wheat.) 304 (1816).
\11\ Oliver Wendell Holmes, Collected Papers 295-96 (1920).
---------------------------------------------------------------------------
In effect, the Constitution Restoration Act of 2004 allows the
highest courts in each of the fifty states to become the courts of last
resort within the federal judicial system for interpreting, enforcing,
or adjudicating certain claims under the Establishment and Free
Exercise Clauses. This Act allows different state courts to reach
different conclusions regarding the viability of various claims
differently, without any possibility of review in a higher tribunal to
resolve conflicts among the states. Thus, the Act precludes any
finality and uniformity across the nation in the enforcement and
interpretation of the affected rights.
An equally troubling aspect of the bill is its implications for the
future of judicial review. The Constitution does not allow the Congress
to 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.'' 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.
II.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES SEPARATION OF POWERS
With the aforementioned principles in mind, I believe that the
Constitution Restoration Act violates separation of powers in several
ways. First, it attempts to dilute several constitutional precedents of
the Supreme Court, the Eleventh Circuit (on the Ten Commandments), and
the Ninth Circuit (on the Pledge of Allegiance). Part III, Section 301
of the Act, provides that ``Any decision of a Federal court which has
been made prior to or after the effective date of this Act, to the
extent that the decision relates to an issue removed from Federal
jurisdiction under section 1260 or 1370 of title 28, United States
Code, as added by this Act, is not binding precedent on any state
court.'' The Supreme Court no doubt qualifies as one of the federal
courts covered by this provision. In previous cases, the Supreme Court
has held that posting the Ten Commandments in public school classrooms
violates the First Amendment,\12\ that mandatory school prayer is
unconstitutional,\13\ and that students may not be required to recite
the Pledge of Allegiance.\14\ The Constitution Restoration Act allows
state courts to ignore each of these precedents. Indeed, this is the
purpose of the Act. Moreover, it invites state courts to overturn these
precedents. State courts could, for instance, choose simply to post the
Ten Commandments and allow mandatory school prayer or mandatory
recitation of the Pledge of Allegiance, without any fear the Court
might order them to comply with its precedents. The precedents will
lose their constitutional significance.
---------------------------------------------------------------------------
\12\ See Stone v. Graham, 449 U.S. 39 (1980).
\13\ See, e.g., Engel v. Vitale, 370 U.S. 421 (1962).
\14\ See West Virginia Board of Education v. Barnette, 319 U.S. 624
(1943).
---------------------------------------------------------------------------
Second, Title II, section 201 of the Act, provides that in
constitutional adjudication ``a court of the United States may not rely
upon any constitution, law, administrative rule, Executive order,
directive, policy, judicial decision, or any other action of any
foreign state or international organization or agency, other than the
constitutional law and English common law.'' This provision is almost
certainly unconstitutional, because it interferes with the core
function of federal judges to decide for themselves on how much weight
to attach to particular sources of constitutional meaning. In almost
every instance in which Supreme Court justices have referenced foreign
law in their constitutional opinions, the justices' reliance on foreign
law has been de minimis. In those few instances, they took great pains
to explain that they have attached no, or little, weight to the foreign
law referenced in their opinions. Moreover, some foreign law is
arguably pertinent to constitutional interpretation; for instance, the
bill mentions ``English common law'' as being relevant to
constitutional interpretation but does not mention some precedents from
classical antiquity on which some Framers relied in fashioning certain
parts of the Constitution, such as separation of powers.\15\
---------------------------------------------------------------------------
\15\ The leading expert on this question is David Bederman of Emory
Law School. He has just completed a manuscript of a forthcoming book on
the influence of ancient precedents in the drafting and ratification of
the Constitution.
---------------------------------------------------------------------------
Third, Section 302 of Title III of the Act declares that ``any
activity'' by a federal judge ``that exceeds the jurisdiction of the
court of that judge or justice, as the case may be, by reason of
section 1260 or 1370 of title 28, United States Code, as added by this
Act,'' is ``deemed to constitute the commission of'' an impeachable
offense. This provision is constitutionally problematic for many
reasons. To begin with, ``any activity'' might include striking down
the Act as unconstitutional. If, for instance, the Supreme Court struck
the law down, then the House will have to determine whether it must
then impeach the offending majority, perhaps the entire Court itself. I
do not believe that such a result is at all consistent with our
constitutional traditions, historical practices, and structure,
including our cherished notion of judicial independence.
Nor does the Act qualify how much reliance on foreign law is
unacceptable. It seems outlandish to treat minimal reliance on foreign
law as constituting the grounds for a judge's removal from office.
Though the Act allows judges and justices to rely on
``constitutional law'' in interpreting the Constitution, the Act does
not define the terms. While some members of Congress might reach
different conclusions than some justices about both the appropriate
sources of constitutional meaning and how much weight to attach to
them, the opposite holds true as well: Justices are not, nor may they
be required, to comply with the directives of Congress on which
constitutional conclusions they may reach, which sources they may
consult, or how much weight they ought to attach to these sources.
Moreover, it is difficult, if not impossible, to make a judge's bad
decision grounds for his or her impeachment.\16\ Judicial independence
requires relatively wide latitude of discretion in determining how to
prioritize sources of decision. Indeed, this independence is an
important feature within the appellate system, which is designed in
part to correct judicial errors. Bad decisions may be appealed, and
they may be overturned on appeal. They may also be overturned by
constitutional amendment. So, it is not clear why impeachment is
required to check these mistakes. I assume that some think it necessary
to correct mistakes that cannot be corrected by these other means. But
if the decisions are made by a group of judges or justices, then the
entire group would have to be removed. I know of no source of
constitutional meaning that would support such an outlandish outcome.
The fact that the Congress has never impeached and removed a group of
judges for a collective decision is telling. If, however, dissenting
justices have made the bad decisions, then it seems silly to impeach
them, because their decisions carry remarkable little weight in
constitutional law. The same would be true for many, if not most, sole
concurrences.
---------------------------------------------------------------------------
\16\ A few years ago I had the opportunity explore in depth the
question about whether Article III judges may be impeached and removed
for their decisions. See Michael J. Gerhardt, Chancellor Kent and the
Search for the Elements of Impeachable Offenses, 74 Chi.-Kent L. Rev.
91 (1998).
---------------------------------------------------------------------------
Applying this Act to real cases produces disturbing results. For
instance, if the Act were strictly interpreted, then the majority in
Bowers v. Hardwick \17\ should have all been subject to impeachment for
relying on the Judeo-Christian tradition and the history of Western
civilization in reaching their conclusion. The reference to the Judeo-
Christian tradition and Western civilization was made to rebut the
argument that there was a tradition of not criminalizing homosexual
sodomy, and it is this reference that prompted Justice Kennedy in
Lawrence v. Texas \18\ to reference European law. Thus, a strict
reading of the Act would allow not only the impeachment and removal of
the majority in Bowers but also the justices who joined Justice
Kennedy's opinion in Lawrence.
---------------------------------------------------------------------------
\17\ 478 U.S. 186 (1986).
\18\ 539 U.S. 558 (2003).
---------------------------------------------------------------------------
I believe the justices in both those cases acted in good faith. An
impeachable offense requires both mens reus (a criminal intent) and
actus reus (a bad act); and it is impossible to prove that the justices
in both Bowers and Lawrence not only acted in bad fath but had the
requisite malicious intent to deviate from the Constitution.
III.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES EQUAL PROTECTION
I have no doubt that the Constitution Restoration Act of 2004
violates 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. The Constitution
Restoration Act of 2004 does both.
First, the Constitution Restoration Act of 2004 may be based on a
suspect classification. The natural plaintiffs to challenge this law
may be people who belong to particular religious faiths which do not
believe in paying homage to idols, such as Jehovah's Witnesses and
Seventh Day Adventists; people who do not want the state to tell them
how and when to pray (and may adhere to particular religious faiths);
or people, such as atheists, who do not believe in G-d. Each group has
a claim to being a suspect class, because each is defined by virtue of
its exercise of a fundamental right. Government needs a compelling
justification to burden a suspect class, but mistrust of ``unelected
judges'' is not a compelling justification.
Even if there were no suspect class burdened by the Act and only
the rational basis test had to be satisfied, a court might conclude
that the Act does not even satisfy that standard. The bill lacks a
neutral justification. Distrust of federal judges is inconsistent with
the very structure of our Constitution. While the Act also purports to
be promoting federalism, federalism is the term we use to refer to the
complex relationship between the federal and state governments. This
term encompasses not just states rights but also the power of the
federal judiciary to review state action. Federalism limits what the
Congress may do, even with respect to regulating federal jurisdiction.
It limits what Congress may do to enhance state sovereignty at the
expense of the federal judiciary.
IV.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES THE FIFTH AMENDMENT
DUE PROCESS CLAUSE
In all likelihood, the Constitution Restoration Act of 2004
violates 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.\19\
---------------------------------------------------------------------------
\19\ See Martin v. Hunters' Lessee, 14 U.S. 304 (1816).
---------------------------------------------------------------------------
Excluding all federal jurisdiction with respect to particular
federal claims forces people seeking to vindicate those rights in state
courts, which are often thought to be hostile or unsympathetic to such
claims. 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.
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.'' The
Court has further 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.
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. 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 all jurisdiction over
particular classes of constitutional claims.
V.
CONSTITUTIONAL STRUCTURE FURTHER BARS CONGRESS FROM ELIMINATING FEDERAL
JURISDICTION OVER CLAIMS AGAINST FEDERAL OFFICIALS
Another aspect of federalism, to which I have alluded, is that it
is not just concerned with protecting the states from federal
encroachments. It also protects the federal government and officials
from state encroachments. In a classic decision in Tarble's Case,\20\
the Supreme Court held that the Constitution precluded state judges
from adjudicating federal officials' compliance with state habeas laws.
The prospect of state judges exercising authority over federal
officials is not consistent with the structure of the Constitution.
They could then direct, or impede, the exercise of federal power. The
Act allows, however, state courts to do this. By stripping all federal
jurisdiction over certain claims against federal officials, the Act
leaves only state courts with jurisdiction over claims brought against
those officials. The popular will might lead state judges to be
disposed to be hostile to federal claims or federal officials.
Hostility to the federal claims poses problems with the Fifth
Amendment, while hostility to federal officials poses serious
federalism difficulties.
---------------------------------------------------------------------------
\20\ 80 U.S. (13 Wall.) 197 (1871).
---------------------------------------------------------------------------
______
Beyond the constitutional defects with the Constitution Restoration
Act of 2004, it may not be good policy. It may send the wrong signals
to the American people and to people around the world. It expresses
hostility to our 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. Smith. Professor Hellman.
STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW
Mr. Hellman. Thank you, Mr. Chairman.
Any citizen who cares deeply about public affairs and
particularly about the role of Government in the life of the
nation is going to experience frustration from time to time
with decisions handed down by the Federal courts. The sponsors
of H.R. 3799 plainly feel a great deal of frustration with
certain decisions interpreting the establishment clause as well
as decisions in which courts have relied on foreign law. And
Members of this Subcommittee may share those views. But however
much you might disagree with those court decisions, this bill
is not an appropriate response. Most of its provisions--not all
of them, but most of them--are unconstitutional.
And the bill as a whole is bad public policy because it
seeks to impair the independence of the judiciary, an
independence that has been forged through 200 years of history
and also a set of traditions that have served this Nation well.
I will begin with what is the most radical provision of the
bill, section 302. That is the impeachment provision that Mr.
Berman and Professor Gerhardt have referred to. It seems to me
that this is something the Constitution just doesn't allow
Congress to do. Now, the Constitution doesn't say that in so
many words, but it does say that Congress cannot dock the pay
of judges because they don't like their decisions, not even 1
percent. And the reason the Framers put that in the
Constitution is that they thought it was essential to have an
independent judiciary. And what they meant by that was a
judiciary not beholden to Congress.
Well, if you can't reduce their salary by even 1 percent
for decisions that you disagree with, how could it be
constitutional to impeach and remove them from office?
In addition to the text, we have guidance from tradition,
and the authoritative expositor of that tradition is Chief
Justice Rehnquist in his book Grand Inquests, and I have
included some extracts from that in my statement.
The second mechanism for enforcement is the section 301,
which says that decisions made by Federal courts contrary to
this bill, before or after it, are not binding precedents. And
it seems to me that that's plainly unconstitutional under the
decision just 4 years ago in Dickerson, a decision written by
the Chief Justice saying that Congress does not have the power
to legislatively supersede the Supreme Court's decisions
interpreting and applying the Constitution. But that is just
what this provision attempts to do.
I think that Dickerson also dictates the
unconstitutionality of the provision on foreign law, although I
don't think you need Dickerson for that. I think all you have
to do is to read Marbury v. Madison, the foundational decision
of American constitutional law, and the familiar statement that
it is emphatically the province and duty of the judicial
department to say what the law is.
Now, that brings me to the two jurisdictional provisions of
the bill. I believe that those two jurisdictional provisions
raise very different issues. The provision on the Supreme Court
appellate jurisdiction I think is a very closely balanced
constitutional question, and perhaps we can get to that during
the questions.
On the other side, I think that the bill--the provisions of
the bill on district court jurisdiction are constitutional;
that the Congress is not required to have Federal courts, and
Congress has very wide discretion in deciding which kinds of
matters to vest in the jurisdiction of the Federal courts. But
to say that a provision, or perhaps two of them are
constitutional is not to say that they are good policy, and
they are not.
There have been many bills like this over the past 50
years. None have been enacted. And I think that that history
has established a tradition almost as strong as the one that
Chief Justice Rehnquist discussed with respect to impeachment.
There is more that could be said about the particular
provisions, but I will close with these thoughts: Ours is a
pluralistic nation. We are closely divided on many issues.
What that means is that depending on the time and the
circumstances, anyone can be part of a minority. And the
availability of an independent Federal court with power to hear
everyone's constitutional claims is a source of reassurance to
all of us. For that reason and for the others I have indicated,
Congress, and in this--in the first instance this Subcommittee,
should adhere to these long and valuable traditions and should
reject this bill in its entirety. Thank you.
Mr. Smith. Thank you, Professor Hellman.
[The prepared statement of Mr. Hellman follows:]
Prepared Statement of Arthur D. Hellman
Mr. Smith. Representative Dannemeyer.
STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER, MEMBER OF
CONGRESS, 1979 TO 1992
Mr. Dannemeyer. Thank you.
Mr. Chairman and Members of the Subcommittee, I think we
need to really recognize what the issue is today: Do the
political leaders of this country, you elected Members, have
the courage to acknowledge that God exists as the means whereby
we teach the next generation in this country in our public
schools?
Now, that acknowledgment of God is totally different from a
religion. A religion is man's effort to reach God; but God's
effort to reach us and his word, the Bible, which is the basis
upon which this Nation was founded, was the philosophy that our
political leaders followed until about a little after World War
II. And, today, we have a majority of justices on the U.S.
Supreme Court, sadly for all of us, who really have established
a religion for America called secular humanism which says there
is no God.
That is why we are here. And you Members have the authority
under article III, section 2, to cut it out, and to tell those
nine distinguished folk across the street where the line is.
And the line is that America's a people who says that God
exists who created rules for man to live by. Not a religion,
but an acknowledgment of basis of God, the basis of Judaism,
Muslim, and Christianity, throughout history. We should be able
to come together on that affirmation.
Now, among the papers that I've filed with you is a letter
signed by representatives of 27 organizations across this
country that really are asking Congress to adopt legislation of
the type now pending before you. I won't take my time to read
all the names, but believe me, almost all of the people active
in the evangelical community of this country are asking
Congress to adopt this legislation.
As to article III, section 2, there is nothing novel about
it, also in this packet of information that I filed with this
Committee. Congress used this authority 12 times in the last
Congress. One of note is, of course, by Senator Daschle of
South Dakota that used it as a means of cutting down some trees
assertedly to assist one of his colleagues in his reelection
campaign. He was wise enough to understand that Congress can
pass the law, but the moment somebody doesn't like it, they go
to a Federal court and get an injunction; and so he put a
provision in that bill that says this cannot be taken to the
Federal court.
Now, I have passed out to you a book who I believe is one
of the greatest scholars on this issue is David Barton of
Texas. He has worked on a group called Americans for Voluntary
School Prayer, was co-chairman of that group. He has written a
book, and I have got a copy here that I have left with you. And
on page 9 to 11, if you have time, you can read, court rulings
that have really prevented the free exercise of religious
thought in this country. And also on pages 11 to 14, decisions
by public officials prohibiting the free exercise by people,
among them the valedictorian of a public high school,
graduating class, should be able publicly to State his or her
religious convictions, whatever they happen to be, even though
they may be out of synch with some Federal judge in this area.
And then, lastly, let me just say that, you know, the
American people are totally with us by a big majority. This may
come to a shock to my friend from California, Mr. Berman. About
75 percent of the American people want this legislation to be
adopted. And the questions for all of you who are elected
Members of Congress: Why are we taking so long to get it done?
So that's the pitch that I want to share with you today,
and I thank you very much for this time.
Mr. Smith. Thank you, Representative Dannemeyer.
[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
principal author of the Declaration of Independence and James Madison
as the father of the U.S. Constitution. Our founding fathers created a
federal system of three branches--executive, legislative and judicial.
The system was not designed to be efficient; on the contrary, the
checks and balances of these branches of government, as they struggled
for power, were designed to provide the best chance of preserving
freedom for the people of America.
On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed
that of the three branches of government, the one he feared the most
was the federal judiciary: ``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. Here's a brief
sampling:
Enacting ``a wall of separation between church and
state''; Everson vs. Board of Education, 1947.
Banning nondenominational prayer from public schools;
Engel vs. Vitale, 1962.
Removing the Ten Commandments from public school
walls; Stone vs. Graham, 1980.
Striking down a ``period of silence not to exceed one
minute . . . for mediation or voluntary prayer''; Wallace vs.
Jaffree, 1985.
Censoring creationist viewpoints when evolutionist
viewpoints are taught; Edwards vs. Aguillard, 1987.
Barring prayers at public school graduations; Lee vs.
Weisman, 1992.
On Jan. 12, Supreme Court Justice Antonin Scalia gave a speech at
Fredericksburg, Va., in which he did a rare thing for a sitting
justice: He publicly criticized decisions of the U.S. Supreme Court and
lower federal courts. The sense of his comments was that the courts
have gone overboard in keeping God out of government. He cited the
recent decision of Judge Alfred Goodwin of the 9th Circuit Court of
Appeals barring students in a public school from using the word ``God''
in the Pledge of Allegiance.
Polling data shows overwhelmingly support for legislation that
would prevent such prohibitions.
For example, in 1985, 69 percent of Americans supported school
prayer; by 1991, that number had increased to 78 percent. Similarly, in
1988, 68 percent of Americans supported a constitutional amendment to
reinstate school prayer; by 1994, that number had risen to 73 percent.
Furthermore, the public is strongly unified on the subject of
spoken--not silent--prayer. In 1995, support for spoken prayers by
students of all faiths was at 75 percent; by 2001, before the terrorist
attacks, it was at 77 percent.
Congress can correct the wrong interpretation of the 1st Amendment
by decisions of the federal judiciary in two different ways.
One method is a constitutional amendment which would apply to the
federal judiciary and to the supreme courts of the states. This, of
course, requires a two-thirds vote in the House and the Senate and the
approval of three-fourths of the states. It is a very daunting hurdle,
to say the least.
The other alternative is a statutory approach. It would require a
majority vote in the House and the Senate and the signature of the
president. It would utilize Article III, Section 2.2 of the U.S.
Constitution, which authorizes Congress to except certain subject
matter from jurisdiction of the federal courts. This authority was used
by the last Congress, the 107th, 12 different times.
Legislation using this approach has been introduced in Congress.
Sen. Wayne Allard, R-Colo., has introduced Senate Bill 1558 to
allow display of Ten Commandments and to retain ``God'' in the pledge
and ``In God We Trust'' as national motto. It uses the Article III
exception.
Rep. Ernest Istook, R-Okla., has introduced House Joint Resolution
46 with 95 co-sponsors for a constitutional amendment to allow
voluntary prayer in public schools.
Rep. Robert Aderholt, R-Ala., has introduced House Resolution 3799,
the Constitutional Restoration Act of 2004. A statute, it would allow
voluntary prayer in public schools, the display of the Ten Commandments
and keep God in the Pledge and in the National Motto. It utilizes
Article 3 Sec. 2.2.
ATTACHMENTS
Mr. Smith. Judge Moore.
STATEMENT OF THE HONORABLE ROY S. MOORE, FOUNDATION FOR MORAL
LAW, INC.
Mr. Moore. Mr. Chairman, Mr. Berman, I want you to know
that I have the greatest respect for the man sitting at this--
--
Mr. Smith. Is your microphone on, Judge Moore?
Mr. Moore. Okay. Mr. Chairman, Mr. Berman, I want you to
know I have the greatest respect for the gentlemen which have
come before me here. But entertaining as I do sentiments in
direct opposition, I hope I may be understood not to be
critical of them and their opinions. But this is a momentous
moment to our country. And, quite frankly, I'm confused. I
agree with Mr. Gerhardt that the purpose of this bill is very
clear. One can't read the simple lines of this thing without
understanding that this is about the right of State and Federal
officials to acknowledge God.
And I'm confused. I got up here this afternoon and I walked
around Washington. I passed by the Washington Monument standing
555 feet, 5 and 125/1000 inches above this city, at the top of
which is the Latin phrase, Laus Deo, ``Praise Be To God.'' It
certainly wasn't an offense to our Founding Fathers. This
Nation was founded upon a belief in God, not upon a belief in
Buddha, not upon Hinduism. Nothing in western theology or
western jurisprudence indicates otherwise. The acknowledgment
of God was not prohibited by the first amendment to the United
States Constitution. Is not then, is not now.
I walked by Oscar Straus memorial, saw a carved thing of
the Ten Commandments. At least that's what Oscar Straus said it
was. There was a woman leaning on it in prayer. Adolph Weinman
designed that. It is an exact duplicate of what hangs over the
Chief Justice of the United States Supreme Court's head; and
yet they say, if you go to the Supreme Court, that it's the
Bill of Rights. But in 1975, the United States Supreme Court
pamphlet said it was the Ten Commandments. You see, we are
erasing our history right under your noses in this Congress,
right under your watchful eye.
We are losing our right to acknowledge God as the sovereign
source. And it is very important. Our liberty of public worship
is not a concession nor a privilege, but an inherent right.
Those words are written on that monument. And that truth was
recognized that God gives us the right to be a pluralistic
society to believe what we want. That right was recognized
quite clearly in 1931 by both the minority and the majority of
the United States Supreme Court. In the case of the U.S. versus
Macintosh, it was written by Justice Sutherland for the
majority: We are Christian people, according to one another the
equal right of religious freedom and acknowledging with
reverence the duty of obedience to the will of God.
The minority, written by Chief Justice Charles Evans Hughes
said: One cannot speak of religious liberty, with proper
appreciation of its essential and historic significance,
without assuming the existence of a belief in supreme
allegiance to the will of God. Indeed, the acknowledgment of
God lies at the very basis of the first amendment.
There was another Judiciary Committee in 1853, both of the
House and the Senate which undertook objections by certain
people that wanted to eliminate chaplaincy. I have the
legislative histories here. Both the United States Senate and
House of Representatives recognized that acknowledgment of God
was essential. In the Senate, they said they did not intend to
prohibit a just expression of religious devotion by the
legislators of the Nation.
Even in their public character as legislators, they did not
intend to send our armies and navies forth to do battle for
their country without a national recognition of that God upon
whom success or future depends. They did not intend to spread
over all the public and over the whole action of the Nation,
the dead and resulting spectacle of atheistical apathy. And
that's exactly what's being spread over this country today.
The acknowledgment of God is part of our organic law. They
say this is a court stripping bill. I'm not trying and the
proponents of this bill are not trying to deny the Supreme
Court the right to say what the law is, when they improperly
interpret the law. We are not trying to interfere with the
independence of the judiciary. Indeed, they must be
independent. I was a Supreme Court Chief Justice. I believe in
independence. I'm not trying to deny judicial review. Judicial
review is a valid part of the Constitution. But that's not
judicial tyranny.
You see, the rule of law requires that we go by the written
text of the Constitution. And I defy anybody in this room, any
professor, any lawyer to stand up and tell me what religion
means under the first amendment of the United States
Constitution. Unless they go by what the Supreme Court said in
1892, in 1890, and 1878. Religion was the duties which we owe
to the creator and the manner of discharging it. James
Madison's Memorial and Remonstrance remarks. And James Madison
ought to know what the first amendment was about. He promoted
it and offered it into Congress. He said in his Memorial that,
because we hold it for a fundamental and undeniable truth that
religion or the duty which we owe to the Creator and manner of
discharging it can be directed only by reason and conviction,
not by force and violence.
The rule of law is very simple. We go by written
definition. Recently, I believe last week or not long ago you
had a football game here between the Washington Redskins and
the Tampa Bay Buccaneers. And I understand a lot of people in
Washington are big Washington Redskins fans. What would have
happened if Tampa Bay had gotten down to the five yard line,
and the time ran out and they were behind in score, but the
referee stood up and said: Touchdown; Tampa Bay, they win? They
were on the five yard line. You would run to the referee and
say, what do you mean, referee? That's not a touchdown. What
would you say if the referee said: Well, ma'am, or sir, we
don't know how to define touchdown. But, you know, we really
thought they tried to play a hard game and we felt sorry for
them and they should have won.
That's exactly what the United States Supreme Court and
Federal district court does in first amendment cases. They do
not go by the law. And there is a reason for that. They have no
law. The law is Congress, part of the Federal Government, shall
make no law respecting the establishment of religion, being the
duties we owe to the Creator and the manner of discharging it,
or prohibiting the free exercise of the duties we owe to the
Creator and the manner of discharging it. It was to keep
Federal Government out of the affairs of the State.
Mr. Smith. Judge Moore, to follow up on your football
metaphor, I'm afraid I'm going to need to call a time out. And
we will proceed with our questions. Thank you for your
testimony.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of the Honorable Roy S. Moore
Mr. Smith. Professor Hellman, let me just ask you for a
point of clarification. Did I understand you to say that you
thought Congress had the constitutional right to define
impeachable offenses, to define the jurisdiction of the Federal
courts even though you thought the bill that we are having a
hearing on today was not good public policy.
Mr. Hellman. I think the comment you are referring to is a
comment about the authority of Congress to define the
jurisdiction of a lower Federal court.
Mr. Smith. Correct.
Mr. Hellman. I think that is a very, very broad power. It
is subject, I perhaps should have added, and as Professor
Gerhardt has said, to the specific prohibitions in the
Constitution, first amendment and so forth.
But apart from those specific prohibitions, I think that
Congress has very broad power to say that this or that class of
case cannot be heard in the first instance by the district
courts.
Mr. Smith. Thank you. That's what I thought you had said.
Professor Gerhardt, I read a book over the weekend not
necessarily expecting it to have any interconnection to what we
are called today. But the book was called Weapons of Mass
Distortion by Brent Bozell. But in that book he does refer to
the case that Judge Moore was so involved with. And according
to a CNN, USA Today Gallup poll, 77 percent of Americans
disapproved of the Federal court order to remove the Ten
Commandments monument from public display.
My question for you is, suppose you have a Federal judge
who regularly makes decisions that most of the American people
and most of their elected representatives felt was really
legislating from the bench, not deciding on the basis of strict
constitutional interpretation. Absent a so-called court-
stripping bill like the one we are considering today, what
recourse do the American people's representatives have, if not
Congress, to determine what is an impeachable offense, to
determine what the jurisdiction of the Federal courts should
be? Again, assuming you have a sitting judge--we are not
talking about appointments, a sitting judge who routinely seems
to legislate rather than--legislate rather than base his
rulings upon a reading of the Constitution.
Mr. Gerhardt. How much time do I have to answer that
question?
Mr. Smith. Unfortunately, I am hoping you will answer it
fairly quickly.
Mr. Gerhardt. Well, with all due respect, I think there are
very limited means for addressing what the judge has ruled,
what the judge that you just described has ruled. The fact is,
that article III judges, particularly--well, I should say
article III judges, including those on the Supreme Court of the
United States, create precedents which are themselves part of
the rule of law in this country. I think every source of
decision supports that. And in the course of rendering
constitutional interpretations, judges and justices will
oftentimes make decisions that are not popular with majorities.
Mr. Smith. I understand that, and I will even concede that.
But my question was, what recourse do we have if a majority of
the American people, a majority of their representatives feel
that a judge has overstepped his or her bounds? If it's not
article III, what is it?
Mr. Gerhardt. You have a couple possibilities. One is a
Constitutional amendment, as prescribed by article V. So
article V offers one possibility. You can look to overturn the
judicial decisions through a Constitutional amendment. For
example, that's what the eleventh amendment does, that's what
the fourteenth amendment does in part.
A second is to of course pass a resolution or even back a
brief before the judges in question or the courts in question
and ask them to reverse themselves.
Mr. Smith. Of course, a resolution doesn't have the force
of law; so that can be ignored as well. Okay. Thank you,
Professor Gerhardt.
Obviously, Representative Dannemeyer and Judge Moore, you
have a different take on article III. I want to give you the
opportunity to answer two questions. One, if you feel there is
more than what you have already said about Congress's power to,
in fact, use article III to impose some restraints on Federal
judges. The second question is not unrelated and is this: Do
you feel that the Founding Fathers would have disagreed with a
lot of what you would call and many people would call an anti-
religious bias found among many of the Federal court decisions
in the last 40 years, since 1962? Representative Dannemeyer,
you can start.
Mr. Dannemeyer. I don't think there is any question about
that being the status of our lifetime. From 1789 to right after
World War II, if you asked the leaders of elites of the country
what is the basis on which America was founded, they would say
God. And we acknowledged God exists. And that--taking away of
that acknowledgment began in the case of Everson versus Board
of Education in 1947, where the judge who wrote that opinion
put a last clause, was that separation of church and State. He
didn't quote a reference for where he got that because there
wasn't any. If he had stated one, there was one in the previous
century in the case arising out of Utah.
But separation of church and State means basically this: We
will not have a national religion in America. That's the
establishment and origin. We don't want any part of that. I
don't seek that.
Mr. Smith. That answers my question. Let me move on. And
without objection, I will recognize myself for an additional
minute so that Judge Moore can answer the question.
Mr. Moore. Well, I think we have several options to use
against the judicial branch, impeachment being one by Congress.
Mr. Smith. Your mike still may not be on there.
Mr. Moore. I'm sorry, I'm not used to turning it on.
We have several remedies against the judicial branch,
impeachment being one, that Congress can defund the Federal
courts. They create them, they can defund them.
But I think in this case it is clear what the remedy is, is
article III jurisdiction.
And I will say this first. I disagree most strongly with
the use of the words ``court stripping.'' because, you see,
this is a jurisdiction that the Federal courts do not have
regarding the acknowledgment of God. Every State in this union,
every one of the congressmen here, California included,
acknowledges God in their Constitution. All three branches of
the Federal Government acknowledge God. The United States
Supreme Court opens with, God save the United States and this
Honorable Court. You all open with prayer. It's written all
over these walls. And then the President declares national days
of prayer.
The acknowledgment of God is not within the jurisdiction of
the Federal courts. If someone were breaking in your house and
stealing and you found out after 20 years, you wouldn't just
say, just don't come into my house and take my silverware; you
would say stay out of my house.
This is not a court stripping bill. This is one to regulate
the jurisdiction when the judges have usurped that jurisdiction
and gone outside.
I asked a very important question about definition, and I
tried to give an example. It is because of that that you must
understand they cannot, will not even today define the word
religion. In my case in Alabama, the judge said he did not have
the expertise. He said it was dangerous and unwise to define
the word. When you can't define the word, you can't interpret
the statute, you rule by your own feelings, and it is the rule
of man not the rule of law. The rule of law is the Constitution
of the United States and the first amendment and the
Constitution of each State in which you live. That's what the
rule of law is. And all of it acknowledges God. And I could go
on for hours telling you about what James Madison said about
the law of God and so forth.
Mr. Smith. Thank you, Judge Moore.
The gentleman from California, Mr. Berman, is recognized
for his questions.
Mr. Berman. Thank you, Mr. Chairman.
Judge Moore, if it's appropriate, if you think it's
appropriate to impeach a judge whose interpretation of the
Constitution leads him to violate the terms of the Constitution
Restoration Act, is it also appropriate to impeach a judge
whose religious convictions and interpretation of the
Constitution leads him to flagrantly violate the dictates of
the superior courts by displaying a religious monument?
Mr. Moore. First, Mr. Berman, this statute doesn't require
impeachment of anybody. It says Congress can impeach. It
repeats something that's already in the Constitution.
Mr. Berman. It's says it's an impeachable offense.
Mr. Moore. It's an impeachable offense. If someone violates
the Constitution, if someone takes an oath of the Constitution
under article VI to uphold that Constitution and disregards it
and rules according to foreign law, which is not the law they
are sworn to uphold, yes, I think Congress can impeach them.
And, indeed, in 1986, in Bowers versus Hardwick, they said
sodomy was not a right under the Constitution by a majority of
the Supreme Court. 17 years later, they found it in a European
court of human rights.
Mr. Berman. And in deciding that it was not a human right,
did they rely on any foreign laws and foreign customs and
practices?
Mr. Moore. Absolutely. They said in their opinion----
Mr. Berman. Should those judges be--should--was that--was
relying on that an impeachable offense?
Mr. Moore. When they go to swear to the Constitution to
uphold it and the morality under that Constitution, and they go
to foreign law to destroy that morality, absolutely they could
be impeached.
Mr. Berman. What about when they go to foreign law to
support that morality?
Mr. Moore. They should not go to foreign law whatsoever,
sir, if they are sworn to the Constitution of the United
States.
Mr. Berman. Okay. What if there were--do you think Congress
has the authority to prohibit a class of persons from bringing
a Federal case, say under the equal protection clause, to say
that no African Americans can bring a legal action.
Mr. Moore. No.
Mr. Berman. Challenging a governmental policy on the basis
that it violates equal protection?
Mr. Moore. No, I don't think they have that authority.
Mr. Berman. What about atheists?
Mr. Moore. Pardon?
Mr. Berman. What about atheists?
Mr. Moore. Atheists are not a class of persons under the
Constitution.
Mr. Berman. Because?
Mr. Moore. Because just like Christians are not a class of
persons under the Constitution.
Mr. Berman. All right. What about--so therefore?
Mr. Moore. So Christians couldn't bring it and atheists
couldn't bring it.
Mr. Berman. All right.
Mr. Moore. We're talking about the definition of first
amendment----
Mr. Berman. Then, for instance, you could pass a law
stripping Jews of the right to bring certain kinds of Federal
court actions?
Mr. Moore. No, sir.
Mr. Berman. You just said they're not a class of--blacks
are, and----
Mr. Moore. That's a system of belief. You cannot forbid
anyone because of their beliefs--the Government's actions must
stay out of the beliefs of people. The beliefs are given by
God. It's between God and man that those beliefs exist.
Mr. Berman. I asked you whether or not Congress could pass
a law stripping African Americans of the right to bring Federal
actions claiming that a particular policy violated the equal
protection clause.
Mr. Moore. And I said no.
Mr. Berman. And you said no. But then you said atheists
could be stripped of that right because--and Christians could.
Mr. Moore. Could be stripped of what rights, sir?
Mr. Berman. To bring a Federal action.
Mr. Moore. Anybody can bring an action that they want. But
there is no class of people of atheists that have--we're
talking about freedom of thought and conscience. For them to
recognize a class----
Mr. Berman. I'm talking about who has access to the Federal
courts to raise a constitutional issue.
Mr. Moore. Every person, no matter if he's an atheist or a
Christian. But to recognize----
Mr. Berman. And what does this bill do?
Mr. Moore. But to recognize people for what they believe--
--
Mr. Berman. What does this bill do?
Mr. Moore. This allows every State and Federal official to
acknowledge God as the sovereign source of law, liberty and
Government. It is something that is historical, legal, and
logical. That freedom--now listen.
Mr. Berman. What does it prohibit? What does this bill
prohibit?
Mr. Moore. It prohibits--it prohibits when they acknowledge
God by its instance----
Mr. Berman. What does the bill prohibit?
Mr. Moore. The bill prohibits Government from interfering
with the freedom of conscience of individuals by acknowledging
God as sovereign source of law, liberty, and Government.
Atheist, Hindus, Buddhists, all have the right to identify with
God without Government interference. It carries out the
restoration of the first amendment.
Mr. Berman. Would this stripping of Federal jurisdiction--
hear my question, please. Would this stripping of Federal
jurisdiction apply to a challenge to a mandated school prayer?
Mr. Moore. If it was mandated as a form of worship under
articles of faith--it would depend on what the State officials
said what it was done for. If it's acknowledging God as the
sovereign source of law, liberty, and Government, not
necessarily.
Mr. Berman. It requires a specific--it requires everyone to
require a specific prayer to----
Mr. Moore. Any requirement is absolutely establishment.
That's right. Any requirement to tell people how they must
worship is an establishment of the duties you owe to God and
the manner of discharging them.
Mr. Berman. So this will not apply to----
Mr. Moore. It would depend on----
Mr. Berman. This would not apply to a prescribed prayer,
the stripping of federal----
Mr. Moore. It would have to go to court to see the
specifics. I would have to see the----
Mr. Berman. Could--I would like to hear Professor Gerhardt
respond on this issue on the class of people.
Mr. Gerhardt. Well, first, I think there is no question at
all that it would be violative of the fourth--excuse me, of the
fifth amendment for Congress to create any classification that
disadvantaged, for example, women, Jews, African Americans. So
any court stripping measure that was directed against a
particular class such as those I just listed would be, I think,
unconstitutional.
But I might also take the liberty of adding that, with all
due respect to Chief Justice Moore, that I don't think the
Constitutional Restoration Act of 2004 does allow public
officials to acknowledge God. That's not what it does. For
example, State courts could strike it down. That's certainly a
possibility. What this Act does is to precludes all judicial
review in any article III court over the subject matter of this
statute. That's what it does. And as a result, you can have 50
different States reaching different conclusions regarding
Federal rights and Federal claims. That kind of chaos, I
believe, is prohibited by the United States Constitution. It
ensures that the Supreme Court is here at the very least to
guarantee the uniformity and finality in interpreting the
Constitution and Federal laws.
Mr. Smith. The gentleman's time has expired.
Before I recognize Mr. Bachus, let me explain to you all
that I have to leave to go appear before the Rules Committee on
behalf of a piece of legislation that's going to be on the
House floor tomorrow, and I am expected to be there at 5:30, so
I am going to have to leave. The Subcommittee will continue to
be chaired by Bob Goodlatte of Virginia.
And now let me recognize the gentleman from Alabama, Mr.
Bachus, for his questions.
Mr. Bachus. I thank the Chairman.
I would ask Mr. Gerhardt, Dr. Gerhardt, and Mr. Hellman,
who is the interpreter of the law and what is constitutional?
Who interprets the law and what is constitutional?
Mr. Gerhardt. Everyone who takes an oath, of course, under
the Constitution is in the position of interpreting that law
for purposes of exercising their duties.
Mr. Bachus. So every Government official has a duty to
interpret the law themselves?
Mr. Gerhardt. But there is an interpretive authority that
the United States Supreme Court has that ultimately I think
many other officials cannot supersede. It has the authority to
say what the law is.
Mr. Bachus. And who is that?
Mr. Gerhardt. The United States Supreme Court has the
authority to say what law is.
Mr. Bachus. They are the final interpreter or arbiter of
what the law is?
Mr. Gerhardt. In many cases they are.
Mr. Bachus. Professor Hellman, do you subscribe to that,
that the Supreme Court and the Federal courts are the final
interpreters of what the law is and what is constitutional and
what is not?
Mr. Hellman. Well, I think we do have to distinguish
between the Supreme Court and other Federal courts.
Mr. Bachus. Okay.
Mr. Hellman. For example, decisions of lower Federal courts
are not binding on State courts. But that is an example of a
broader point that I might make just to supplement what
Professor Gerhardt has said. We have many questions of
constitutional interpretations that are very difficult, that
will be disputed by people, people in good faith.
Mr. Bachus. Oh, sure. And when there are these disputes,
who is the final arbiter?
Mr. Hellman. We have to have a system. The system that has
developed over 200 years is that in the end, the Supreme Court
makes those judgments.
Mr. Bachus. Okay. And you say it is developed over 200
years because certainly, at the start of this country under the
Constitution, the Supreme Court was not perceived as the final
arbiter of what the law is and what is constitutional; is that
right?
Mr. Hellman. It was unclear, because the constitutional
questions that arose didn't come to the Supreme Court in the
way that they routinely do today.
Mr. Bachus. Professor Gerhardt.
Mr. Gerhardt. Of course, I agree with that, but I would
also add that I think some of the early decisions of the
Supreme Court are consistent with--are themselves historical
practices and reflect traditions under which the Supreme Court
does resolve constitutional conflicts.
Mr. Bachus. So they actually began to exercise jurisdiction
and become the final arbiter of what the law was?
Mr. Gerhardt. That was permitted by the Constitution.
Mr. Bachus. Well, let me ask you this: Would you agree or
disagree with Thomas Jefferson when he said--he was responding
to someone when they asked him if the Supreme Court or the
Federal courts were or the judges were--well, he actually asked
if the Supreme Court was the final arbiter or interpreter of
what was constitutional and what was not. He said, you seem to
consider that Federal judges are the ultimate arbiters of all
constitutional questions, a very dangerous doctrine indeed, and
one which would place us under the despotism of an oligarchy.
Our judges are as honest as other men and not more so. They
have with others the same passions for party, for power and
privilege. The Constitution has erected no single tribunal,
knowing that to whatever hand is confided with the corruption
of time and party, its members become despots. If Federal
judges become the final arbiters, then indeed our Constitution
is a complete act of suicide.
Do you agree with what Thomas Jefferson said, or is he
indicating there that he is very uncomfortable with this single
tribunal becoming the----
Mr. Gerhardt. I could agree with President Jefferson
because what he is saying is there is no final arbiter of all--
that is the quote you just gave--of all constitutional
questions, and the fact is not all constitutional questions
come before the United States Supreme Court. Some are decided
finally in other fora. But when questions do come before the
United States Supreme Court, its interpretations of the
Constitution----
Mr. Bachus. Oh, when they do come before it. But I am
saying he obviously--Abraham Lincoln--I will close with this.
He said the--this was in his first inaugural address. The
candid citizen must confess that if the policy of the
Government upon final questions affecting the whole people is
to be irrevocably fixed by decisions of the Supreme Court, that
people will have ceased to be their own rulers, having to that
extent practically resigned their Government into the hands of
an eminent tribunal.
Do you agree with his statement?
Mr. Gerhardt. Again, I can agree with it in part because I
know that President Lincoln was talking in part about Dred
Scott. And one thing that President Lincoln did----
Mr. Bachus. But he doesn't talk about that here. He just
says that if we give that right to the Supreme Court, then we
will have ceased to be our own rulers.
Mr. Gerhardt. Right. But President Lincoln also
acknowledged more than once, in fact repeatedly, he was a
lawyer after all, that the critical factor, of course, has to
do with who the parties to a particular case happen to be. And
for President Lincoln, a great--one of things that mattered a
great deal was the fact that he felt he had the unilateral
authority to interpret the law with respect to sort of the war
conditions under which he was operating
Mr. Bachus. I understand that he, on many occasions, just
disregarded it.
Mr. Gerhardt. But I don't believe he did disregard the
Court. In fact, what he tried to argue the Courts precedent did
not involve his conduct--he took great pains to do this.
Mr. Bachus. Well, he argued that they weren't binding on
him.
Mr. Gerhardt. Because he felt that he was not a party to
those lawsuits.
Mr. Bachus. I mean, he acted in disregard of them for
whatever reason.
Mr. Gerhardt. But I think that is a very significant
reason. Technically you are disregarding----
Mr. Bachus. Well, he had a reason.
Mr. Gerhardt. Well, with all due respect, I don't think it
is disregarding, at least from his point of view.
Mr. Bachus. No. I agree. I don't think he saw it as
disregard. I think he figured they didn't have the power to do
that.
Mr. Gerhardt. He felt he was not obliged to follow a case
in which he wasn't a party, in which his office was not really
involved or his particular powers were not directly challenged.
Mr. Bachus. Okay. Thank you.
Judge Moore had his hand up, if I could let him.
Mr. Goodlatte. The time of the gentleman has expired.
The gentlewoman from California is recognized for 5
minutes.
Ms. Waters. Thank you very much, Mr. Chairman.
I would like to request Mr. Moore or any other panelist who
would like to respond to this question, do you agree with the
proposition in Professor Gerhardt's testimony that the only way
that a decision of the Supreme Court may be overturned is
through a constitutional amendment, or when the Supreme Court
itself overrules a prior opinion of the Court? If you agree--
well, if not, why not? And if so, explain, then, how this bill
possibly could be constitutional.
Mr. Dannemeyer. I will just read to you----
Ms. Waters. My friend Mr. Dannemeyer.
Mr. Dannemeyer. Thank you.
Just very briefly. We do not by this legislation seek to do
anything to the United States Constitution. All we seek to do
is to utilize an existing provision of the Constitution,
article III, section 2, which says Congress has the authority
to except from the jurisdiction of the Federal court system
such subjects as it chooses to except. That is the authority
this Congress has. So I--constitutional amendment, of course,
is one course. The other course is what the Constitution says.
And the challenge that I have shared with the Members is
very clearly do the elected leaders of this country have the
courage, the political courage, to tell to the nine Justices of
the U.S. Supreme Court, who literally have stolen the Judeo-
Christian heritage on which this Nation was founded. That is
why we are here.
Ms. Waters. Has it ever been done before?
Mr. Dannemeyer. There has been a series of decisions over
the last half century that those rascals across the street have
been in their mischief.
Ms. Waters. Has this ever been done before?
Mr. Dannemeyer. Twelve times in the last Congress that
article III, section 2 was used by this--by the Congress, the
previous Congress, to except areas from the jurisdiction of the
Federal court system. Twelve times. And in the papers that I
have filed with you, you will find a history of the use of
article III, section 2 by Congress from 1789 to 1992. It is an
op/ed piece. It was published in the Washington Times last
September, and it is among your packet.
Ms. Waters. What you are telling me is if you have
documentation that decisions of the Supreme Court have been
overturned by the Congress of the United States as relates to--
--
Mr. Dannemeyer. No. I am saying that Congress exercised the
authority under article III, section 2 12 times in the last
congress to except the subject matter of those areas from the
jurisdiction of the Court.
Mr. Berman. Will the gentlelady yield?
Ms. Waters. Yes, I will yield.
Mr. Berman. Dealing with interpretations of constitutional
provisions? Cite me one situation where the Congress removed
the jurisdiction of the Court to decide a constitutional
question based on unhappiness with previous Supreme Court
decisions.
Mr. Dannemeyer. We need to recognize----
Mr. Berman. Cite me one example. Where in your----
Mr. Dannemeyer. Let me respond.
Mr. Berman. Well, you have a Washington Times article.
Mr. Dannemeyer. Let me respond. We need to acknowledge the
difference between the interpretation of the U.S. Constitution
by the U.S. Supreme Court and the authority of Congress
utilized in article III, section 2. Those provisions are
sometimes in conflict.
Mr. Berman. All the gentlelady requested was interpreting
that Constitution, in cases arising under the Constitution, has
the Congress ever removed jurisdiction from the Supreme Court?
Mr. Dannemeyer. Well, I think it is--you can go down those
12 cases.
Mr. Berman. That doesn't make it good or bad. She just
asked whether.
Ms. Waters. I don't think so. I think that's----
Mr. Dannemeyer. Well, see, article III, section 2, we need
to understand something. It doesn't say that there is a
limitation on the power of Congress to use that section. You
are trying to suggest, if I may make this addition, Congress
can use article III, section 2 for little matters, but not for
matters of substance. For example, if the U.S. Supreme Court
has interpreted what the U.S. Constitution means, well,
Congress can't touch that. Nonsense. Congress has the authority
to correct an erroneous interpretation of the first amendment
by the U.S. Supreme Court which says, in effect, that God
doesn't exist.
Ms. Waters. What little matters would you direct us to
where it has been done?
Mr. Dannemeyer. Well, just use the power and see what
happens.
Ms. Waters. Yes.
Mr. Moore.
Mr. Moore. Ma'am, first let me clarify something. The
premise upon which your questions are asked is that we are
trying to overturn any decision of the Supreme Court or Federal
district court. That's not the purpose of this bill. Yes,
constitutional amendment is a way you can overturn a decision.
And article III is not trying to overturn a decision.
But as far as the use of article III in the courts, to stop
the Supreme Court, it has been used many times. And one
particular time was in the McCardle case in 1868. There was an
1867 statute that authorized the Supreme Court to hear appeals
from denials of writ of habeas corpus. A Mississippi writer had
spoken out against the Reconstruction efforts of the Congress,
and Congress moved to repeal that statute.
This is what Chief Justice Salmon P. Chase said about
article III restrictions: 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. What then is the effect of the repealing act upon the
case before us? We cannot doubt as to this. Without
jurisdiction, the Court cannot proceed at all in any cause.
Jurisdiction is the power to declare the law, and when it
ceases to exist, the only function remaining of the Court is
that of announcing the fact and dismissing the cause.
Now, what we are trying to clarify in this constitutional
restoration act is the right of Justices on the Supreme Court
to say, you cannot, as a State, acknowledge God. Every State
does. All three branches of the Federal court do. The first
amendment does not give them that right. That is the law. And
the reason it is so important to interpret the words of the
statutes to define the words is you can't interpret the law
unless you define the words.
It is a simple thing. If--I could use many examples, but if
you walked down by a creek, and you picked up a stick, and you
were arrested for fishing without a license, and you went
before a judge and he said, I am going to have to fine you and
put you in jail, and you said, why, he said, you are fishing
without a license, he said. You said, Judge, I wasn't fishing
without a license. I didn't have a line on the stick. I didn't
have a weight, a hook; didn't have any bait, and I wasn't in
the water. If the judge said, but, Mr. Jones, sir, or, Mrs.
Jones, you could kill a fish with that stick, couldn't you? I
am going to have to put you in jail. Would he be interpreting
law? No, he would be making law. And that's exactly what the
Supreme Court does when it forbids the acknowledgment of God.
The first amendment's only purpose was to allow that
freedom to worship God, and it is from that worship of God that
we get freedom of conscience to do and believe. That's why
there is no class of citizen called atheist or Christians or
Buddhists. They are all free to believe, because Government
can't interfere with their right to believe and worship. That's
the purpose of the first amendment. And the purpose of the
first amendment was to prohibit the Federal Government, and
especially the lawmaking branch, from interfering with that
right. They never anticipated that the Supreme Court would be
making law. And that's exactly what happened.
And how did they make law? Not by the first amendment.
Congress shall make no law respecting an established religion.
They do it by test, tests that have no relevance to law. Law is
supposed to be a prescribed rule by the supreme authority of
the State commanding what is right and prohibiting what is
wrong. You are supposed to know what the law is. When you go
out on the highway and you proceed down the highway, and it is
marked 60 miles an hour, you know how fast you can go. If that
law just says, don't go fast, and you have to come before a
judge to find out whether you violated that law or not, then
you are subject to tyranny. And that's exactly what the first
amendment stands for.
The first amendment doesn't prohibit the acknowledgment of
God. The very definitions under it acknowledge God. And yet
they say you cannot acknowledge God. That was done in this
case. I have my opinion right here. Federal courts do not have
that authority. Nor does the Supreme Court. And it is the right
of Congress who recognizes acknowledgment of God to be the
right of every person. It doesn't discriminate against anybody.
Ms. Waters. My time has long since been up. I mean, we
could debate this for a long time. Thank you very much, Mr.
Chairman.
Mr. Goodlatte. I thank the gentlewoman.
The gentleman from Indiana is recognized for 5 minutes.
Mr. Pence. I thank the acting Chairman and the Committee
and all the witnesses for this very stirring and, in many ways,
engaging debate. I was one, along with Congressman Aderholt,
who authored the legislation. I was one of two original
cosponsors of this legislation, so my biases should be fairly
obvious from the beginning. This is one of those hearings,
though, Mr. Chairman, that I do think that if the Founding
Fathers could wander onto Capitol Hill for a year, this would
be one of those hearings where their mouths would just hang
open.
I think just George Washington, Thomas Jefferson, the quote
that my colleagues Mr. Bachus used was so on point. I think the
idea that the freedom of religion would evolve in this country
into the freedom from religion, I think, would astound the
Founders of this country. And there has been some
acknowledgment of that by the very distinguished experts who
have spoken in opposition to this legislation is--that
particularly heard Mr. Gerhardt speak, who has been very
impressive. And back in my days in law school I would have
loved to have been in your class, and I would have sat on the
front row.
But you made the comment that over time, that these matters
have been entrusted to the Federal judiciary, and that's
absolutely correct. I grant the point. And in your dialogue
with Mr. Bachus--but you suggested, and I think this is exactly
right, that if, in fact, the Constitution Restoration Act
became law, the 50 States in this country would be left
entirely on their own to define what constitutes acceptable
religious expression in the public square; which sounds for all
the word like 1776 to me.
When you study the 13 Original Colonies, there was a wide
variety--and I think 11 of the 13 original States had
established religions. But there was a wide variety of
religious expression that was approved and sanctioned and in
some ways mandated, if the truth of that history be told.
And I--so, I go back to the idea of the Founders being
stunned at an official Washington that feels that it is the
duty of the Court to--irrespective of the clear language of
article III, section 2, clause 2, that it is nevertheless the
duty of the Court to exclusively harmonize what is acceptable
in the public square with regards to the acknowledgment of the
Creator that is referenced in the Declaration of Independence.
Now, as to my colleague Mr. Berman, who I would come just
to hear him today, his comment about this being--I think if I
am quoting you correctly, I think the reference was to this
being a reactionary piece of legislation. Well, I--it probably
is to some extent. It is a reaction to banning
nondenominational prayer from the New York schools in 1962. It
is a reaction of the Court's removing the 10 Commandments from
public school walls in 1980, a reaction to striking down a
period of silence in the Wallace v. Jaffrey case. It is a
reaction to barring prayers at public school graduations in
1992. Now, it is a 42-years-in-coming reaction, which is not a
reflexive reaction. One could maybe acknowledge that Congress
in coming to this place has come in a fairly deliberate manner
and in a thoughtful way. And let me just close by saying that.
Mr. Berman. Would the gentleman yield just on this
question, just since you mentioned my name?
Mr. Pence. Yes, I will. I will yield to my friend.
Mr. Berman. In--first of all, as you point out, reactionary
can be good, and reactionary can be bad. I think we disagree
about this particular reaction, but that's all right. But you
mentioned when they banned nondenominational prayer in the New
York City Schools----
Mr. Pence. Right.
Mr. Berman. --what if they had banned a denominational
prayer?
Mr. Pence. But they didn't though.
Mr. Berman. I am just curious. Does this bill strip the
Federal courts of the power to hear cases challenging a
denominational----
Mr. Pence. Let me respond to that, reclaiming my time,
because I think it is a very excellent question. This bill, as
I have been given to understand, and the plain language of the
legislation simply denies from the article III courts the
ability to except cases where the acknowledgment of God--which
was all the New York City public school prayer did. The
acknowledgement of God is the point in controversy. I think
that under the long history of cases, there would be very--it
would be very difficult to say that the courts could not
consider sectarian prayer or the imposition of an established
religion, and I frankly, as a Libertarian, would support that
jurisdiction strongly.
What this legislation speaks to, Mr. Berman, I believe, is
simply the ability of people in the public square, including
public officials and States for that matter, to simply
acknowledge God, as our Founders did, as the source of law and
as, in a very simple sense, the ethical monotheism upon which
this Nation was founded.
Mr. Berman. Would the gentleman yield further?
Mr. Pence. Yes.
Mr. Berman. Context is important. The chief witness for
this bill was involved in the case involving not simply the
acknowledgement of God, but a belief that God also laid out 10
Commandments.
Mr. Moore. No, sir. I have got the opinion right here. I
can read the first paragraph and the second paragraph. The
judge in this case said the 10 Commandments are not improper
necessarily in a public office building, he said, but when you
do it with the specific purpose and effect, as the Court finds
from the evidence, of acknowledging the Judeo-Christian God as
the moral foundation of law, you have committed a
constitutional violation. In his last paragraph he said the
same thing. It was not about the 10 Commandments. It was not
about a rock.
Mr. Berman. No, I know it wasn't. It wasn't about the 10
Commandments historically. The question is whether your notion
and the proponent's notion of acknowledgment of God involves
something more than the acknowledgment of God, because if you
acknowledge God, you have to acknowledge the following things
about God, and I--and no one can challenge forcing me to
acknowledge God that way.
Mr. Pence. Reclaiming my time. I think----
Mr. Goodlatte. The gentleman is recognized for an
additional minute.
Mr. Pence. I thank the Chairman for the courtesy, and I
will close.
The purpose here is while the gentleman raises a number of
points about other issues that may become in controversy or be
of interest to individuals, I know that millions of the
American people and I know tens of thousands of my constituents
across the heartland of Indiana are deeply troubled in their
hearts about this intolerance of the simple and profound
acknowledgment of God as the cornerstone and the foundation of
our law and our liberty. And the purpose of this legislation,
very simply, is to restore that basic freedom of expression
that I believe was contemplated by our Founders and is in
keeping according to the express language of the Declaration of
Independence, as we open this Congress every day in prayer, as
we did today, and we open the Supreme Court in prayer. Allowing
and ensuring that the courts will not meddle with the ability
of individuals in the discharge of their public duties in the
public square to acknowledge that same good that we so freely
acknowledge in Washington, D.C., is the aim of this
legislation. And I yield back my time.
Mr. Goodlatte. The time of the gentleman has expired.
We will now recognize the gentleman from Virginia Mr.
Forbes for 5 minutes.
Mr. Forbes. Thank you, Mr. Chairman. And I do thank all of
you for being here. Many of you have been here on panels
before, and this is just--it is an honor for me just to sit
here and listen to you and be able to hear your thoughts and
the distinguished people on this panel, and I am always so
impressed with them. They come with great quotes, and I am
going to get my legislative director Andy Halataei to get me
some of those nice quotes to bring in here and cite.
But, you know, so many times one of the things that just
baffles me is this, that process ought to be designed to get us
to the truth. And that's what we should be seeking, but yet so
often we spend so much time on process and talking about
process that we never get to the truth. And sometimes we even
get to the point that if we can talk long enough, we can run
out the clock, and we never get to ask the tough questions
about what the truth really is.
And I just want to ask you, members of the panel, today if
you can give me a yes or no answer on this one, because I have
only got 5 minutes. But from what I read on this bill, it talks
about the acknowledgment of God as the sovereign source of law,
liberty and Government. And my question to you today is do you
believe that God is the sovereign source of law, liberty and
Government? And if each of you could just give me a yes or no
answer.
Mr. Moore, since you have got your hand up, I will go to
you first.
Mr. Moore. Yes.
Mr. Forbes. Mr. Dannemeyer.
Mr. Dannemeyer. Yes, I do.
Mr. Forbes. Professor Hellman.
Mr. Hellman. I don't think my view on that is of any
importance or should be to this Committee.
Mr. Forbes. Well, it could be important to me, but if you
don't want to answer that, I certainly understand that. I mean,
when you come before us and testify, we like to know what your
feelings are, and if you don't want to answer it, we certainly
understand, and I appreciate that. But that's a question that I
would posit to you, and if you don't want to answer it,
certainly you don't have to. We are not compelling anybody to
answer.
Mr. Hellman. Thank you.
Mr. Forbes. Mr. Gerhardt.
Mr. Gerhardt. Representative Forbes, I am actually a deeply
religious person and a--spirituality is very important in our
household. We are going to celebrate Rosh Hashanah soon
ourselves. But I have always made a practice of not talking
about my religion publicly.
Mr. Forbes. Okay. Let me ask you this question. Do you
believe that the Supreme Court or the fellow judiciary has
before been wrong in their interpretation of the United States
Constitution? Is that a question that you feel you can answer?
Mr. Gerhardt. Yes, sir. We know the Supreme Court has
certainly made its mistakes; for example, in Dred Scott,
overturned by constitutional amendment.
Mr. Forbes. Okay. But let me ask you this. How do you know
they were not wrong? And the reason I say that, because if you
tell us that what the Supreme Court says is the Constitution,
what they say is wrong, how can you say that they are wrong at
that particular point in time?
Mr. Gerhardt. Because I believe the Constitution allows us
to say that. I think until such time as there is an amendment,
they were wrong.
Mr. Forbes. So until such time as there is an amendment,
then what they say is the Constitution, and they are not wrong
is that what you are saying?
Mr. Gerhardt. I think that Supreme Court interpretations of
the Constitution are part of the constitutional law of this
country and, therefore, under the supremacy clause would be
binding on an inferior----
Mr. Forbes. But that was not my question. My question is
whether or not they were wrong. And your comment was that they
were wrong at times or that they were not wrong? How can they
be wrong, is my question to you, if what they say is the
Constitution? How can you say they were wrong? We may amend it
and change it later, but how do you say they were wrong when
they rendered that decision? What do you compare it to to say
they were wrong?
Mr. Gerhardt. I think there we maybe perhaps even come full
circle. You mentioned process. And there is a process by which
mistakes determine that, and article V sets forth that process.
Mr. Forbes. Okay. On the process.
Mr. Hellman. Mr. Forbes, I'd like to add to that, because
it goes back to the original question about not being concerned
enough about truth and focusing too much on process. I think
Professor Gerhardt has addressed that. There are many questions
on which we will not be able to agree, you or I or any two
citizens or any 10 citizens, on what is the truth. And
therefore, we have a process for establishing the answer, at
least provisionally, in an authoritative way, and that's the
way the system has developed, that the Supreme Court does that
until superseded by constitutional amendment or the Court's own
rejection of its prior ruling.
Mr. Forbes. Judge Moore, you had a comment?
Mr. Moore. Yes, sir. I can't, right now, remember the
judge--Justice on Dred Scott that dissented, but, of course, we
know Abraham Lincoln didn't follow the ruling. And we know
one--two Justices dissented, one of which said this, and this
is how you know the Supreme Court's wrong on the Constitution:
When the strict interpretation of the Constitution, according
to the fixed rules which govern the interpretation of laws, is
abandoned, and the theoretical opinions of individuals are
allowed to control its meaning, we have no longer a
Constitution. We are under a Government of individual men who
for the time being have the power to declare what the
Constitution is according to their own views of what they think
it ought to mean.
That's exactly what the Supreme Court and the Federal
district courts are doing today with regard to the first
amendment. It does not forbid acknowledgment of God. I will
agree with Mr. Berman, and I couldn't leave this hearing
without agreeing with Mr. Berman, that no Government can
mandate the duties you owe to the Creator and the manner of
discharging it. They can't tell you how to pray. But the
acknowledgment of God is not the establishment the religion.
They can't tell you how to pray, because that is--that is
completely foreign. That would establish the duties you owe to
the Creator and how you perform those duties. But to
acknowledge God as the sovereign source of law, liberty and
Government is not the establishment of religion and cannot be
forbidden by the Federal courts.
Mr. Forbes. I have a red light, so thank you, Mr. Moore,
and thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
Well, I want to thank all the gentlemen on this panel for
their contribution. I have a few questions myself. This has
been a very enlightening debate, and I think you can tell by
the debate that we have right up here on the dais that this is
not something that's going to be resolved easily.
But I will tell you that I very much sympathize with the
sentiments of the gentleman from Indiana, and I am troubled by
some of the observations about some of the solutions that the
Congress has to addressing the courts when the Congress, as the
elected representatives of the people, feel that the courts
have strayed their boundaries.
Professor Gerhardt, you started out your remarks by citing
Justice Scalia in his comments about the Independent Counsel
Act, calling that a wolf coming as a wolf, and saying this
legislation is in the same manner. You then went on to say that
you felt that there were appropriate circumstances in which the
Supreme Court and other courts could look to the guidance of
foreign court decisions in interpreting the U.S. Constitution.
I must tell you I am deeply troubled by that. Did you want to
respond to that? Is that an accurate----
Mr. Gerhardt. I don't think that's quite what I said, sir.
Mr. Goodlatte. What did you say?
Mr. Gerhardt. What I said was, there is a paragraph in my
statement, I don't have it front of me, in which we talk about
the fact that reference to foreign law has been certainly done
in some Supreme Court cases, but in almost every instance in
which it is done, Justices have taken great pains to minimize
their reliance on it; in fact, even to say, they are not going
to attach any weight to it. That's basically I think what I
said. I am not--I don't believe--I mean, I am not saying that--
--
Mr. Goodlatte. Well, do you object to the provision in this
bill that prohibits that, that effectively removes the
jurisdiction of the Court to rely upon such opinions?
Mr. Gerhardt. Well, the part of the bill that concerns me
about foreign law the most is the one that would make a judge
or Justice impeachable for relying on it. The fact is that
every reliance that I know of has been de minimis, and it has
only been probably less than a handful of times, and it is
troubling to me in any event----
Mr. Goodlatte. I am referring to title 2, interpretation,
which simply prohibits the consequences of violating that are
contained in the enforcement section, title 3. Are you
objecting to title 2 of the bill?
Mr. Gerhardt. I am sorry. Do you mind if I----
Mr. Goodlatte. I have a particular interest in this because
I have introduced legislation along with Congressman Feeney,
another Member of this Committee, which does not have the
enforcement provisions of title 3, but has a sense of the
Congress, a resolution that the Court should not rely upon
foreign decisions in arriving at the interpretation of the U.S.
Constitution. And I am leading back to my own citing of Justice
Scalia, who is appalled by that practice, as you may well know,
in his dissent in the Adkins v. Virginia death penalty case. He
said that Justice Stevens' invoking the authority of, quote,
the world community was irrelevant, and he ridiculed the
practices of the world community whose notions of justice are
thankfully not always those of our people. Similarly, in the
Lawrence case, he said the Court's discussion of these foreign
views, ignoring, of course, the many countries that have
retained criminal prohibitions of sodomy, is meaningless dicta,
dangerous dicta, however, since this Court should not impose
foreign moods, fads or fashions on Americans.
Mr. Gerhardt. Well, again, my concern with this is that
this makes any reliance whatsoever, even if it is appropriate,
even if it is logical in the context of the case, an
impeachable offense. For example, my recollection of Justice
Stevens' opinion, and, again, I don't have it in front of me,
so I could be mistaken, is that the reference he makes is in a
footnote, and then he goes on to suggest that he rises in that
cause because he is trying to determine what's cruel or
unusual, and he is suggesting, well, it may look odd or unusual
in comparison to what's happening elsewhere in the world, but
then he says basically he is not going to rely on that.
Mr. Goodlatte. Well, what if we simply said it is a
violation of statute to do that?
Mr. Gerhardt. A violation of Federal statute to have a
footnote like that?
Mr. Goodlatte. To interpret and apply to the Constitution
the directives, policies, judicial decisions or any other
action of any foreign state or international organization.
Mr. Gerhardt. I think that it is very--again, I would have
to admit to being very troubled, because the fact is that there
are--foreign authorities were part of what the Framers had to
consult at the time they drafted----
Mr. Goodlatte. All right. Well, let me--I want to get to
Professor Hellman with one last question. I will recognize
myself for a--one additional minute.
I am a little concerned about something that I think did
not follow in your own analysis of whether or not it was
appropriate for the Congress to exercise its impeachment powers
to remove Justices for bad decisions, something, to my
knowledge, we have never done, but certainly increasingly talk
about given the fact that we have decisions coming down we
think are further and further from what we think was the intent
of the Founding Fathers or the intent of the public today in
terms of what our Constitution means. But your analysis was
that we can't, and I think you are correct in this, dock the
pay of judges for making bad decisions. We can't give them a
cut in pay by even 1 penny, as you noted, if we don't like
their decisions. Therefore, you said it followed that we
certainly wouldn't be able to remove them from office for doing
that. On the other hand, if a judge engages in bribery, we
can't dock his pay even a penny to punish him for that action,
can we?
Mr. Hellman. No, but you can----
Mr. Goodlatte. No. So it doesn't follow then. We certainly
can remove him, and I think you'd agree with us that in
appropriate circumstances should remove a judge for engaging in
bribery.
Mr. Hellman. Yes. And the difference lies in the reason the
compensation--the provision in the Constitution prohibiting the
Congress from diminishing compensation is in there. The reason
that is in there is to protect the independence of the
judiciary, and the specific independence that they were
concerned with was independence from Congress. They didn't want
judges to be--to feel that they had to decide cases in a way
that would please Congress.
Mr. Goodlatte. I don't think you can make that step. I
think that if you have a judge who repeatedly and willfully
constantly enters outrageous, erroneous decisions, I don't
believe that the Constitution would prohibit the Congress from
removing that individual from office. It is an extreme remedy,
and it is a remedy that requires considerable showing on the
part of the Congress, action by the House, and then a two-
thirds vote from the Senate to effectuate the removal from
office.
So it is not an easy remedy to pursue. But I don't think
you can conclude from the fact that we can't reduce the pay of
judges that we want to remove judges from office for a variety
of actions that many of us would regard as misfeasance of
office when they make outrageously--decisions that are
outrageously contrary to the Constitution that we were sworn to
uphold, just as they are.
Mr. Hellman. If I might respond briefly to that, because it
actually goes both to the impeachment provision and to the
jurisdiction restricting provision. We don't have to call it
jurisdiction stripping or court stripping, if people are
bothered by that. Most of these remedies have been proposed,
but from time to time----
Mr. Goodlatte. Well, the court-stripping remedy has been
used.
Mr. Hellman. Not the way this bill would do.
Mr. Goodlatte. No. I agree with that.
Mr. Hellman. It has not been successful even though----
Mr. Goodlatte. But there is nothing in the Constitution
that draws a line between the ways in which Congress has
utilized it and the ways that this bill proposes to utilize it.
Mr. Hellman. Well, what I would like to suggest is this:
That the fact that bills of this kind and even impeachment have
been proposed from time to time, but have always been rejected
in the end, that's a long history. And history creates a
tradition. And I think one of the things that Congress should
be respectful of is tradition, not just because it is old and
has a lot of history behind it, but because the fact that so
many of your predecessors have been tempted by bills like this,
have looked at them and in the end decided they didn't want to
do it. It seems to me that history should carry some weight.
Now, that's not to say that people in the past were right about
everything, but the cumulative weight of their judgments, it
seems to me, is usually a pretty good guide.
Mr. Goodlatte. Well, I have obviously exceeded my time as
well, and I will take note of Ms. Waters' observation that this
debate could persist on and on. But I will close by saying that
I fully agree with you that we would like people to follow the
full weight of history and tradition. We had 50 State laws that
prohibited the desecration of the American flag. That history
and tradition was thrown out by the courts in disregard of
that. And I think the same thing, the same thing is very much
true of what the Court's recent history of decisionmaking in
this area of religious freedom has been. And so I----
Mr. Berman. Will the gentleman yield?
Mr. Goodlatte. I will yield to the gentleman.
Mr. Berman. Well, when Justice Scalia, relying on the
American Constitution, decided that that was speech, I didn't
think it was callous disregard.
Mr. Goodlatte. But I will throw Justice Black back at you,
who also determined in a previous decision that he didn't see
any reason why the Supreme Court should interfere with the
rights of the States to pass those laws. I am not going to take
any statements from the witness.
Mr. Berman. And you are head of the new technology caucus?
Mr. Goodlatte. Absolutely. Absolutely. And you are a
Member.
With that, gentleman----
Mr. Bachus. Are we going to have a second round?
Mr. Goodlatte. I don't think we are going to have a second
round. Is that the plan? I think the fact that we are going to
have votes in about 10 minutes dictates that we need to bring
it to a conclusion.
Mr. Bachus. Could we have 5 minutes on each side?
Mr. Goodlatte. Well, why don't we give you 2 minutes. I
will give the gentleman from Alabama 2 minutes, and if the
gentlelady from California wants to take 2 minutes in response,
we will do that.
Mr. Bachus. Thank you, and I appreciate the Chairman's
indulgence.
Mr. Gerhardt, you talked about you were uncomfortable with
publicly acknowledging your religious beliefs or acknowledging
God, and I understand that. But do you believe that citizens
who choose to do so, do you think they are protected by the
Constitution, or do you think they are prohibited from the
Constitution from acknowledging God or from discussing their
religious beliefs?
Mr. Gerhardt. Well, I think the critical thing is time and
place. The Constitution is all about allocating particular
authority to particular officials and also putting limits on--
--
Mr. Bachus. Well, you think citizens--there are a lot of
limits put--by the Constitution put on their expression of
religious beliefs?
Mr. Gerhardt. Um----
Mr. Bachus. Do you think there are any limits on the
Constitution on them expressing their----
Mr. Gerhardt. On public citizens expressing their beliefs?
Well, as long as--well, in the course of----
Mr. Bachus. Well, go ahead.
Mr. Gerhardt. If I understand the question correctly, I
think the answer will probably be no, because as long as they
are acting----
Mr. Bachus. You started talking about Government officials,
so--you got into what Government--and let's talk about
Government officials. Do you think there is anything in the
Constitution that prohibits Government officials in their
official positions from acknowledging God?
Mr. Gerhardt. Again, I----
Mr. Bachus. Or from the free exercise of----
Mr. Gerhardt. I think it is how you do it and what form it
takes.
Mr. Bachus. All right. What about invoking a prayer to God
asking for his assistance in a public place?
Mr. Gerhardt. Well, again, it depends on the public place.
Mr. Bachus. Well, what if it is under their official
duties? What if they were doing it as part of their official
duties? Would that violate the Constitution?
Mr. Gerhardt. Well, we know that----
Mr. Bachus. I in my official duties in an official session
of Congress pray to God and ask for his blessings. Would that
be a violation of the Constitution?
Mr. Gerhardt. Well, we know that prayer, at the House of
legislative sessions is constitutional. It becomes much more
problematic if you are also doing that in a public school.
Mr. Bachus. Well, if it is--in other words, it is
constitutional for our Congressmen to do it in a session of
Congress, but it is unconstitutional for our schoolchildren to
do it in the schools.
Mr. Gerhardt. I accept the Supreme Court doctrine on this.
Mr. Bachus. And is that what you are saying, that that's
the law of our land?
Mr. Gerhardt. I believe that is.
Mr. Bachus. So we are limiting our schoolchildren and what
they can do under the Constitution, yet we, as Congressmen, can
pray to God ask for his assistance, ask for his blessings on
our deliberations, but the same Government that allows its
representatives to do that prohibits schoolchildren from doing
that, or schoolteachers or principals. Is that right? Is that
kind of ironic to you?
Mr. Gerhardt. No.
Mr. Bachus. It is not to you and Ms. Waters. Okay.
Mr. Gerhardt. I think the logic of the Supreme Court's
opinions happens to be that in the school settings, the extent
to which the sort of coercive influences which can control the
circumstances is very high.
Mr. Bachus. Well, I mean--but, I mean, if the Constitution
grants a right, it is not up to the Supreme Court to say--to
try to find a motive, is it?
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Bachus. Let me just--just one.
Mr. Goodlatte. We will yield the same amount of time to Ms.
Waters when you are done.
Mr. Bachus. Mr. Hellman and Mr. Gerhardt, you are talking
about what the courts found and what the tradition is, and
they--prayer in the schools as a tradition from the 1700's to
1947 when the first decision was made which start eroding that.
So that's a good case of history being thrown out the window;
is it not? In fact, the New and Old Testament were taught in
the schools in New York State up until right before that. I
have those copies in my office, because a relative of mine was
taught--the New Testament and the Old Testament was a part of
their education in the public schools. When did that become
unconstitutional? I will just close with that.
Mr. Gerhardt. The New York State? That's Engel v.----
Mr. Bachus. When did it start violating the Constitution to
have public prayers in the schools? It was constitutional until
a certain point, right, and then it became unconstitutional.
Mr. Gerhardt. Not necessarily. I mean----
Mr. Bachus. You think it was unconstitutional from the
start?
Mr. Gerhardt. It may have been. Let me explain. And then I
have to deal with the higher authority of my wife.
Mr. Goodlatte. The gentleman has to catch a 7 o'clock
train.
Mr. Gerhardt. And I am going to get into trouble one way or
another.
Mr. Goodlatte. You have to catch the train.
Mr. Bachus. You would acknowledge the Constitution hasn't
changed, right?
Mr. Gerhardt. Right. But with all due respect----
Mr. Goodlatte. Let the gentleman have a final answer to the
question.
Mr. Gerhardt. With all due respect, I mean, I think these
are great questions, and this is a very important line of
inquiry. But we also know the schools were segregated for
decades, for a very, very long time.
Mr. Bachus. But the law changed. The amendments of the
Constitution changed.
Mr. Gerhardt. Right. I am talking about between the 14th
amendment and the time of Brown v. Board of Education, they
were segregated.
Mr. Bachus. But----
Mr. Goodlatte. The gentleman suspend. We will accept the
answer of the witness, and now I am going to recognize the
gentlewoman from California for 3 minutes.
Ms. Waters. I yield to Professor Gerhardt.
Mr. Berman. I think Professor Gerhardt should be able to
leave.
Ms. Waters. Yes, to continue.
Mr. Berman. Well, I think he wants to catch that train. So
I think we should let him.
Ms. Waters. Well, I would like to hear your answer if you
have got a few more minutes.
Mr. Gerhardt. Okay. But I just was going to add that the--I
think that the other development that arose, Congressman, was--
had to deal with the incorporation of the 14th amendment to the
States, and that, of course, arose as a result of the 14th
amendment as well. So the practice that you are talking about
to some extent predated, of course--I am not real sure it
predated the 14th amendment, but in any event it predated the
time that the Supreme Court had considered challenges to
practices like that. Once the 14th amendment gets enacted, and
once incorporation takes place, incorporation of that amendment
against the States, that is going to allow the Court to
adjudicate matters like prayer and segregation.
Ms. Waters. Thank you. On my time. This is my time. On my
time.
Mr. Gerhardt. And I apologize to the Committee. I'm sorry.
Ms. Waters. Thank you.
Reclaiming my time. A question of any of the panelists,
because I must admit I am playing a little bit of catch-up on
this. Is there a definition of God in the legislation, in the
proposed legislation? Definition of God?
Mr. Dannemeyer. Well, let me just say that the Declaration
of Independence makes reference to a Creator, and when you look
at the signature on the Constitution of the United States, it
makes reference to God. So this legislation, 3799, does not
seek to define God.
Ms. Waters. Well, what--what I am not clear about, and
perhaps this is even the wrong place to try and hold this
discussion, is whether this is synonymous with Allah, is it
synonymous with Jehovah, Buddha, Mohammed? I--what----
Mr. Dannemeyer. Throughout the history of Western
civilization, the word God, G-O-D, encompasses the existence of
a sovereign supreme being, and there are those of us who
believe in the Bible that this supreme being created the world
as described in Genesis. That's the basis on which the Nation
was founded, and that was what we believed and taught and
professed from 1789 to 1947, when the series of decisions of
the U.S. Supreme Court have really stolen that.
Ms. Waters. Sir, I guess what we are saying is when you
talk about symbols or you define the teachings, whether it is
the 10 Commandments or something else, that if it is different
from the God that someone else believes in, that that would be
illegitimate--I mean, that would be legitimate for everyone,
whatever the symbols are or the teachings are that--of the God
that you are describing here.
Mr. Dannemeyer. Let me respond this way, if I may. I think
in the public square, which is what we are talking about, in
public policy, we should strive, those of us who have different
religious convictions, to find a common ground. That's why I am
here. I believe the common ground historically has been the
existence of God. That's what this fight's all about.
Ms. Waters. Mr. Dannemeyer, do you believe God is black?
Mr. Dannemeyer. That's not the question. The Bible makes
very clear that is God not a respecter of any person's color.
Ms. Waters. So if we had a symbol in the public square of a
black God, that would be perfectly acceptable to--for you?
Mr. Dannemeyer. It certainly would. It certainly would.
Ms. Waters. Okay.
Mr. Berman. Will the gentlelady yield?
Ms. Waters. Yes, I will yield.
Mr. Berman. I mean, we really haven't explored the article
III issues. The proponents both on the Committee and the two of
you gentlemen have talked about this exception provision. There
is a very different interpretation of article III, and I think
Professor Hellman and Gerhardt spoke about it. But where I am--
what I can't quite put my hands on is your insistence that the
acknowledgment of God is divorced from a religion. I understand
your quickness to define, and it is interesting that you don't
choose to define God in response to Ms. Waters' question, but
you are talking about defining fishing.
Mr. Moore. Wait a minute. I haven't answered Ms. Waters
yet.
Mr. Berman. Well, I was taking your comments about fishing
and her question about defining God. My only point was--this
isn't even a question. It is--I don't have my hands on the
acknowledgment of God, and then all of a sudden we have a bill
that applies to school prayer, the 10 Commandments, a number of
other things which you lump into an acknowledgment of God
because you know you can't establish religion, but looks to me
like you get down the road toward establishing a religion, or
at least excluding some religions from your definition. And I
just--I don't mean this as a question because we can go on this
forever, but I just want to leave with that observation.
Mr. Moore. You don't want an answer?
Mr. Berman. I mean someday, but not this moment.
Mr. Moore. But not here. Is that what you are saying?
Mr. Berman. Here is fine. Now is the problem.
Mr. Moore. The God--did I misunderstand? I can answer? I
can't?
Mr. Goodlatte. I think the time has expired.
Mr. Moore. Okay.
Mr. Goodlatte. I would like to thank the witnesses for
their testimony. The Subcommittee very much appreciates their
contribution.
This concludes the legislative hearing on H.R. 3799, the
Constitution Restoration Act of 2004. The record will remain
open for 1 week. Thank you for your cooperation. The
Subcommittee stands adjourned.
[Whereupon, at 6:30 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress From the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property
Mr. Chairman,
I'm not sure whether the greater irony is that this bill is called
the Constitution Restoration Act, when it does the opposite of
restoring the Constitution's integrity, or that this hearing is taking
place days before the Jewish High Holidays, a time in which Jews spend
days reciting prayers replete with acknowledgements of God and His
sovereignty.
America was founded by those attempting to escape religious
persecution. The pilgrims set forth to a new continent in the hope of
establishing what was at the time a radical idea, a society free from
the tyranny of religious discrimination. This tradition led the framers
of the First Amendment to our Constitution to insist on the principle
of separation of church and state. They enshrined in our founding
document the twin pillars of our country's policy toward religion: a
commitment to allow freedom of religious expression, and a rejection of
the state's establishment of religion. They entrusted our courts with
the ability to differentiate between the two.
H.R. 3799 is a reactionary piece of legislation. It is born out of
an attempt to politicize recent decisions of the Supreme Court and
lower federal courts. And the most egregious part: H.R. 3799 would
seemingly make it an impeachable offense for a federal Judge to decide
that H.R. 3799 violates the U.S. Constitution.
This bill attempts to circumvent the only available process for
legislators to reverse the effects of judicial decisions concerning the
Constitution. That process is called a constitutional amendment, and
the framers deliberately made it difficult to achieve because they did
not want legislators repeatedly tinkering with the founding document.
Supporters of this bill have repeatedly promoted the concept of court
stripping in an effort to give legislators the power to take decisions
out of the hands of judges, an approach that is thoroughly at odds with
what the framers of the Constitution intended.
I am surprised that, in an age when we are trying to eradicate the
Taliban, a group that infused a fundamentalist interpretation of their
religion into every aspect of public life, we are here, now, talking
about removing federal judicial oversight in some religion cases. The
Constitution created the most delicate balance between the branches of
government. By giving Congress power to overturn the judiciary's core
function of constitutional interpretation, this bill would
fundamentally alter that constitutional balance.
This bill is not about freedom of expression, as some might
proclaim. It is a mockery of what our founders considered to be an
integral part of our system of government--the separation of powers and
the system of checks and balances between the branches of government.
Are we to chain the hands of the judicial branch of the federal
government so that they merely serve as a rubber-stamp for the
political mores of the moment?
Ironically, while supporters of H.R. 3799 seek to assert greater
congressional control over review of the laws it passes, making state
courts the primary avenue for challenges to federal legislation
actually erodes Congress' control over judicial review. Unlike with the
federal judiciary, Congress has no impeachment power over state judges
or authority to regulate state courts, and the Senate has no power to
advise and consent in their selection.
And speaking of our framers, are we now to question the influence
foreign law played in the development of the Constitution? And what
about the usage of foreign law in decisions that the sponsors
presumably likes? As Professor Gerhardt states in his written
testimony, If this bill were law in 1986, then the majority in the
Bowers v. Hardwick case presumably would have been subject to
impeachment for their reliance on the traditions of Western
civilization and the Judeo-Christian tradition.
The attack on usage of foreign law is said to be a way to clamp
down on unacceptable judicial activism. But the opposition to judicial
activism is selective, limited to a specific type of decision with
which the sponsor disagrees. The sponsors are content to allow other
examples of judicial activism to pass unchallenged. For example, of
relevance to this subcommittee, but not at all addressed in the bill,
is the judicial activism evident in the Florida Prepaid cases. In those
cases, the Supreme Court based its decisions not on the text of the
Constitution, but rather on ``fundamental postulates'' that directly
contradict the actual language of the 11th amendment. Apparently the
sponsors of this bill are only opposed to judicial activism when it
runs counter to their political ideology.
This legislation would give Congress the power that our founding
fathers specifically intended to deny the political branches--namely,
the power to ensure that judicial decisions are held hostage to
prevailing political sentiment in the country. That is not the role the
founding fathers intended for Congress or the independent federal
judiciary. That Congress would threaten to impeach federal judges
because of the substance of their constitutional decisions is itself an
abuse of power and one which our system of government cannot tolerate.
I urge my colleagues to reject this bill in its entirety.
----------
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan, and Ranking Member, Committee
on the Judiciary
This legislation is merely the latest Republican political assault
on our independent federal judiciary. The bill is unconstitutional,
undermines our system of government, is unnecessary, and is
hypocritical. It is a Republican tactic to avoid debating issues of
real importance during an election: the economy, jobs, domestic
security, and health care.
Just a few months ago, we passed a bill stripping federal courts
from reviewing challenges to the 1996 Defense of Marriage Act. In two
days, we will vote on whether to strip courts from hearing challenges
to the pledge of allegiance. Today, we are considering legislation
that furthers alienates federal courts from issues that are important
to right-wing conservatives: affirmations of God and foreign legal
judgments. Like the other two bills, this has no chance of becoming
law, so why are we here? Because the Republican leadership does not
like to talk about its deficit-raising tax cuts or its intelligence
failures or its backstabbing of American workers in a close election
year. Also, it wants to coddle its right-wing, extremist base.
I could not be more certain of how unconstitutional this
legislation is. Separation of powers prevents Congress from managing
the deliberations of the judicial branch, yet this proposal would
prevent the judiciary from enforcing the Constitution and ensuring
separation of church and state.
The legislation also undermines the supremacy of federal law as
governed by article VI of the Constitution. By preventing federal
courts from reviewing certain cases, the bill serves to weaken and
divide our Nation. If supporters of H.R. 3799 had their way, our
schools would never have become integrated because the federal courts
should not have ``interfered'' in state matters during the civil rights
era. Ultimately, the bill would result in fifty different state court
interpretations of constitutional law.
The legislation goes even further in this radical direction by
being retroactive. State courts would not be bound to related federal
court that may have been issued prior to enactment.
This is why anti-liberal thinkers such as former-Attorney General
William French Smith and former Rep. Bob Barr have written in
opposition to these extreme, anti-American initiatives.
It is also unheard of to state that a specific act is impeachable.
Never before has Congress statutorily deemed certain acts to be
impeachable. If we start down this road, it is only a matter of time
before it will be a statutorily impeachable offense to mislead the
American people into war and to use that war to line the pocketbooks of
friends and political contributors. Decisions about impeachment should
be made on a case-by-case basis by Congress, and hopefully only rarely.
I have to admit that all this back and forth on federalization has
me a little confused. Last week, Republicans moved a bill that subjects
lawyers in state lawsuits to federal sanctions. Every year, they move
tort reform legislation that moves class action cases into federal
court. Finally, they made it a federal offense for a doctor to comply
with a woman's right to choose. Perhaps if my colleagues on the other
side could provide a list of which issues should be federal and which
should be left to the states, I could follow along better in the
future.
----------
Supplemental Prepared Statement of Roy S. Moore
The Constitution Restoration Act of 2004 (H.R. 3799) (CRA) exempts
from federal courts cases brought over a public official's or element's
public ``acknowledgment of God as the sovereign source of law, liberty
or government.'' During the course of my testimony before this
honorable subcommittee, I did not have an opportunity to answer a
question asked by a subcommittee member who wanted to know whether
``God'' was defined in the CRA, or, as the subcommittee member put it,
``Which God is this legislation referring to?''
The answer is so obvious it forces one to wonder about the real
purpose for asking. There can be no doubt as to which God the
legislation must be referring to when it discusses acknowledgments of
God as ``the sovereign source of law, liberty, and government'' because
a basic knowledge of America's history and of our Founders' innumerable
acknowledgments of the same God reveals that the God America always
acknowledges is the God of the Holy Scriptures.
The brave pioneers who in 1620 landed at Plymouth Rock bound
themselves to a governing compact before departing from the Mayflower
onto dry land ``[h]aving undertaken for the Glory of God and
Advancement of the Christian Faith, and the Honour of our King and
Country, a voyage to plant the first colony in the northern Parts of
Virginia. . . .'' \1\ The Fundamental Orders of Connecticut of 1639,
the first permanent governing document of that colony, summarized its
purpose stating that, ``where a people are gathered together the word
of God requires that to maintain the peace and union of such a people
there should be an orderly and decent Government established according
to God, to order and dispose of the affairs of the people at all
seasons as occasion shall require. . . .'' The Declaration of
Independence expressly relies upon the ``Laws of Nature and of Nature's
God'' \2\ as self-evident proof for its claims, and after several
references to God, appeals to the ``Supreme Judge of the World for the
Rectitude of our Intentions.'' The Continental Congress, on November 1,
1777, declared a day of national thanksgiving even in the midst of the
war for independence because they believed ``it is the indispensable
Duty of all Men to adore the superintending Providence of Almighty God;
to acknowledge with Gratitude their Obligation to him for benefits
received, and to implore such further Blessings as they stand in Need
of. . . .'' Our sixth President of the United States, John Quincy
Adams, on the anniversary of the Declaration of Independence in 1837,
noted that ``the Declaration of Independence first organized the social
compact on the foundation of the Redeemer's mission upon earth [and]
laid the corner stone of human government upon the first precepts of
Christianity.'' \3\ In his Thanksgiving Day proclamation of October 3,
1863, President Abraham Lincoln noted the many blessings that had been
bestowed upon this country even in the midst of the Civil War and
acknowledged that ``[t]hey are the gracious gifts of the Most High God,
who, while dealing with us in anger for our sins, hath nevertheless
remembered mercy.'' In 1931, the United States Supreme Court observed
that ``[w]e are a Christian people, according to one another the equal
right of religious freedom, and acknowledging with reverence the duty
of obedience to the will of God.'' \4\ I cited some other examples in
my original written statement to this subcommittee and there are a
myriad of others throughout the history of this country and in the
present day.
---------------------------------------------------------------------------
\1\ Our Nation's Archive: The History of the United States in
Documents 46 (Bruun & Crosby eds. 1999).
\2\ Sir William Blackstone in his Commentaries on the Law of
England, the definitive legal commentary of the late Eighteenth Century
and heavily relied upon by the Founders, described the ``law of
nature'' as originating from God: ``The doctrines thus delivered [by
divine revelation] we call the revealed or divine law, and they are to
be found only in the holy scriptures. These precepts, when revealed,
are found upon comparison to be really a part of the original law of
nature, as they tend in all their consequences to man's felicity.'' I
Blackstone Commentaries 42 (Univ. of Chi. Facs. ed. 1765).
\3\ William J. Federer, America's God and Country 18 (1996).
\4\ United States v. Macintosh, 283 U.S. 605, 625 (1931) (citation
omitted).
---------------------------------------------------------------------------
In short, there never has been a question as to ``which God'' the
people of this country have recognized as the source of our law,
liberty, and government. When Congress sang ``God Bless America'' on
the steps of the Capitol Building on September 11, 2001, no member
balked because they were concerned about ``which God.'' When Congress
recites the Pledge of Allegiance, there is no question raised as to
``which God'' our nation is under. Our official national motto, ``In
God We Trust,'' is not footnoted with a question about ``which God.''
When presidents or would-be presidents conclude their speeches or
addresses with ``God bless America,'' no one objects because they are
concerned about ``which God'' is being invoked.
A person shrinks from the idea that there is one God who should be
acknowledged above others when he or she does not want to acknowledge
that there is any authority higher than himself or herself. In his Bill
for Religious Freedom, Thomas Jefferson speaks of ``fallible and
uninspired men'' who have ``established and maintained false religions
over the greatest part of the world, and through all time.'' \5\ The
common characteristic among false religions is the installation of man
as the ultimate determiner of right and wrong. Have we become like
those ``fallible and uninspired men''?
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\5\ Documents of American History 125 (Henry Steele Commager, ed.,
6th ed. 1973).
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When we refuse to acknowledge the God Whom our forefathers
recognized, the only God Who gives freedom of conscience to man, we
reject the founding principle of the First Amendment and enshrine the
message of totalitarian regimes throughout time: that man is god and
will save us from ourselves. Indeed, this nation specifically placed
the phrase ``under God'' in the Pledge of Allegiance to contrast us
with the atheism of such regimes.\6\ The public acknowledgment of God
has been a part of this country from its inception. We must preserve
this right before the federal courts completely take it away.
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\6\ ``At this moment of our history the principles underlying our
American Government and the American way of life are under attack by a
system whose philosophy is at direct odds with our own. Our American
Government is founded on the concept of the individuality and the
dignity of the human being. Underlying this concept is the belief that
the human person is important because he was created by God and endowed
by Him with certain inalienable rights which no civil authority may
usurp. The inclusion of God in our pledge therefore would further
acknowledge the dependence of our people and our Government upon the
moral directions of the Creator. At the same time it would serve to
deny the atheistic and materialistic concepts of communism with its
attendant subservience of the individual.'' H.R. 1693, 83rd Cong., 2nd
Sess. (1954).
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