[Congressional Record Volume 150, Number 27 (Thursday, March 4, 2004)]
[House]
[Pages H845-H846]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             JUDICIAL ACTIVISM, A GRAVE AND GROWING PROBLEM

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Kentucky (Mr. Lewis) is recognized for 5 minutes.
  Mr. LEWIS of Kentucky. Madam Speaker, I would like to take this 
opportunity to speak about judicial activism, a grave and growing 
problem in our current national discourse that is threatening our 
democratic principles, eroding the consent of the governed, and 
radically altering the social fabric of our American society.
  It should be of little surprise that the impetus of this debate, and 
the modest solutions I intend to set forth, stem from the November 
ruling by the Massachusetts Supreme Court to allow same-sex marriages 
and the subsequent rulings on the constitutionality of the Defense of 
Marriage Act that have followed.
  I am a strong supporter of numerous legislative measures currently 
being considered by this Congress, aiming to define marriage as an 
exclusive union between one man and one woman. However, I believe a 
more comprehensive solution is necessary to address the broader, 
troubling trend toward judicial activism, a development with definitive 
implications beyond just the issue of marriage.
  America's judicial branch has become increasingly overreaching and 
disconnected from the values of everyday Americans, many of whom I 
represent in the Second District of Kentucky. The recent actions taken 
by courts in Massachusetts and elsewhere are demonstrative of a single 
branch of government taking upon itself the singular ability to 
legislate. I believe these actions usurp the will of the governed, 
circumvent representative government by allowing tribunals of a select 
few, not elected or otherwise politically responsible, to conclusively 
rule on issues that are radically reshaping the societal traditions of 
our great Nation.
  Clearly, this issue is one about power, not in the raw political 
sense but in terms of the allocation of government authority between 
each branch of government, specifically between Congress and the 
Judiciary, in a federal system that relies on checks and balances to 
protect our liberty. This is a debate that has been taking place since 
our founding.
  At no point is the tension between Congress and the courts greater 
than in the realm of constitutional interpretation. The Constitution 
does not expressly provide for judicial review. Instead, the right of 
judicial review is a practice with origins from the bench

[[Page H846]]

itself, established in 1803 when Chief Justice John Marshall ruled, 
``It is emphatically the province and duty of the Judicial Branch to 
say what the law is.''
  The Marbury v. Madison case decision provides an extraordinary 
recognition of judicial power in a constitutional form of government. 
The exercise of such broad authority, expanded over time through 
political tradition, clearly has a growing adverse effect on the 
relationship between coequal arms of our national government. As 
judicial power expands, congressional power contracts. This is 
especially true when the power to interpret the Constitution rests in 
the hands of activist judges anxious to find the latest ``right'' 
hiding between the lines of our founding document.
  Our Founding Fathers created three separate branches of government, 
each with equal checks and balances on the other. Our founders also 
ensured that each branch, including Congress, play a role in 
constitutional interpretation, requiring officials in each branch to 
take an oath to support and defend the Constitution.
  The framers did not give authority to one branch over the other. 
Certainly each branch has its separate functions, but debating, 
defending, and upholding the tenets of the Constitution involve the 
decision and duties of each branch. As a Congress, we must change our 
thinking and reaffirm our authority to interpret constitutional issues 
in concert with, and independent from, the courts.
  The framers of the Constitution were advocates of serious debate who 
believed that the deliberation of the political process should always 
be open to the people. If the courts continue their dramatic move 
toward self-proclaimed interpretive power, I believe Congress, as the 
people's branch of representative government, should take steps to 
ensure equal balance and authority to check the final results.

                              {time}  1330

  I am introducing legislation today to address these serious, pressing 
issues in a direct and forceful manner. The bill that I have authored, 
if enacted, will allow Congress, by a two-thirds majority of each 
House, to reverse a judgment of the Supreme Court. This additional 
check may only be enforced on rulings concerning the constitutionality 
of an act of Congress following the enactment of this bill.
  In his first Inaugural Address, Abraham Lincoln warned, ``The candid 
citizen must confess that if the policy of the government upon vital 
questions affecting the whole people is to irrevocably fixed by 
decisions of the Supreme Court, the instant they are made, the people 
will have ceased to be their own rulers, having practically resigned 
their government into the hands of that eminent tribunal.''
  It is my hope that the people and the courts will see my position and 
recognize the serious problems arising from this growing imbalance of 
constitutional authority. I urge my colleagues from both sides of the 
aisle to redress judicial activism, protect the equal dignity of this 
governing body, and preserve the majority will of the governed by 
supporting this legislation.

                          ____________________