SPEAKERS CONTENTS INSERTS
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58–804
1999
CONGRESS, THE COURT, AND THE CONSTITUTION
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
JANUARY 29, 1998
Serial No. 124
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JOHN CONYERS, Jr., Michigan
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BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
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BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
January 29, 1998
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Campbell, Hon. Tom, a Representative in Congress from the State of California
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Clinton, Robert L., Associate Professor of Political Science, Southern Illinois University
Currie, David P., Edward H. Levi Distinguished Service Professor, University of Chicago School of Law
Devins, Neal, Goodrich Professor of Law, College of William and Mary
Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Research Service
Franck, Matthew J., Chairman and Associate Professor of Political Science, Radford University
Frank, Hon. Barney, a Representative in Congress from the State of Massachusetts
Hostettler, Hon. John N., a Representative in Congress from the State of Indiana
Kinkopf, Neil, Visiting Assistant Professor of Law, Case Western Reserve University Law School
Lewis, Hon. Ron, a Representative in Congress from the State of Kentucky
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Strossen, Nadine, President, American Civil Liberties Union
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Clinton, Robert L., Associate Professor of Political Science, Southern Illinois University: Prepared statement
Currie, David P., Edward H. Levi Distinguished Service Professor, University of Chicago School of Law: Prepared statement
Devins, Neal, Goodrich Professor of Law, College of William and Mary: Prepared statement
Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Research Service: Prepared statement
Franck, Matthew J., Chairman and Associate Professor of Political Science, Radford University: Prepared statement
Hostettler, Hon. John N., a Representative in Congress from the State of Indiana: Prepared statement
Kinkopf, Neil, Visiting Assistant Professor of Law, Case Western Reserve University Law School: Prepared statement
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Lewis, Hon. Ron, a Representative in Congress from the State of Kentucky: Prepared statement
Strossen, Nadine, President, American Civil Liberties Union: Prepared statement
APPENDIX
Material submitted for the record
CONGRESS, THE COURT, AND THE CONSTITUTION
THURSDAY, JANUARY 29, 1998
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:32 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, and Melvin L. Watt.
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Staff present: John Ladd, Counsel; Keri Folmar, Chief Counsel; Brett Shogren, Research Assistant; Michael Connally, Staff Assistant; Brian Woolfolk, Minority Staff; Julian Epstein, Minority Staff Director, and Robert Carry, Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY [presiding]. The subcommittee will be in order.
The subcommittee is holding this hearing today to examine the respective roles of the Congress and the Supreme Court in interpreting the Constitution. With the help of our witnesses today, we will consider whether one branch of our Federal Government has a monopoly on Constitutional interpretation.
I believe the framers of our Constitution expected the Congress to play an important role in debating and legislating our constitutional issues. It is important to the Congress to ask itself if deference to the Supreme Court is always the order of the day. We have a responsibility to consider the circumstances under which the Congress should or should not defer to the Supreme Court in making Constitutional interpretations. And we have the duty to ensure that the requirements of the Constitution are consistently recognized and honored in the legislative process.
While the exclusive focus of today's hearing is not the Court's Boerne v. Flores decision of last term, that case does represent the most recent expression of tension in an ongoing relationship between the Congress and the Court. Despite the Court's holding in Boerne, Justice Kennedy stated to the Court that, and I quote, ''When the Congress acts within its sphere of power and responsibility, it has not just the right but the duty to make its own informed judgment of the meaning and force of the Constitution.''
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In light of the result in Boerne, it is incumbent on Members of Congress to reflect on the scope of our sphere of power and responsibilities so that we can exercise our duty, as Justice Kennedy put it, ''to make our own informed judgment on the meaning and force of the Constitution.''
I look forward to hearing from our witnesses today, and I now recognize Mr. Scott for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate the opportunity we're taking to examine the relationship between Congress, the Court, and the Constitution. Constitutional tension between Congress and the judiciary is nothing new. The drafters of the Constitution established three branches of Government, all with equal responsibilities, to protect and uphold the Constitution.
The strength of our system of Government is based on the interdependence of three separate but equal branches of Government. The fact that from time-to-time the branches disagree is a tribute to our democracy and in no way threatens the sovereignty of its people. We should take pride in knowing that our vigorous system of checks and balances not only protects us from external threats at home and abroad, but also protects us from the greatest threat ever imagined by our Founding Fathers, and that threat is ourselves.
I understand that there have been a number of proposals intended to minimize the healthy tension now existing between Congress and the courts. I am particularly concerned by the suggestion by some that we should more frequently exercise our impeachment powers to rid ourselves of the actions of activist judges who thwart the will of the people, and we should investigate these judges, Mr. Chairman.
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I understand that in the 1996-97 term of the Supreme Court, four of the seven acts of Congress reviewed were invalidated. Only two justices voted to invalidate all seven of the acts of Congress considered in the most recent term, taking every opportunity they had to thwart the will of the people. There was another judge that voted six out of seven times to thwart the will of the people, and we should investigate and expose these justices for thwarting the will of the people. And Mr. Chairman, we need to do some research to find out who these justices are.
Mr. CANADY. Wait——
Mr. SCOTT. Wait a minute, Mr. Chairman. My staff has already supplied me with that information—seven out of seven; Justice Scalia and Justice Thomas—six out of seven; Chief Justice Rehnquist. I look forward to the testimony of the witnesses, Mr. Chairman, to see whether or not we would have been better off without these activist judges on our Court. [Laughter.]
So I look forward to the testimony of the witnesses, Mr. Chairman, and thank you for calling the hearing. I am particularly looking forward to hearing from Professor Devins, who is a professor at William and Mary Marshall School of Law, which, depending on the actions of the General Assembly tomorrow and the next day, may be in or out of my district. [Laughter.]
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott. With the General Assembly meeting on a such a matter today, I'm very pleased that you were able to be here. [Laughter.]
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Mr. SCOTT. I'm well-represented today in Richmond, you can be sure.
Mr. CANADY. I'm sure you are.
We're very pleased to have a distinguished panel of Members to start off the hearing today. We have four Members on this panel. The first to testify will be the Honorable Ron Lewis. Congressman Lewis represents the 2nd District of Kentucky and serves on both the Agriculture and National Security Committees in the U.S. House of Representatives.
Next we will hear from the Honorable John Hostettler. Representative Hostettler, who represents the 8th District of Indiana, has recently published an articled entitled ''The Constitution's Final Interpreter: We the People,'' in the Regent University Law Review.
The Honorable Barney Frank will be the next to testify. A member of the House Judiciary Committee and former ranking member of this subcommittee, Representative Frank has represented the 4th District of Massachusetts since 1981.
Finally, on our first panel, we will hear from the Honorable Tom Campbell. Representative Campbell, who serves the people of the 15th District of California, has taught constitutional law at Stanford University.
Without objection, your written statements will be made a part of the permanent record, and I would ask you to do your best to summarize your testimony in no more than 5 minutes; we'll have the light on. Unless some member of the subcommittee insists, we won't stay strictly to the 5-minute rule, but as close as you could come to that, we would appreciate it.
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So with that we welcome you all, and I'll recognize Representative Lewis.
STATEMENT OF HON. RON LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. LEWIS. Mr. Chairman and members of the subcommittee, first let me thank you for allowing me to participate in this important debate.
As I understand it, the debate before us today is one about power, not power in the raw political sense, but in terms of the allocation of Government authority between each branch of Government, or more specifically, between Congress and the judiciary.
In a Federal system that relies on checks and balances between the three branches to protect our liberty, having this debate is fundamental to understanding what kind of Government we have, or more important, aspire to. Indeed, it is a debate and conversation that has been taking place since our founding.
My observations this morning are not those of a lawyer, a constitutional law professor, or political scientist, although I look forward to the testimony of those informed with those credentials. Instead, my views are those of a relatively new Member of Congress who believes that swearing to uphold the Constitution requires serious thought about what the Constitution means.
My experience so far is that at no point is the tension between Congress and the courts greater than in the realm of constitutional interpretation—determining what those carefully chosen and debated words mean.
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Early in our history, Justice Marshall answered that question in favor of the Supreme Court with a phrase that has become an axiom: ''It is emphatically the province and duty of the judicial branch to say what the law is.'' That is an extraordinary recognition of judicial power in a constitutional form of Government.
This is a notion of great consequence, being then as Justice Rehnquist observed, ''The exercise of the judicial power also affects the relationships between the co-equal arms of the national Government.'' That is, when judicial power expands, congressional power contracts. This is particularly 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 the written document. Nothing, of course, prohibits Congress from enacting additional rights or privileges, but as elected representatives of the people, that is our job.
So to my colleagues, I would simply say this debate is about how much of our authority and responsibility should be parceled out to the judicial branch. As Professor Ely writes, ''When a court invalidates an act of the political branches on constitutional grounds, however, is it overruling their judgment and normally doing so in a way that is not subject to 'correction' by the ordinary lawmaking process. Thus, the central function and at the same time the central problem of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they like.''
My fear is that Congress, as an institution, has too often used the excuse of Marbury v. Madison to avoid our own important role in constitutional interpretation. Our Founding Fathers created three separate branches of Government. They created checks and balances on each branch. They required officials in each branch to take an oath of office to support and defend the Constitution. And our founders ensured that each branch, including Congress, play a role in constitutional interpretation.
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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.
Through history, there are specific examples where Congress has asserted its independent role as interpreter successfully and in contrast to the court. The issue of slavery provides a good example, for Congress continued to pass legislation in 1962 banning slavery in the territories before the Dred Scott decision was overturned.
As Lou Fisher, who we will hear from later, writes, ''Congress never doubted their constitutional power to prohibit slavery in the territories and proceeded to announce their independent interpretation, with or without the Court.''
This tension is also illustrated by the Supreme Court's recent decision in The City of Boerne v. Flores, Archbishop of San Antonio. The Religious Freedom of Restoration Act, which the House passed under suspension of the rules and the Senate passed 97 to 2, was struck down by the Court on constitutional grounds. Writing for the majority, Justice Kennedy observed the following:
''If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.' It would be on the level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.'' And, of course, that comes from Marbury v. Madison. ''Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article 5.''
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But, you know, I wonder if you infused in that if the Court can define its own powers by altering the meaning of the Constitution. Where does its power end?
These historical examples of independent actions by Congress—actions where the courts have agreed and those where they have not—reiterate that the Constitution does not prohibit our ability to interpret constitutional issues. As a Congress and throughout the country, we must change our thinking, recognize this fact once again, and put its authority to use. We, as a Congress, must define our role in constitutional interpretation in a forceful and direct way.
In a few weeks, informed by today's discussions, I will introduce a resolution I hope will begin to reaffirm our role. The resolution will affirm our authority to interpret the Constitution independently from the courts and hopefully provide a catalyst for further debates and discussions. I look forward to today's testimony, and, again, thank you for this opportunity.
[The prepared statement of Mr. Lewis follows:]
PREPARED STATEMENT OF HON. RON LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. Chairman, Members of the Subcommittee, first let me thank you for allowing me to participate in this important debate.
As I understand it, the debate before us today is one about power. Not power in the raw political sense, but in terms of the allocation of government authority between each branch of government—or more specifically, between Congress and the Judiciary.
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In a federal system that relies on checks and balances between the three branches to protect our liberty, having this debate is fundamental to understanding what kind of government we have, or more important, aspire to. Indeed, it is a debate and conversation that has been taking place since our founding.
My observations this morning are not those of a lawyer, a constitutional law professor or political scientist, although I look forward to the testimony of those informed with those credentials. Instead, my views are those of a relatively new member of Congress who believes that swearing to uphold the Constitution requires serious thought about what the Constitution means.
My experience so far is that at no point is the tension between Congress and the Courts greater than in the realm of constitutional interpretation—determining what those carefully chosen and debated words mean.
Early in our history, Justice Marshall answered that question in favor of the Supreme Court with a phrase that has become an axiom: ''It is emphatically the province and duty of the Judicial Branch to say what the law is,'' Marbury v. Madison 5 U.S. (1 Cranch) 137, 177 (1803)
That is an extraordinary recognition of judicial power in a constitutional form of government. This is a notion of great consequence being then as Justice Renquist observed ''[t]he exercise of the Judicial power also affects relationships between the co-equal arms of the National Government.'' Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 473 (1982). That is, when judicial power expands, Congressional power contracts.
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This is particularly 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 the written document. Nothing, of course, prohibits Congress from enacting additional rights or privileges, but as elected representatives of the people, that is our job.
So to my colleagues I would simply say this debate is about how much of our authority and responsibility should be parsed out to the judicial branch. As Professor Ely writes,
''When a court invalidates an act of the political branches on Constitutional grounds, however, is it overruling their judgement, and normally doing so in a way that is not subject to ''correction'' by the ordinary lawmaking process. Thus, the central function and at the same time the central problem, of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they'd like''. J. Ely, Democracy and District: a Theory of Judicial Review 5(1980).
My fear is that Congress as an institution has too often used the excuse of Marbury v. Madison to avoid our own important role in constitutional interpretation.
Our founding fathers created three separate branches of government. They created checks and balances on each branch. They required officials in each branch to take an oath of office—to support and defend the Constitution. And our founders ensured that each branch, including Congress play a role in constitutional interpretation.
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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 every branch.
Through history there are specific examples where Congress has asserted its independent role as interpreter successfully, and in contrast to the court.
The issue of slavery provides a good example, for Congress continued to pass legislation in 1862 banning slavery in the territories before the Dread Scott decision was overturned. As Lou Fisher, who we will hear from later writes, ''Congress never doubted their constitutional power to prohibit slavery in the territories and proceeded to announce their independent interpretation, with or without the court.''
This tension is also illustrated by the Supreme Court's recent decision in The City of Boerne v. Flores, Archbishop of San Antonio. The Religious Freedom of Restoration Act which we passed under suspension of the rules and the Senate passed 97 to 2, was struck down by the Court on Constitutional grounds. Writing for the majority, Justice Kennedy observed the following.
If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be ''superior paramount law, unchangeable by ordinary means.'' It would be on the level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.'' Marbury v. Madison, 1 Cranch, at 77. Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article 5. City of Boerne v. Flores, Archbishop of San Antonio. 95–2074 at 19. (J. Kennedy) (1997)
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These historical examples of independent actions by Congress—actions where the Courts have agreed and those where they have not—reiterate that the Constitution does not prohibit our ability to interpret constitutional issues. As a Congress and throughout the country we must change our thinking, recognize this fact once again, and put its authority to use. We as a Congress must define our role in Constitutional interpretation in a forceful and direct way.
In a few weeks, informed by today's discussion I will introduce a resolution I hope will begin to reaffirm our role. The resolution will reaffirm our authority to interpret the Constitution independently from the courts and hopefully provide a catalyst for further debates and discussions. I look forward to today's testimony and again thank you for this opportunity.
Mr. CANADY. Thank you, Representative Lewis. Representative Hostettler.
STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
Mr. HOSTETTLER. Thank you, Mr. Chairman, and members of the subcommittee, for this hearing of such a paramount importance.
It is interesting to me that there is today such awe—indeed, almost reverence—for the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine. When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, some act as if God, himself, has spoken.
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After considerable study of this issue, I have concluded that the present practice of the elected branches bowing to judicial supremacy in interpreting the Constitution squares neither with the Constitution nor with American history.
I will begin by stating that I do not find fault with Justice Marshall's 1803 decision in Marbury v. Madison. The Constitution clearly gives the Court the right to form an opinion on constitutionality. We call this judicial review. Indeed, the Court makes a valuable contribution to the understanding of our Nation's laws, and, of course, it is essential in the resolution of disputes between litigants.
But a mere opinion on constitutionality by one branch is not, and only recently has been, considered supreme and binding on the others.
In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on judicial supremacy. Take, for example, Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared since it has a, quote, ''total incapacity to support its usurpations by force.''—end quote. Or Chief Justice John Marshall, who, just 2 years after Marbury, noted the desirability of the legislature to interpose a substantive check on the Court's interpretations.
Thomas Jefferson, in 1820, put his rejection of the doctrine of judicial supremacy very clearly, and I quote: ''To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.''—end quote.
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I should add that after the Court took the time to interpret the Constitution in Marbury, President Jefferson simply ignored their reasoning and declined to seat Mr. Marbury in his judgeship.
President Jefferson is not alone. In 1832, President Jackson issued the following veto message regarding the creation of the Bank of the United States. Quote: ''Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.''—end quote.
Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years. Justice Story—and I apologize for beating a dead horse here, but it is important—wrote the following concerning Congress in his famous Commentaries on the Constitution, and I quote:
''If the judicial department alone should attempt any usurpation of the Constitution, Congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. On the other hand, the worst that could happen from a wrong decision of the judicial department would be that it might require the interposition of Congress.'' And finally, ''If the usurpation of the Constitution should be by the judiciary and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitive law would, in many cases, be a complete remedy.''—and I end quote.
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One of the most compelling rejections of judicial supremacy is evident in President Lincoln's response to the Supreme Court's Dred Scott v. Sanford decision of 1857. In Dred Scott, the Supreme Court had declared that the Constitution did not allow the prohibition of slavery by the Federal Government, clearly an atrocious interpretation by the Court.
Lincoln debated the binding nature of Dred Scott with Senator Douglas in 1858. The following excerpt from the debate is instructive today. Quote: ''He,'' meaning Douglas, ''would have the citizen conform his vote to that decision, Dred Scott; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the Government. I would not. . . .''—end quote.
Five years later and true to his word, President Lincoln issued the Emancipation Proclamation in disregard of the Supreme Court—and we heard earlier from Mr. Lewis that in 1862 Congress disregarded the Supreme Court and passed a prohibition of a law declaring slavery unconstitutional and illegal in the free territories.
As Lewis Fisher of CRS has noted, Congress has acted at other times in disregard for judicial supremacy. Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, and, most recently, the Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.
If judicial supremacy is without constitutional support, we must ask, Why does the doctrine persist? We all take oaths to uphold the Constitution. Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong. If it be by constitutional error by the Court, we must first do what we can to negate the impact.
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Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the executive branch to carry out the Court's orders. In such cases, the people will ultimately decide the issue in the next election when they face the opposing views. This, my colleagues, is the paramount issue. Is it the people's Constitution? Is it the people's Government?
Perhaps President Lincoln summed it up best in his first inaugural address, quote: ''I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having . . . resigned their Government into the hands of that eminent tribunal.''—end quote.
No, Mr. Chairman, members of the subcommittee, we must never resign our Government—that Government of the people, by the people, and for the people—into the hands of the Supreme Court or any lower court, and I thank you very much.
[The prepared statement of Mr. Hostettler follows:]
PREPARED STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
Thank you. It is interesting to me that there is today such awe—indeed almost reverence—for the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine.
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When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, some act as if if God himself has spoken.
After considerable study of this issue, I have concluded that the present practice of the elected branches bowing to judicial supremacy in interpreting the Constitution squares neither with the Constitution nor with American history.
I will begin by stating that I do not find fault with Justice Marshall's 1803 decision in Marbury v. Madison. The Constitution clearly gives the Court the right to form an opinion on constitutionality. We call this judicial review.
Indeed, the Court makes a valuable contribution to the understanding of our nation's laws, and, of course, it is essential in the resolution of disputes between litigants.
But a mere opinion on constitutionality by one branch is not, and only recently has been, considered supreme and binding on the others.
In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on judicial supremacy:
—Take for example Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared, since it has a, quote, ''total incapacity to support its usurpations by force.''(see footnote 1)
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—Or Chief Justice John Marshall, who, just two years after the famous Marbury decision, noted the desirability of the legislature to interpose a substantive check on the Court's interpretations.(see footnote 2)
—Thomas Jefferson, in 1820 put his rejection of the doctrine of judicial supremacy very clearly: and I quote,
[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The constitution has erected no such single tribunal.''(see footnote 3)
I should add that after the Court took the time to interpret the Constitution in Marbury, President Jefferson simply ignored their reasoning and declined to seat Mr. Marbury in his judgeship.
President Jefferson is not alone.
—In 1832 President Jackson issued the following veto message regarding the creation of the Bank of the United States:
Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.(see footnote 4)
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—Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years.
Justice Story—and I apologize for beating a dead horse here, but it is important—wrote the following concerning the power of Congress in his famous Commentaries on the Constitution, and I quote:
''If the judicial department alone should attempt any usurpation [of the Constitution], congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision.(see footnote 5)
* * * again: * * *
On the other hand, the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress . . .(see footnote 6)
* * * again * * *
[I]f the usurpation [of the Constitution] should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy.''(see footnote 7)
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—One of the most compelling rejections of Judicial Supremacy is evident in President Lincoln's response to the Supreme Court's Dred Scott v. Sanford decision of 1857.
In Dred Scott, the Supreme Court had declared that the Constitution did not allow for the prohibition of slavery by the federal government—Clearly an atrocious interpretation by the Court.
Lincoln debated the binding nature of Dred Scott with Senator Douglas in 1858. The following excerpt from the debate is instructive today:
He [Douglas] would have the citizen conform his vote to that decision [Dred Scott]; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not . . .(see footnote 8)
Five years later, and true to his word, President Lincoln issued the Emancipation Proclamation in disregard of the Supreme Court.
It should be mentioned that in regard to the Dred Scott decision, Congress also rejected the supremacy of the Supreme Court when it passed an Act prohibiting the extension of slavery into the territories in 1862.(see footnote 9)
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As Louis Fisher of CRS has noted, Congress has acted at other times in disregard for judicial supremacy.(see footnote 10) Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, and—most recently—the Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.
If judicial supremacy is without constitutional support, we must ask why does the doctrine persist?
I contend that judicial supremacy can be a convenient doctrine.
It can be politically expedient to place the great policy decisions of our times in the hands of an unelected elite rather than to be held accountable to the voters back home.
Nevertheless, it is time to put the doctrine of judicial supremacy to rest.
We all take oaths to uphold the Constitution.
Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong.
If it be a Constitutional error by the Court, we must first do what we can to negate the impact.
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Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the Executive branch to carry out the Court's orders.
In such cases, the People will ultimately decide the issue in the next election when they face the opposing views.
This, my colleagues, is the paramount issue. Is it the People's Constitution? Is it the People's government?
Perhaps President Lincoln summed it up best in his first inaugural address: quote,
''I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having . . . resigned their Government into the hands of that eminent tribunal.''(see footnote 11)
No Mr. Chairman, we must never resign our government—that government of the People, by the People and for the People—in the hands of the Supreme Court or any lower court.
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Mr. CANADY. Thank you. Mr. Frank.
STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. FRANK. Thank you, Mr. Chairman. I think there's a misunderstanding of what the doctrine of judicial review means in practice. Obviously, Members of Congress and the President and members of the executive branch are obligated to obey the Constitution, and the doctrine of judicial review doesn't mean they do not.
In fact, what we have with this doctrine is an obligation on everybody to follow the Constitution, and, indeed, I agree that Members of Congress have an obligation to decide what's constitutional. And frankly, I think, historically, elected officials have too often dodged that. Too often it is the notion, ''Oh, well, we'll vote for this because it's popular; we'll let the Court do it.'' And I think it would be very healthy if we stopped hiding behind the Court. I think a lot of that is the problem.
But that does not mean that the Court loses—as I understand it—their power to say no. In effect, what we have is a triple screen, that any affirmative action—and I don't mean that in the race context—but any action that is taken by the Government has to be found constitutional by all three branches.
That is, if the majority of Members of Congress find something to be desirable, but unconstitutional, they ought not to vote for it. If they vote for it and the President decides it's unconstitutional, he ought to veto it. And if two-thirds of Congress overrode the presidential veto, then the Supreme Court ought to throw it out. This is not a case of one branch being supreme over the other; it is a case where you have got to pass everybody's notion of what is constitutional. And I think that's very important.
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The alternative, if it is being suggested that the Supreme Court should lose its power to declare acts unconstitutional, which seems to me to be very unfortunate—yes, you can quote people from the 1790's; they passed the Sedition Act. I would hope nobody today would think that the Sedition Act, which said you couldn't say that John Adams was an unpleasant person—truth then not being a defense—you could go to jail.
So, yes, I do—well, let's face it; we're not talking now about whether only the Supreme Court decides constitutionality. We have an obligation, we here in Congress—too infrequently exercised—to take constitutionality into effect. The question is whether the Supreme Court should lose its power to say no, I gather, and I would find that disastrous.
Indeed, I would like to make the point that there is no crisis of judicial activism. Judicial activism is like State's rights, a stick that politicians use to beat things with that they don't like, but something they use to protect things when they like them. For instance, this subcommittee and this committee has voted out legislation to require a higher degree of judicial scrutiny because a three-judge court bears a referendum.
Well, I'd like to quote from what I think is a very compelling argument to the contrary: ''Voters cannot validly enact a law which conflicts, for instance, with parties' rules governing the nominations of candidates and infringes their First Amendment rights any more than a legislature. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature.''
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And this very thoughtful document goes on to quote approvingly the following case on U.S. term limits. It says—well, no—they're quoting Carver v. Nixon, a Federal case, and this document quotes approvingly and says, quote, ''There are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' In other words, this document says, if anything, you ought to give more deference if it went through the legislative process than by initiative. Now you may say, ''Oh, well this comes from people who disregard the will of the people.''
But I think that would be an unfair characterization of the Californian Republican Party, because I'm reading from the brief of the Californian Republican Party. The lead signer is Michael Schroeder, who, I believe, is counsel to our former colleague, Mr. Dornan, and this is the brief they filed because they didn't like the California Republican Party—a referendum initiated by some people which weakened party control in primaries; and the California Republican Party went to a single Federal judge and said, ''Who do these people think they are? How dare the electorate tell the California Republican leadership how to nominate candidates? And we don't care that it was a referendum.'' If anything, as they say here, the fact that it was done by referendum ought to mean less than if it was done by a careful legislative enactment. Throw it out.
Well, the judge wouldn't listen. He was not one of these judicial activists. He said to the California Republican Party, ''I'm sorry, I don't believe in this judicial activism. I'm not going to overturn the will of the people.'' And he turned it down. But maybe later on it will be overturned.
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So, the notion of judicial activism, as I said, seems to me to be invoked as a matter of convenience. As the gentleman from Virginia has pointed out, Justices Scalia and Thomas voted to invalidate more statutes in the last full year of the Court than anyone else.
Final point. One of the doctrines we've had to try to restrict judicial activism—conservatives have been defenders of it, liberals have sometimes been critical; William O. Douglas thought it was a terrible thing—is the whole notion of judicial restraint, that you don't decide things prematurely, you don't decide political questions, you don't decide things unless there is a genuine case in controversy. We've had a strict requirement that there be a real standing, that there be a real injury in fact before you go into court, that you don't decide political questions, that you don't rush to decide before it was done prematurely.
Well, last year a bill passed this House which said, ''Oh, those are silly things. Let's get the Court right into this early on.'' It was the Majority's bill on the census. What the Majority passed, mandating a Supreme Court decision on the census, said, ''Oh, this stuff about standing and this stuff about premature decisions and this stuff about political questions; that's a nuisance. We want to get this one done right away.'' And the Majority passed the bill, that as I've said, I think contradicts all of those doctrines.
Now people have a right to take this position or that. They don't, I think, have a right, selectively, to invoke these things. So I think it becomes very clear when you look at the California Republican Party on referendums—and also the California Republican Party is a party to a lawsuit asking a single Federal judge to overturn the campaign finance restrictions as I understand it, as well. Their brief is not quite as graphic in its disregard to the people's will, but the substance is the same: We don't care if it's a referendum—throw it out. And I think that's appropriate.
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So, I hope we will continue with a system in which all of the branches are obligated to uphold the Constitution, and not talk about taking away from the Supreme Court what I think has been a very important historical power in this country to protect minorities.
Mr CANADY. Professor Campbell.
STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAMPBELL. Thank you, Mr. Chairman. It's ironic that you put me right after Professor Frank. [Laughter.]
It may amuse the committee to know that I was indeed involved in the open primary in California and that the Democratic party of California also filed against it, and also thought it was appropriate to overturn the will of the people of California and that the good sense of the Federal District Judge, Judge Levy, in Sacramento, was for the people and against the two parties.
And now a point that doesn't matter at all, but it's just kind of interesting, when we were polling on the open primary and we told the voters that both parties opposed it, it increased its popularity. [Laughter.]
I'm also just going to make a quick comment on the standing issues points of my good friend and colleague from Massachusetts. Standing has both constitutional and jurisprudential elements, and it's entirely appropriate for Congress to wipe away the jurisprudential elements of standing and say, ''We think this is important and the court ought to hear something right away,''—cannot take away the constitutional component of standing in the case of the controversy requirement.
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But the Supreme Court in Powell v. McCormick said that there were two components to standing; one was good judgment, deference, time, let the thing ripen; make sure the person who is bringing it before you is the right person, who could most vigorously vindicate the argument. But that could be waived if the Congress wished, and the Court said so in a footnote in Powell v. McCormick. And I suspect, although certainly that is my interpretation of what we do, when we say to a court, whether in the census case or in the flag-burning case, we want you to take this case right away, we're saying the jurisprudential elements, the discretionary elements of standing that are in our power to waive, we wish to waive.
Well, now on my own time—it's all my time, I guess, that you've given me, Mr. Chairman—but I wanted to say, if not provoked by my colleague and friend——
Mr. FRANK. I thought I was being very supportive.
Mr. CAMPBELL. You are, indeed. Neither of our parties are, but you are.
I really want to second something that all three of my colleagues said, though I do want to give credit that it was Congressman Frank who made the point most strongly. We really shouldn't ever say—and I've heard it said—''Well, why don't we just leave this one to the courts?'' Here's how I've heard it said. I've heard it said, when I was a Congressman here before—the first time—and we had the flag-burning statute, and a number of us thought the statute was unconstitutional, but supported an amendment to the Constitution. That's what I did. I thought, ''Sorry, the Supreme Court got it right. The First Amendment does protect flag-burning. Wish it didn't; don't think it's really important that it does, so I would support a constitutional amendment just to take this expression away. But you can't do it by statute, guys.'' That was my position.
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And I heard from my colleagues, I've got to tell you. Maybe you did, too, those of us who served at that time: Don't bother your head about this, Campbell; you're just being a law professor again. Kick that one to the Court; it's not for us to make the constitutional decision.'' But, that's wrong. It is for us to make the constitutional decision. It is important that we be a screen, and then if it passes us and the President signs it and the Supreme Court upholds it, then it's constitutional. What's wrong is to say, ''Well, it's not our position.''
Here's another example, also from my experience in my first time here—the NEA. One of my colleagues had an amendment to ban funding for the NEA for art that denigrated a major religion. That was the actual text of his amendment. And I pointed out to him that I also had trouble with the NEA funding art that denigrates major religion, but how, consistent with the First Amendment, could I make a cut based on whether art was denigrating religion, let alone determine what is a major religion without getting into absolutely impermissible, constitutionally impermissible distinctions?
And my colleague said to me, ''You're just a law professor. We'll let the court decide.'' So those are real examples in my time in Congress, and I suspect each of us have faced other ones, too.
Now the President also does this, by the way. The biggest example is the legislative veto, the One-House veto that was eventually overturned in Chadha v. INS. President after president has signed legislation and in the signature message has said, ''You know, I think that One-House veto provision is unconstitutional, but I really need this—the arms sales provision, for example, or an agricultural subsidy''—and that's just as wrong, isn't it? The President also should be exercising his constitutional screen.
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So I did some research. Three years ago I did a paper on this, and I'm going to spend the rest of my time quoting from this research some interesting facts. First of all—Mr. Chairman, would you be able to kindly give me a few extra minutes? I'm almost done—the first recorded meetings of the Senate didn't take notes (you might wonder, it may be just as well if they practiced that today). [Laughter.]
But when they did take notes, the very first recorded debate in the Senate was on the constitutionality of a bill before them, not on the policy of the bill before them. There was a time when we used to debate constitutionality. Really, we just don't debate that any more.
The second point—the language of the oath requirement—is really important. Article 6, Clause 3—the oath requirement—comes right after the Supremacy clause, Article 6, Clause 2. So, the Supremacy clause that the States have to abide by the Federal Constitution was already in the Constitution. You didn't need the oath requirement, so the oath requirement was for something else. That's a pretty straightforward textual analysis. You already have that States must adhere to the Supreme Federal Constitution, and the Supremacy clause comes before the oath requirement.
Then you have this: The Senators and Representatives before-mentioned, and the members of the several State legislatures and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution.
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So I went into Max Ferand's records of the constitutional debates, and I found out that the original draft only made the State officers take an oath. Isn't that interesting? And Delegate Gerry, who gave us the gerrymander in a less noble moment—[Laughter]—but in a noble moment, it was Representative Gerry who moved to amend the draft to say, ''No, let's make the Federal officers also take the oath of office.'' That passed unanimously. And then another Member of the Constitutional Convention—regrettably, not mentioned by name—moved to strike out the requirement as to the States, and that failed 4 votes to 7. But the key was that the whole focus moved to the Federal Congresspersons, both by Gerry's amendment that said it ought to apply to them, and then the effort at, ''You can just take the States out.''
So, clearly, there was an intent in Article 6, Clause 3 to say, ''That oath means you, Senators, and you, Congresspersons. You've got to—and you, President—you Federal officers.''
And, lastly, there is dicta. And that's all there is because this issue has never been resolved by the Supreme Court. The oath requirement has been raised in three cases in the Supreme Court, but all of them peripheral and not to this particular point. The most recent dealt with Julian Bond, who was denied his seat in the Georgia legislature under the theory that he could not in good faith take an oath of office if he was against Selective Service. The Georgia legislature tried to keep him out by saying, ''Since you took that oath, you really couldn't have meant it since you didn't support Selective Service.'' And the Supreme Court said the Georgia legislature didn't have that authority. Well, that's by way of saying that the Supreme Court has not ruled on this, and if they ruled it wouldn't be convincing or final—excuse me, it would be final, but it wouldn't necessarily be convincing to me because I also have to interpret the Constitution. That's my whole point.
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And the last point is dicta, which is in Marbury v. Madison—with this I'll conclude. Justice Marshall, who, as a contemporary helped in the constitutional debates, interpreted the oath requirement in Marbury—and this is a point seldom picked up—but in Marbury 5 U.S. 178, he says, ''Why does a judge swear to discharge his duties, agreeably to the Constitution of the United States? . . .''
''The particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void and that courts, as well as other departments, are bound by that instrument.''—end quote. The very text of Marbury v. Madison establishing Supreme Court review, the very phrase, the very sentence, the very words, referred immediately, then, to the other branches doing it, too! And that's been forgotten.
So, my great plea to my colleagues is if anybody, particularly you gentlemen who serve on this such important committee, if any person ever says to you, ''You know, just let the constitutional issues go to the Supreme Court,'' tell them that would violate your oath of office, because it would. Thank you.
Mr. CANADY. Thank you. We want to thank the members of this panel for being with us. We appreciate your contribution to today's hearing. Now, if there are members who are wishing to ask questions—we typically don't ask questions of Members.
Mr. FRANK. Thank you.
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Mr. LEWIS. Thank you.
Mr. CAMPBELL. Thank you.
Mr. CANADY. The members of the second panel can come forward and take your seats.
I want to express our gratitude to all the members of the second panel for being with us. We've put you in this large panel because we thought it would be helpful to kind of have everybody together and then the questions could kind of go back and forth. Hopefully, this will work.
First to testify on our second panel this morning will be Louis Fisher. Mr. Fisher comes to us from the Congressional Research Service, where he is a senior specialist in Separation of Powers. Next we will hear from Professor David P. Currie. Professor Currie, the author of ''The Constitution in Congress: The Federalist Period, 1789-1801,'' is the Edward H. Levi Distinguished Professor at the University of Chicago Law School.
Third will be Professor Neal Devins. Professor Devins, who teaches constitutional law at the College of William and Mary School of Law, is the author of ''Shaping Constitutional Values: Elected Government, the Supreme Court and the Abortion Debate.'' Next will be Professor Neil Kinkopf. Professor Kinkopf is Visiting Assistant Professor of Law at Case Western Reserve University Law School in Cleveland, Ohio.
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Nadine Strossen will be next. Ms. Strossen is president of the American Civil Liberties Union. Then we will hear from Professor Matthew J. Franck. Professor Franck, author of ''Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People,'' is chairman of the political science department at Radford University in Virginia.
Our final witness this morning will be Professor Robert Lowery Clinton. Professor Clinton, an associate professor of political science at Southern Illinois University, is a widely-published authority on the relationship between Congress and the Court.
Again, I thank you all for being here. Without objection, your testimony will be made a permanent part of the record. I would ask that you do your best to summarize your testimony in 5 minutes as guided by the light here, although unless there is objection, we won't strictly enforce the 5-minute rule.
We'll begin with Mr. Fisher.
STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE
Mr. FISHER. Mr. Chairman, I want to thank you for holding these hearings. I'm not aware of another time where a congressional panel has held a hearing on a broad topic of what the role of Congress is in constitutional interpretation and how that role fits with the President and with the courts.
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As you mentioned in your opening statement, people today seem to think that the Court has a monopoly on constitutional interpretation. That certainly could not be true for the early decades. Professor David Currie has written about this, as have others, to show that the prominent constitutional decider in those early years was Congress, with the President. The courts played very little role. There were few decisions at that time from the courts to guide Congress, so it was up to the two branches, executive and legislative, to decide.
In recent decades, probably the last 40 to 50 years, there has been this tendency, both in the Supreme Court and with professors, to read Court decisions as the ultimate and final word, with the Court having some exclusive role on the meaning of the Constitution.
The Supreme Court frequently today cites language from Marbury that it is emphatically the province and duty of the courts to say what the law is; that is true. It's also emphatically the province and duty of Congress to say what the law is. It's emphatically the province and duty of the President to say what the law is through his veto power and through the President's responsibility to enforce the law.
So that part of Marbury doesn't get you very far, and anyone who looks at Marbury in 1803 would know that Chief Justice John Marshall never made the claim that he had some exclusive roll in interpreting the Constitution. He knew politically at that time, after the election in 1800, that the Court was not in a position to dictate to the other branches.
And in my testimony I have the letter that he sent to Justice Chase saying that if Members of Congress disagree with a Court decision, it's not necessary to roll out impeachment; rather, you work through your regular legislative process, and we have a dialogue between the branches on shaping the meaning. The Marbury decision is always taken out of context to say something that Marshall never meant.
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Last year in the Harvard Law Review there was an article by Professors Alexander and Schauer arguing that the Court should be the exclusive interpreter of the Constitution, and that that would produce political stability. Neal Devins and I talked about that article as to when in American history you could ever say that the Court helped settle issues, transcendent or otherwise. Certainly on slavery, on child labor—you can go down the list—where Court decisions did not settle these issues, that it was left to the larger political process.
Neal Devins and I did an article that will be in the Virginia Law Review next month to say that all three branches participate in the meaning of the Constitution; the States, as well and the general public, as well, and that this larger dialogue is what creates political stability, not an exclusive role for the Court.
My statement talks about the role of Congress in three senses: before the Court ever decides, when it decides that something in constitutional, and when it decides that something is not constitutional. Before the Court decides, Members of Congress have a huge role on many matters that either never get to the Court, or if they get to the Court the Court ducks it on various grounds, various thresholds. These are important matters. Many of the issues are the veto power, the pocket veto, covert spending, foreign affairs, war powers, and so forth, that are basically left to Members of Congress—the commerce power, spending power.
Now when the Court does take a case and decides that something is constitutional, that's not the last word because it is simply stated by the Court that if the other branches want to do this it's okay by the Constitution, an example being McCulloch with the U.S. Bank. The Court said it was constitutional. That did not prohibit President Jackson later, when a bill came to reauthorize the bank, to say, ''According to me, it's unconstitutional. I'm going to veto it on that ground.''
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A contemporary issue is the independent counsel. Although that was upheld by the Court in Morrison, if Members of Congress wanted to say at the next reauthorization of the independent counsel that you have serious constitutional doubts, you don't have to reauthorize; or if you do, and it gets to the President, the President could veto it by saying that even though the Court says it doesn't encroach that much on executive power, I think it does and I'm going to veto it on constitutional grounds.
Another recent example: In 1986 the Supreme Court upheld the Air Force regulation that prohibited members of the military from wearing a yarmulke indoors while on duty, and Congress the next year overturned that by statute, and that's the meaning of the Constitution on how you balance military duties versus religious freedom.
Even when the Court finds unconstitutionality, Congress is a participant. I talk about the Boerne case, which I don't think is persuasive; I think it's internally inconsistent. I think there is plenty of room for Congress to revisit the issue with new legislation.
And I conclude by saying that at certain times in our history there is a basis for finality by the Supreme Court, the examples being the Little Rock crisis, the Watergate tapes case. But by and large, American history, I think, is very convincing that the reading of the Constitution is better left to the flow of considerations by all three branches, by the States, and by the general public.
Thank you very much.
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[The prepared statement of Mr. Fisher follows:]
PREPARED STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE
Mr. Chairman, I appreciate the opportunity to testify on the role of Congress in interpreting the Constitution. To my knowledge, this is the first time that congressional hearings have been used for the purpose of understanding the contributions made by legislators in shaping and protecting constitutional values. Too often, especially in recent years, it is assumed that the judiciary has a monopoly on constitutional interpretation and that Congress must defer to the courts.
The framers expected Congress to play a pivotal role in debating and legislating on constitutional issues. Most of the important constitutional issues in the early decades were decided almost exclusively by Congress and the President. There were few decisions by federal courts to guide the elected branches. The record of this early period has been ably covered by David Currie in a number of law review articles, brought together in his book The Constitution in Congress (1997). As he explains in the concluding chapter, it was ''in the legislative and executive branches, not in the courts, that the original understanding of the Constitution was forged.''
Particularly in the twentieth century, scholars, judges, and sometimes Members of Congress claim that the U.S. Supreme Court has the ''last word'' on the meaning of the Constitution. Under this theory, if Congress disagrees with a Court ruling the only alternative is to pass a constitutional amendment to overturn the Court. This belief in judicial supremacy overlooks much of the flexibility and political considerations that characterize the relationship between the judiciary and other elements of the political system: Congress, the President, the states, and the general public.
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What About Marbury?
In recent decades, much has been made of the statement by Chief Justice John Marshall, in Marbury v. Madison (1803), that it is ''emphatically the province and duty of the judicial department to say what the law is.'' Does that mean that the Court alone delivers the ''final word'' on the meaning of the Constitution? According to a unanimous ruling by the Court in the Little Rock crisis, Marbury ''declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.'' Cooper v. Aaron, 358 U.S. 1 (1958). That principle was reasserted by the Court in the reapportionment case of Baker v. Carr (1962): ''Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and a responsibility of this Court as ultimate interpreter of the Constitution.'' Seven years later, in the exclusion case of Adam Clayton Powell, the Court again referred to itself as the ''ultimate interpreter'' of the Constitution. Powell v. McCormack, 395 U.S. 486, 549 (1969).
These statements distort what Chief Justice Marshall decided in Marbury. While it is ''emphatically the province and duty of the judicial department to say what the law is,'' certainly the same can be said of Congress and the President. All three branches say what the law is. The Court states what the law is on the day a decision comes down; the law may change later by actions taken by the elected branches. I will give a number of prominent examples of this institutional interplay.
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In 1803, Marshall did not think he was powerful enough to give orders to Congress and the President. After the elections of 1800, with the Jeffersonians in control of Congress and the Presidency, the Federalist Court was in no position to dictate to the other branches. Marshall realized that he could not uphold the constitutionality of Section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshall believed that the Court was supreme on matters of constitutional interpretation.
This conclusion is borne out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it turned its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase:
I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.
The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he played a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judiciary functioned as a yea-saying, not a negative, branch.
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The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it ''a nuisance.'' Congress responded with legislation that declared the bridges at issue to be ''lawful structures,'' and the Court then ruled that the bridges were no longer unlawful obstructions.(see footnote 12) In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: ''whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval.''(see footnote 13)
Settling Constitutional Issues
In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability.
Neal Devins and I talked about this article. We tried to recall a time when the Court ever ''settled'' a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompanied by revised procedures, was constitutional.
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Even for more popular decisions, such as the desegregation case of 1954, little was settled by the Court's ruling. More than a decade later, a federal appellate court noted: ''A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.''(see footnote 14) To deal with racism and segregation, it was necessary for Congress and the President, with bipartisan majorities, to pass such statutes as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Devins and I concluded that judicial exclusivity in constitutional lawmaking would be contrary to American history, the framers' intent, and legal development. We also believe that it would lead to political instability, not stability. Our response to the Alexander-Schauer article will appear in the February 1998 issue of Virginia Law Review.
To explain the breadth of congressional activity in interpreting the Constitution, the following three sections discuss (1) how Congress resolves these issues before the Court decides, (2) what it may do when the Court upholds the constitutionality of a measure, and (3) what it may do when the Court decides that a measure is unconstitutional. The meaning of the Constitution is not fixed by any one branch, but is rather that product of all three branches acting in concert with the states and the public at large.
Before the Court Decides
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Congress frequently must act on constitutional matters before there are useful precedents from the courts. Many of the difficult issues related to the veto power, the pocket veto, recess appointments, the incompatibility and ineligibility clauses, war powers, covert operations, and other disputes are generally resolved by Congress with little input from the courts.(see footnote 15)
Occasionally these issues move toward the Supreme Court, but just as quickly they are turned back by various threshold tests. In the 1970s, covert funding of the intelligence community was challenged as a violation of the Statement and Account Clause. In 1974, the Court held that the litigant lacked standing to bring the suit. United States v. Richardson, 418 U.S. 166. That issue was left to Congress and the President to decide. In 1987, when it appeared that the Court would decide the constitutionality of a pocket veto by President Reagan, the case was dismissed on grounds of mootness. Burke v. Barnes, 479 U.S. 361. That issue, too, was pushed back to elected officials to resolve. A variety of other doctrines—political questions, ripeness, prudential considerations, nonjusticiability, and equitable discretion—are used by the court to sidestep constitutional issues. The result is that a number of constitutional issues are returned to the elected branches.
When the Court Upholds Constitutionality
When the Court decides that a congressional statute is constitutional, the controversy may remain open for different treatment by the legislative and executive branches. For example, President Andrew Jackson received a bill in 1832 to recharter the United States Bank. Although the Court in McCulloch v. Maryland (1819) had ruled that the bank was constitutional, Jackson vetoed the bill on the ground that it was unconstitutional. His veto message said that he had taken an oath of office to support the Constitution ''as he understands it, and not as it is understood by others.'' His position on the veto power has been followed by all subsequent Presidents. Regardless of the constitutional decisions reached by Congress and the courts, Presidents may independently analyze the constitutionality of bills presented to them.
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To take a contemporary example, Presidents Reagan and Clinton signed bills reauthorizing the office of independent counsel. The Court in Morrison v. Olson (1988) upheld the constitutionality of the independent counsel statute. Nevertheless, President Clinton or any future President has the independence to veto a reauthorization bill on the ground that the office of independent counsel encroaches upon the executive power granted to the President by the Constitution. For that matter, Members of Congress could decide at the next reauthorization stage that the office of independent counsel violates the Constitution. Morrison simply means that Congress and the President may create the office if they want to. They may rethink and revisit the statute at any time.
My attached CRS Report, ''Congressional Checks on the Judiciary,'' contains a number of other examples of Congress acting by statute to neutralize a constitutional decision by the Court. In 1986, the Court upheld the constitutionality of an Air Force regulation that prohibited Captain Simcha Goldman from wearing his yarmulke indoors while on duty. The Court decided that the needs of the Air Force outweighed Goldman's constitutional right to freely exercise his religion. Goldman v. Weinberger, 475 U.S. 503. Within a year, Congress attached to a military authorization bill language permitting military personnel to wear conservative, unobtrusive religious apparel indoors, provided that it does not interfere with their military duties. 101 Stat. 1086-87, sec. 508 (1987). The Court decided the conflict between Air Force needs and religious freedom one way; Congress decided it the other way.
When the Court Finds Unconstitutionality
If the Court decides that a governmental action is unconstitutional, it is usually more difficult for Congress and the President to challenge and override the judiciary. But even in this category there are examples of effective legislative and executive actions in responding to court rulings.
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In his inaugural address in 1857, President James Buchanan announced that the dispute over slavery in the territories ''is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.'' Two days later Chief Justice Taney handed down the Court's decision in Dred Scott, holding that Congress could not prohibit slavery in the territories and that blacks were not citizens. That decision was eventually overturned by the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments—but before those amendments were ratified Congress and the President had already reversed Dred Scott. In 1862, Congress passed legislation to prohibit slavery in the territories, 12 Stat. 432, and in that same year Attorney General Bates released a long opinion which held that neither color nor race could deny American blacks the right of citizenship. 10 Op. Att'y Gen. 382 (1862).
In 1916, Congress relied on the commerce power to enact a child labor law. In Hammer v. Dagenhart (1918), the Court held that the statute was unconstitutional. A year later Congress passed new child labor legislation, this time relying on the taxing power. Again the Court, in Bailey v. Drexel Furniture Co., struck it down. Congress passed a constitutional amendment in 1924 to give it the power to regulate child labor but ratification proved impossible. In 1938, Congress returned to the commerce power to regulate child labor and this time the Court, unanimously, upheld the statute. United States v. Darby, 312 U.S. 100 (1941).
This record—from 1916 to 1941—was an exceptionally lengthy dialogue between Congress and the Court, with the legislative branch eventually prevailing. The Court later admitted that ''the history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory.'' Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 415 (1946).
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The Court's decision last year in Boerne v. Flores, striking down the Religious Freedom Restoration Act (RFRA), raises a number of issues about judicial finality. In deciding that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment, and hinting that the Court has the last and final word in deciding the meaning of the Constitution, the Court nevertheless left the door wide open for future congressional action. The reasoning and premises in the decision are often unpersuasive and internally inconsistent. The Court invites future congressional action by noting that there ''must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' 117 U.S. at 2164. Does that mean that adjustments to a redrafted bill would pass muster? In comparing RFRA to the Voting Rights Act, the Court says that RFRA's ''legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.'' Id. at 2169. Is that the problem? If Congress, with findings, could identify recent examples of religious persecution, would RFRA be constitutional?
My CRS report includes other examples, but I will end with a dispute in 1970. The House Committee on Internal Security prepared a report on the honoraria given to guest speakers at colleges and universities. The study included the names of leftist or antiwar speakers and the amounts they received. The ACLU obtained a copy of the galleys and asked a federal district court to enjoin their publication. The court ruled that the report served no legislative purpose and was issued solely for the sake of exposure or intimidation. It ordered the Public Printer and the Superintendent of Documents not to print the report ''or any portion, restatement or facsimile thereof,'' with the possible exception of placing the report in the Congressional Record. Hentoff v. Ichord, 318 F.Supp. 1175, 1183 (D.D.C. 1970).
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The House of Representatives passed a resolution that told the courts, in essence, to step back. During the course of the debate, Members of Congress explained that it was not the practice of the House to print committee reports in the Record. Moreover, the judge's order ''runs afoul not only of the speech and debate clause—article I, section 6—of the Constitution, but obstructs the execution of other constitutional commitments of the House as well, including article I, section 5, which authorizes each House to determine the rules of its proceedings, and requires each House to publish its proceedings.'' After the resolution was passed by a large bipartisan margin (302 to 54), the report was printed without any further interference from the judiciary.
This collision between Congress and the judiciary was unusually abrupt. For the most part, the legislative-judicial dialogue is more nuanced and subtle. In INS v. Chadha (1983), the Supreme Court struck down the ''legislative veto'' as unconstitutional. Congress no longer attempts to use one-House or two-House legislative vetoes to control the executive branch. On the other hand, it continues to use committee and subcommittee vetoes to monitor agency actions.(see footnote 16)
Conclusions
At certain points in our constitutional history, there has been a compelling need for an authoritative and binding decision by the Supreme Court. The unanimous ruling in Cooper v. Aaron (1958), signed by each Justice, was essential in dealing with the Little Rock desegregation crisis. Another unanimous decision in United States v. Nixon (1974) disposed of the confrontation between President Nixon and the judiciary regarding the Watergate tapes. For the most part, however, court decisions are tentative and reversible like other political events.
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There is no reason for Congress to defer automatically to the judiciary because of its supposed technical skills and political independence. Much of constitutional law depends on factfinding and the balancing of competing values, areas in which Congress justifiably can claim substantial expertise. Each decision by a court is subject to scrutiny by private citizens and public officials. What is ''final'' at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Supreme Court doctrines. Members of Congress have both the authority and the capability to participate constructively in constitutional interpretation.
Through this process of interaction among the branches, all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values. Also through this process, the public has an opportunity to add a legitimacy and a meaning to what might otherwise be an alien and short-lived document.(see footnote 17)
BIOSKETCH FOR LOUIS FISHER
Louis Fisher is a senior specialist in separation of powers with the Congressional Research Service of the Library of Congress. He began work with CRS in 1970 and served as research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.
His books include President and Congress (1972), Presidential Spending Power (1975), The Constitution Between Friends (1978), The Politics of Shared Power (4th ed. 1998), Constitutional Conflicts Between Congress and the President (4th ed. 1997), Constitutional Dialogues (1988), American Constitutional Law (2d ed. 1995), Presidential War Power (1995), and Political Dynamics of Constitutional Law (with Neal Devins, 2d ed. 1996). His textbook in constitutional law is available in two paperbacks: Constitutional Structures: Separation of Powers and Federalism and Constitutional Rights: Civil Rights and Civil Liberties. With Leonard W. Levy he edited the four-volume Encyclopedia of the American Presidency (1994). He has twice won the Louis Brownlow Book Award, the encyclopedia he co-edited was awarded the Dartmouth Medal, and in 1995 he received the Aaron B. Wildavsky Award ''For Lifetime Scholarly Achievement in Public Budgeting'' from the Association for Budgeting and Financial Management.
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He received his doctorate in political science from the New School for Social Research (1967) and has taught at Queens College, Georgetown University, American University, Catholic University, Indiana University, Johns Hopkins University, the College of William and Mary law school, and the Catholic University law school.
Dr. Fisher has been invited to testify before Congress on such issues as executive spending discretion, presidential reorganization authority, the legislative veto, the line-item veto, the Gramm-Rudman-Hollings Act, executive privilege, executive lobbying, covert spending, the pocket veto, recess appointments, the budget process, the balanced budget amendment, biennial budgeting, and presidential impoundment powers.
He has been active with CEELI (Central and East European Law Initiative) of the American Bar Association, traveling to Bulgaria, Albania, and Hungary to assist constitution-writers, participating in CEELI conferences in Washington, D.C. with delegations from Bosnia-Herzegovina, Lithuania, Romania, and Russia, and serving on CEELI ''working groups'' on Armenia and Belarus. As part of CRS delegations he traveled to Russia and Ukraine to assist on constitutional questions.
Dr. Fisher's specialties include constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations. He is the author of more than 200 articles in law reviews, political science journals, encyclopedias, books, magazines, and newspapers. He has been invited to speak in Albania, Australia, Bulgaria, Canada, the Czech Republic, England, Germany, Greece, Holland, Israel, Macedonia, Malaysia, Mexico, the Philippines, Romania, Russia, Slovenia, Taiwan, and Ukraine.
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Mr. CANADY. Thank you. Professor Currie.
STATEMENT OF DAVID P. CURRIE, EDWARD H. LEVI DISTINGUISHED SERVICE PROFESSOR, UNIVERSITY OF CHICAGO SCHOOL OF LAW
Mr. CURRIE. Thank you very much, Mr. Chairman, and members of the committee. I welcome the opportunity to share with the committee my thoughts about this important subject. I've been thinking for a long time about constitutional interpretation, both in the courts and in other branches of the Federal Government.
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My thesis is quite straightforward. I believe that each branch of the Federal Government, as well as each branch of the State Governments, has an equal and independent obligation to interpret and to obey the Constitution. The question of constitutional interpretation is also the question of constitutional enforcement, and the question of how these ''paper barriers,'' as Madison once described them, that are found in the Constitution are to be enforced, and how we are to ensure that they are to be respected is a question that has agitated the framers and has agitated the rest of us down to the present day.
And James Madison, when he as a Member of Congress introduced the Bill of Rights in the House of Representatives in 1789, identified three checks that were designed to help enforce the Constitution. The first check was the conscience of the Members of Congress; that is to say, having sworn to uphold the Constitution, they would be expected to respect their oath and thus to respect the Constitution itself.
The second check was judicial review. The courts would view it as one of their special responsibilities to enforce the Constitution in case another branch of Government should ever exceed its power.
Third, the final check, and perhaps the most important of all, was the check of the voters. The people themselves would exercise a check on actions that exceeded the constitutional powers of one or another branch of Government by refusing to re-elect Members of Congress or Presidents or State officials who abused their authority.
The judicial check to which Madison alluded was, of course, confirmed by the Supreme Court in Marbury v. Madison. Judicial review, as Chiel Justice Marshall said in that case, is an essential, an indispensable element in a system of checks and balances to help ensure that other branches of Government not exceed their constitutional authority. There's not a word in Marbury v. Madison suggesting that judicial review is the sole check on unconstitutional action, that the court is the only branch of Government with the power to interpret the Constitution.
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President Jackson—and this has been mentioned already several times today—identified another check when he vetoed the bill to extend the charter of the Second National Bank because he found it to be unconstitutional, even though the Supreme Court had said Congress had the power to establish a national bank. Because the President, too, has sworn to uphold the Constitution, the President, too, has an independent obligation to enforce the Constitution, and therefore he cannot accept the Supreme Court's determination that Congress has constitutional authority. If he believes a bill to be unconstitutional, the President has an independent obligation to veto the bill.
And the same is of course true of the Congress. Members of Congress have also sworn to support the Constitution, and whenever a bill is introduced in Congress, the first obligation of every Member is to ask the question, Do we have the power to pass this bill? And that, of course, is a question involving an interpretation of the Constitution. As Representative Theodore Sedgwick of Massachusetts said on the floor of the House in 1791, ''The whole business of legislation is a practical construction of the powers of the legislature.''
And thus each branch, independently, has an obligation to interpret and to obey the Constitution. No branch has the power to bind another branch in the interpretation of the Constitution, and thus we have a triple security for the enforcement of the Constitution.
I've gone so far in my study of the extrajudicial interpretation of the Constitution during the first 12 years of our history under the 1789 Constitution, as to suggest that the original understanding of our Constitution was forged not so much in the courts as in Congress and in the executive branch.
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I come now to the issue of the Religious Freedom Restoration Act. I think that statute was wholly justified insofar as it operates as a congressional check on Federal action which in the view of Congress would violate the Constitution.That is to say, insofar as the statute is a refusal to authorize Federal agencies to do what Congress believes would violate the Constitution, I think Congress is wholly within its rights.
I think that the statute is also justified as an expression of Congress's disagreement with the Court's interpretation of the Free Exercise Clause insofar as it acts as a limitation on the powers of the States. But the next question is, What is the respect that is owed by the Court to Congress's interpretation of the Constitution as reflected in that statute? It seems to me that the answer has to be that the Court is no more bound by Congress's interpretation of the Free Exercise Clause than Congress is bound by the interpretation of the Court.
The same principle that says that Congress has to make up its own mind about the meaning of the Constitution says the same thing for the Court. And that's essentially what the Supreme Court said in the Flores case: We must interpret the Free Exercise Clause for ourselves, because we have the constitutional obligation to respect the Constitution and we cannot permit Congress to exceed its powers.
I see I'm out of time. I have more that I could say.
Mr. CANADY. If you could sum up in another minute or two.
Mr. CURRIE. Some scholars have suggested—thank you, Mr. Chairman—that the Court in the Flores case should have gone beyond simply saying Congress has no power to bind us as to the interpretation of the Constitution, that the Court should have re-examined its own precedent in light of Congress's contrary opinion, and therefore maybe taken a different view as to the meaning of the Free Exercise Clause.
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I think the difficulty with that argument is that the Court was not asked to do that in Flores. The Court was not asked to overrule its precedent in the light of Congress's contrary interpretation; it was asked to accept the statute as having already overruled the prior decision, and that, I think, Congress had no power to do.
The final question is, when the Court is finally asked to reconsider its prior decisions—the Smith case in particular—interpreting the Free Exercise Clause, in the light of Congress's contrary interpretation as reflected in the Religious Freedom Restoration Act, what degree of deference should be paid by the Court to Congress's interpretation?
And that reminds me, of course, of the long debate between Justices Felix Frankfurter and Hugo Black during the 1940's, fifties, and early sixties over the degree of judicial restraint, the degree of deference to other branches. I'm sure there are members of the committee who recall Justice Frankfurter's dissent in the second Flag Salute case where he said it's really not for the Court to substitute its opinion for reasonable decisions by other branches.
Insofar as the interpretation of the First Amendment is concerned, I think it's fair to say that that extreme view of judicial deference to the views of other branches has been rejected, not only by the Court, but also by a large number of scholars. And in my view the Court is right not to take Justice Frankfurter's position because the enforcement of the Constitution requires that each branch take an independent view of the meaning of the Constitution.
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Only if each branch does that can we ensure maximum security for the rights of the citizen and for the rights of the State's, which are, of course, involved whenever Congress attempts to limit State authority as it did in the Religious Freedom Restoration Act. Thank you very much.
[The prepared statement of Mr. Currie follows:]
PREPARED STATEMENT OF DAVID P. CURRIE, EDWARD H. LEVI DISTINGUISHED SERVICE PROFESSOR, UNIVERSITY OF CHICAGO SCHOOL OF LAW
The Supreme Court's recent decision in City of Boerne v Flores,(see footnote 18) which struck down Congress's attempt to redefine the religious freedom guaranteed against the states by the fourteenth amendment, has called attention once more to the timeless question of the respective roles of Congress and of the courts as interpreters of the Constitution. As a longtime student of constitutional interpretation in all three branches of the Government, I welcome the opportunity to share with this Committee my thinking on this important subject.
I begin with the obligatory nod to Marbury v Madison.(see footnote 19) I believe Chief Justice Marshall was right that courts have an obligation to determine the constitutionality of federal statutes they are asked to apply, and not simply because they are themselves required to obey the Constitution. As Marshall argued, I am convinced that judicial review is an essential element in the constitutional system of checks and balances—designed, as Hamilton said in The Federalist, to help keep the legislature within the limits of its authority.(see footnote 20)
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This does not mean that the courts have a monopoly on constitutional interpretation. Members of Congress, like all federal and state officers, are bound by their oaths to support the Constitution.(see footnote 21) Thus, whenever a bill is introduced, every member of the House or Senate must inquire whether or not Congress has power to enact it; and thus Congress is continually engaged in interpreting the Constitution. So, of course, is the President. And thus a great deal of constitutional law is made outside the courts, by the legislative and executive branches of government.
Congressional debates and executive papers are replete with examples of legislative and executive interpretation of the Constitution. Few constitutional difficulties with proposed legislation escape the eyes of vigilant opponents, and the quality of argument is often extraordinarily high. In a great many instances congressional debates during the early years brought out all the constitutional arguments that anyone has been able to think of since. In many cases we continue to rely exclusively on legislative or executive precedents, for the issues have never been resolved by the courts. The original understanding of the Constitution, I recently concluded after an intensive study of the first twelve years of its operation, was forged not in the courts but in the legislative and executive branches.(see footnote 22)
The interesting question is therefore not who has power to interpret the Constitution but whose view prevails in case of conflict. What happens when different branches of government, each acting within its proper sphere of authority, disagree as to what the Constitution means? I do not believe this question can be answered by a simple invocation of the shibboleth that the courts are the ultimate guardians of the Constitution.
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There are times when other governmental actors are plainly obliged to accept judicial decisions. Judicial power to decide a case implies authority to render a judgment that binds the parties. Thus, when President Roosevelt contemplated disobeying an anticipated judicial decision requiring the government to pay bondholders in gold,(see footnote 23) he challenged the very essence of judicial power. Such a course could be defended, if at all, only as an exercise of the natural right of revolution; it was not consistent with the Constitution.
It does not follow that other branches are bound in all cases by judicial interpretations of the Constitution. The examples are familiar. President Jackson vetoed a new charter for the Bank of the United States after the Supreme Court had upheld congressional power to establish it;(see footnote 24) President Jefferson pardoned those convicted under the Sedition Act on constitutional grounds that had been rejected by the courts.(see footnote 25) Both Jackson and Jefferson were well within their rights. Neither did anything that interfered with the power of the courts to render binding judgments in particular cases; the pardon power is an express limitation on that principle, and it essentially allows the winning party to waive a judgment in its favor. Nor was either Jefferson's or Jackson's action inconsistent with Marbury's principle that the courts must have power to prevent other branches from exceeding their powers. On the contrary, Jefferson and Jackson's actions provided an additional check that furnished even greater security for the rights of the states and the people. Indeed what these two Presidents did illustrates the core of our constitutional separation of powers: No measure can be carried out to the detriment of the people or the states unless all three branches agree that it is constitutional.
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These are the easy cases. More complex are the questions posed by Abraham Lincoln's attitude toward the Dred Scott case and by Governor Faubus's actions with respect to school segregation after Brown v Board of Education. The poles of opinion on these issues are starkly delineated. Lincoln suggested that although he would not attempt to set Scott free in defiance of the Supreme Court's order he would vote for a new prohibition of slavery in the territories.(see footnote 26) The Court in Cooper v Aaron said Faubus was bound by Brown because it was ''the law of the land.''(see footnote 27)
At one level Lincoln seems to me to have been right and the Supreme Court wrong. The judgments in Scott and in Brown bound only the parties. Courts have no power to resolve general questions of constitutional interpretation; their only authority is to decide the concrete controversy before them. Faubus, of course, was defying not only the principles announced in Brown but also a decree entered against him by a lower federal court; that was enough, on the principle of the above discussion of the Gold Clause question, to justify condemning his action. But Lincoln disclaimed any intention of subverting the judgment in Scott; he merely denied that it restricted his freedom to decide for himself whether prospective legislation along the same lines would be constitutional.
Professor Wechsler has shown the limits of this line of thinking. It is true that one does not undermine the Court's judgment—and therefore its power to definitively resolve the case—by refusing to follow its reasoning in enacting future laws. But if one believes (as I do, and as Hamilton and Marshall argued) that judicial review is an essential part of our system of checks and balances, this cannot be a complete answer. For that system cannot function if every school district in the United States insists on continuing to segregate its schools by race until the Supreme Court tells it not to. So long as (and as soon as) there is reason to think the Court might overrule its decision, a legislator or administrator who was not a party to the case may be justified in doing what the Court has ordered others not to do, for otherwise the Court could never correct its mistakes. Unlike res judicata, stare decisis is not an inflexible command. But once it is clear that the Court will not change its mind, I think Professor Wechsler is right that the Court's view must be accepted; for otherwise it cannot effectively perform its crucial task of helping to keep other branches of government within their legitimate authority.(see footnote 28)
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This brings me to the current controversy over the Smith decision,(see footnote 29) the Religious Freedom Restoration Act (RFRA),(see footnote 30) and the Supreme Court's response in City of Boerne v Flores.(see footnote 31) Highly respected colleagues have written to criticize the Flores decision;(see footnote 32) I have written to praise it.(see footnote 33) Let me explain my position.
The Court's acceptance in Smith of Professor Kurland's view(see footnote 34) that the free exercise clause did not require that religious individuals be exempted from generally applicable laws was highly controversial. Though certainly not without support in earlier cases, it was (despite contrary arguments in the Court's opinion) squarely opposed to the Court's most recent pronouncement on the subject, in Wisconsin v Yoder.(see footnote 35) Congress disagreed with the Court's new interpretation, and said so in RFRA: Henceforth the adverse impact of even a facially neutral law on religious exercise could be justified only by a compelling interest.(see footnote 36)
That was a plausible interpretation of the Constitution, and Congress was entitled to make it. Congress was not a party to the Smith litigation, and it made no effort to set aside the judgment itself. It merely declared a rule to govern future cases. Moreover, one could not confidently say that the Court had said its last word on the subject. The decision was rendered by a bare majority; it effectively overruled recent precedent; it had been roundly though far from unanimously criticized ever since; it had been rendered without the benefit of Congress's views as to the meaning of the constitutional provision. In short, Congress was entitled to believe there was a reasonable chance the Court might reconsider its position in light of a well considered, reasonable, and nearly unanimous contrary legislative interpretation.
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