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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But of course the Court was no more bound by Congress's interpretation than Congress was by that of the Court in Smith. The same argument that proves that Congress is entitled to construe the Constitution for itself applies equally to the Court. And that was what the Court said in effect in Flores: Congress has authority to enforce the fourteenth amendment but not to amend it, and the Court is not bound by Congress's interpretation of its provisions.
Insofar as RFRA represented a self-denying interpretation of Congress's own power to enact laws impinging on religious freedom, it was squarely supported by Jefferson's and Jackson's actions in reading their own powers more narrowly than the courts had understood them. Whatever the Court says, Congress may not enact laws it believes to be unconstitutional. Nothing in the Flores opinion casts doubt on the legitimacy of RFRA as the exercise of a congressional check on congressional action. But it was something else again to expect the Court to accept Congress's interpretation of the free exercise clause in passing upon the validity of state law.
Should the Court in Flores be criticized for having rejected the congressional reading of religious freedom without reexamining the issue on the merits? Should it, in such a reexamination, have afforded some degree of deference to the views of a coordinate branch on which the framers of the fourteenth amendment expressly conferred the principal role in enforcing its provisions? One would not expect the Court to invalidate the clauses of the War Powers Resolution that purport to define the division between presidential and congressional authority simply because Congress's interpretation does not bind the Court; one would expect Congress's understanding to be taken seriously in the Court's resolution of the dispute.
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That the Court did not do this in Flores may have something to do with the way the issue was presented. The Court was not asked to overrule Smith; it was asked to accept the fact that Congress had already done so. Even Justice O'Connor, who wanted to use the case as a vehicle for reexamining Smith, urged only that that issue be briefed by the parties.(see footnote 37) Congress and its defenders seemed to be arguing for something more than that the legislative interpretation should be considered; the case seemed to turn on whether the special authorization to enforce the amendment gave Congress rather than the Court the final say when the question arose in a judicial proceeding. The Court seems to me clearly right that it did not.(see footnote 38)
If the issue is plainly phrased in some future case, I would expect the Court to take Congress's interpretation into account in determining whether or not to adhere to its Smith decision. If it does, it will have to address the question of what degree of deference to give to Congress's position. And that, it seems to me, boils down to the familiar dispute over judicial restraint that has raged since the Constitution was adopted, and which is best exemplified by the long duel between Justices Frankfurter and Black.(see footnote 39)
Frankfurter, as illustrated by his famous dissent in the second flag-salute case,(see footnote 40) argued that to avoid excessive judicial interference the courts should generally defer to reasonable interpretations of the Constitution by other branches of government. The Court took this position in the fourteenth amendment context in an alternative holding in Katzenbach v Morgan, deferring to Congress's ''reasonable'' conclusion that requiring Puerto Rican voters to be literate in English offended the equal protection clause.(see footnote 41) Justice Black's position, in contrast, was that true judicial restraint consisted in refusing to invent limitations on government that could not fairly be traced to the Constitution itself; what the Constitution required should be strictly enforced.(see footnote 42)
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At least in the area of first amendment freedoms, Justice Frankfurter's approach has not stood the test of time; no Justice on the present Court takes such a restricted view of the Court's authority in such cases. Justice Black's position, I believe, is also more consistent with the purposes of judicial review. Congress's views are entitled to consideration and respect when the Court is called upon to construe the Constitution. Arguments made in Congress must be taken seriously on their merits, and the fact that Congress has accepted a given interpretation is additional evidence in its favor. But the Court must ultimately decide for itself what the Constitution requires, not accept someone else's view just because it is ''reasonable.'' For only by exercising independent judgment in constitutional interpretation can the courts effectively help to ensure, as the Constitution contemplates, that other branches of government not exceed the limits of their authority. And that seems to have been the position taken in Flores. For the Court made clear that it thought there was no occasion to afford the congressional interpretation of the first amendment the degree of deference suggested by the alternative basis of decision in Morgan.(see footnote 43)
The Court in Flores similarly insisted on the right to make its own determination with regard to the unrelated question whether RFRA could be justified as a prophylactic measure to prevent undetectable evasions of the free exercise clause as the Court had construed it in Smith, by analogy to the flat ban on literacy tests for voters upheld in Oregon v Mitchell.(see footnote 44) The Court found no such problem of evasion in Flores and so rejected this argument as well.(see footnote 45) In construing Congress's authority to enforce the fourteenth amendment by ''appropriate legislation'' to require ''a congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end,''(see footnote 46) the Court gave notice once again that it took its responsibility for judicial review seriously in the field of federalism as well as in that of individual rights, as the theory of the Marbury case seems to require.(see footnote 47)
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In short, in my view the Constitution contemplates multiple checks to prevent anyone exercising public authority from infringing its provisions. Executive officers and Members of Congress have an independent obligation to obey the Constitution itself; they are not bound by a judicial conclusion that a particular action is within their authority. For the same reason, the courts are not bound by either executive or legislative interpretation of provisions whose construction is not committed to ultimate determination by the political branches.(see footnote 48) For the courts too were meant to serve as an indispensable element in our system of checks and balances. Respect for judicial authority requires not only that other governmental actors comply with judgments in cases to which they are parties. It also requires that, when it is clear that the Supreme Court will not recede from its position, other branches acquiesce in judicial opinions limiting their powers. Finally, the central importance of judicial review as a check on other branches requires that the courts exercise independent judgment in determining the constitutionality of legislative and executive action, giving respectful consideration but not undue deference to the views of the interested branch.
Mr. CANADY. Thank you, Professor. Professor Devins.
STATEMENT OF NEAL DEVINS, GOODRICH PROFESSOR OF LAW, COLLEGE OF WILLIAM AND MARY
Mr. DEVINS. Thank you, Mr. Chairman, and I would like to thank the committee for inviting me to testify this morning.
My statement makes two points. One is that Congress has a long, proud history of countermanding the Supreme Court when it disagrees with the Court. That history has been alluded to by several of the witnesses. It includes Congress' rejection of Dred Scott, its rejection of Hammer v. Dagenhardt, which was a case saying that Congress was without authority under the Commerce Clause to regulate child labor.
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It applies to the 1964 Civil Rights Act's public accommodation provision, which was legislation enacted after the Supreme Court had said almost a century before in a civil rights case that Congress could not enact a public accommodation provision. And it continues today with busing, abortion, religious freedom, flag burning, voting rights, legislative veto, and Federalism.
These are all instances where Congress has been willing to tell the Court that it thinks its interpretation of the Constitution is wrong, and I don't really think there's anything in City of Boerne v. Flores to fundamentally challenge Congress' power to disagree with the Court.
Flores is a very important case, of course, but it doesn't call into question Congress's power to use its spending authority, to condition the spending of Federal dollars. It doesn't speak to Congress's authority under the Commerce Clause. It doesn't speak to Congress's power over Federal programs—something that Professor Currie alluded to before. Even with respect to section 5 of the Fourteenth Amendment vis-a-vis the States, Flores doesn't challenge Congress's ability to remedy actions by the States that it considers unconstitutional. An example of this would be voting rights legislation passed in 1982 in response to City of Mobile v. Bolden.
So I don't really think there's much doubt that Congress has the power to disagree with the Court, and there's no doubt that the history of congressional action is one in which Congress often does disagree with the Court.
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What I'd like to focus in on in my testimony this morning is why it is that the Constitution is improved by Congress's disagreeing with the Court. Constitutional decisionmaking, in my view, is improved when all branches of Government engage in a dialogue which, of course, includes disagreements among the branches.
And to start with, I'd like to quote from the confirmation hearings of Justice Kennedy, the author of Boerne, and Justice Ginsburg. At his confirmation hearing, Justice Kennedy testified that lawmakers, quote, ''would be fulfilling their duty by limiting the effects of Supreme Court decisions they consider wrong.''—very interesting coming from the author of Boerne v. Flores.
Justice Ginsburg, at her confirmation hearings, states that ''courts do not guard constitutional rights alone. Courts share that responsibility with Congress, the President, the States, and the people.'' I think Justices Kennedy and Ginsburg were aware of what I consider to be a fairly obvious truth, and that is that by challenging the Court, Congress often improves the quality of constitutional decisionmaking. By challenging the Court, Congress makes the Constitution more durable, more vital. Let me explain why I say this. Much of it has to do with how courts are different from policymakers, structurally different from policymakers.
First off, courts are reactive. Courts don't look for cases. Occasionally people accuse them of doing so, but courts have to have a case presented to them, and, as a result, if the Court makes a mistake in an earlier case, the only chance it can reconsider its decision is for there to be a new set of facts which calls into question the decision in the first case.
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So for the Court to conclude that it made a mistake when saying that Congress was without authority under the Commerce Clause to prohibit child labor, Congress again needed to pass new child labor legislation, and that's precisely what happened. In Hammer v. Dagenhardt, the Court said it's unconstitutional for Congress to regulate child labor, but Congress again passed a child labor statute and eventually, in United States v. Darby, the Court concluded that Congress had that power.
Another example, a more controversial example, is abortion. In 1992, the Casey court overturned the trimester test in Roe v. Wade. The only way in which the Court could have that opportunity was for elected Government to express its disapproval of Roe. If everyone simply followed Roe, there would never be a chance for the Court to say, ''Hold on, the trimester test is unsound, medically unsound,'' politically unsound, and so on and so forth. So, a court is reactive.
Another structural deficiency which limits what the Court can do is that the Court relies on presentations to it by specific parties at a specific moment in time. The Court can not hold a hearing bringing in all interested individuals. No, the Court is stuck, if you will, with the people who bring the case before it, and they don't necessarily present the Court with complete information. Also, the Court makes a decision at a particular moment in time; facts change, circumstances change. A decision that makes sense in 1988, say Morrison v. Olson and the independent counsel statute, may not make decision in 1998.
And because of these changed circumstances, it's important for elected Government again to express its disapproval of what the Court has done. It gives the Court the opportunity not just to reconsider what it has done, it also gives the Court additional information, information unavailable to it when it made its original decision.
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I see my time is up. If I can just summarize, please?
Mr. CANADY. Please; please continue.
Mr. DEVINS. Okay; thank you, sir.
Well, one last substantive point before my conclusion and that is that when Congress disagrees with the Court, we tend to focus in on instances where, ultimately, the Court may overturn itself, rewrite its doctrine. In other words, as Professor Currie suggested, the RFRA was an attempt to get the Court to reconsider employment Division v. Smith. Likewise child labor legislation in the 1930's was an attempt to get the Court to reconsider Hammer v. Dagenhardt.
But it's often the case that when Congress disagrees with the Court, it's on an issue that the Court will not revisit again, and it's particularly important for Congress to challenge Court decisionmaking in instances where the issue will not be revisited by the Court.
So, for example, it may be that the Court will not revisit Morrison v. Olson, the independent counsel decision, and it may be ultimately only for Congress to conclude that that decision was wrong by refusing to reauthorize the independent counsel. And it's very important that Congress perform that function, because if it does not, those bad decisions will remain on the books.
So, for all these reasons, I am very much convinced that the Constitution is more durable, more vital, more important to the Nation when Congress disagrees with it. It gives the Court a chance to update its thinking. It also gives Congress a chance to enact laws when the Court will not revisit the issue.
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Thank you for the opportunity to testify.
[The prepared statement of Mr. Devins follows:]
PREPARED STATEMENT OF NEAL DEVINS, GOODRICH PROFESSOR OF LAW, COLLEGE OF WILLIAM AND MARY
Mr. Chairman, thank you for the opportunity to discuss Congress's role in interpreting the Constitution. My remarks will both call attention to the ways in which Congress can express its disapproval of Supreme Court interpretations of the Constitution and argue that such expressions of disagreement are necessary to ''protect and defend'' the Constitution.
The text and design of the Constitution as well as the historical record underscore the pervasive role that elected officials play in shaping constitutional values. Nevertheless, nearly two hundred years after Marbury v. Madison, the question of whether Supreme Court rulings bind elected officials remains controversial. In a Washington Post survey, for example, six out of ten respondents thought the Supreme Court the ultimate constitutional interpreter. In reporting this survey, the Post simply noted that those respondents were ''correct.''
This view, that constitutional truth derives solely from nine individuals (or a majority of them) sitting on the Supreme Court, has, on occasion, been embraced by the Court itself. Witness City of Boerne v. Flores, a 1997 decision which considered Congress's power to ''overrule'' a Supreme Court decision. Citing Marbury, the Boerne Court declared that ''[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary.'' Similarly, in its 1992 decision reaffirming abortion rights—Planned Parenthood v. Casey—the Court claimed authority to resolve the abortion dispute, calling on ''the contending sides of a national controversy to end their national division by accepting'' ''the Court's interpretation of the Constitution.''
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Decisions like Casey and Boerne are rare, however. Backed into a corner by elected government challenges to judicial decisionmaking, the Justices claimed authority to settle transcendent values.(see footnote 49) For the most part, the Justices adhere to a philosophy that is much more modest, circumspect, and nuanced. Anthony Kennedy (the author of Boerne), for example, has testified before Congress that lawmakers ''would be fulfilling [their] duty'' by limiting the effects of Supreme Court decisions that they think are ''wrong under the Constitution.''(see footnote 50)
The historical record provides overwhelming evidence that other parts of government challenge the Court's constitutional reasoning and that the Court is influenced by these challenges as well as the broader social currents which surround it. The Court may be the ultimate interpreter in a particular case, but not always the larger issue of what the case is a part. Congress, the White House, government agencies, interest groups, the general public and the states all play critical roles in shaping constitutional values. As noted by Ruth Bader Ginsburg a year before her appointment to the Supreme Court, judges ''play an interdependent part in our democracy. They do not alone shape legal doctrine . . . they participate in a dialogue with other organs of government, and with the people as well.''(see footnote 51)
CONGRESS AND THE CONSTITUTION
Congress participates in constitutional decisionmaking at all phases of the lawmaking process, from the enactment of legislation and approval of constitutional amendments to the oversight of government departments and agencies. In recent decades, Congress also has participated in litigation both in its own name and through briefs filed by individual members. Through the Senate's power to confirm judicial nominees, moreover, Congress plays an integral role in defining the composition of the federal judiciary.
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Elected government's most direct link to judicial decisionmaking is the overtly political process of selecting and approving federal judges. Accordingly, battles over Supreme Court nominations reveal that the president and Senate both recognize that the best way to shape outputs (Court rulings) is to control inputs (i.e., to control who sits on the Court). In particular, members of the Senate Judiciary Committee ''have learned to shape the constitutional dialogue in the confirmation hearings to make clear to nominees that a willingness to profess belief in some threshold constitutional values is a prerequisite for the job.''(see footnote 52) Beginning with the 1981 nomination of Sandra Day O'Connor, ''these threshold values have included a commitment to the existence of . . . the right to privacy and respect for stare decisis.''(see footnote 53)
Congressional influence over constitutional interpretation through the confirmation of judges is only the tip of an iceberg. Before legislation is enacted, Congress often undertakes a constitutional review of the measure. This review may occur in a number of different ways. First, committee and subcommittee staff members as well as House or Senate members themselves may assess the bill's constitutionality. Second, a number of congressional offices may be called upon to assist in this review. The Congressional Research Service, the offices of legislative counsel to the House and to the Senate, and the General Accounting Office all can assist in reviewing constitutional questions. Third, through formalized legislative hearings and informal requests, constitutional scholars, Justice Department officials and other government officials, and interest groups share their views of a measure's constitutionality with members and their staffs.
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Consider, for example, the pivotal role played by the House Judiciary Committee in the Supreme Court's approval of the 1964 Civil Rights Act's prohibition of discrimination by restaurants, hotels, and other public accommodations. In the wake of hearings raising grave doubts about whether Congress had the authority to ground this public accommodations provision in the Fourteenth Amendment's equal protection guarantee, Congress invoked its commerce power as an alternative basis for this provision. Because the statute was framed this way, the Supreme Court was able to uphold the measure on commerce grounds without ever having to consider the Fourteenth Amendment issue. Had Congress relied exclusively on its authority to enforce the Fourteenth Amendment's equal protection guarantee, the case, of course, would not have been decided on commerce grounds and might well have come out the other way.
Aside from framing issues for judicial resolution, Congress and its members also participate in the litigation process. Sometimes the Supreme Court invites the House, the Senate, or individual members of Congress to present an amicus curiae (friend of the court) brief and participate in oral arguments. Amicus curiae briefs, most notably in abortion and separation-of-powers disputes, also have been filed at the initiative of the Senate, the House, and their individual members. For example, a coalition of more than two hundred members of Congress filed an amicus brief in Harris v. McRae, defending the right of Congress to fund or to refrain from funding abortions as it sees fit. Finally, Congress participates as a party to litigation when the Justice Department refuses to defend a statute's constitutionality. In cases involving the constitutionality of the bankruptcy court and the legislative veto, for example, Congress defended the constitutionality of its handiwork.
Once the Supreme Court decides a case, Congress may make use of a wide variety of powers to signal its approval or disapproval of the decision. When Congress agrees with the Court, it may affirmatively assist in the implementation of a Court decision. For example, in response to Southern resistance, Congress took bold steps to make Brown v. Board of Education a reality. In 1964 it prohibited segregated school systems from receiving federal aid (Title VI) and authorized the Department of justice to file desegregation lawsuits. More significant, the implementation of the Elementary and Secondary Education Act of 1965, coupled with the issuance and enforcement of Title VI guidelines, marked a significant shift in federal powers over state education systems. These federal efforts proved critical in ending dual school systems. More actual desegregation took place the year after these legislative programs took effect than in the decade following Brown.
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Congress, moreover, may also enact legislation at the Court's behest. In 1978 the Court, while upholding the constitutionality of third-party searches of newspapers in Zurcher v. Stanford Daily, invited legislative efforts to establish ''nonconstitutional protections against possible abuses of the search warrant procedure.'' Congress accepted this invitation. Concluding that ''the search warrant procedure in itself does not sufficiently protect the press and other innocent parties'' and that the Zurcher decision had ''thrown into doubt'' ''a longstanding principle of constitutional jurisprudence,'' Congress prohibited such newspaper searches in 1980.(see footnote 54)
WHEN CONGRESS AND THE COURT DISAGREE
Starting with the First Congress, Congress has proven itself willing to act in the face of contradictory Supreme Court precedent. During the debate in 1789 on the President's removal power, for example, James Madison saw no reason to defer to the judiciary on the constitutionality of what Congress was about to do. While acknowledging that ''the exposition of the laws and Constitution devolves upon the Judiciary,'' he begged to know on what ground ''any one department draws from the Constitution greater powers than another in making out the limits of the powers of the several departments.''(see footnote 55)
In response to Dred Scott, Congress passed a bill prohibiting slavery in the territories.(see footnote 56) Disagreeing with the Court's 1918 ruling that the commerce power could not be used to regulate child labor, Congress two decades later again based child labor legislation on the Commerce Clause.(see footnote 57) Public accommodations protections contained in the 1964 Civil Rights Act similarly followed in the wake of a Supreme Court decision rejecting such protections.(see footnote 58) More recently, lawmakers have challenged Court rulings on abortion, busing, flag burning, religious freedom, voting rights, and the legislative veto.(see footnote 59)
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Congressional disagreement with the Court takes many forms. At one extreme, Congress simply disregards a Court decision it finds unworkable. Immigration and Naturalization Service v. Chadha, invalidating the legislative veto, is such a case. In the twelve years after Chadha, 1983–1995, well over three hundred legislative veto provisions were enacted into law. The reason for such widespread disobedience of Chadha is that ''[n]either Congress nor the executive branch wants the static model of government offered by the Court.''(see footnote 60)
Congress may also seek to nullify Court rulings by amending the Constitution. While constitutional amendment proposals are almost always unsuccessful, these proposals nevertheless may drive judicial decisionmaking. For example, in response to the Court's failure to invalidate gender-based decisionmaking, Congress approved and sent to the states for ratification a proposed Equal Rights Amendment (ERA) prohibiting the abridgement of ''equality of rights . . . on account of sex.'' These efforts prompted the Court to reconsider its approach to gender decision-making, and in the early 1970s Supreme Court decision-making became ''fully compatible with arguments made by leading mainstream ERA proponents in such documents as congressional committee reports and hearings records on the ERA, and in testimony in the Congressional Record by leading ERA sponsors.''(see footnote 61) Ironically, the ultimate defeat of the ERA is sometimes attributed to the Court's general adoption of the amendment's principles.
Another area where Congress has been successful is in countering Supreme Court decisionmaking that does not protect rights that Congress thinks should be protected. Two recent examples stand out. After the Supreme Court upheld, in Goldman v. Weinberger, an air force regulation forbidding an Orthodox Jew's wearing of a yarmulke indoors while on duty, Congress enacted legislation overturning this regulation.(see footnote 62) More strikingly, Congress significantly expanded voting rights protections through its 1982 amendments to the Voting Rights Act. The bill was a direct outgrowth of the Supreme Court's decision in Mobile v. Bolden, in which the Court required proof of discriminatory intent as a basis for voting rights litigation. Concluding that the ''intent test focuses on the wrong question and places an unacceptable burden upon plaintiffs in voting discrimination cases,''(see footnote 63) Congress cleared the way for impact-based proofs of discrimination.
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Congress, finally, has sought to limit the reach of Court decisions that protect rights in ways that Congress thinks are inappropriate. Following Roe v. Wade, Congress revealed its hostility to expansive abortion rights through funding restrictions. Congress likewise made effective use of its power of the purse in limiting school busing.
City of Boerne v. Flores, invalidating legislative efforts to define the content of First Amendment religious liberty protections, does not call into question Congress's broad authority to limit the effect of Supreme Court decisions.(see footnote 64) To begin with, Boerne says nothing about Congress's authority to control federal programs or its power to place conditions on the receipt of federal funds (including the denial of federal funding to disfavored activities). Moreover, while specifying that Congress's authority to enforce the Fourteenth Amendment is limited to ''legislation which deters or remedies constitutional violations,'' the Court acknowledged that ''the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern.'' Correspondingly, in recognizing that ''Congress must have wide latitude in determining'' whether corrective legislation is, in fact, remedial, Boerne acknowledged Congress's power to engage the Court in constitutional dialogues.
THE LAST WORD DEBATE REVISITED
Congressional practice as well as the design and text of the Constitution all suggest that the overriding value promoted by the framers was a system of checks and balances, with each branch asserting its own powers and protecting its own prerogatives. Furthermore, constitutional dialogues between the courts and elected government often result in more vibrant and durable constitutional interpretation. In particular, a final interpretive authority of the Constitution will make our most fundamental text stagnant and irrelevant, rather than preserve and honor it. Lou Fisher and I develop this point in a forthcoming article, Judicial Exclusivity and Political Instability, which I am attaching to this statement. In our view, the Constitution becomes more relevant and more stable when all branches and levels of government do battle with one another.
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Courts and elected officials should both be activists in shaping governmental policy, in large measure, because judges and politicians sometimes react differently to social and political forces. Congress, for example, focuses its ''energy mostly on the claims of large populous interests, or on the claims of the wealthy and the powerful, since that tends to be the best route to re-election.''(see footnote 65) Courts, in contrast, are less affected by these pressures, for judges possess life tenure. Accordingly, because special interest group pressures affect courts and elected officials in different ways, a government-wide decisionmaking process encourages a full-ranging consideration of the costs and benefits of different policy outcomes.
This politicization of constitutional discourse, while contributing to partisan value-laden constitutional interpretation, is better than the alternatives—legislative or judicial supremacy. Legislative supremacy, as Marbury recognized, would blur the line separating the Constitution from ordinary laws. Moreover, subject to the pressures of reelection, ''legislatures are too likely to get caught up in the passions of the moment, be they flag burning, alleged communists in the State Department, to the need to really sock it to various types of criminal defendants.''(see footnote 66) For progressives and conservatives alike, lawmakers' propensity to do that which is politically expedient makes legislative supremacy unpalatable.
Judicial exclusivity, like legislative supremacy, creates more problems than it solves. ''When technologies are changing rapidly, when facts or values are unclear and when democracy is in a state of moral flux, courts [with limited factfinding capacity and inability to respond quickly to changing circumstances] should recognize that they may not have the best or final answers.''(see footnote 67) Moreover, lacking the powers of purse and sword, as Casey recognized, the Court's authority is necessarily tied to ''the people's acceptance for the Judiciary.'' The Court is well aware of this: for example, Justice Owen Roberts, whose alleged ''switch in time'' saved the Lochner Court from Roosevelt's Court-packing plan, acknowledged that ''[l]ooking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country.''(see footnote 68)
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To be sure, those who believe that Congress is not ''ideologically committed or institutionally suited to search for the meaning of constitutional values''(see footnote 69) may question the practicality of this dynamic decisionmaking model. Populist constitutional interpretation, however, serves as an important foil for the Court. In so doing, elected government interpretation makes the Constitution more relevant and more durable.
The saga of abortion rights underscores the appropriately interactive nature of constitutional decisionmaking.(see footnote 70) Roe v. Wade served as a critical trigger to judicial recognition of abortion rights, overcoming politically potent pro-life interests that have always stood in the way of populist abortion reform. Roe also prompted the elected branches of government into action. From 1973 to 1989, 306 abortion-restricting measures were passed by forty-eight states. In 1992, after two decades of elected government resistance as well as the appointment of new Supreme Court Justices, the Court responded to these pressures and returned much of the abortion issue to the states. Repudiating Roe's stringent trimester test in favor of a more deferential ''undue burden'' standard, Planned Parenthood v. Casey, while reaffirming ''the central holding of Roe,'' signalled the Court's increasing willingness to uphold state regulation of abortion.
Without question, to a pro-choice advocate, Casey's balance sells out important interests of women, and, to a pro-lifer, it permits moral outrages to continue. But there is no realistic alternative to Casey's balancing act. The political upheaval that followed (and still follows) Roe reveals the unworkability of a strident pro-choice jurisprudence. But a jurisprudence allowing the prohibition of abortion is equally unworkable. In the years before Roe, when nontheraputic abortions were prohibited in nearly every state, abortions were both less safe and almost as common as they are today. Ultimately, abortion is too divisive for either pro-choice or pro-life absolutism to rule the day. Absent the constitutional dialogue that followed Roe, however, the politically unworkable trimester standard would have remained in place.
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CONCLUSION
Congress must not shy away from its responsibility to interpret the Constitution and, when necessary, challenge the Court. Delegations of constitutional responsibility to the courts through expedited review provisions or suggestions that Court interpretations are definitive both weaken the Congress and the Constitution.(see footnote 71) Our system of government, as Justice Ginsburg rightly observed at their confirmation hearing, is one where courts ''do not guard constitutional rights alone. Courts share that responsibility with Congress, the President, the states, and the people.''(see footnote 72)
This process of ''ambition counteracting ambition'' is central to our system of divided government. By empowering ''we the people'' through their elected representatives, it also make the Constitution more vital, more durable, and more democratic.
Mr. CANADY. Okay; thank you, Professor Devins. Professor Kinkopf.
STATEMENT OF NEIL KINKOPF, VISITING ASSISTANT PROFESSOR OF LAW, CASE WESTERN RESERVE UNIVERSITY LAW SCHOOL
Mr. KINKOPF. Thank you, Mr. Chairman, members of the committee. It's a real honor to appear before you today and a particular privilege to appear on such a distinguished panel.
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The relationship between Congress and the Court with respect to constitutional interpretation calls to mind Justice Jackson's observation that the Constitution ''enjoins upon the branches of the Federal Government separateness but interdependence, autonomy but reciprocity.'' We've heard a lot of discussion this morning about the separateness and the independence of the roles of the branches in interpreting the Constitution.
I would like to focus on the interdependence and reciprocity. In particular, I would like to focus on the deference that the Court owes to Congress's constitutional interpretations contained in legislation and in the legislative record that supports that legislation.
There is no broadly-applicable rule to determine whether, or even to what extent, the Court owes deference to Congress. It depends on the context and content of particular legislation and the legislative record. For example, the Court will extend differing levels of deference depending on whether legislation draws classifications based on race, based on gender, or based on, say, age. I want to discuss the deference that the Court owes to congressional constitutional interpretation in the context of separation of powers and the structure of the Federal Government.
I think first it would be useful to recall the two fundamental purposes underlying the structure of the Federal Government. First, because the framers feared that large concentrations of unchecked power are subject almost inevitably to abuse, the Constitution separates the Government into three branches and makes each branch the primary guardian of its own constitutional role, arming it constitutionally with checking powers on the others.
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Second, the Constitution sought to create a viable and effective national Government, particularly in light of its experience under the Articles of Confederation. The power to establish the procedures, structures, and mechanisms of that effective self-government is granted primarily to the Congress.
Now there's tension that arises between these two structural purposes, particularly when Congress legislates in a way that is perceived to undermine the separateness of the branches. The Court has resolved that tension largely by according great deference to Congress's constitutional judgment that a given measure will be effective and will not subvert the constitutional separation of powers.
In granting that deference, the Court places a great deal of emphasis on the initial judgment not to rely on parchment barriers between the branches, but rather to defer to each branch's ability to act as the primary guardian of its own role.
One might view the Court's precedents in this area as according slightly less preference when the branch affected by a given piece of legislation is the judiciary itself. I don't that's cynical on the part of the Court, if in fact that's the case, but rather it's because the Court's check from the Constitution is judicial review. And so, it is in accord with its role as the primary guardian—its duty as the primary guardian of its own constitutional role—that the Court would perhaps grant slightly less deference where a given statute affects the judiciary.
The Supreme Court's recent decision in Boerne stands in contrast to this approach. The Religious Freedom Restoration Act was supported by an extensive legislative record in support of Congress's judgment that RFRA was constitutional. And the Supreme Court recognized that the Boerne case was one that fundamentally involved separation of powers. They were concerned about whether Congress had actually sought to exercise the judicial power.
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I believe that in striking down RFRA, the Supreme Court may well have been insufficiently deferential to Congress's constitutional judgment. I think the Boerne court's failure to be sufficiently deferential can be traced to the fact that although the Court recognized the separation of powers setting for its decision, it didn't recognize the precedents that it could have looked to for guidance as to just how deferential it should have been.
But it also brings us to a second point—and I notice my time has expired——
Mr. CANADY. You may continue.
Mr. KINKOPF [continuing]. But if I can get to the second point, which is that Congress can help the Court be deferential. In particular, Congress can make findings that demonstrate that it recognizes the barriers and boundaries to its own powers, which is what particularly motivated the Court in Boerne and in a number of other recent cases, particularly I'm thinking of the Lopez decision striking down the Gun-Free School Zones Act.
The Court has been particularly concerned with making sure that Congress stays within its enumerated powers, and it views it as perhaps its most important function—to make sure that the Congress does that. If Congress establishes a legislative record that identifies the boundaries of its power and that makes findings that demonstrate that the legislation it has enacted is drawn with respect to those boundaries, keeping those boundaries on its power in mind, then the Court has indicated that it will accord great deference to Congress's constitutional judgments.
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And in both Boerne and Lopez, the Court expressed its concern that it couldn't find that in the legislative record. Now in the Boerne case that's understandable, because there was disagreement between the Congress and the Court about where the boundary on that power was, whether the power under section 5 was simply preventive and remedial, or whether it included some sort of substantive component.
But I think the more general point still holds, and that is that in the case where it's unclear that Congress has acted within the scope of its powers, the Court will look to the legislative record, and if Congress has established a legislative record that both identifies the barriers on its power and the ways in which the particular enactment stay within respect of those boundaries, the Court will, in fact, defer to Congress's constitutional judgments.
Thank you.
[The prepared statement of Mr. Kinkopf follows:]
PREPARED STATEMENT OF NEIL KINKOPF, VISITING ASSISTANT PROFESSOR OF LAW, CASE WESTERN RESERVE UNIVERSITY LAW SCHOOL
It is an honor to be invited to give testimony before this subcommittee and to appear on such a distinguished panel. The topic of today's hearing, ''Congress, the Court, and the Constitution'' calls to mind Justice Jackson's observation on the relationship between the branches of the federal government. The Constitution, he said, ''enjoins upon [the] branches separateness but interdependence, autonomy but reciprocity.''(see footnote 73) The Supreme Court's recent decision in Boerne v. Flores,(see footnote 74) affords an excellent opportunity for examining both the separateness and the interdependence of constitutional interpretation by the courts and by Congress. I will have a few words to say about the separateness and independence of congressional constitutional interpretation, but I want to concentrate on the interdependence and reciprocity of judicial and congressional constitutional interpretation. In particular, I will examine the level of deference that the courts owe to Congress's constitutional judgments.
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I will begin by discussing the level of deference due Congress's constitutional judgments in separation of powers cases generally. This discussion will set the stage for examining the level of deference that was due and that was actually accorded in Boerne. I will then draw from this examination observations about how Congress can help the Courts defer to Congress's constitutional judgments. I arrive at two conclusions, First, where it is unclear whether Congress has acted within the scope of one of its enumerated powers, the Court will be deferential to Congress's judgment that it has acted within that power, but the extent of the deference will be greater—and perhaps determinatively so—where Congress has made findings that indicate Congress is aware of the nature and limits of the enumerated power it is exercising and has drafted its legislation in recognition of and conformance to those limits. Second, where there is concern that Congress has actually exercised the power of another branch, the legislative history should specifically address this concern and explain how Congress has sought to avoid stepping beyond the legislative sphere and has indulged interbranch comity with respect to the executive or judiciary.
After this discussion of the interdependence between Congress and the Courts, I will turn to their independence and review some of the benefits that derive from congressional non-acquiescence in Supreme Court doctrine. This discussion draws on analogous executive branch approach to non-acquiescence. I conclude that there are important benefits to be derived from Congress exercising an independent interpretive role, even where its interpretation conflicts with the Supreme Court's.
I. INTERDEPENDENCE: JUDICIAL DEFERENCE TO CONGRESSIONAL CONSTITUTIONAL JUDGMENTS
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A. The General Separation of Powers Context
There is in fact no single level of deference that the courts do or should accord Congress's constitutional judgments. Instead, the level of deference due a congressional constitutional judgment depends on the subject matter of the legislation under review and the specific power under which Congress is acting as well as the context and content of the specific legislation. So, for example, the courts will accord differing levels of deference to Congress's constitutional judgments in connection with legislation that draws racial classifications, gender-based classifications, and age-based classifications. Because many of the recent cases that have starkly posed the question of deference, including Boerne, have arisen in the context of separation of powers,(see footnote 75) I will confine my inquiry to the level of deference that the judiciary owes Congress's constitutional judgments regarding the allocation and exercise of the federal government's power.
Even under the heading ''separation of powers,'' the level of judicial deference due Congress's constitutional determinations will vary. It is helpful to remember the purposes that the constitutional structure of the federal government is designed to serve. The Constitution structures the federal government to achieve two fundamental purposes. First, it safeguards the liberty of the governed by dividing the federal government into three branches and assigning each a distinct role in the exercise of federal power.(see footnote 76) The framers accepted the premise that large concentrations of unchecked power were peculiarly subject to abuse and so divided the constitutional powers of the federal government into three branches and subjected each branch in the exercise of its power to checking or limiting power vested in the others.(see footnote 77) The natural ambition of each branch would lead it to prevent the others from encroaching upon its constitutionally assigned sphere.(see footnote 78) Under this design, then, each branch is to be the primary guardian of its own constitutional role. Second, the Constitution's framers were determined to create a viable and effective national government to replace what they regarded as the embarrassing spectacle of ineffectual national government under the Articles of Confederation.(see footnote 79) The Constitution assigns Congress the function of establishing effective forms of national self-government and grants Congress broad powers to structure the federal government primarily through the Necessary and Proper Clause.(see footnote 80) Congress establishes the structure of the executive and judicial branches. Within that structure it orders and arranges the powers and duties of each by establishing departments and agencies(see footnote 81) and the subunits and bureaus of each, as well as by creating all offices and defining their duties and powers and the limits on those duties and powers. Congress also prescribes the procedures officials must follow in exercising federal power and the conditions on which that power may be exercised. In sum, while the Constitution creates the executive and judicial branches, Congress gives each its form and content, according to its judgment as to which forms will be most effective within the constraints of the Constitution's text and structure.(see footnote 82)
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It is occasionally asserted that Congress has exercised its Necessary and Proper Clause power in a way that impermissibly encroaches upon one of the other branches by enacting legislation that interferes with the ability of one of the other branches to perform its functions.(see footnote 83) The two fundamental purposes of the Constitution's structure thus often come into tension. Rather than establishing a system of specific, categorical rules to resolve this tension, the Supreme Court has interpreted this division to be ''governed according to common sense and the inherent necessities of the governmental co-ordination.''(see footnote 84) Indeed, the Supreme Court has fashioned a standard that, in both formulation and application, is extremely deferential to the Congress's judgment that the resulting arrangement of federal power will comport with the constitutional system of separation of powers. Thus, the Court will find Congress impermissibly to have interfered with one of the other branches only if its enactment ''prevents the [other b]ranch from accomplishing its constitutionally assigned functions.''(see footnote 85) Even then, a statute that does so is unconstitutional only if its impact is not justified by an overriding need to promote objectives within the Congress's constitutional authority.(see footnote 86)
The Court has used this same general separation of powers formulation whether Congress is asserted to have interfered with the executive branch or with on the judicial branch.(see footnote 87) The Court's application of this formulation has been only slightly less deferential where a statute is asserted to have interfered with the judiciary as compared with asserted interference with the executive.(see footnote 88) In Commodity Futures Trading Comm'n v. Schor,(see footnote 89) the Supreme Court held that Congress could authorize a non-Article III court to decide a state common law cause of action if raised as a counterclaim in a proceeding that is otherwise validly before the tribunal. Generally, such tribunals are authorized to hear regulatory or administrative claims but the Supreme Court has held that Article III prohibits Congress from assigning them authority to hear causes of action that are within the core of Article III jurisdiction. State common law causes of action are at the core of Article III's jurisdiction. In Schor, the Court allowed a non-Article III tribunal to exercise jurisdiction over a contract dispute, a classic state common law cause of action, that was raised as a counterclaim in a proceeding initiated to resolve an administrative claim. While the Court recognized that such claims implicate the core of the judicial power, it was extremely deferential to Congress's constitutional conclusion that allowing the CFTC to hear such disputes as counterclaims would not subvert the role of the judiciary or the constitutional balance of power. In particular, the Court deferred to Congress's judgment that counterclaim jurisdiction was important to the CFTC's effective operation, pronouncing that the legislation's ''primary focus was on making effective a specific regulatory scheme. . . .''(see footnote 90)
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This approach allows Congress to fulfill its constitutional role of arranging and ordering the exercise of federal power through the forms it deems to be most effective and to maintain the constitutional balance of power, while preserving to each branch the role of primary guardian of its constitutional sphere. It is in view of this latter role that we find justification for the Court's somewhat less deferential application of the general separation of powers principle to cases involving possible encroachments on the judicial branch as compared with the executive branch. In the former, the Court acts as guardian of its own role, while in the latter the Court steps back and allows the executive branch to guard itself. It bears emphasizing, however, that the Court is only slightly less deferential to Congress's judgments in cases involving asserted encroachment on the judiciary. The Court's deference in these cases demonstrates the significance it places on Congress's function of establishing effective mechanisms of governance and its respect for Congress's constitutional judgment that the mechanisms it selects will not undermine the separation of powers.
A related question derives from the constitutional division of power: Congress may exercise only the legislative power. Any attempt by Congress to exercise judicial or executive power, whether itself or through one of its committees or agents, is unconstitutional.(see footnote 91) This much is uncontroversial. The difficult case arises when, in response to an assertion that a statute represents an exercise of a non-legislative power, Congress can plausibly point to an expressly enumerated power as authority for its statute. Put another way, how do we determine whether Congress, under the guise of an enumerated power, has actually exercised an executive or judicial power? At least one of the framers, James Madison, recognized this concern and wrote:
The legislative department['s] . . . constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not infrequently a matter of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.(see footnote 92)
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Recalling the constitutional commitment to effective self-government and recognizing that the Constitution impresses upon each branch the duty to act as primary guardian of its own constitutional role and grants each branch powers to fulfill that duty, Congress should expect great deference to its determination that a given piece of legislation represents a necessary and proper exercise of one of its constitutionally enumerated powers.(see footnote 93) Indeed, James Madison made the above-quoted observation in the context of arguing that the only effective means of keeping Congress within the legislative sphere would be through each branch acting to preserve its constitutional role rather than through rigid and formalistic ''parchment barriers.''
While Madison was prescient in foreseeing this controversy, it has only rarely materialized. The question whether legislation is within Congress's enumerated power, or whether it is properly seen as an exercise of a non-legislative power has most often involved concern that Congress has exercised an executive power, particularly the appointment power. The Constitution establishes a clear division of labor with respect to creating and filling federal offices. The Constitution assigns Congress the power to create offices and assigns the President primary responsibility for filling them.(see footnote 94) This clear line separating the power to create offices from the power to appoint officers is breached when Congress adds duties to an existing office. While Congress plainly has authority to define and redefine offices, there is concern that in adding duties to an existing office with a known occupant, Congress will have essentially created a new office and chosen the officer to fill the ''new'' office.(see footnote 95) It was on this ground that the Financial Institutions Reform, Recovery and Enforcement Act was ruled unconstitutional.(see footnote 96)
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As the framers anticipated, these controversies are typically resolved between the Congress and the executive branch without involving the judiciary. Nevertheless, the courts have had occasion to fashion a standard, known as the Shoemaker doctrine, to govern this controversy. As with the approach to separation of powers generally, the Shoemaker doctrine is, in both formulation and application, extremely deferential to Congress. It requires only that the new duties be germane to the office's pre-existing duties. In a recent decision, the Supreme Court held that any commissioned military officer could be detailed to act as a military judge without a formal constitutional appointment because the duties of a military judge are sufficiently germane to the duties of any commissioned officer of the armed forces.(see footnote 97) A comparison of the duties of a Second Lieutenant on a naval supply ship, for example, with the duties of a military judge demonstrates just how deferential the Court's application of the germaneness requirement can be.
B. Deference in Boerne
Last term, the case of Boerne v. Flores(see footnote 98) presented the question of how to address this controversy when legislation is attacked as an exercise of the judicial power, rather than the executive power. Specifically, the Court was asked to determine whether the Religious Freedom Restoration Act (''RFRA'') was a valid exercise of Congress's broad authority under Section 5 of the Fourteenth Amendment, or instead represented congressional exercise of the judicial power.(see footnote 99) Consistent with the Court's approach to separation of powers generally, as discussed above, and in recognition of the important constitutional values supporting that approach, the Court should have employed a deferential standard similar to the Shoemaker germaneness requirement and have applied that standard with slightly greater scrutiny, which is to say with slightly less deference, than the Court accords in the Shoemaker context. In fact, this is precisely what the Court purported to do.
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In formulating the governing standard, the Court virtually paraphrased the Shoemaker germaneness requirement. It held that ''[t]here must be a congruence and proportionality between'' Congress's enumerated power and the ''means adopted to that end.''(see footnote 100) In the same breath, the Court expressed its considerable deference for Congress's judgment, ''the line between measures that'' are within and without Congress's authority ''is not easy to discern, and Congress must have wide latitude in determining where it lies. . . .''(see footnote 101) Despite the articulated standard and expressed intention to accord substantial deference to Congress's constitutional judgment that the enactment of RFRA was within its enumerated powers, the Court ruled the Act unconstitutional on the ground that RFRA was not within Congress's authority under Section 5 of the Fourteenth Amendment.
Congress had compiled an impressive and extensive legislative record detailing the injuries that it sought to remedy through RFRA and the need for legislation to remedy those injuries.(see footnote 102) I believe that the Court articulated an appropriately deferential standard by which to review whether RFRA was within Congress's enumerated power to enact but that, in light of the extensive legislative findings and conclusions, the Court was insufficiently deferential in applying that standard to Congress's constitutional judgment that RFRA was within its authority. Why, then, was the Court insufficiently deferential to Congress's determination? Part of the blame obviously rests with the Court. The Court failed to locate its analysis within the broader separation of powers context or even within the more specific context of cases, like Shoemaker and Weiss, that examine whether Congress has actually exercised the power of another branch or has remained within its enumerated powers. Had it explored this context, it would have found further support for the ''congruence and proportionality'' standard it articulated, but would also have garnered concrete guidance on how to apply that standard.(see footnote 103) This would have indicated using Shoemaker and Weiss as a baseline against which to assess the level of deference due Congress's findings and conclusion, and should have alerted the Court that the level reflected in its decision was inadequate.
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Nevertheless, Congress has the means to provide the Court a basis for appropriate deference to Congress's constitutional judgments. The Constitution embodies the fundamental judgment that the federal government is a limited government of expressly enumerated powers. Although the line between actions that fall within these powers and outside of them is not always clear, the line ''exists and must be observed.''(see footnote 104) The Court takes very seriously its role in ensuring that Congress does not either itself take action or authorize other federal action that is beyond these enumerated powers, and may in fact view this as its most important function.(see footnote 105) One might ask why the Court should require Congress to make such findings expressly. Surely Congress's judgment that a given piece of legislation is within its constitutional power to enact is implicit in its enactment. In the vast majority of cases, the Court accepts Congress's implicit judgment. Where it is clear to the Court that the enactment is within Congress's authority, it requires no express corroboration. It is where the Court cannot perceive how the enactment respects the constitutional limits on Congress's authority that it looks to Congress for an explanation in the form of findings and a legislative record. First, this exercise ensures that Congress recognizes the same limits on its power that the Court perceives and that Congress has drawn its legislation to conform to those limits. Second, there is reason to doubt that Congress considers the constitutionality of each provision of each piece of legislation it enacts and therefore to question whether enactment carries an implicit congressional determination of constitutionality. For example, Congress has enacted hundreds of legislative vetoes since the Supreme Court ruled them unconstitutional in INS v. Chadha.(see footnote 106) There is no indication that Congress pauses to consider the constitutionality of these provisions before enacting them. It is understandable, therefore, that the Court may have some doubt as to whether Congress actually considers the constitutionality of each provision it enacts. If Congress has not, to what is the Court to defer?
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In Boerne the Court examined the legislative record for evidence that Congress recognized the extent and limits on its Section 5 power and had drafted RFRA with those limits in mind. The Court noted that the record lacked evidence of ''animus or hostility to the burdened religious practices'' and was not directed to the issue of the intent underlying generally applicable state laws and local ordinances. More important, the legislative record did not attempt, in the view of the Court, to demonstrate a congruence and proportion between the operative provisions of RFRA and the Congress's power under Section 5 to remedy or prevent violations of individual constitutional rights. In this connection, the Court emphasized RFRA's ''universal coverage'' and, at least by implication, the legislative record's failure to consider whether a different standard might be appropriate in different contexts, such as prison management as opposed to state employment as opposed to zoning regulation.(see footnote 107) Finally, the legislative record included significant indication that RFRA was in fact designed to exercise the judicial power by overruling the Supreme Court's decision in Oregon v. Smith.(see footnote 108) It is, at least conceivably, within Congress's ability to remedy each of these shortcomings in the legislative record.(see footnote 109)
A second case is instructive, United States v. Lopez. This case raised the question whether Congress had acted within the scope of its power under the Commerce Clause.(see footnote 110) Congress had enacted a statute making it a federal offense to possess a gun in a school zone. The question presented was, in shorthand, whether the possession of a gun in a school zone is an ''activity . . . that substantially affect[s] interstate commerce.'' There, the Court did not perceive the substantial effect and so looked for legislative findings in order that it might defer to Congress, but found them lacking.(see footnote 111)
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This review of Boerne and Lopez yields two observations. First, where it is unclear whether Congress has acted within the scope of one of its enumerated powers, the Court will be deferential to Congress's judgment that it has acted within that power, but the extent of the deference will be greater—and perhaps determinatively so—where Congress has made findings that indicate Congress is aware of the nature and limits of the enumerated power it is exercising and has drafted its legislation in recognition of and conformance to those limits.(see footnote 112) Put another way, the courts will defer to Congress's interpretation of its own constitutional authority, such as under the Commerce Clause or Section 5 of the Fourteenth Amendment, when there is an interpretation to defer to. Second, where there is concern that Congress has actually exercised the power of another branch, the legislative history should specifically address this concern and explain how Congress has sought to avoid stepping beyond the legislative sphere and has indulged interbranch comity with respect to the executive or judiciary, as the case may be.
II. CONGRESS'S INDEPENDENT ROLE IN INTERPRETING THE CONSTITUTION
While Boerne demonstrates that the Court will extend broad deference to Congress's constitutional judgment, reflected in a well-developed legislative record, that it has drafted legislation that remains within the boundaries of enumerated congressional authority, Boerne also indicates that the Court will not defer to Congress's determination on the logically prior question: precisely where those boundaries are drawn. Nevertheless, there are important benefits to be derived from Congress expressing, including as the declared basis for legislation, its own constitutional interpretation. First, where Congress adheres to a constitutional interpretation that is at odds with the Court's precedents and legislates on that basis, it gives the Court an opportunity to reconsider and overrule its precedents. Once again, Boerne is instructive. Each of the three dissenting justices urged the Court to use RFRA as an occasion to revisit and overrule its decision in Smith.(see footnote 113) A less dramatic consequence than overruling a precedent or line of precedents, Congress's adherence to its own constitutional interpretation may give the Court an opportunity to develop its doctrine within the confines of existing precedent or to consider constitutional theories that had not previously been argued. Thus, when Congress exercises its independent constitutional judgment, it can actually support and promote Court's ability to perform its ''duty . . . to say what the law is''(see footnote 114) in a way that slavish adherence to precedent does not.(see footnote 115)
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Mr. CANADY. Thank you. Professor Strossen.
STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL LIBERTIES UNION
Ms. STROSSEN. Thank you very much, Chairman Hyde, Chairman Canady, Representative Scott, and other distinguished members of the committee and distinguished members of the panel. It's really a pleasure, I have to say, to be here, as well as an honor.
Chairman Canady introduced me as the president of the American Civil Liberties Union. That is my volunteer position. I also want to state on the record that I earn my living as a law professor. I teach constitutional law. Chairman Canady said to me when we spoke before these proceedings began that this would be like a seminar, and I have to agree; it certainly is an intellectual feast, to quote that notorious judicial activist, Antonin Scalia. [Laughter.]
But, of course, there are also enormous consequences in terms of individual rights for these discussions that we're holding, and I'd like to zero in on that issue wearing my ACLU hat. It seems to me—and I'm delighted—that every person who has testified so far, including the Members of Congress as well as the academic experts, have agreed that Congress has not only the right, but also the responsibility to reach its own independent judgments as to the constitutionality of particular measures.
I'm so happy that there is agreement and, apparently, enthusiasm about pursuing that role more vigorously, because I have to agree with Congressman Frank, when he said that too often his colleagues are not sufficiently concerned about constitutional issues. Too often we're in the position of trying to persuade Members of Congress to vote against something on the ground that it's unconstitutional, and we are told that that is not something that they feel it is appropriate for them to take into account. So, to the extent that there is a consensus that we should redouble our commitment in all branches of Government to enforce the Constitution, I think that's wonderful.
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Now, where I see some possible breakdown in the unanimity goes to the second point I would like to address and that is what law professors and judges often call the one-way ratchet of interpreting constitutional rights or individual freedom independently of the courts. And the notion there is that, yes, Congress does have—and for that matter the executive branch of Government also has—independent power and authority to interpret the Constitution regarding individual rights, but only insofar as rights are more securely protected or there is a more expansive vision of individual liberty that results from that reinterpretation.
Congress does not, under this theory, have the power to reject a Supreme Court decision that says, for example, a certain law violates the First Amendment, and go ahead and re-pass that law (although obviously, the Congress has the power to pass a constitutional amendment). One way that I like to summarize this for my constitutional law students is that the Supreme Court can put a floor under our constitutional rights, but it cannot impose a ceiling over them.
Conversely, though, that would mean that Congress could not sink beneath that floor that the Supreme Court has articulated. I wasn't sure whether Congressman Hostettler would agree with that one-way ratchet theory. I got a little uncomfortable when I heard him criticizing a decision of a Federal court that a certain law that had been passed by Congress violated the First Amendment. I don't think it would be within Congress's prerogative to second guess such a judicial interpretation if it were from the Supreme Court, and the example that he referred to was not from the Supreme Court, so perhaps I have no need to be concerned on that score.
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The other possible breakdown in the unanimity here on this one-way ratchet theory of expanding individual rights is, of course, the Supreme Court's decision in the Boerne case, and I was happy to hear my distinguished colleagues on this panel agree that that decision is quite questionable.
As Congressman Hyde knows, I had the pleasure of testifying in favor of the Religious Freedom Restoration Act, both in the House and in the Senate. The ACLU spearheaded the coalition, called the Coalition for the Free Exercise of Religion, that lobbied very strongly for RFRA and argued for it in the Supreme Court, and, coincidentally, even as we are meeting here this morning, that coalition is still engaging in discussions about what's next, what steps can be taken, either by Congress or in other branches of Government, to secure the expanded vision of religious liberty that RFRA embodies, and that the Supreme Court rejected.
Now, I do agree though with colleagues who have said that the RFRA decision, the Boerne decision, does still leave some openings, and I think that's important. I didn't hear the Supreme Court there to be completely rejecting this one-way ratchet of constitutional law.
May I please beg the Chair's indulgence to continue?
Mr. CANADY. Please continue.
Ms. STROSSEN. I'll try to be very brief. So I agree that Congress has the power to expand constitutional rights. I am concerned, though, about a possible subtext when courts expansively interpret constitutional rights beyond what Members of Congress are willing to support, at least publicly. I'm going to give you an example.
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When the ACLU lobbied against the Communications Decency Act, we were told by a number of Members of Congress that they understood that it was unconstitutional, or probably unconstitutional, but they didn't want to risk the ire of their constituency by voting against something that could result in their being labeled soft on porn or soft on crime. And, when the Supreme Court agreed with us and struck down that law, essentially unanimously, in a case that I'm happy is called Reno v. ACLU, a number of Members of Congress who had voted for the law told us they were relieved that the Supreme Court had voted as it did.
I think it's very striking that the members of the Supreme Court, as well as the six lower court judges who ruled on the CDA were unanimous in finding it unconstitutional across a very broad ideological and political spectrum. These judges were appointed by five different presidents—three Republicans and two Democrats—and when this United States Supreme Court is unanimous that a law is constitutional, it is really unconstitutional.
Having said that, it's quite shocking when you consider how very, very few Members of Congress voted against the CDA, and, of course, the Administration enthusiastically supported it. So, I'm very concerned that we have too many elected officials who are not, in fact, seriously upholding their oath to defend the Constitution. Then, to add insult to injury, they turn around and attack those members of the Federal judiciary who do have the political courage and who do take those oaths seriously, even in striking down very politically popular measures.
I'm going to end by harking back to the underlying principles of separation of powers and checks and balances. I wanted to underscore one additional function to those that were laid out by Professor Kinkopf. It's the one that I have foremost in mind, and if I had more time I would cite evidence that the founders had foremost in mind, and that is to maximize individual liberty.
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The Supreme Court reminded us of that essential function in the Mistretta case in 1989. The Court stressed that separation of powers is not an end in itself; rather, quote, ''it is an essential means to the preservation of liberty.''
Thank you very much.
[The prepared statement of Ms. Strossen follows:]
PREPARED STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL LIBERTIES UNION
Mr. Chairman, and members of the Subcommittee:
I am Nadine Strossen, President of the American Civil Liberties Union and Professor of Law at New York Law School, where I teach constitutional law.
I want to thank House Judiciary Committee Chair Henry Hyde as well as the Constitution Subcommittee Chair Charles Canady and Ranking Minority Member Bobby Scott for inviting me to testify on the vitally important—and perennially controversial—subject of ''Congress, the Court, and the Constitution.''
I appreciate the opportunity to testify before you today on behalf of the American Civil Liberties Union (ACLU). The ACLU is a nation-wide, non-partisan organization of more than 275,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights and the Constitution.
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I understand that these hearings have been called in response to charges by some members of Congress and by some citizens' groups that federal judges have engaged in inappropriate ''activism'' that, in their view, undermines democratic principles and the separation of powers. Proposed solutions to this alleged problem include calls for impeaching particular judges and amending the Constitution to constrain the power and independence of all federal judges through such means as imposing fixed, limited judicial terms of office and allowing Congress to override judicial decisions on constitutional issues.
While I welcome the Committee's discussion of these important issues, I disagree both with the diagnosis of the alleged problem and with the vaunted solutions. Not only is there no disease of unwarranted judicial activism, but even if there were, the proposed cures would be worse than the disease. And, in so stating, I speak in both of my capacities: as a scholar and teacher of constitutional law and as head of the organization that has been hailed by supporters and critics alike as the most influential advocate of constitutional rights in our nation's courts.(see footnote 116)
Critics denounce as inappropriate activism judges enforcement of constitutional rights, especially when the consequence is to invalidate government measures that are supported by the majority of elected officials and the electorate, and especially when the most immediate beneficiaries are unpopular or controversial individuals or disempowered minority groups. But, far from deciding such judicial action as deviating from the judiciary's constitutionally designated role, as critics contend, I applaud it for faithfully fulfilling the Constitution's commands concerning individual rights and the judiciary's responsibility to protect them.
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Although all elected and appointed government officials take the same oath to defend and uphold the Constitution, far too often, elected officials honor that pledge in the breach. When it would be politically unpopular to stand up for constitutional principles rather than follow the latest public opinion poll, too many politicians ignore our nation's original ''Contract with America,'' our Constitution and Bill of Rights. To add insult to injury, they then attack the federal judges who do have the political courage to abide by their oath to enforce constitutional limits on governmental power and to uphold constitutional guarantees of individual liberty.
Regardless of whether I agree or disagree with a particular judge's ruling in a specific case—and, certainly, my ACLU colleagues and I have criticized many court decisions over the years—I respect the independence of the judicial branch of our federal government, and the special role it holds in the carefully structured system of limited and divided governmental powers that our constitutional framers devised.
The remedy for particular decisions with which one disagrees is to seek relief within the judicial system itself. A number of rulings that have provoked denunciations have in fact been overturned—to cite one recent example, Judge Thelton Henderson's preliminary injunction against the implementation of California's anti-affirmative action voter initiative, Proposition 209.(see footnote 117) The ACLU led the constitutional challenge to Proposition 209, advancing strong arguments—consistent with Supreme Court precedents and constitutional principles—that it violated both the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution. Accordingly, I disagreed with the ruling of the federal appellate court that rejected these arguments and overturned Judge Henderson's order.(see footnote 118) However, in contrast to some Congressional and other critics of Judge Henderson's ruling, neither I nor any of the ACLU's broad-based coalition partners in the Proposition 209 case have called for the impeachment of the appellate judges who denied our claims.
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In addition to seeking to overturn particular rulings by appealing those rulings themselves, anyone who has a certain vision of constitutional rights—or of limits on those rights—can also seek to influence constitutional law through longer-term strategies aimed at remolding the Supreme Court's interpretations of the Constitution. The most famous example of this longer-range approach is the NAACP's carefully orchestrated series of cases that culminated in Brown v. Board of Education,(see footnote 119) in which the Supreme Court unanimously overturned an earlier decision, Plessy v. Ferguson,(see footnote 120) and held that racially segregated public schools violate the Constitution's equality guarantee, repudiating the ''separate-but-equal'' doctrine.
More recently, we have witnessed a campaign using a similar strategy to advance a different constitutional vision: the efforts by ''pro-life'' forces to overturn Roe v. Wade,(see footnote 121) with its recognition of constitutional protection for women's reproductive freedom. While these efforts have not achieved the outright and complete reversal of Roe, they have resulted in a substantial cutting-back on the scope of the night that Roe had upheld, and a concomitant expansion in governmental power to restrict women's access to abortions.(see footnote 122) I certainly disagree with the Supreme Court's post-Roe decisions that have curtailed women's reproductive rights. Again, though, my belief that specific judges or courts are mistaken in particular rulings does not undermine either my support for the independent federal judiciary as an institution, or for the judicial review power, as essential pillars in our constitutional structure.
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The evolution of the Supreme Court's jurisprudence in abortion cases, in the past quarter-century since Roe, illustrates another important avenue of redress for those who disagree with particular rulings, which - in contrast with radical proposals to impeach judges or curtail their constitutional powers—is wholly consistent with the Constitution. Specifically, the Constitution affords the President and the Senate an opportunity to influence the composition of the federal courts by confirming or refusing to confirm individuals based on their character, qualifications, and the judicial philosophies they espouse.
In this respect, as in so many others, I celebrate the genius of our Constitution, which struck a delicate balance between—on the one hand—making federal judges too beholden to majoritarian pressures, and thus not sufficiently protective of individual and minority group rights, and—on the other hand—shielding judges too much from majoritarian concerns, hence making them insufficiently accountable to democratic processes. Avoiding both of these extremes, our Constitution affords federal judges some independence from majoritarian forces by guaranteeing them tenure ''during good behavior,'' subject to removal only through the extraordinary process of impeachment; but the Constitution also imposes some degree of democratic accountability on federal judges by requiring them to be nominated by the President and confirmed by two-thirds of the Senate.
In recent history, the nomination and confirmation process concerning federal judges has received much political, media, and judicial appointments. Indeed, many scholars and jurists have charged that this process has become too politicized, tilting our Constitution's delicate balance too far away from judicial independence and too far toward popular accountability. Putting aside the merits of those charges, it suffices for the present discussion to note that critics of Roe and other ''activist'' rulings have had an enormous influence in remaking the federal courts, from the Supreme Court on down, by electing Presidents who would nominate, and Senators who would confirm, judges who shared their constitutional and judicial philosophy.
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In short, critics of judicial ''activism'' have already had a significant influence on the composition and philosophy of our federal courts, by acting through existing constitutional and legal channels. Therefore, I cannot understand either why they continue to complain of activism or why they still seek to alter our established constitutional and legal processes.
The recently stepped-up attack on the perennial bogeymen of many (but, significantly, far from all(see footnote 123)) political conservatives, ''activist'' federal judges, is as ironically ill-timed as it is dangerously destructive of fundamental constitutional values. While the courts' critics decry ''tyranny of the judiciary,'' the alternative they advocate is the far more dangerous ''tyranny of the majority.''
The irony of the timing is that this attack comes while our federal courts continue to be dominated by judges appointed during the twelve years of appointments by the Reagan and Bush Administrations. Both Administrations systematically selected judges who as a group have a relatively narrow view of judicially enforceable constitutional rights. To compound the irony, as Attorney General, Ed Meese played an instrumental role in this selection process; yet he is now railing against the federal bench that still bears his stamp.
Nor has that stamp been significantly muted by President Clinton's subsequent judicial appointments. He has moved slowly and cautiously in filling federal Judicial vacancies. He has avoided nominating individuals who would be ideological counterweights to the many extreme exponents of ''judicial restraint'' who had been appointed during the preceding dozen years. Moreover, as was recently noted by no less staunch a conservative than Chief Justice Rehnquist, the Senate has been slow to act on the judicial candidates that President Clinton has nominated.(see footnote 124)
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The ideological tilt of the U.S. Supreme Court typifies the cast of all our federal courts. On the one hand, the current Chief Justice and two of his brethren—Antonin Scalia and Clarence Thomas—are among the most conservative jurists to sit on the Court in recent history, voting to overturn many core tenets of post-New Deal jurisprudence.(see footnote 125) In contrast, the present Supreme Court includes not a single member who espouses the energetic enforcement of constitutional rights that was its hallmark during the Warren Court era.
During the Warren Court era, the battle cry against ''judicial activism'' was at least understandable, insofar as it responded to that Court's active protection of individual liberties and civil rights. Now, more than a generation and two conservative Chief Justices later, the Court has stepped back from that role. It has significantly reduced both the substantive scope of rights it deems constitutionally protected and the remedies it affords to victims of rights violations.
Nowhere is this rollback more severe than in the criminal justice arena. The Court has overturned many longstanding precedents to curb constitutional rights of suspected criminals. Moreover, it has cut off numerous avenues for asserting even those truncated rights that it continues to recognize in theory. For example, the Court (together with Congress) has hamstrung the hallowed remedy of habeas corpus, or federal court review of state convictions' which Alexander Hamilton hailed as ''the greatest liberty of all''—so severely that, for all practical purposes, it is unavailable to many prisoners, even if they are on Death Row, their constitutional rights were violated, and they have evidence that they did not commit the crimes for which they face execution.
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In the area of racial justice—another area where the Warren Court vigorously protected constitutional rights—the subsequent cutbacks parallel the pattern in the criminal justice area. In a series of decisions over the last several years, the Supreme Court has consistently prevented lower federal courts and other government officials from implementing meaningful remedies for school segregation, discrimination in voting, and discrimination in government contracting. Of particular note, the Court has dramatically restricted the availability of race-conscious affirmative action remedies. The repeated attacks on federal courts for upholding racial ''quotas,'' therefore, illustrates the misguided nature of the current assault on the judiciary.
In short, the current Supreme Court and other federal courts already exercise the very judicial restraint concerning constitutional rights claims for which their critics clamor. Apparently, though, these critics are not content for their views to prevail on most courts and in most cases. Nor are they satisfied with a series of recent congressional measures that already sharply limits the power of federal courts to hear important categories of cases involving basic rights on behalf of relatively unpopular, powerless groups, including poor people, prisoners, and immigrants—the very kind of claims and clients for which the Constitution and its independent federal judiciary are designed to serve as the ultimate protector.
Nonetheless, these critics call for even more extreme ''court-stripping'' measures, including the elimination of the lifetime tenure that the Constitution guarantees to federal judges, and the power of judicial review that has been enshrined since Chief Justice John Marshall's historic ruling in Marbury v. Madison.(see footnote 126) They thus endanger the federal judiciary's constitutionally mandated independence from the elected branches of government, and prevent it from fulfilling its designated role in the Constitution's scheme of checks and balances: to curb overreaching and abuses by the other branches of the federal government and by state governments, and to protect even the politically powerless individuals and minority groups whose rights are the least likely to be secured by the political branches of government.
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Our founders wisely structured a government that was not a pure democracy. Although most government policies are determined by elected representatives who are responsive to the majority will, our Constitution's framers recognized that there are some rights that are so fundamental that no majority—no matter how large—could deny them to any minority, no matter how small or unpopular. In order to prevent what James Madison termed ''tyranny of the majority,'' the Constitution provided for federal courts whose members were insulated from majoritarian pressures through lifetime tenure, subject to removal only by impeachment.
Modern history provides many examples of federal court judges withstanding popular pressure to stand up for the rights of embattled racial, religious, political, and other minorities. With twenty-twenty hindsight, the contemporary consensus now recognizes recurrent past instances in which the elected branches of government acted in an unconstitutional and unjust manner. Correspondingly, while the federal judges who resisted those political tides were at the time harshly denounced and threatened with impeachment or even physical harm, they are now widely respected, even by current critics of judicial autonomy.
A prime illustration is the ''massive resistance'' that Southern officials mounted to Brown v. Board of Education(see footnote 127) and other Warren Court rulings outlawing racial segregation, and to the remedial orders issued by such ''activist'' Southern federal judges as Elbert Tuttle, John Minor Wisdom and Frank Johnson. Where would we now be, in our national struggle for racial Justice, were it not for the leadership of these courageous federal judges, who actually honored the oath that all government officials take to uphold the Constitution? As their inspiring example underscores, the fact that federal judges are unelected and life-tenured is not a problem—as current critics contend—but rather a solution to some of our nation's most intractable problems, such as racial discrimination.
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The special responsibility of federal judges to enforce constitutional rights even—indeed, especially—when they are unpopular with elected officials and the majority of their constituents was most eloquently explained by former Supreme Court Justice Robert Jackson, who could hardly be accused of being a ''judicial activist.'' Nevertheless, in 1943, he and seven of his fellow Justices struck down a very popular measure that had been adopted throughout the country in response to World-War-II-heightened nationalistic fervor: mandatory flag salutes in the public schools. In West Virginia Board of Education v. Barnette, the Court recognized that the Constitution protects even such a tiny, unpopular minority as Jehovah's Witnesses schoolchildren from having to participate in even such a deeply revered ritual.
While the Jehovah's Witnesses objected to the flag salute specifically because it violated their religious beliefs, Justice Jackson explained why all constitutional rights deserve protection from majoritarian pressures, and hence illustrated the uniquely important role of federal courts in general:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's night to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.(see footnote 128)
While we now recognize Barnette and Brown as landmarks of liberty, at the time they were decided, they and the judges who issued them were denounced in precisely the same terms that critics are now using to attack more recent judicial rulings upholding other human rights claims. Perhaps, in due course, these more recent rulings will also be vindicated in the court of public opinion.
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In any event, the fact that federal judges overturn initiatives supported by the majority of citizens or politicians does not cast any doubt on the legitimacy of the federal courts. To the contrary, it vindicates the special, essential function of these courts as a check against abuses of power by elected officials and intolerant majorities. The independence of the federal courts must be preserved not despite their power to overturn majoritarian decisions, but rather precisely because of that power.(see footnote 129)
Mr. CANADY. Thank you. Professor Franck.
STATEMENT OF MATTHEW J. FRANCK, CHAIRMAN AND ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, RADFORD UNIVERSITY
Mr. FRANCK. Good morning, Mr. Chairman, members of the subcommittee. Thank you for inviting me to come here today to discuss the roles of Congress and the Court in interpreting the Constitution.
If I may, I think I could correct one mis-statement by Professor Strossen. I think it was that even more notorious judicial activist, Judge Robert Bork, who referred to his love of intellectual feasts.
Ms. STROSSEN. I'm sorry; you're right. How could I get them mixed up? [Laughter.]
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Mr. FRANCK. Well, for a while there Judge Scalia had a beard.
On June 25, 26, and 27 of last year, the Supreme Court held three acts of Congress in 3 days to be unconstitutional. I don't know when was the last time the Court was quite that busy. I do know that there are good arguments to be made about all three cases, that the Court got them wrong. I'd like to focus, however, on one of those three cases, the one that's come under the most scrutiny this morning, the City of Boerne v. Flores, because it involved the most explicit confrontation between Congress and the Court. The Boerne ruling overturned the Religious Freedom Restoration Act passed in 1993 as an attempt to legislate a reversal of the 1990 Smith decision of the Court on the meaning of the free exercise of religion clause in the First Amendment.
RFRA, for short, failed, I argue, because it was not a thorough-going challenge to the regime of judicial supremacy, and, thus, citing the very notion that the Court is the final authority on the meaning of the Constitution, the Justices struck down the act. The act, I argue, assumed three things that are at best questionable, and at worst, simply mistaken.
First, it was assumed by RFRA that the Court is properly the enforcer of the First Amendment, a view we cannot find espoused by the father of the Bill of Rights, James Madison. Second, the act assumed the propriety of the First Amendment's application to the actions of State and local governments, a legal fiction of the 20th Century based on a misreading of the Fourteenth Amendment. Finally, RFRA attempted to resurrect the view that the free exercise of religion requires Government to make exemptions on religious grounds to otherwise valid general laws, a doctrine barely 35 years old, which was itself a breach with the original view of this matter.
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Only on this last point did the Court disagree with Congress. The Court in Boerne refused to take instruction from Congress on that last point but it got away with it—the Court did, that is—because the fist two assumptions mentioned gave it a firm ground to stand on.
I would just very briefly suggest some different approaches for the Congress in asserting its own vital role in interpreting the Constitution. First, and this actually falls within the Senate's purview, nominees to the Federal bench should be challenged to acknowledge, and to state plainly their understanding of, the difference between judicial review and judicial supremacy.
Second, Congress should take a serious new look at the rules of civil procedure and the way they currently facilitate dubious constitutional rulings, thanks to excessively loose standards on standing to sue, declaratory judgments, class actions, and remedial decrees, for instance.
Third, the Congress's power to make exceptions to Federal Court jurisdiction should be considered a potent weapon for reversing judicial error. For instance, a great restoration of federalism could be effected if Congress were to rule out-of-bounds certain kinds of challenges made to state law under the Bill of Rights.
Fourth, it should not be forgotten that the Framers regarded the congressional impeachment power as a significant potential restraint on judicial usurpation of power. Impeachment is not a criminal proceeding, but a political one, and may be used to redress ''injuries to the society itself,'' in the words of Alexander Hamilton.
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The Constitution we have, without any need of amendments attacking the Court's independence, provides Congress with all the tools it requires to begin the rescue of the Constitution from the Supreme Court. The Congress must take its own role under the Constitution seriously before it can induce the Court to do likewise. Thank you.
[The prepared statement of Mr. Franck follows:]
PREPARED STATEMENT OF MATTHEW J. FRANCK, CHAIRMAN AND ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, RADFORD UNIVERSITY
When Congress made its most recent attempt to influence the Supreme Court, the result was an unmitigated failure. I refer to the fate of the Religious Freedom Restoration Act of 1993 (RFRA), overturned on June 25 of last year in the case of City of Boerne v. Flores. In response to a perceived threat to the free exercise of religion in the Court's 1990 Smith decision,(see footnote 130) Congress in RFRA sought, through the use of its power to enforce the terms of the Fourteenth Amendment, to overturn that ruling and restore, as against every agency of government in the land, the ''compelling interest'' test for judging the validity of incidental burdens on free exercise resulting from generally applicable laws. RFRA had overwhelming support from all points on the political spectrum, and passed in the Congress nearly unanimously. But to veteran Court-watchers, the Boerne decision was entirely predictable, inasmuch as the justices of the Court do not take kindly to legislative instruction in how to decide constitutional cases.
But the Act's failure went far deeper: it was in fact not a serious enough challenge to the Court's authority, for it conceded too much to the current regime of judicial supremacy. The following are the multiple ironies of the clash between Congress and the Court that culminated in Boerne.
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1. Congress assumed that the Court is properly the enforcer of the First Amendment.
This is by now a very old error, and one so venerable that to speak in correction of it is to raise questions about one's sanity in most circles. So deep runs the popular myth that the Supreme Court is properly the final authority in enforcing virtually every provision of the Constitution that a digression is necessary here into the more general question of judicial review. As Professor Robert Clinton has shown, the judicial power to invalidate the actions of other branches of the national government was widely understood at the founding to be ''departmental'' or ''coordinate''—a power he calls ''functional review'' enabling the judiciary to pronounce authoritatively on the constitutionality of laws touching on the integrity of the courts' own functions, for instance where a case concerns jurisdictional issues, standards of evidence, or the provision of simple due process. This limited version of judicial review was all that was either exercised or claimed for the Court by John Marshall in the 1803 case of Marbury v. Madison.(see footnote 131) On the other hand, the legislative and executive branches have a like authority to have the ''last word'' on those constitutional questions bearing on the exercise of their own powers, arising from the provisions of the Constitution addressed to themselves. Thus, that same John Marshall, for instance, held that the reach of Congress's power over commerce among the states was to be controlled authoritatively not by the judiciary, but by the people through democratic processes: such are ''the restraints on which the people must often rely solely, in all representative governments.''(see footnote 132)
Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary, and in no way would an infringement of one of the rights therein have an adverse effect on the proper functioning of judicial processes. Moreover, if the First Amendment had been expected to be the subject of routine judicial enforcement, we would expect the subject to have come up frequently in the First Congress that debated and drafted the Bill of Rights. Yet, in his brilliant account of how the Bill of Rights came to be added to the Constitution, Professor Robert Goldwin manages to tell the whole story in complete detail without ever once mentioning that the subject of judicial enforcement of the Bill arose at all. The point of the Bill of Rights was not to trigger judicial review, but to weave a love of liberty into the American political culture. Here ''is how it works,'' Goldwin tells us in his recent book:
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[T]o the extent that these principles of free government [in the Bill of Rights] have become a part of our ''national sentiment,'' they do, indeed, often enable us, the majority, to restrain ourselves, the majority, from oppressive actions. That is the import of the first five words of the Bill of Rights: ''Congress shall make no law'' that attempts to accomplish certain prohibited things. It means that even if a majority in Congress, representing a majority of us, the people, wants to make a law that the Constitution forbids it to make, we, all of us, superior to any majority, say it must not be done, because the Constitution is the will of all of us, not just a majority of us.(see footnote 133)
So as not to be misunderstood, I should add that certain provisions in the Bill of Rights do address themselves to the courts, and so are fit subjects for judicial review—obviously amendments five through seven, arguably four through eight—but the First Amendment is not one of them. It is only in this century, with the expansion of judicial authority in every direction, that we have come to think otherwise. And RFRA played right into that modern myth, insisting that a clause of the First Amendment be enforced by courts in a certain way when, at the very least, clear doubt exists that it was meant to be judicially enforced at all.
2. Congress assumed the validity of the ''incorporation'' doctrine.
Whatever uncertainty there might be about whether the First Amendment is gathered into the scope of judicial review, there is none whatever about the proposition that, along with the rest of the Bill of Rights, it was intended to restrain only the national government and not the states or their subdivisions. And, among scholars who do not hold a prior commitment to judicial activism, a second proposition is virtually settled as well: that the Fourteenth Amendment changed nothing about that fact.(see footnote 134)
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Of course, on the Court the debate has gone all the other way, so that Justices Scalia and Thomas no less than their more liberal brethren act unquestioningly on the basis of twentieth-century precedents that declared that much of the Bill of Rights is selectively ''absorbed'' or ''incorporated'' into the terms of the due process clause of the Fourteenth Amendment. But these precedents are worse than doubtful: they represent a plain usurpation of power by the Court, and they ought not to be respected, on or off the Court, by anyone who regards the Constitution as superior to ''constitutional law.''
Yet the Congress, in passing RFRA, paid its respects to this judicial usurpation. The Act prescribed a judicial test of constitutionality to be applied to the laws and policies of all levels of government, including acts of Congress,(see footnote 135) but clearly the legislation was motivated chiefly by fears for religious liberty's fate at the state and local level. Thus the Senate report on the Act cited, as part of the authority for its passage, the ''incorporation'' precedent of Cantwell v. Connecticut, a 1940 case in which the free exercise clause of the First Amendment was applied to the actions of states in a casual four sentences carrying no historical analysis whatsoever.(see footnote 136)
Whatever one's worries about the fate of religious liberty after the Smith case—and Archbishop Flores of San Antonio was hardly being ground beneath the heel of oppression—whatever one's politics in these matters, the proper position of a constitutional conservative is to wonder what on earth the Supreme Court is doing enforcing the terms of the First Amendment against state and local governments. Wisely or unwisely—and I think the former—the framers of the Bill of Rights and the framers of the Fourteenth Amendment left the subject of religious liberty in relation to state and local policy to be sorted out by state constitutions, state legislatures, and state courts. How members of Congress ostensibly committed to federalism could overlook this is a source of some wonder. Why Congress does not wish to restore that federalism from the ashes in which the Court has left it is cause for amazement.
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3. Congress assumed the soundness of the ''compelling interest'' test.
Even if we assume both that the Supreme Court is the proper enforcer of the First Amendment and that it may act against the states under that banner, there remains the fact that the Smith ruling was no innovation, but a return to a previous generation of decisions under the free exercise clause. The ''compelling interest'' test, having originated in other areas of constitutional law, was carried over to the adjudication of free exercise cases only as recently as 1963 (in Sherbert v. Verner), with its full import being discernible only in 1972 (in Wisconsin v. Yoder).(see footnote 137) The effect of the test is to carve out exemptions to generally applicable laws, otherwise held valid, for those with religious scruples about obeying them. From the date of the very first religion case under the First Amendment until 1963, it was not thought that such exemptions are affirmatively required of government by the provision against ''prohibiting the free exercise'' of religion. As Chief Justice Morrison Waite put it in 1879, ''[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.'' To hold otherwise, he continued, ''would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.''(see footnote 138) Precisely so did the Court begin to hold in the 1960s and 1970s.
In the 1990 Smith case, the Court did not overrule the Sherbert and Yoder precedents, but distinguished them away so that they would have practically no value for the guidance of future decisions. In RFRA, Congress explicitly identified Sherbert and Yoder as the precedents it wished the Court to follow instead of Smith. Much disagreement persists on and off the Court about just how the free exercise clause ought to be applied. But I would offer one fairly mild judgment about this matter: that Sherbert and Yoder are the progeny of judicial activism, and Smith a return to judicial restraint. One may like Sherbert and Yoder and dislike Smith, but it seems clear that if that is one's preference, one is (here at least) on the side of judicial activism.
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Thus the Religious Freedom Restoration Act presented the ironic spectacle of the Congress complaining that the Supreme Court was not being activist enough in its interpretation of the Constitution. ''Stop us all before we legislate again!'' was the rallying cry of the Act's partisans as it swept virtually unhindered through both houses of Congress. In the final irony, the Court in the Boerne case rebuffed the demand, standing on its dignity and defending its newfound judicial restraint respecting the free exercise clause of the First Amendment.
In a way, Boerne presented a case in which judicial activism was at war with itself. Congress, as I have said, demanded of the Court more activism than the Court was prepared to provide. But the Court could only refuse the demand by turning to its own well-worn precepts of judicial supremacy in the interpretation of the Constitution. Mistakenly citing Marbury v. Madison for support of judicial authority to have the last word,(see footnote 139) Justice Kennedy's opinion for the Court concluded that Congress overreached with its power to enforce the Fourteenth Amendment:
Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power ''to enforce,'' not the power to determine what constitutes a constitutional violation.(see footnote 140)
What everyone (except perhaps Justice Kennedy himself) must surely notice is that he is, in effect, saying that only the Supreme Court enforces constitutional rights by changing what they are (and sometimes by making them up out of whole cloth), and that it will not tolerate the Congress interfering as it goes about its business.
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The Boerne case, in the end, presents the friend of the Constitution's original meaning and of judicial restraint with one of those rare instances when he does not know which side to choose, and must instead say ''a pox on both your houses.'' On the one hand, the Court continued on its accustomed course of asserting its supreme position in the decision of all questions of constitutional politics, even where a clause of the Constitution (§5 of the Fourteenth Amendment) arguably gives Congress a legitimate role to play in such questions. On the other hand, Congress, rather than truly challenge judicial supremacy, had written legislation that embraced it: accepting the Court's role as final enforcer of the First Amendment, accepting the application of that amendment to the states, and importunately demanding that the Court return to its activist habits in the interpretation of the free exercise clause. Little wonder that the Court had the better of the confrontation.
The ''judicial usurpation of politics,'' as First Things magazine referred to our present straits a little over a year ago, remains the most pressing problem confronting the American experiment in republicanism. If RFRA is a failed model for congressional challenges to that usurpation, what is to be done instead?
1. Challenge judicial supremacy directly.
Over eleven years ago, then-Attorney General Meese got a lot of attention for saying, in an address at Tulane University, that ''the Constitution cannot be reduced to constitutional law,'' and that in its notorious dicta in Cooper v. Aaron in 1958,(see footnote 141) the Supreme Court had misread both the Constitution and Marbury v. Madison in describing its own authority to determine the content of the supreme law of the land.(see footnote 142) He was much excoriated on op-ed pages and by many legal scholars, but he was absolutely right.
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It is time to translate words into action, to move from rhetoric to a more concrete approach. If we are serious about the proposition that all the branches of the national government share a coordinate authority to interpret the Constitution, with none of them commanding the obedience of the others as to every sort of constitutional question, then it is past time the Congress began to assert its co-equal authority in practical ways. This reassertion of congressional responsibility can begin with the breaking of some comfortable habits.
First, during Senate confirmation hearings on nominations to the federal bench at all levels, senators should cease requiring nominees to declare their allegiance to the ''Marbury myth'' that the Supreme Court has the last word on constitutional questions. The Senate should instead demand just the opposite—a clear statement from every nominee that he or she recognizes the difference between judicial review (properly understood) and judicial supremacy. Other matters of what is infelicitously called ''judicial philosophy'' should also be central to confirmation hearings, but this is a good place to start.
Secondly, the Congress should stop bowing in the direction of the Court's presumed final authority when it legislates, and should instead consider repealing, or at least exempting some legislation from, the standard mechanisms by which it currently does so—such as the remedial-power and class-action provisions of the 1938 Rules of Civil Procedure (as amended in 1966).
Consider the recent fate of the Communications Decency Act (CDA) of 1996. No one was ever prosecuted under the Act's provisions. Instead, under federal rules of procedure that are within the power of Congress to change, politically interested parties led by the ACLU brought suit against the government, secured a hearing before a three-judge panel of a district court as required by the CDA itself, and won a preliminary injunction from that panel against the government's enforcement of the law's indecency provisions against anyone whatsoever. Then, under a ''special review provision'' of the CDA itself, a rapid appeal was taken directly to the Supreme Court. The resulting affirmance of the district court's injunction means that a writ that cannot be gainsaid runs against every U.S. attorney barring enforcement of the Act, presumably on pain of contempt proceedings if any federal prosecutor seeks to enforce it anywhere. Major provisions of the CDA were thus rendered a dead letter before they ever really lived.(see footnote 143)
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This method of broadly striking down laws by injunction short-circuits the kind of response to judicial error that Lincoln exemplified. In criticizing the Dred Scott ruling, Lincoln insisted that the Missouri Compromise was not to be considered unconstitutional just because the Court had held it so in one case concerning individual parties. The statute had already been repealed three years earlier by the Kansas-Nebraska Act of 1854—but if the other branches of the government did not agree with the Dred Scott ruling, the law could, in Lincoln's view, be revived by the Congress and enforced by the executive. (This is exactly what happened in 1862, when Congress forbade slavery in all federal territories.) And had the Missouri Compromise not already been repealed, it is more than likely that Lincoln would have argued for its continued enforcement after Dred Scott, bolstered by supplementary legislation if need be. It would have been a different matter for Lincoln and for the fate of self-government if an injunction extending to the whole of the government had accompanied the Court's pronouncement on the law's constitutionality.
It must be said that the CDA was designed to be struck down; it was passed with an engraved invitation to the courts to do so. Had Congress, in passing the CDA, been confident of its own position as a true equal of the Court in interpreting the Constitution, it not only would have refrained from the timidity of the special review provisions in the Act. It would have included instead a provision shielding the Act from the injunctive procedure by which the courts declared it unconstitutional. Then we would have seen some criminal trials under the Act's provisions, and if on appeal of any convictions the Supreme Court had held the Act unconstitutional, it would still be open to Congress to legislate support for the Act's continued enforcement against others, and for the executive to prosecute under it. What would happen next could get very interesting indeed.
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The fate of the CDA should, more generally, prompt rethinking of some of the procedural aspects of modern-day judicial power. As Professor Gary McDowell pointed out ten years ago, it is within the power of Congress to undo some of the damage that has been done to the traditional ''case or controversy'' requirement of Article III by the loosening of standards in the judicial process concerning standing to sue, class actions, intervention, consent decrees, declaratory judgments, and the merging of actions in law and equity.(see footnote 144) By traditional procedural criteria, the lawsuit that resulted in the invalidation of the CDA's indecency provisions would never have gotten off the ground.
2. Start defending the states instead of undermining them.
In recent cases such as U.S. v. Lopez and Printz v. U.S.,(see footnote 145) some see a trend toward the defense of federalism on the Supreme Court. One may see this trend at work in the Boerne case as well; certainly RFRA, whatever one thinks of its solicitude toward religious liberty, was an assault on the authority of states and localities.(see footnote 146) Even if we do not agree with all of these decisions—and I do not—we can be happy with the results in them if we care for local self-government. But the question remains: why must the Court rather than the Congress be the states' defender? The Court is a fickle defender in any event, as recent cases on abortion, gay rights, and single-sex public higher education clearly show.
And has the Congress mended its ways since the Republicans became the majority party? It doesn't seem so. Last October the House passed H.R. 1534, the ''Private Property Rights Implementation Act of 1997,'' which would permit property owners to hurry straight into federal court with claims that a local or state regulation has resulted in a ''taking'' under the Fifth Amendment. Senator Hatch introduced similar legislation in the Senate (S. 1256, the ''Citizens Access to Justice Act of 1997''). These bills are merely RFRA all over again, albeit on a smaller scale—and as the least of their sins, would merely add to the workload of our strained federal courts, a problem recently noted by Chief Justice Rehnquist.(see footnote 147) Such efforts should be abandoned by members of Congress who value the Constitution and reject the ''incorporation'' doctrine. It is not really a matter of having to make a hard choice between federalism and property rights; in this case the Constitution has already chosen for us.
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Instead of such measures that add to their miseries, the Congress should take steps to shield state and local governments from the depredations of the Court. Where the danger comes from judicial interpretation of federal statutes, Congress can (and sometimes does) easily forestall the danger by including language about non-preemption of state laws, or declaratory clauses on the rules by which a statute is to be construed. But the greatest blows to federalism in this century have come from the Supreme Court working quite on its own with no other weapon than what it purports to be the Constitution. To begin to reverse that damage, more imaginative approaches are needed. One scholar, for instance, has recently suggested that the enforcement power given to Congress in section 5 of the Fourteenth Amendment can be turned to good use here, to limit rather than expand the reach of judicial power over the states.(see footnote 148)
The Fourteenth Amendment is certainly the major ''culprit'' if we are concerned about reining in the Court. By ''incorporation'' of the Bill of Rights, and by creating under the doctrine of ''substantive due process'' rights which are contained nowhere in the Constitution at all, the Court has used the Fourteenth Amendment to nationalize some of the most important policy questions that the Constitution properly leaves to the states.
A broad approach to this problem would be for Congress to avail itself of its seldom-used power under Article III to regulate and make exceptions to the appellate jurisdiction—as well as its complete authority over the jurisdiction of the lower federal courts. It would take careful draftsmanship to close all the loopholes to judicial creativity, but Congress ought to take up legislation declaring all questions regarding the application of the Bill of Rights to states and local governments off limits for the federal courts at every level. Where the ''extra-constitutional'' rights currently packed into the due process clause are concerned—such as the ''right of privacy'' at the heart of the abortion decisions—even more care would need to be taken in drafting appropriate jurisdictional legislation. For how does one describe a protean legal fiction with sufficient precision so as to exorcise it from the law of the land? The problem is rather like legislating that the courts shall no longer hear cases concerning dragons only to learn that they are hearing cases concerning unicorns instead. But I am convinced it is worth the effort.
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For some, the option of ''jurisdiction-stripping'' by statute poses a potential difficulty, inasmuch as the legislation could itself be subject to judicial review, and the Court could conceivably declare it unconstitutional.(see footnote 149) But the leading precedents suggest otherwise: if Congress cleanly removes certain types of cases from the Court's jurisdiction, the justices will not dare to act on such cases. Only if the Congress attempts to interfere in how the Court decides the cases it does hear, by predetermining their outcome or by fixing the probative value of evidence in a constitutional case, will the justices strike down purported efforts to regulate their jurisdiction—and rightly so.(see footnote 150) Avoid that sort of problem, and this congressional power can be a potent check on the Court.
3. Keep examining the impeachment option.
The good news on Capitol Hill in the last session was that members of Congress (such as Reps. Tom DeLay and Charles Canady) began to talk of impeaching federal judges for their usurpations of political power. Rep. Howard Coble (chairman of the House Judiciary subcommittee on Courts and Intellectual Property) conducted hearings on judicial activism last spring that raised this possibility. This exploration should be encouraged. At the same time, however, hasty calls for impeachment on the basis of a single wrongheaded ruling by a judge somewhere should be discouraged. For impeachment talk to be taken seriously and not dismissed as simply red meat for one's partisans, the exploration must proceed with restraint and prudence, and a proper marshaling of arguments.
The basic question is this: can the decisions of a federal judge, arrived at without criminal corruption as that is ordinarily understood, be considered among those ''high Crimes and Misdemeanors'' for which he may be impeached, tried, convicted, and removed from office? The answer from the founding is a very clear ''yes.''(see footnote 151)
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In the Federalist, Hamilton describes the impeachment process as ''a method of NATIONAL INQUEST'' into ''the abuse or violation of some public trust,'' aimed at discovering political offenses that result in ''injuries done immediately to the society itself.'' And he explicitly extends this interpretation of Congress's power to the judiciary, writing that the threat of impeachment is ''a complete security'' against ''a series of deliberate usurpations on the authority of the legislature.''(see footnote 152) Almost half a century later, Justice Joseph Story agreed with Hamilton's reasoning on impeachment's political character, and its application to judges, in his Commentaries on the Constitution.(see footnote 153)
What seems to stand in the way of this method of controlling the judiciary is not the Constitution or the framers' intent but history. A handful of lower federal judges have been removed who were not found guilty of any criminal offense in the narrow sense, but only one Supreme Court justice has ever been impeached, and he was acquitted: Justice Samuel Chase in 1805. A common misconception, however, is that the Chase trial settled the issue whether ''political'' impeachments may be pursued against judges with a firm ''no.'' Our present chief justice has so concluded, in a book and in a well-publicized 1996 speech. But more careful scholars than Chief Justice Rehnquist (who can hardly be considered disinterested in this question) have concluded that the Chase trial was inconclusive on the constitutional issues—that it settled nothing regarding the breadth of Congress's power to impeach judges.(see footnote 154)
Should impeachment proceedings be launched regarding any federal judge, most particularly against any Supreme Court justice, the greatest care must be taken to pitch the issues at the highest possible level. Beginning in the House Judiciary Committee, and continuing on the floor of the House and in the Senate, members of Congress must reeducate themselves about the separation of powers and judicial review—about their own role and that of the judges under the Constitution. The focus must be, not one or two unpopular rulings, but (in Hamilton's words again) a ''series of deliberate usurpations'' of authority not belonging properly to the judiciary. The cause being defended by congressional removal efforts must be, and be seen to be, not a narrowly partisan one, but the integrity of the Constitution. It will be impossible to convince everyone of this. But with adequate preparation of the public mind to receive the idea that self-government itself is at stake, and with the freest possible opportunity for open and fair-minded colloquy with any judge placed on trial in the Senate, an impeachment proceeding can become a great seminar for the whole nation regarding the political arrangements under which we choose to live. It is possible that even a trial resulting in acquittal could be instructive for the polity and chastening for the judiciary. But prosecutors do not like to take cases to trial that they think they will lose; hence the first defendant judge in particular must be one against whom an impeachment case can be made absolutely compelling. And remember that a two-thirds majority is necessary to convict in the Senate. The framers set the bar high with good reason, and under present circumstances in the Senate, the politics of impeachment will have to be clearly distinguished from the politics of partisan ideology and scorekeeping.
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4. Leave the Constitution alone.
By no means have we exhausted the possibilities for controlling the judiciary under the terms of the Constitution, but I should like to mention one other that is generally a bad idea: succumbing to the urge to amend the Constitution. In the last session alone, several amendments were introduced, for example, to limit the judicial term of office to eight years in the lower courts (H.J.Res. 74), or to ten years at all levels including the Supreme Court (S.J.Res. 26 and H.J.Res. 77), or to twelve years for all (H.J.Res. 63). The amendments that absolutely limit judicial terms would do little to address our difficulties, as judges would be free to act as they please during their term of office. And those that provide for reappointment for successive terms might endanger the independence of the judiciary that Hamilton and his fellow framers were intent on securing.
For all the branches of government, the courts included, it was the aspiration of the framers to create a balance of strength and limitation—with officeholders powerful in their own right and free to act on their convictions, yet restrainable by the others when power becomes tyranny and the freedom to act becomes mere license. I have argued that the Constitution as it already stands provides us with the principles that reveal judicial usurpation for what it is, and with the tools necessary to fashion remedies for that usurpation. The abuses of the judiciary run deep in the body of twentieth-century caselaw, and it will not be the work of a moment to undo the damage. But patient toil, and a renewed attention in Congress to the high politics of constitutionalism, can begin to move us away from government by judges and back to genuine republican government.
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My opposition to amending the Constitution to deal with our difficulties is not rooted in mere reverence for the framers' handiwork if evidence shows its insufficiency in some respect. No institutions crafted by human beings can be truly permanent, never requiring any alterations. Yet the Constitution, as Joseph Story said, was ''reared for immortality, if the work of man may justly aspire to such a title.'' Before we take risks with a structure whose ''foundations are solid'' and whose ''compartments are beautiful, as well as useful'' (again Story's words),(see footnote 155) we should explore the building thoroughly and be certain we have not overlooked any of the useful features it already contains.
Conclusion.
All the suggestions I have made will come to nought until members of both houses of Congress recover for themselves what the framers had in mind when creating truly co-equal branches of government under the Constitution. Only in this century did it begin to become commonplace to regard the justices of the Supreme Court as the ''guardians'' of the Constitution, as though only they, and no one else, had this charge by virtue of their oath of office. The framers knew better. For them, the fate of republicanism, and of constitutionalism itself, rested with ''the extent and proper structure of the Union,'' and with institutions that ''divide and arrange the several offices in such a manner as that each may be a check on the other.'' They knew that men are not angels, nor are they governed by angels—that we have a government ''administered by men over men,'' and that judges are no more angelic than legislators.(see footnote 156) Thus they charged all public officials, indeed all citizens, with the duty to preserve the Constitution, fully expecting us to persuade, to argue, to clash over what that preservation means. To forget that, to believe complacently that that highest task of our shared political existence is somebody else's business in which we will not interfere, is to let the cause of republican self-government slip through our fingers, and to dishonor the memory of the men from whom we inherited that cause.
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Mr. CANADY. Thank you, Professor Franck. You get the award for giving your testimony within the allotted time. [Laughter.]
Mr. CANADY. Professor Clinton.
STATEMENT OF ROBERT L. CLINTON, ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, SOUTHERN ILLINOIS UNIVERSITY
Mr. CLINTON. Thank you, Mr. Chairman and members of the committee, for giving me the opportunity to state my views on this very important question of the proper relationship between Congress, the Supreme Court, and the Constitution.
Despite what so many of the members of the committee and panel have said, on my way to the airport yesterday, I shared a limo ride with an anthropologist from my university. When I told her that I was going to a hearing about Congress's role in constitutional interpretation, she looked absolutely stunned and said, ''What role?'' [Laughter.]
And this is a woman with a Ph.D. in anthropology who is, in fact, one of the most noted anthropologists in the country. So, in spite of the fact that we seem all here to agree that Congress has a very important role in constitutional interpretation, apparently that view has not gotten out into the general public.
We have witnessed during the last 40 years the rise to prominence of a constitutional theory that gives the U.S. Supreme Court a virtual monopoly in American constitutional law. This theory grants to the Court final, ultimate, exclusive authority to determine the meaning of constitutional provisions with conclusive effect on Congress, the President, the States and private citizens. The power extends even to the determination of the constitutional powers of the co-equal branches of the National Government.
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Judicial supremacy rests on a number of foundations, one of which is the historical claim that the Court's hegemony is firmly grounded in American Constitutional history, especially in the landmark case of Marbury v. Madison, which has been cited by almost everyone here today. It is to this argument that I will address my remarks today.
Before the Civil War, constitutional interpretation was performed by Congress and the President as much as by the Court. This is most apparent when one looks at the great Congressional debates over the establishment of the National Executive in the 1790's. Congressional determinations of constitutional meaning were then regarded as highly as those of the Court. After the Civil War, the Courts became more aggressive in challenging laws believed to be defective, but it is not until 1958 that the Court first staked its claim to be the exclusive interpreter of the Constitution. The claim was made in Cooper v. Aaron where the Court declared its own constitutional rulings to be part of the supreme law of the land, on a par with the Constitution itself. Since 1958, the Court has asserted this authority several times, most recently in the City of Boerne v. Flores in 1997
In that case, the Court went even farther than it had in Cooper, ruling that Congress has no power to determine the meaning of the Free Exercise Clause when passing laws designed to enforce the Fourteenth Amendment. In Cooper, Boerne, and the other cases in which the Court has exerted its conclusive authority, it relied on Marbury v. Madison for support. But Marbury does not support such authority. Marbury involved Article III's jurisdictional distribution, which is a provision is directly addressed to the Court. Boerne involved the Fourteenth Amendment, whose enforcement provision is directly addressed to Congress. Marbury contains no assertion of an exclusive authority in the Court to bind other parts of the Government. Chief Justice Marshall claims only that the Court must obey explicit commands of the Constitution in preference to conflicting laws, when such commands are directed at the Court itself, and not to another branch of Government.
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The Court's own treatment of Marbury as a precedent throughout most of its history shows that this narrow reading of the case is accurate. Between 1803 and 1983, the Court cited Marbury 181 times. From the beginning to 1865, Marbury was cited only to support narrow rulings on jurisdiction or mandamus. In Dred Scott, the other case of the era in which the Court voided a national law, Marbury is not even mentioned. During the 30-year period following the Civil War, the Court invalidated at least 20 provisions of Federal law; yet Marbury is mentioned in none of these cases. Not until 1895, in the Income Tax Case, did the Court first cite Marbury to support judicial review of national laws. Between 1895 and 1957, the Court cited Marbury only eight times to support judicial power to invalidate laws, and all eight describe the power in a very restrictive way. So, all totalled, there were 92 uses of Marbury between 1803 and 1957, and only 10 of these concern judicial power to invalidate laws; all 10 advancing restrictive notions of the power. Nowhere can be found any claim that the Court is the final arbiter of constitutional questions. If Marbury really means what Cooper and Boerne says it means, wouldn't the Court have said so during its first 168 years?
But all this changes in 1958. Over the next quarter century after the decision of Cooper, Marbury is employed 50 times to support judicial review; 18 times to support sweeping assertions of judicial power; and 9 times to support the idea that the Court is ultimate interpreter of the Constitution. So if we take the Court's own law seriously, we must conclude that judicial supremacy originated neither in Marbury, nor in the Constitution, but was established by the Warren court and developed subsequently by the Burger and Rehnquist courts. Thus judicial supremacy is not the correct understanding of the judicial power established in the Constitution. So what is?
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The answer to this question is found by consulting Article III of the Constitution, Marbury v. Madison, and the thoughts of the Framers. In the first Congress, Madison flatly denied the power of any branch of the national Government, including the judicial, ''to determine the limits of the constitutional division of power.'' The separation of powers was a central concern of the Founders who extended Federal judicial powers to cases arising under the Constitution, laws and treaties, only after they had generally agreed that the power was limited to cases of a judiciary nature. Marbury is the prototypical case of a judiciary nature because it involved a constitutional provision aimed directly at the Court that also embodies a clear restriction on judicial power. This means that the Court could not have applied the statute in Marbury without at the same time violating the Constitution. Cases of the Marbury type, in which the Constitution implicates judicial functions directly, may be expected to arise most often under Article III, Amendments Four through Eight, and perhaps portions of Article I, Section 9. Limiting final constitutional review to the Court only in these cases, leaving to co-ordinate branches the final authority to determine the reach of their own constitutional powers, will preserve the co-equality accorded to each division of Government by the Founders, strengthens the Separation of Powers by emphasizing the constitutional responsibilities of Congress and the President, and recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court's own rich constitutional legacy. Thank you.
[The prepared statement of Mr. Clinton follows:]
PREPARED STATEMENT OF ROBERT L. CLINTON, ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, SOUTHERN ILLINOIS UNIVERSITY
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JUDICIAL CONSTITUTIONALISM IN THE UNITED STATES
Discussion of the United States Constitution cannot avoid confronting the obvious fact that the Supreme Court is now widely regarded to be the primary guardian of our fundamental law. The Court's monopoly in constitutional law rests largely upon two kinds of argument. The first argument, political, says that judicial control of the Constitution is required in order to protect individuals and minority groups from the majority tyranny which would be implemented by legislatures in the absence of the judicial monopoly. The second argument is historical, asserting that judicial supremacy in constitutional matters is grounded in American constitutional history, especially in the landmark case of Marbury v. Madison (1803). My expertise is in the history of judicial review, so I shall confine my remarks mainly to the second argument.
In Marbury v. Madison and Judicial Review,(see footnote 157) I described the historical process by which legal commentators in late-nineteenth and early-twentieth century America employed the Marbury case to lay a precedential foundation for modern judicial supremacy. Some of the present-day practical effects of the resulting judicialized constitutionalism are summarized by Robert F. Nagel in the following passage:
Today federal courts control more important public decisions and institutions in more detail and for more extended periods than at any time in our history . . . This unprecedented use of judicial power is not a response to specific and limited necessity or emergency. The power is exercised in every state and on a wide variety of social issues . . . Even a relatively ''conservative'' Supreme Court seems transfixed; recent decisions, such as those dealing with the legislative veto and political gerrymandering, illustrate the Court's continuing insistence that almost no public issue should be excluded from judicial oversight . . . Heavy reliance on the judiciary—in various ideological directions—is fast becoming an ingrained part of the American system; already it is difficult for many . . . even to imagine any alternative.(see footnote 158)
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The ever-growing list of judicial intrusions into areas of activity historically governed by other institutions makes it clear that it is no longer possible to question the observation that we are, in many of the most vital aspects of life in the American polity, governed primarily by judges. Nagel's metaphor is that of ''addiction:'' American society has grown ''dependent'' on the omnipresent, omnicompetent federal judge, who appears to have supplanted the priest of earlier times.(see footnote 159) Nagel concludes that ''excessive reliance on judicial review'' undermines long-term support for basic constitutional principles, impairs the ''general health of the political culture,'' and works against ''both the preservation and the healthy growth of our constitutional traditions.''(see footnote 160) I concur with these conclusions.
One of the most important results of judicialization has been to turn virtually all discussions about the Constitution into discussions about the role of judges in its interpretation. Here are two prominent examples. Soterios Barber, one of the few contemporary constitutional theorists who has tried to establish that the Constitution and constitutional law are two different things,(see footnote 161) nonetheless suggests that the most important job of ''mainstream scholars'' is to justify ''a strong and unapologetic exercise of judicial power in constitutional cases.''(see footnote 162) The second illustration is provided by Michael Perry:
In a society, like American society, in which it is axiomatic that the judiciary should enforce the Constitution, the choice among competing conceptions of the Constitution is (in part) precisely a choice among competing conceptions of judicial role. In resolving the question how to conceive of the Constitution, we are resolving the question what role the judiciary should play. In that sense, the two questions are really one question: What conception of ''Constitution/judicial role'' ought we to choose?''(see footnote 163)
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This equation of Court with Constitution is pervasive in contemporary constitutional theory. It has led to a form of constitutional nihilism, expressed by Mark Tushnet, that judicial review is an ''all or nothing'' proposition: ''Either one allows judges to do whatever they want or one allows majorities to do whatever they want. Either choice is deeply anticonstitutional—which means, I suppose, that constitutionalism is self-contradictory.''(see footnote 164)
Let's think about this for a moment. Here are three of our nation's leading constitutional theorists unflinchingly declaring: (1) that the main job of constitutional scholars today is to justify judicial activism (not to understand the Constitution); (2) that in our system, the word ''Constitution'' really means ''judicial role''; and (3) that constitutionalism is ''anticonstitutional,'' or ''self-contradictory!'' This is astounding. Constitutionalism may be a contradiction under any regime in which judicial review is ''all or nothing;'' but judicial review is ''all or nothing'' only under a theory of judicial supremacy. So if judicial supremacy is incompatible with constitutionalism, shouldn't we just get rid of judicial supremacy, and keep the Constitution? My answer is an unequivocal affirmative; and I would add that American constitutional history supports this answer. Let's consider this history now.
CONSTITUTIONAL INTERPRETATION IN AMERICAN HISTORY
During the antebellum period, constitutional interpretation was performed continuously by all three branches of the federal government. The great debates in Congress during this period were arguments over the meaning of constitutional provisions. The record is literally permeated by assertions of legislative duty to interpret the Constitution both rightly and in accordance with accepted canons of construction.(see footnote 165) In the 1790s, debates in Congress on the meaning of key provisions in Articles I, II, and III shaped the contours of the federal government as it was to exist for a century-and-a-half.(see footnote 166) At the same time, during the first half-century of the republic, presidential vetoes of congressional acts were exercised almost solely on constitutional grounds, and most of these were accompanied by explicit, uncontested assertions of executive authority to interpret the fundamental law.(see footnote 167)
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Note also that the indeterminacy of certain portions of the constitutional text has frequently required provision of constitutional meaning via the interplay of non-judicial political forces (for instance, in the establishment of a national executive administration in the 1790s, in the interposition, nullification, and secession controversies of the antebellum period, in some famous impeachment controversies, or in more recent conflicts over the reach of executive power in foreign and military affairs). The result here has been an extralegal constitutional construction which, though principled, is nonetheless primarily a political activity necessarily involving non-judicial actors and agencies and is largely unsuitable for courts. When judges go beyond the activity of applying determinate legal texts, where all the resources of traditional legal practice are available both to circumscribe their efforts and to justify their results, they enter an area in which they have neither special claim nor special competence. Attention to the importance of constitutional constructions throughout American constitutional history makes it clear that constitutional development in the United States has been very much a ''departmental'' affair, involving not only the political branches and the administration of the national government, but the states as well.(see footnote 168)
Finally, and perhaps most tellingly, the Supreme Court itself did not claim ''finality'' or conclusiveness for its own constitutional interpretations until 1958;(see footnote 169) nor did constitutional commentators until the early twentieth century.(see footnote 170) Nor did the Court assert any power to control the boundaries of constitutional authority assigned to other agencies of government until the late nineteenth century, except in ''cases of a judiciary nature.''(see footnote 171) The last-mentioned point reflects the Court's successful assertion, in Marbury, of its power to construe constitutional provisions in such a way as to make possible their application as law, but only in the decision of cases involving the performance of judicial functions.(see footnote 172)
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Thus the historical record unequivocally establishes that the origin of modern judicial supremacy in constitutional law can be found neither in the Constitution itself nor in its early judicial application. Rather, it originated in the polemics of legal academicians and commentators in the late nineteenth and early twentieth centuries.(see footnote 173) It emerged in full flower only in the 1950s.(see footnote 174) During earlier periods, questions about constitutional meaning were not generally regarded as solely, or even primarily, judicial. Tocqueville's famous aphorism according to which all political questions sooner or later developed into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the antifederalist Brutus.(see footnote 175) When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional and/or presidential interpretations of the Constitution were entitled to as much respect as those of the judiciary.(see footnote 176)
During the last forty years, the Court has pressed its claim to be the primary organ of constitutional interpretation in the United States with increasing frequency, intensity, and success. The Court's first assertion of constitutional guardianship came in 1958. In that year the Court decided Cooper v. Aaron (the Little Rock school desegregation case); claiming, for the first time in American constitutional history, judicial ''finality'' for its readings of the Constitution. This ruling effectively equated the Court's own constitutional interpretations with the Constitution itself.(see footnote 177) The legal peg supporting the maneuver was the Court's assertion that its own constitutional rulings possessed Article VI ''supreme law'' status, along with constitutional provisions, national laws, and federal treaties.(see footnote 178) In another ''first,'' the Cooper Court cited Marbury v. Madison as precedent for its newly-discovered ''ultimate'' interpretive authority.
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Since the Cooper decision, many have come to believe that, in Marbury,(see footnote 179) the Supreme Court declared itself to be the primary organ of constitutional interpretation. The theory that appears to be most widely accepted currently is that the primacy of judicial review was established in Marbury on the basis of a comparatively weak or ''inconclusive'' historical foundation in the Founding and immediate post-Founding eras.(see footnote 180) According to this theory, modern (broad-gauged) judicial review is explained and justified as an original ''creative'' fashioning by the Marshall Court that was later expanded by subsequent Courts in response to the demands of individuals and groups for judicial supervision of states, executives, and Congress in accord with the growing ''needs'' of American society.
As the Court's own record of precedents demonstrates, this conception of American constitutional history is fundamentally wrong. A limited form of judicial review was already established by 1800, but only as to relatively ''clear cases.''(see footnote 181) Marbury v. Madison did not alter this, but rather established a clear precedent for the Court's power to disregard congressional laws in cases ''of a judiciary nature''—i.e., cases in which judicial functions were threatened by application of a questionable statutory provision.(see footnote 182) Marbury thus established only that the judiciary would play an important role in constitutional interpretation, not that it would be the sole, ultimate, or final constitutional interpreter. The idea that a single organ of government must possess such authority is a product of later times. After Marbury the Court would not invalidate another act of Congress until the 1850s.(see footnote 183) Nor would it cite Marbury in support of any kind of constitutional judicial review until the 1880s; and not in support of broad-gauged review until the 1950s.(see footnote 184)
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After its decision in Cooper v. Aaron, the Court has used Marbury to support its constitutional hegemony at least ten times, most recently in City of Boerne v. Flores (1997).(see footnote 185) There, the Court invalidated a provision of the Religious Freedom Restoration Act of 1993 (RFRA) that attempted to restore the ''compelling interest'' standard in free exercise cases that the Court declined to apply in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990).(see footnote 186) In promulgating RFRA, Congress relied upon its authority to ''enforce, by appropriate legislation,'' the provisions of the Fourteenth Amendment which, by judicial ruling, applies the First Amendment's Free Exercise Clause to the states. But the Court held in Boerne that the congressional enforcement authority is only ''remedial,'' not ''substantive;'' and thus that Congress is forbidden to determine ''the substance of the Fourteenth Amendment's restrictions on the States,'' or to enact legislation which ''alters the meaning of the Free Exercise Clause'' by determining ''what constitutes a constitutional violation.''(see footnote 187)
Though it is indeed difficult to see how Congress can ''enforce'' the Constitution without being able to ''determine what constitutes a constitutional violation;'' for purposes of our historical survey, the crucial point that must be understood here is this: the reason why RFRA can be held to have altered the meaning of the Free Exercise Clause is that, in Cooper v. Aaron, the Court has put its own understandings of constitutional meaning (its ''interpretations'') on a par with the Constitution itself. In other words, according to the logic of Cooper, the Court's decision in Oregon v. Smith about the meaning of the Free Exercise Clause is the Free Exercise Clause. Not content, however, to rest upon this claim alone in Boerne, the Court explicitly denies the authority of Congress to interpret the Constitution conclusively or to define its own powers in accordance with it.(see footnote 188)
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Thus it appears that the development of judicial supremacy in constitutional law is now virtually complete. Modern judicial review is driven by a logic which affords the Supreme Court ultimate freedom to strike down laws merely because the justices believe those laws to be inconsistent with the Constitution. Co-ordinate agencies of government, the policies of which are defeated by the Court, are then expected to goose-step to the Court-imposed drumbeat, even to the point of conforming future policy choices to judicial preferences.
As I have said, it has not always been so. Nowhere is this shown more clearly than in the Court's historical treatment of the Marbury case—the very case misrepresented in Cooper and Boerne to support constitutional judicial supremacy. Given the importance of stare decisis in our legal system, it is worthwhile to examine the Court's treatment of Marbury during previous historical periods, because this treatment indicates how the Court conceived its own power during those periods.
MARBURY IN THE SUPREME COURT
In Marbury v. Madison and Judicial Review, I surveyed and catalogued all of the Court's citations of Marbury from 1803 through 1983.(see footnote 189) Here's what I found. During the remainder of John Marshall's tenure as chief justice (through 1835), ten separate opinions contain references to Marbury. Nine are purely jurisdictional in nature, supporting the distribution of jurisdiction contained in Article III. The remaining reference is made to support the ruling that writs of mandamus may issue to executive officials only when engaged in the performance of purely ministerial duties. The Court's power to invalidate laws is not mentioned in any of these cases.
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Between 1835 and 1865, Marbury is cited in 15 separate opinions in the U.S. Reports. As before, the largest number of cites is in the jurisdictional area (eight references). Six concern nuances in the mandamus remedy. One clarifies some dicta in Marbury that were unnecessary to the decision of that case. Judicial review is not mentioned at all. Even in Dred Scott v. Sanford (1857), the only other case before the Civil War in which the Court invalidated an act of Congress, Marbury is not mentioned! This pattern continues during the 30-year period following the Civil War, a period in which the Court invalidated national laws in no fewer than 20 cases—yet Marbury is mentioned in none of them! As in earlier periods, the instances in which Marbury is cited pertain primarily to jurisdiction or mandamus. It is during this period, however, that Marbury is first cited in support of any kind of judicial review—but not over Congress. The citation is found in Mugler v. Kansas (1887), and is offered in support of judicial authority to overturn state laws via use of the doctrine of substantive due process!
At the beginning of the next period, in the famous Income Tax Case (1895), the Court, for the first time in its history, cites Marbury in support of its power to determine the constitutionality of national laws. Between 1895 and 1957, the Court cites Marbury in 38 additional instances, hardly more often than during the 30-year period preceding 1895. As before, most of the citations have nothing to do with judicial review. Five refer to the right/remedy maxim. Four support the holding that writs of mandamus may be issued only as an exercise of appellate jurisdiction. Four refer to the distinction between ''ministerial'' and ''discretionary'' executive acts. Four confirm that acts in violation of the Constitution are not law, but say nothing about the Court's power to deny their enforcement. Three pertain to questions about the removal power of the president. Two refer to sections of the Marbury opinion which imply that courts may resolve only ''cases or controversies'' according to the regular course of judicial procedure. Two concern the idea that general expressions in judicial opinions are to be taken ''in connection with the case in which they are used.'' Two involve the relation between executive appointments and commissions. Two use Marbury to support the principle that no words in the Constitution should be presumed to be without effect. One maintains that constitutional language should receive a liberal construction whenever individual rights are at stake. Another supports the idea that the national government is supreme within its lawful sphere.
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Eight of the Marbury citations during this period pertain to the judicial power to invalidate laws, and all reflect a narrow or restrictive conception of the power. Two are offered in support of the idea that judicial review should be confined to ''clear cases.'' A third is offered to show that courts have no ''general veto power'' over legislation, but may invalidate laws only in ''proper cases.'' A fourth is used to confine judicial review to ''cases or controversies.'' A fifth restricts court review to cases in which literal interpretations of the Constitution are possible. A sixth imposes on the Court the obligation to ''interpret the law,'' but only in ''proper cases.'' A seventh merely notes the petitioner's argument that Marbury forbids executive invasions of ''the Judicial sphere.'' The eighth citation mentions Marbury as one of a long line of cases in which legislation was declared unconstitutional ''because it imposed on the Court powers or functions that were regarded as outside the scope of the 'judicial power' lodged in the Court by the Constitution.''
Thus it may be fairly concluded that, although the Court began to notice Marbury's judicial review aspect during the first half of the present century, it recognized fully its restrictive nature. Nowhere is there anything approaching a declaration that the Court is the final arbiter of constitutional questions. All told, of the 92 citations of Marbury by justices of the Supreme Court between 1803 and 1957, only ten refer to that portion of the Marshall opinion that is currently thought to have ''established judicial review.''
All this changed in 1958. During the 25-year period between 1958 and 1983, there are 89 separate citations of Marbury, a number that almost equals the total of the previous 154 years. Of these 89, fifty utilize Marbury in support of judicial review. Of these 50, at least eighteen employ Marbury to justify sweeping assertions of judicial authority. Of these 18, nine apply Marbury to support the idea that the Court is the ''final'' or ''ultimate'' interpreter of the Constitution, with power to issue ''binding'' proclamations to any other agency or department of government respecting any constitutional issue whatsoever. As I have noted above, Cooper v. Aaron is the first of the cases in this last-mentioned category. If we take the Court's own statements seriously, then it must again be concluded that judicial supremacy could not have originated in Marbury, but rather is a doctrine firmly established by the Warren Court and subsequently developed by the Burger Court. And if we take seriously the Court's use of Marbury in the Boerne case, we must also conclude that the Rehnquist Court is presently doing its part to perpetuate the doctrine.
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But if the doctrine of judicial supremacy in constitutional law is not the correct understanding of the judicial function established in the Constitution, then what is the correct understanding? The best way to answer this question is to contrast the modern doctrine with its traditional counterpart. I shall first sketch out the judicial function as it was understood at the time of the Founding. I will then try to show how the modern practice of review in cases involving the constitutional powers of co-ordinate agencies of government like Congress deviates from traditional practice. Finally, I shall attempt briefly to make out a case for a return to tradition.
THE FOUNDERS AND THE JUDICIAL FUNCTION
Judicial review of national law in the U.S. is usually thought to be constitutionally grounded in the Article III extension of federal judicial power to cases ''arising under'' the Constitution, laws and treaties.(see footnote 190) The most explicit statement regarding the scope of this power is found in James Madison's Notes on the Federal Convention. According to Madison, the Founders extended federal judicial power to such cases only after it had been generally agreed ''that the jurisdiction given was constructively limited to cases of a Judiciary nature.''(see footnote 191) According to. B.F. Wright, Madison's meaning points to ''a theory of judicial review which did not recognize the courts as the exclusive or final interpreters of all parts of the Constitution.''(see footnote 192) Ralph A. Rossum says that Madison did not believe ''that the Court's interpretations were superior to or entitled to precedence over those of Congress or the President. He claimed only that the Court should have final authority to pass on constitutional questions that affected its own duties and responsibilities, that is, that were of a 'judiciary nature'.''(see footnote 193)
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Supporting the statements of Wright and Rossum are Madison's own remarks during the 1789 congressional debates over the president's removal power. Arguing in support of vesting this power solely in the president, and responding to the charge that the legislature had no right to interpret the Constitution (via vesting of the power by statute), Madison states the following:
I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point. . . . There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case.(see footnote 194)
It can be argued that Madison's ''mode to be provided by the constitution'' is formal amendment and that the modes ''dictated by the necessity of the case'' may be elections, impeachments, or even revolutions.(see footnote 195) It is more plausible, however, to assume that ''necessity of the case'' refers to the three branches of government working out in the daily routine of constitutional government the functional differentiations inherent in the separation of powers. It was Madison who just two years previously had recorded approvingly the Philadelphia Convention's restriction of the ''arising under'' jurisdiction of federal courts to cases ''of a Judiciary nature;'' and in the passage just quoted, Madison straightforwardly denies the power of the courts to issue final constitutional pronouncements in cases which involve interpretations of the constitutional powers of co-ordinate agencies. Cases not of a judiciary nature that also arise under the Constitution are pre-eminently those that require determination of the constitutional authority of the legislative or executive branch. Appropriate cases for judicial review must be those which do not require such a determination.
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It is likely that the 1787 cases ''of a judiciary nature'' are exactly those 1789 cases in which, ''in the ordinary course of government,'' the exposition of the ''constitution devolves upon the judicial.'' Under this view, it is only in cases which involve constitutional provisions directly addressed to the courts that the Supreme Court's refusal to apply relevant law is necessarily final. In cases involving constitutional provisions addressed to other branches of government (e.g., the Article I, Section 8 ''necessary and proper'' clause), the Court may surely refuse to apply the law, but it may not do so with finality in the strict sense. Even though the Court's decision may bind the parties in a particular case, Congress may nonetheless choose to disregard the Court's constitutional ruling and provide for executive enforcement of the statute. Congress may even go so far as to utilize its power to regulate the Court's appellate jurisdiction so as to discourage or prevent future appeals on the question of the law's constitutional validity. In such instances, it is the judgment of Congress, not that of the Court, which will be ''final.'' On the other hand, if the case involves such a constitutional provision as that in the Sixth Amendment's right to confront one's accusers in a federal criminal trial, then the Court's decision on the constitutional question will necessarily be final, since carrying on any federal criminal trial requires a court, and federal trial courts are bound by rulings of the Supreme Court.
From this perspective, Madison's theory of judicial review partitions constitutionally defective laws into two categories. One group includes those instances in which judicial review is appropriate, because final authority for nonapplication of the unconstitutional law rests in the courts by virtue of the nature of the judicial function. The most obvious example is an act which operates ''unconstitutionally'' on a court's performance of its own duties. In the other category, constitutional judicial review is inappropriate, because the performance of judicial duty in those instances is unaffected by the constitutional infirmity of the law.
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MARBURY AND THE EARLY CASES
The case which best illustrates Madison's theory is also the one which has been most often used to support the modern theory of review, and which (nominally) involved Madison himself as a party. In Marbury v. Madison, Chief Justice John Marshall, writing for a unanimous Court, held a provision of the Judiciary Act of 1789 (which extended the Supreme Court's original jurisdiction to all federal officials) to be in contravention of Article III's jurisdictional distribution (which restricted the Court's original jurisdiction to cases involving ''ambassadors, public ministers, consuls, and states '').(see footnote 196) Marbury is a case of judiciary nature in the pure sense because it involved not only constitutional and statutory provisions aimed directly at the Court, but also involved a constitutional provision which embodied a clear restriction on judicial power. The Court's refusal to apply the law thus left the coordinate branches of government no alternative but to comply with its decision (i.e., to do nothing) because the Court, by enforcing a constitutional restriction on judicial power, essentially did nothing. Its decision therefore amounted to a ''final,'' or ''ultimate'' interpretation of the Constitution.
If this sounds like a strange basis for judicial review, one should be reminded that virtually all exercises of review by courts in the early American republic were of the Marbury type; that is, they involved courts resisting legislative attempts either (a) to impose extra-constitutional duties on judges, (b) to interfere with judicial procedure in ways that were unauthorized by the Constitution, or to usurp judicial functions outright. In the first category, one may point to the Invalid Pensioner Cases of the 1790s,(see footnote 197) to the famous Correspondence of the Judges,(see footnote 198) and to Marbury itself. In the second category, one can refer to the many early cases involving statutory suspension of jury trials.(see footnote 199) In the third, we have frequent instances of legislative usurpation via passage of attainders and retrospective criminal laws.(see footnote 200)
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If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process. But it was doubtless to prevent such participation by judges in policy-making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place. And just as surely was it to prevent being dragged into such processes that early American judges strongly utilized the power of review to safeguard their independence; both by resisting legislative encroachment on legitimate judicial functions, and by refusing to intrude themselves upon domains they regarded as better left to others.
Marshall implicitly recognized this in Marbury, by drawing a clear distinction between the issue of constitutionality and that of judicial review; that is, between (a) a law being a nullify due to its incompatibility with the Constitution, on the one hand, and (b) a court's having the power to nullify such a law, on the other. In Marshall's words, granting that ''the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts,'' does it nonetheless follow that an act, ''repugnant to the constitution, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?''(see footnote 201) In answering this rhetorical question, Marshall articulated the theory of judicial function for which Marbury is justly celebrated:
It is emphatically the province the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.(see footnote 202)
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Since these lines recently have been so frequently cited as precedent for a notion of judicial power which renders the Supreme Court ultimate arbiter of all constitutional questions, it is important to assess what is not said in them. No exclusive power to interpret the fundamental law is claimed for the Court, here or anywhere else in Marbury. To be sure, it is ''the province and duty of the judicial department to say what the law is,'' but only ''of necessity,'' whenever those ''who apply the rule to particular cases'' must determine which of two ''conflicting rules governs the case.'' In other words, the power of review claimed by the Court in Marbury is merely a power of discretion to disregard existing laws in the decision of particular controversies, provided that the constitutional and statutory provisions involved are, like those in Article III and the Judiciary Act, addressed to the Court itself. If the provisions are not addressed to the Court, then the Court will not be compelled, as a matter of logic, to choose between them in order to decide the case. Since precedents are created by holdings on points of law necessarily decided in particular cases, the Court's choice between constitutional and statutory provisions, one or both of which are not addressed to the Court, should not control the decision of subsequent cases. Marbury thus affords no basis for inferring that the Court is bound to disregard a statutory provision in conflict with the Constitution, except in that relatively small number of instances in which the Constitution furnishes a direct rule for the courts.
Where does the Constitution furnish direct rules for the courts? Most of the provisions of this type may be found in two places: Article III and Amendments 4–8 of the Bill of Rights. The classic example is one that Marshall himself used in Marbury: the treason clause, which requires either a confession or the testimony of two witnesses in open court to the same overt treasonable act.(see footnote 203) For an obvious example from the Bill of Rights, one only need add the requirement of the Fifth Amendment that such a confession be uncoerced. Now suppose that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession. This situation presents a clear-cut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.
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Reformulating the emphasized portion above as a question allows formulation of a rule which will help one to determine whether any particular case is one of a judiciary nature. In each case, one may ask: ''Can the Court apply the law in question without itself violating the Constitution?'' If the answer to this question is negative, then the case is one of a judiciary nature, and the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If, on the other hand, the answer is positive, then the case is nonjudiciary in nature, and the Court must apply the law, whether or not the law itself violates the Constitution.
Applying this method, one may read down the list of provisions in Article III and Amendments 4–8, and be quickly satisfied that most of the cases which have arisen (and may yet arise) under them fall into the former category (cases of a judiciary nature). At the same time, one may look almost anywhere else in the Constitution and be satisfied, though perhaps not so quickly, that most of the cases which have arisen (and may yet arise) under provisions other than Article III and Amendments 4–8 fall into the latter category (cases of a nonjudiciary nature).
FUNCTIONAL CO-ORDINATE REVIEW
What would be the effect of the Supreme Court's adoption of an approach which confines the scope of judicial review in cases involving the constitutional power of co-ordinate agencies of government to those ''of a judiciary nature,'' leaving to other branches the right to construe constitutional provisions addressed to them? Such an approach would authorize judicial invalidation of laws only when to do otherwise (i.e., to uphold the law) would cause the Court to violate a constitutional restriction on judicial power. It would not allow the Court to defeat legislative or executive policies merely on the ground that such policies were unauthorized by the Constitution. It would not allow judicial nullification of policies forbidden by the Constitution, except when the participation of courts is required to effectuate them. Would not adoption of this approach, which I call ''functional co-ordinate review,'' put an end to constitutional law as we presently understand it, leaving us in the grip of tyrannous popular majorities?
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Examination of the historical record does not confirm such fears. To be sure, had the Supreme Court followed this approach throughout its history, the majority of the cases wherein congressional acts were nullified would have been decided differently. Of the 130-odd cases in which federal laws were invalidated between 1800 and 1985, only 38 were ''of a judiciary nature.''(see footnote 204)
However, when the cases are examined more closely, a different picture emerges. First, leaving aside Marbury and Dred Scott(see footnote 205) (the earliest instance of judicial invalidation of congressional policy in a case not of a judiciary nature), the Court invalidated national laws in 75 cases between the end of the Civil War and 1936—on the eve of the Roosevelt Court-packing scheme.(see footnote 206) Only 14 of these occurred in cases ''of a judiciary nature;'' leaving 61 having occurred in cases inappropriate for judicial review, under Madison's theory. The bulk of these latter cases were decided on the ground either of: (a) Fifth Amendment substantive ''economic'' due process, (b) Tenth Amendment ''dual federalism,'' or the Court's mere opinion that Congress had overstepped its constitutional authority. The crucial point is this: virtually all the last-mentioned decisions (the ''inappropriate'' ones) have since been either over-ruled or so thoroughly emasculated as to have effectively disappeared from our constitutional law.
During the period following the Court-fight to 1985, the Court overturned some 53 acts of Congress.(see footnote 207) The Roosevelt and Warren Courts together performed 26 of these, all but five in cases ''of a judiciary nature.''(see footnote 208) Conversely, the Burger Court performed 27 nullifications, only two of which clearly were in cases of a judiciary nature.(see footnote 209) The obvious conclusion to be drawn from this brief survey is that, unless one happens to be a staunch devotee of the Burger Court, adoption of Madison's theory of review would hardly reduce our constitutional law to a shambles. Instead, it would only serve to eliminate the more questionable portion of the Court's historical interferences with national legislative policy. Indeed, of the 90-odd cases comprising this portion, the Court has itself already eliminated roughly two-thirds!
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I believe that this record is a testament to the good sense of Madison and the Founders. They knew what we have apparently forgotten, that courts are fragile institutions, with little political capital to squander, and which must be jealously guarded if they are to perform well their most vital function: that of resolving disputes peacefully, so as to prevent alternative resolution by force of arms. This is arguably the most important activity of any governmental office in a constitutional republic, and it cannot likely be performed well by any but the ''least dangerous branch.'' When that branch attempts self-aggrandizement via constitutional struggles with the more explicitly ''political'' (and ultimately stronger) organs of government, it will not, in the long run, become the ''most dangerous branch;'' rather, it will put the entire machinery of peaceful dispute-resolution at risk, and thereby undermine the real source of its own authority.
The Founders also knew something else that we seem to have forgotten. Three decades ago, constitutional historian Donald G. Morgan, warning of the danger of the already-advancing judicial monopolization of the Constitution, reported being struck by ''the solicitude with which citizens and officials [in the early constitutional period], when contemplating measures of government action, probed constitutional issues.''(see footnote 210) Jefferson believed that ''congressional involvement with constitutional inquiries'' was ''essential to an informed electorate,'' the ''safest depository of ultimate power.''(see footnote 211) Madison viewed such constitutional involvement as 'essential to the integrity of the Legislature itself':
It is incontrovertibly of as much importance to this branch of the government as to any other that the Constitution should be preserved entire . . . the breach of the Constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the House retains its consequence and share of power.(see footnote 212)
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Commenting on Morgan's book, the late Senator Sam J. Ervin, Jr. issued a call which, in the wake of the Boerne decision, seems especially appropriate:
The thesis of this book is that it is the responsibility of every Senator and Representative in the national Congress to study the constitutionality as well as the wisdom of the legislative proposals pending before the Congress . . . As a member of the Senate, I accept the validity of this thesis, which was evidently in the minds of the men who drafted and ratified the Constitution.(see footnote 213)
Mr. CANADY. Thank you, Professor Clinton. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I was delighted with the testimony, and one of the things that we kept hearing was whether the Court had the last word. One of the things that is interesting, the nature of passing legislation; passed by Congress, then the President. Just in the order of things, the Supreme Court would be the last one to speak; there's no way to get the Court speaking first.
Let me ask a couple of questions; since this is a political discussion, whether or not the witnesses see any ideological bent in the cases where the acts of Congress are invalidated?
Ms. STROSSEN. I have to say, Congressman Scott, looking at the cases that I follow most closely, which are those dealing with civil liberties, to a surprising extent on some issues there is a lack of ideological bent, and I say surprising because it is quite different from what we encounter in elected branches of Government.
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The Communications Decency Act, struck down in the Reno case, is a perfect case in point. Essentially, that decision was joined by all nine Justices, with just small dissents on very small portions of the law—by Justice O'Connor and Chief Justice Rehnquist. But, essentially, they all agreed that the CDA was unconstitutional, regardless of their own personal ideologies or the ideologies of those who appointed them.
The counter-example that I can think of in the area of the First Amendment, is—and I'm sure Congressman Hyde, in particular, is familiar with this—some critics have charged that the Court is engaging in an ''abortion distortion,'' and have argued that the Court's decisions concerning free speech, or alleged free speech and free association rights of anti-abortion demonstrators are less protective than they would have been of the free speech rights of, let's say, pro-civil rights demonstrators. And I think it's interesting that in those cases you have Antonin Scalia standing more strongly, for a more solid version and a more absolutist version of the First Amendment than held by Justices who would be considered liberal.
Mr. SCOTT. I think Professor Clinton kind of alluded to this, and I wanted to ask if the invalidation of acts of Congress seems to be more common today than it has been historically.
Mr. CLINTON. Well, I don't think there's any doubt about that. Of course, during earlier periods, prior to the Civil War, there were only two acts of Congress invalidated, and in one of those, which was the Marbury case it's not clear that the Court even knew, at least until the 1880's or 1890's, that the Court had invalidated any law there; because if you look at the citations of Marbury during that entire period, you get virtually nothing, except very narrow references to jurisdiction or mandamus.
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The first time I know of that Marbury was ever even cited in support of judicial review was 1887 in the Mugler case; and there the Court mistakenly cited the case as an example of substantive due process, in effect. In other words, they used Marbury as a precedent for the Court striking down state laws on Fourteenth Amendment grounds; and so it's not clear why they even dredged it up, and it's not clear that they knew what they were citing either. Now that all changed in the late 19th and early 20th centuries, which happens to be the same era in which the Court started striking down more acts of Congress.
And, I think, if you look—there's an interesting thing that goes on here. If you look at the modern period, after the Warren court, you find that the Warren court struck down more state laws than anything else, but very few Federal laws. The Burger court, on the other hand, struck down a whole lot of Federal laws. And the Rehnquist court seems to have followed suit, although I haven't done those numbers. But there's no question that the exercise of judicial power over Congress has increased steadily since the late 19th century. I think that would be a fair enough statement. Some of the other panelists may have something to add to that.
Mr. CURRIE. Yes, I'd just like to say that it certainly is true that there have been more Federal statutes struck down in this century than the preceding century; but this is not the first period of judicial activism in that regard. One thinks, of course, of the famous invalidation of many New Deal measures during the 1930's. And I think that this——
Mr. CANADY. The gentleman has two additional minutes.
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Mr. CURRIE. Thank you, Mr. Chairman.
This suggests that the degree of invalidation of congressional action is proportional, in part, to the degree of congressional action. That is, one of the reasons why there were very few congressional statutes struck down in the early 19th century was that the Congress was much more restrained in the exercise of its powers during those years than it has been since. It is when Congress begins breaking new ground and reaching out into new areas where there are questions about its constitutional power that the Court is naturally given more opportunities to pass on the extent of its powers.
Mr. SCOTT. No one—there's one other aspect of this that I think is significant, and I haven't heard much on it, and that is the fact that Congress is elected one way, the President is elected independent of Congress, but the Judicial Branch is dependent on the other two branches, so that if there is a disagreement between the legislative and administrative branches, there's a solution. It takes a little time to get there, but there is a solution. Is that any restraint on historical, traditional activism, and disagreeing with Congress and the President?
Mr. DEVINS. Well, the ballot box also applies to the Courts because the selection of judges and Justices is an overtly political process. So, to return to the example of the Court striking down New Deal legislation that Professor Currie mentioned before, it was inevitable that with the death of Justices on the Court, that the view of the Court to the New Deal would change over time because of political events, the reelection of Roosevelt, and the substitution, with it, of old Justices with new Justices. So, I don't quite know if the demarcation you suggest is really a true demarcation.
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Mr. FISHER. I am reminded by your question of what happened in the early 1940's, and, Nadine said, which is true, that if the Court is unanimous, that means something is really unconstitutional. But at times, the Court is nearly unanimous, and the public, in this case, reacts in the newspapers and editorials, and so forth. I'm thinking about the 1940 case that upheld a compulsory flag salute. It was an eight-to-one vote by the Court, and the reaction in the public was fierce against the Court's ruling. Very strong determination by the general public and experts that the Court didn't understand the Constitution, didn't understand religious freedom, and didn't understand individual rights. Two years later, three Justices recanted; said they had regretted their being part of the eight. Two new Justices came on, and in 1943, the Court reversed itself.
Now, the Court's opinion in 1943 was a beautiful description of the Bill of Rights, and what it means, but I think the credit goes to the country weighing in and saying this is just unacceptable to force school children to take a flag salute that's in violation of their religious rights. So, sometimes Congress is the restraint, sometimes it is the President, sometimes the general public.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you. Mr. Hyde.
Chairman HYDE. Thank you very much, Mr. Chairman, and I want to congratulate you on holding this hearing. This is a fascinating subject and I just wish we had two or 3 days on a mountaintop retreat where we could not be stymied by the limitations of time, and really have some exchanges. Nadine Strossen is a pal of mine, and I admire and respect her, and I don't think there's anything we agree on. [Laughter.]
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And that's what makes it such fun, because she brings a level of learning, and intelligence, and analysis to these subjects, but I'm just going to go through some of the things that trouble me in this field.
Court-stripping as a remedy. Sure, it's in the Constitution, and we can limit jurisdiction of the Courts, but just try it. I remember some years ago—I won't mention his name, a Senator from a southern State, introduced legislation to remove abortion cases from the Court, and it produced an explosive reaction from the academic world. And I remember Arthur Fleming testifying with great indignation that this would shred the Constitution, and I asked him if he would send me his paper in opposition to the Norris-LaGuardia Act, and he just smiled and made no response. Judicial activism, yes, there is, there really is. Someone, Kissinger, I guess, said that power is the ultimate aphrodisiac, and it is, and there are judges who exercise this.
But what I did not hear is who gets the last word. Roe v. Wade created a constitutional right out of the air, and it's there, and every court and every State in the land had their abortion laws wiped out with one fell swoop, and the Court has danced around it now with Casey, but reinforced it for the marvelous reason that, by God, it's here, and we're used to it. So, who gets the last word? We're bound and we're chained by that. State courts, state legislatures are chained by that, and so the court has got the last word, and that's really what counts.
Is the Constitution a living, breathing document ala Justice Brennan, or does original intent count for something? ''You pays your money and you takes your choice;'' good question.
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Defining deviancy down—so true, so true, Senator Moynihan—-because obscenity 20 years ago—and Nadine has written a book on this—but, twenty years ago, the stuff you can see now in some of the movies, see on your nightly television, and listen to, would be criminalized. The Court has been defining deviancy down, but there you are. Flag burning; is burning a flag symbolic speech? The Court refuses to recognize that many of us, the majority of Americans, don't think it's symbolic speech, but that's where we are. The Second Amendment; I don't care what you say, it's there—and the right to keep and bear arms is there. Internet porn, which Nadine was so concerned about. The consent of the governed is out there somewhere as a basis for this whole Government. And parents and people are worried about the poison that's on the internet, and it may be delightful to say what you want to say no matter how obscene it is, but there's a real problem and I hope we can somehow work it out.
There are noble exceptions to principle. Tort reform, we hear the argument from State's Rightists, saying we have 50 states and we ought to keep our nose out of their tort laws but in the real world today, you have 50 different sets of laws that insurance companies and exporters have to comply with and it just won't work.
So, I remember arguing with a Justice or judge of the Fifth Circuit one time over lunch about judicial activism, and I said—I was trying to be critical of judicial activism and he pointed out an example where they have to do something they shouldn't do. And I said, what's that? And he said, reapportion. He said, your state legislatures won't do it, many times, and, so, it's left to the Courts to do. For years, we didn't do it and nothing happened, but the political process was distorted because the legislatures abandoned their responsibility; we did it and we do it. He's quite right. And I would call that a——
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Mr. CANADY. The gentleman has two additional minutes.
Chairman HYDE. That's all right, I've trespassed on everybody's time, but——
Mr. CANADY. We've all trespassed. [Laughter.]
Chairman HYDE. But this is really a fascinating subject: judicial review versus legislative review. It's nice to say we have the same responsibility, but we don't really have the power because the Court has the last word and it's really a conflict of laws problem. But, thank you, Mr. Chairman, thank you all for giving your time to us.
Mr. CANADY. Thank you, Mr. Hyde. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I seldom take the opportunity to praise the chairman of this subcommittee, and I——
Mr. CANADY. Let's get this on tape. [Laughter.]
Mr. WATT. I will do that publicly and I want to make sure that our reporter is recording this. I think this has been an outstanding exercise. It may just be an exercise, unfortunately. I suspect that most of us will go back to our various ways of dealing with these issues when the hearing is over, and it'll be a nice academic backdrop for us. But, it's at least nice for us to have the opportunity to have these kinds of exchanges as part of our legislative process. I think it's important for the Judiciary Committee, in particular, to take up some of these kind of discussions that appear to be academic but have some very, very important and powerful legal and political implications.
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I should say that I resemble the chairman's remarks about neo-State Righters. I had the sense that he might have been pointing that at me, but I'm sure he wasn't.
Chairman HYDE. No, sir, I think you're a genuine States Righter. [Laughter.]
Mr. WATT. I haven't heard anything today that I'm surprised by. The thing that I have not heard much about, that I'm extremely concerned about is impeachment of judges. I mean, there are a number of issues, that like the chairman I could go down and differ with the Court on going back historically, differ with the Court on currently, and call them judicial activism or say that they ought to be doing something different. I'm kind of satisfied with that equalizing itself over time and coming out in a reasonable way; the political process will take care of that.
The one issue that is very troubling to me though is one that only Professor Franck addressed in a tangential way. And that when we, on our side, start talking about impeaching judges for activism, and because we disagree with their opinions on issues. There are several issues I would vigorously disagree with members of the Supreme Court, and members of other courts, about, but I think that it's another matter to start talking about impeaching a judge. I heard what Professor Franck said about it. He thinks it's apparently a legitimate, primary tool that one might consider. I'm just wondering how the others on the panel may feel about how this whole threat of impeachment plays into the process, and when and under what circumstances it might be appropriately threatened and or applied.
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Ms. STROSSEN. May I address that, Congressman Watt? I did address that in my written testimony and certainly the ACLU, as a staunch defender of free speech, would absolutely defend the right of everybody, including you and Congressman Hyde and all of us, to criticize particular decisions, and most of us have criticized the Boerne decision, as an example. That is protected free speech. But when you start not only the impeachment process itself, but even threatening to invoke the impeachment process, and when those attacks are voiced by Government officials who are in a position to actually initiate the impeachment process, our concern is that starts crossing over a very important line between your protected right to criticize Government officials, including judges, versus dangerous threats and intimidation. Even if they don't result in impeachment, they can have a chilling effect on judicial independence, which, by the way, no less staunch a conservative than Chief Justice Rehnquist called the crown jewel of our system of Government.
And Chief Justice Rehnquist also wrote a book about the impeachment process in which he, going back to the first incident in history in 1804, talked about the extremely important precedent that, was set in the case of the impeachment of Justice Chase. It was not a legitimate basis for impeachment that somebody disagreed with the judge's constitutional interpretation. That is the basis for criticism, certainly, but that is not a basis for removal.
One can cite not only history for that proposition, and not only the text of the impeachment clause of the Constitution, but also, I think, even more importantly, the whole structure of checks and balances and of the very special role that is carved out for our judiciary to be a check on the majoritarian branches of Government, to help them resist political tides that may well—and, unfortunately, throughout our history, have—run roughshod over the rights, especially, of unpopular individuals and dis-empowered minority groups.
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Mr. CANADY. The gentleman may have two additional minutes.
Chairman HYDE. Would the gentleman yield?
Mr. WATT. I'll certainly yield.
Chairman HYDE. I just want to say on this subject, I think the gentleman is absolutely right. The word is thrown around promiscuously and wrongfully, and it should never be, and it's usually non-lawyers who do it. I don't mean to be critical of non-lawyers, but their visceral reaction to a judge they don't like is impeach. Thank God it takes a two-thirds vote and requires bipartisan support to impeach anybody. But I don't think that's a real threat. I think very few people have reacted to a local situation; however, it gets a little dicey when you have a Federal judge who waits 8 years to rule on a case, a serious criminal case that involves the freedom of the person, and of having to try it again, and find the witnesses after 8 years—to have the decision in your bosom for 8 years, it gets close to egregious misconduct. And those are tough cases; we don't have one before us, although I know of such a case.
And just one last thing, you mentioned internet pornography and that we have a duty to look at the Constitution and say, hey, this isn't constitutional. Many times, Members of Congress want to—it isn't a question of sending a message, but they know the Courts change their mind, and you want to give them a chance to get it right next time, and they can't unless they get legislation up before them. That is sometimes a motive, rather than a blatant disregard for doing something that is unconstitutional, but let the Court worry about it. Sometimes you want to keep sending it up to them, hoping. Roe v. Wade, I'd like to send one every week up there, hoping they'll get it right sometime.
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Thank you. Thanks.
Mr. WATT. Can I just—I don't have any more questions, but I would like to hear from as many of the panelists as you will give time to respond to it——
Mr. CANADY. Sure.
Mr. WATT. The impeachment issue.
Mr. CANDAY. The gentleman has two additional minutes.
Mr. CURRIE. I certainly agree with what has been suggested about the inadvisability of killing the umpire because you don't like his decisions. Impeachment is one form of killing the umpire, and the Senate of the United States in a very admirable bipartisan decision back in 1805 in refusing to remove Justice Chase for political reasons gave, I think, the definitive answer to the use of impeachment as a means of controlling the exercise of judicial power. The use of impeachment for that purpose is squarely contrary to the whole idea of judicial review.
And, so, I think, is any attempt by other branches to destroy the effectiveness of the Court. For example, you go back to the 1930's again, when the Supreme Court was frustrating the New Deal, the President's reaction was, let us neutralize the Court by packing it with a bunch of new Justices who will be sympathetic to my program. That is totally inconsistent with the role of the Court as an enforcer of the Constitution. That is to say, kill the umpire.
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I have similar problems if the Congress undertakes to kill the umpire by removing the jurisdiction of the Court—by stripping the Court of jurisdiction to determine the constitutionality of acts of Congress or the state legislatures. It was not just people like Marshall and Hamilton who believed in judicial review as an essential check on the unconstitutional actions of other branches of government. Madison, as I said in my testimony, was also of that view; so was Thomas Jefferson. Congress has a role, the President has a role, everybody in a sense, Congressman Hyde, has the last word, in that if the Congress thinks that a bill is unconstitutional, it won't pass it. If the Court thinks that the bill is unconstitutional, it will hold it unconstitutional. And I think that's the best way to enforce the Constitution. Don't kill the umpire; let every branch of Government exercise its independent responsibility to protect us against constitutional violations. This is not to say that there are no checks on the Court; of course there are checks on the Court. The appointment process has been mentioned. The amendment process has been mentioned. But let's not kill the umpire just because we don't like his decisions.
Mr. FRANCK. May I respond since I——
Mr. WATT. I wanted—I may have misstated what your intention was.
Mr. CANADY. The gentleman has two additional minutes.
Mr. WATT. I didn't intend to do that. I'm sorry.
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Mr. CANADY. The gentleman has two additional minutes.
Mr. FRANCK. I don't believe you did misstate my intentions, Congressman Watt. Professor Currie refers to the Supreme Court as the umpire, and wishes us to not kill the umpire. I would object to that noun being applied to the Supreme Court, actually. Professor Currie and Professor Strossen are in agreement with our esteemed Chief Justice on the question of impeachment, but the Chief Justice is in disagreement with Alexander Hamilton, with Joseph Story, and with Henry Adams who wrote the most significant history of the Jefferson and Madison Administrations back about a century ago. Hamilton, you'll recall, of course, is the man who puts forward the argument for judicial review in Federalist 78, but then three essays later in Federalist 81, says that the impeachment power is our complete security against the deliberate usurpations of the legislative authority by the Justices of the Court.
Joseph Story agreed with that in his Commentaries on the Constitution in 1833 and when Henry Adams, late in the 19th century, took a look at the Chase trial of 1805, he concluded that nothing was concluded. That is, nothing was settled conclusively by the Chase trial because neither side really came out clearly victorious as a theoretical matter. On the side of those seeking to remove Justice Chase was the argument that the Congress could impeach and remove for any reason it chose. Chase's defense team argued to the contrary, that something had to be clearly within the ambit of criminal law to be an impeachable offense. And Adams' conclusion was that neither side really won that argument. The truth has to be somewhere in between.
A similar conclusion was reached about 5 years ago by the woman who wrote what I think is the definitive work on this, Eleanore Bushnell, whose book, Crimes, Follies and Misfortunes, was published by University of Illinois Press. She concludes likewise about the impeachment trial, in fact, reviews all the judicial impeachments in our history. And, I think her scholarship, frankly, is superior to Chief Justice Rehnquist's.
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All that being said, I believe too that impeachment is inadvisable almost all the time. I mentioned it today because I did not want to leave out what I think is a powerful potential check on the Court.
Mr. WATT. What about on substantive disagreements? Is that a permissive basis?
Mr. FRANCK. If the Congress concludes, if the House by majority sends a prosecution team up to the Senate chamber and succeeds in persuading two-thirds of the Senators that a particular judge or Justice has committed a deliberate series of usurpations on the authority of the legislature, I believe that that is sufficient grounds for impeachment.
And, of course, the Court itself ruled in Nixon v. United States in 1993 that Senate determination of someone's guilt is really a procedural issue, but by extension they could be said to have concluded that impeachment proceedings are unreviewable by the Courts themselves. They called it a political question.
Mr. WATT. Thank you, Mr. Chairman, I'm sorry, I didn't mean to——
Mr. CANADY. Oh, no, I think that was a productive line to pursue. Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. I also want to thank you for holding these hearings. I think it's a very important subject that we have neglected for too long. Let me also say that I agree with Chairman Hyde that we need to avoid trying to change the Court's jurisdiction as a solution to this. But I would never say never to that.
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And I agree with the gentleman from North Carolina that impeachment is not a suitable alternative, but I would never say never to that either, because that's a constitutional power that we have and we should preserve and protect it.
And I would say that the gentleman, Professor Franck, that his point's well-taken; that it's only going to be used in the rather extreme circumstance that the body would refer to the Senate for trial and action that would require two-thirds majority of the Senate. Rarely is it even going to be undertaken, and even more rarely would it succeed. But, I can envision circumstances where a Justice was totally and flagrantly ignoring the provisions of the United States Constitution, and under those circumstances, without any high crime or misdemeanor, but rather simply the misdemeanor of the opinion of the public and of the Congress that they are ignoring the dictates of law, would be a basis for their removal, and I would not ever foreclose that as a possibility.
But, it is certainly not an adequate solution to the steady, case-by-case erosion of the power of the other two branches of Government and, in my opinion, of the Constitution itself, that takes place when the Court deals with issues in a manner that I think flagrantly disregard the Constitution.
So my question to you then is, what do we do as an alternative? And let me take the Smith case and the Boerne case as an example. I think most people in this country were stunned at the Smith decision. It was an easy decision, perhaps, in that particular factual scenario. Nobody wants to be upholding the right of people to smoke drugs, and that's what they founded that decision on, but it was a dramatic erosion of our First Amendment free exercise rights, in hindsight. But we read into that decision the inference that Congress hadn't spoken on this issue and that if we did speak on this issue, the Court would recognize that and honor it, and so by overwhelming majorities we passed through the Congress—almost no dissent—the Religious Freedom Restoration Act, making it clear that the higher standard of protection of free exercise of religion would be the law of the land, and the Court then simply came back and said, no, you don't have the authority to do that.
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There are other alternatives. A constitutional amendment is one, and, I, frankly, in this particular instance, think a constitutional amendment is called for, and I think it would have a great chance at passage because the underlying statutory legislation was almost unanimously approved by Congress, but that's not often going to be the case.
And we also have the alternative proposed by President Jackson, which is—I don't recall if it was Justice Marshall or Justice Taney who was Chief Justice at the time—but, he said, the Justice has issued his opinion, now let him enforce it. Certainly a dangerous precedent to follow, but there's certainly a temptation by the executive branch and the legislative branch to ignore Supreme Court decisions since they obviously ignore our opinions in some of these cases.
I wonder if you all would comment on that.
Mr. DEVINS. Yes. Congress has an enormous range of tools available to it to express disagreement with the Court to affect the constitutional value at play in a decision that go well beyond impeachment, restrictions of jurisdiction or even constitutional amendment.
Mr. GOODLATTE. Let me interrupt you on that point.
Mr. DEVINS. Sure.
Mr. GOODLATTE. A number of us cheered when some California Supreme Court justices were removed from office a number of years ago; they did not have a lifetime appointment, and they were clearly making decisions contrary to the will of the general public in California, as evidenced by their removal from office. But, we don't have that with the Federal judiciary. They have lifetime appointments. Are you advocating a change?
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Mr. DEVINS. No, I'm not. As we have seen over the past decade, the composition of the Courts changes roughly one-half, I think, every decade. It's a quite significant change over a decade. But let's get beyond——
Mr. GOODLATTE. Well, I don't want to get beyond that. I think you raise a good point, but then we have well-established within the Court the document of stare decisis. They are very, very reluctant to go back and overturn previous decisions by the Court. They do it, certainly, in some instances, but the progress seems to me to be a steady march away from what many would view as the original intent in our Constitution.
Mr. CANADY. The gentleman has two additional minutes.
Mr. GOODLATTE. Thank you, Mr. Chairman.
I wonder if you would address that point. Yes, we do get new Justices; we work very hard to pick them and to make sure they are of the—I don't want to take a liberal or conservative approach here—but, of the correct interpretation of the Constitution, that they will continue what we think is the established intent, and then they refuse to do it because previous Courts have said otherwise and they're not willing to overturn the precedents of the Court.
Mr. DEVINS. I think, Congressman, you may be a little pessimistic, very pessimistic of your authority, and let me suggest by way——
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Mr. GOODLATTE. Well, you haven't given me much authority to hang my hat on——
Mr. DEVINS. Let me give you a concrete example where I think Congress and the states, in resisting a Supreme Court decision have made a huge difference. Perhaps not as much of a difference as you might like, but nonetheless, I think, a quite significant difference, and that's on the abortion issue. I think things, in terms of Supreme Court doctrine, are very different 25 years after the Roe v.Wade.
And I understand that the Casey case is one that employs stare decisis, but in so doing nonetheless overturns the trimester standard of Roe. The Casey court undoubtedly is responding to its recognition that Roe may have gone too far. There are new Justices on the Court who perhaps think that Roe was not a good decision when first decided. But beyond Casey, you have, through the Hyde amendments, an opportunity to place further limitations on abortion rights. You have through the initiatives of President Reagan and Bush the gag orders——
Mr. GOODLATTE. But none of those overturn the underlying decision that many of think was incorrect in the first place, and 32 million abortions later—to me, I don't think that our ability to chisel around the edge of that really is a chilling of strength. All it is, is being able to operate in areas the Court have not acted and, therefore, given us a little more room to operate. But, that's simply like saying, well, here are the crumbs that we've left for you to operate around the edge of this issue, but the core of the issue, we said, stay out of it because of what many people believe is a misinterpretation of the Constitution.
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Mr. CANADY. The gentleman has two additional minutes.
Mr. GOODLATTE. Anyone else want to respond to that?
Ms. STROSSEN. I would love to. Specifically, in the area of religious freedom and RFRA. As I mentioned, the ACLU had testified in favor of it. We're very disappointed by the Supreme Court's decision. By the way, with all due respect, Congressman, the drug involved—peyote—is not smoked, so I'm told. One has to ingest it. But, seriously, what was at issue there, of course, was the right not to ingest a drug in general, but in a particular religious ceremony. As it happened——
Mr. GOODLATTE. But I'm not trying to go over that. I think—my opinion is that the Court picked a case where it would not stir great public controversy——
Ms. STROSSEN. I completely agree with that.
Mr. GOODLATTE [continuing]. People's religious freedoms were infringed by that particular decision, yet——
Ms. STROSSEN. And, yet, it had sweeping consequences, absolutely. And in that particular case, the follow-up, I think, points the way toward other action that can be taken. Namely, the state legislature in Oregon, where that case came from, immediately passed a law making an exemption from the drug laws for those who were ingesting peyote in religious ceremonies. And, short of a constitutional amendment—which not only is difficult to enact, but may have some very strong downsides as well—I'm heartened that there are a lot of other possible strategies for securing the religious freedom that Congress tried to secure through RFRA.
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One potential vehicle is another Federal statute, and I think a couple of the witnesses on this panel testified about a legislative record that could perhaps be responsive to the concerns the Supreme Court raised. And another possible approach that Congress could follow would be not to have a law that is written in such sweeping terms that it sounds like an interpretation of the Constitution, which is what, I think, got the Supreme Court's back up, but one could isolate the particular violations of religious liberty that are being conducted under Federal laws.
One example was already given: the regulation that prohibited the wearing of religious headgear by members of the military. One could find out what all the existing violations are and correct them by passing statutes. In addition, the states are very strong avenues of potential support for religious freedom. Not only through laws, such as the one that was passed in Oregon, but also through state courts' interpretations of their religious freedom provisions in their constitutions. Since the Supreme Court's Smith decision——
Mr. GOODLATTE. Can I interrupt since I'm going to have to leave and I'm sure the chairman doesn't want to go on indefinitely, but I don't disagree with what you're saying, that there are other alternatives to seek legislative remedies. What I am concerned about is the lack of ability to change an overlying Supreme Court decision that the majority of the people in this country find offensive and your solutions don't address that. Professor Franck, do you want to say something?
Mr. FRANCK. Professor Clinton——
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Mr. CANADY. The gentleman will have one additional minute.
Mr. CLINTON. Yes, I think what's frustrating here is that you're looking for something a little more definite and a little more forceful, and I think that I can give that to you. And it seems to me that you should go back to the Founders, and reread all that history and then reclaim your authority to interpret the boundaries of your own power from the Court, which I think the Congress has given away.
Mr. GOODLATTE. How do we take it back?
Mr. CLINTON Essentially, take it back. You're simply taking it back. You're going back to the original understanding of the Constitution.
Mr. GOODLATTE. Is that in defiance of Mr. Hyde's concerns about the Congress changing the jurisdictional authority of the Court?
Mr. CLINTON. Well, I don't mean to do it that way. I mean, simply, I think the understanding was, in the beginning, that each of the branches of Government would be the judge of their own constitutional powers. Madison said it; he said it flatly in debates in the first Congress. And I think that would be the most—I suppose that would be the most direct and the most forceful approach. It would answer Mr. Hyde's suggestion—he raised a question—I think it was the first or second that he noted—was, who has the last word. I think that's the issue, seems to me. Seems to me, the problem is, we have, in the last 40 or 50 years, come to expect that the Court has the last word, but I think that's a-historical and it's not in accordance with the original design of the Constitution, and so, there may be some tension.
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Now, it creates a problem. The problem is, if there's no finality, then it looks as like there's going to be a form of anarchy in constitutional interpretation. Well, yes. I think that's precisely what was intended.
Mr. CANADY. The gentleman's time has expired.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. CANADY. One more time? Without objection, the gentleman from Virginia, Mr. Scott, will be recognized for three additional minutes for an additional question.
Mr. SCOTT. Thank you, Mr. Chairman. We've heard a lot about the will of the people—and I don't know if this is a question or an observation, it just occurred to me that when the Supreme Court steps in with a ruling invalidating a statute, that it is always going to be in violation of the will of the majority of the people. And that's just the way it is, and that's how we like it because we have a minimum standard of rights that aren't going to be violated, and if something passes 97-to-2 in the Senate, if it's unconstitutional, it doesn't matter how popular it is.
Mr. FISHER. I have a comment. Chairman Hyde had said that on Roe v. Wade it's still the last word even though the Court backed up a little bit in Casey to give up on the trimester standard. I don't think that's a statement on the power of the Supreme Court. I think that's a statement of reality of politics in the United States. I think that if Roe v. Wade had been resisted by 90 percent of the people, it wouldn't be around today. But the country is fairly closely divided on this issue, and it gives the Court enough political room to hold on to some of Roe and give up on the rest.
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I think on the other cases that we have been talking about—on Boerne and on Lopez, on guns in the schoolyard—it may not be a case of the Court being the last word, but Congress not putting enough attention into building a record to show why it would have that authority to enact the legislation. You probably know—I think it was last year, within the last year—Congress passed legislation again on guns in the schoolyard and the dialogue continues. So, I think the burden is on Congress. Particularly on Boerne, where what you were doing was probably fatal. To tell the Court, when you gave up on the Sherbert standard in Smith, we are reimposing it in RFRA, I think that's probably a red flag for the Court. But, you could have stated that although the Court held that religious freedom is at this level, we're going to go above it with some other language and not to confront the Court by telling it to adopt a standard that it itself had rejected. So a lot of the power is left to you to build a record and show why the legislation is necessary.
Ms. STROSSEN. Congressmen Scott, if I could comment just briefly. I think what you said is partly correct, but I would like to add an important caveat. It's partly correct that, of course, it's inevitable that in striking down a popularly enacted law, whether by referendum or through the legislative process, the Court is violating or thwarting the will of the people that is at that moment in the time the majority of the people. So we are talking about temporary, shifting majorities. But in doing so, the Court is honoring the will of the people in the larger, more durable sense, as reflected in that great document that begins, ''We, the people of the United States.''
And, it also honors that larger concept of popular will, insofar as we the people retain the right to amend the Constitution to overturn a Supreme Court decision. That is a power that has been exercised recurrently throughout our history. I agree with the remarks that were just made. The fact that such a constitutional amendment has not been adopted with respect to abortion, and we certainly know it's been tried, suggests that the court is in fact honoring the will of the people in that larger and, I think, more important sense.
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Mr. CANADAY. The gentleman has one additional minute.
Mr. WATT. Let me make a quick comment, and that is that if you're talking about freedom of speech, the only time you have standing to rely on freedom of speech is when the Government is probably doing something to you like throwing you in jail. What you have said, or what you have expressed, has made democratically-elected officials so mad that they want to throw you in jail, and then you resort to the Constitution. I don't see how you can ever rely on the First Amendment and be in the majority. That's just a comment.
Ms. STROSSEN. That's why the ACLU's First Amendment clients are such unpopular people. [Laughter.]
Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you. I'll now recognize myself.
I want to get back to Professor Clinton's testimony about Marbury v. Madison, and his historical analysis of what that case meant when it was decided, and how the Supreme Court dealt with that case over the following 100 years. Is there anyone who disagrees, who would express disagreement with what Professor Clinton adds, and then I'll give him a chance to respond. Professor Currie?
Mr. CURRIE. Indeed, I do disagree and I'm happy to have the opportunity to say so. The Supreme Court itself has never suggested that Marbury v. Madison should be limited so narrowly, and the Supreme Court has always understood that it has the power to test the validity of any act of Congress or any state legislation that comes before it in case controversy. If one goes back to the intentions of the Framers, which have been invoked here and which I do think have an important role to play in the interpretation of the Constitution it's perfectly clear from the record of the Constitutional Convention that the Framers of the Constitution intended judicial review as a part of the system of checks and balances. Not just to prevent the powers of the courts from being unconstitutionally infringed by acts of Congress, but to prevent Congress from unwittingly or deliberately exceeding the limits on its own powers. That's the way it was described by Hamilton in the Federalist Papers. That's the way it was understood by innumerable Members of the early Congress.
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The question often came up, do we have the constitutional power to pass a particular bill? Every once in a while somebody would say, let's leave it to the Supreme Court. A number of people here today have rightly criticized that approach. Members of Congress have an independent obligation to construe the Constitution for themselves and to obey it. But everyone on both sides of that debate during the first 12 years in Congress said, of course the Courts have an additional check on the constitutionality of legislation passed by Congress. And that means that Congress will not always have the final word. That's inherent in a system of checks and balances.
Sometimes the Court may make a mistake, but again, if the Court makes a mistake, it's dangerous to destroy the Court. I said the court was an umpire; I didn't say it was the only umpire. In baseball, you've got umpires now. The Court is the third base umpire, the Congress is the first base umpire, and the home plate umpire is the people of the United States, who will ultimately see to it that wrong decisions by the Court get corrected one way or the other. The Dred Scott case, the Child Labor case, Plessy v. Ferguson, a whole lot of wrong decisions of the Supreme Court have not stood the test of time; they have not withstood the opposition of the people, for in the long run and here I certainly agree with Professor Strossen, in the long run the people's good sense will prevail. That's why we have a Constitution, that's why we have the Supreme Court as one of the umpires, that's why obligation of Members of Congress are also obliged to interpret and respect the Constitution.
Mr. CANADY. Would anyone else like to comment on the historical issue before I give Professor Clinton a chance to respond? Professor Devins?
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Mr. DEVINS. This is an extension of what Professor Currie was just saying. I think that no branch speaks the last word, even on a particular case. It's a circular process and if you have four umpires, they must all be in play all the time. Along those lines, it's important we look at Marbury as a precedent to recognize what Marbury speaks to is only the power of the Court to interpret the Constitution and not to the power of the Court to speak the last word about the Constitution.
Mr. KINKOPF. I'd like to, if I might——
Mr. CANADY. Yes, Professor Kinkopf.
Mr. KINDOPF. That is, again, just to amplify on Professor Curries' remarks, but it, I think, would profit us to bear in mind what it would mean if each branch would be the ultimate arbiter of its own power. I think that would effectively, or potentially, would effectively eviscerate Congress in that. Chairman Canady, you mentioned in your opening remarks the President's authority to interpret the Constitution pursuant to the Take-care Clause. Congress could enact laws, but the President could decide himself not to enforce those laws so that it wouldn't leave to Congress—it would end up undermining Congress's authority in that way, to allow the President simply to determine that he's not going to enforce any statute of Congress with which he disagrees as to Congress's basis of authority.
Mr. FRANCK. I would just like to go on record as saying that I absolutely agree with Professor Clinton's view of the history of these matters. I've looked into much of the same history myself. I find, as Professor Clinton does, Madison saying quite the opposite of what Professor Currie asserts he says in the First Congress. I also find it interesting that in the question of the Court's role as the enforcer of the boundaries on Congress's power, you have this statement on the interstate commerce power from John Marshall in Gibbons v. Ogden in 1824. He says that the reach of Congress's power over commerce among the states must be controlled authoritatively not by the judiciary, but by the people through democratic processes—those are my words, so far—then Marshall says, such are, ''the restraints on which people must often rely solely in all representative governments.'' Where Professor Currie and I emphatically agree is that the home plate umpire is the people.
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Mr. CANADY. Mr. Fisher?
Mr. FISHER. I want to comment on something that Neil Kinkopf said about the Take-care Clause. Maybe he can explain it again because, to me, if Congress passes legislation, the President is to see that the laws are faithfully executed. He doesn't have authority to pick and choose, and say, I'm not going to enforce this.
There was a case in the Reagan years where the Justice Department decided that it wasn't going to implement all of the Competition in Contracting Act, and the Circuit Court, the Appellate Court, said that the President doesn't have such authority; that would be like a line-item veto. Well, we have one, live with one now, but at that time, that was considered a forbidden act. You enforce all the laws; you don't pick and choose.
Mr. KINKOPF. Right, I agree with you, Professor Fisher, and I appreciate the opportunity perhaps to clarify what I said. I agree that that is not for the President to do, and my concern would be that if we were to adopt the position that each branch is the ultimate arbiter of its own authority we would end up very quickly in a very significant constitutional crisis. And I think the Court's approach which accommodates and is greatly deferential to each branch's view of its own power, but which is not finally deferential allows us to avoid those constitutional conflicts and I think properly enforces the Constitution's structure.
Mr. CANADY. Professor Clinton?
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Mr. CLINTON. Well, I'd first like to ask Professor Currie; something he said confused me. I agree with you that Congress does not have the last word on all constitutional questions, but are you saying that the Court does?
Mr. CURRIE. No. As I tried to say a few moments ago, I think each branch has a negative. Each branch, if it says something is unconstitutional, can prohibit it from going into effect. I think that's what the Framers intended and I think that gives us maximum protection for constitutional rights.
Mr. CLINTON. Well, I'm unclear as to why you think I disagree with that.
Mr. CURRIE. Well, if you don't disagree with it, fine.
Mr. CLINTON. I think all I really said was that it seems to me, according to the original understanding, that each branch of government was to be the final judge of its own powers. I think that's way the constitutional history of the country went for at least a 100 years and then things started changing in the late 19th century.
Mr. CURRIE. What I took you to say—Mr. Chairman, if I may—I took you to be taking a narrow view of Marbury v. Madison, saying that it only upholds the power of the Court to strike down those acts of Congress which interfere with its own functions, and I'm saying I do not agree with that. Gibbons v. Ogden was just cited as an example of a narrow view of judicial review, but actually what the Court did there was to review the constitutionality of a substantive act of Congress.
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Mr. CLINTON. Well, isn't it true that a Court's holding is generally confined to the situation of the case.
Mr. CURRIE. I hope so.
Mr. CLINTON. It seems like if you interpret Marbury that way, that's all that could be drawn out of the case in terms of judicial review.
Mr. CURRIE. Marbury doesn't stand alone. We have 200 years of other decisions of the Supreme Court, reviewing the validity of substantive decisions of Congress, and I that history supports that authority.
Mr. CLINTON. But it seems to me that history doesn't really start until about the 1890's and that's where the historical problem comes in. Sure, if the Court had decided other cases right away and continued to do that throughout the 1800's, and the 1820's, 1830's, and the 1840's, and on, at an increasing rate, that would be one thing; but the fact seems to me to be that the Court did not do that. It waited, in effect, almost 100 years before it ever invalidated an act of Congress, other than the Dred Scott case—we have to admit that was an exception. But that was the only exception until 1895, it seems to me, where the Court actually invalidated a Federal law on grounds other than those stated in Marbury.
Mr. CURRIE. The Court had practiced substantive judicial review ever since of Hylton v. United States in 1796 in which it was asked to invalidate an act of Congress imposing a tax on the ground it violated the direct tax apportionment provisions of Article I. The Court recognizes and exercises the power of judicial review not only when it in fact strikes down a statute, but whenever it asks the question, as it asked innumerable times throughout the 19th century, is this act constitutional. The historical record supports the Supreme Court's power to do that, and I don't think today anybody is going to cause us to retreat from judicial review of acts of Congress on substantive grounds that do not affect the jurisdiction of the Court. That's a very established and very essential part of our checks and balances.
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Ms. STROSSEN. I'd just like to echo that and to say I think it would be very dangerous if we inferred from the fact that it took the Supreme Court a long time to exercise its power of constitutional review with respect to particular acts of Congress that, therefore, that means the Supreme Court doesn't have that power.
Take the area where I have continued to voice concern, in the acts of Congress that violate the First Amendment. We've had them for a long time; earlier on in today's session, somebody mentioned the Alien and Sedition Acts. The Supreme Court did not have occasion to find those unconstitutional. Interestingly enough, it was Congress that stepped into the breach by failing to re-enact the law. But it was not until 1965 that the Supreme Court for the first time struck down an act of Congress as violating the Free Speech guarantee in the First Amendment, and I would be loathe to infer from that historical record that, therefore, the Supreme Court does not have the power to strike down acts of Congress that do violate the First Amendment.
Mr. CANADY. Mr. Fisher?
Mr. FISHER. The point that David Currie just made about the affirmative role of the Supreme Court I think should be underscored. That gives you the creative, constructive power. You're the ones who are deciding what national legislation should be, and, on the whole, the Supreme Court comes along and says, you're right, you're right, you're right, and occasionally they say, you're wrong, and you're back on the dialog again. But the affirmative part of judicial review just emphasizes how large a role the Congress plays and the Court is generally instrumental in supporting you.
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Mr. CANADY. Well, thank you for your comments. All of you have made a very important contribution to our hearing today and I want to extend my gratitude to you.
I want to thank the members of the subcommittee—we actually had pretty good attendance today for a day that Congress is not in session, and I'm grateful to the members who were able to be here. I wish we could continue, but time is racing on. I do thank you, and this is a discussion that will go on, and I think the issues that we've raised today are important issues, not just for the subcommittee, but for all Members of Congress to reflect on and hopefully some of the things that have been discussed today will be discussed more widely in the Congress as we go about our constitutional responsibilities.
Thank you very much. The subcommittee is adjourned.
[Whereupon, at 12:08 p.m., the subcommittee adjourned subject to the call of the Chair.]
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(Footnote 1 return)
The Federalist No. 81 (A. Hamilton).
(Footnote 2 return)
Albert J. Beveridge, The Life Of John Marshall, Vol. III, p. 177 (Boston 1919).
(Footnote 3 return)
Thomas Jefferson, Letter to William Charles Jarvis, Sept. 28 1820, in Writings Of Thomas Jefferson, X. 160 (Ford ed. 1899).
(Footnote 4 return)
Andrew Jackson, Veto Message, July 1832, in A Compilation Of The Messages And Papers Of The Presidents, 1789–1897, Vol. II, p. 582 (Richardson, ed.).
(Footnote 5 return)
J. Story, Commentaries On The Constitution Book III, Ch. IV, Section 379, pp. 351–52 (Boston, Hilliard, Gray & Company, 1833).
(Footnote 6 return)
Id. at Book III, Ch. IV, Section 384, p. 358.
(Footnote 7 return)
Id. at Book III, Ch. IV, Section 394, p. 373.
(Footnote 8 return)
Abraham Lincoln, Speech at Springfield, Illinois, July 17, 1858, in The Collected Works Of Abraham Lincoln, Vol II, 516 (Roy Basler, ed.,1953).
(Footnote 9 return)
Acts of the Thirty-Seventh Congress, p. 432, Sess. II. Ch. 111 (June 19, 1862).
(Footnote 10 return)
Louis Fisher, Congressional Checks on the Judiciary, Congressional Research Service Report for Congress, April 29, 1997; Louis Fisher, The Curious Belief in Judicial Supremacy, XXV Suffolk Univ. Law Review 85 (1991).
(Footnote 11 return)
Abraham Lincoln, Inaugural Address, March 4, 1861, in A Compilation Of The Messages And Papers Of The Presidents, 1789–1897 Vol. VI, p. 9, James D. Richardson, ed., 1891).
(Footnote 12 return)
Pennsylvania v. Wheeling &c. Bridge Co., 13 How. (54 U.S.) 518 (1852); 10 Stat. 112, §6 (1852); Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. (59 U.S.) 421 (1856).
(Footnote 13 return)
Prudential Ins. Co. v. Benjamin, 326 U.S. 408, 425 (1946). In 1985, the Court said that when Congress ''so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.'' Northeast Bancorp v. Board of Governors, FRS, 472 U.S. 159, 174 (1985). In a concurrence in 1995, Justices Kennedy and O'Connor noted: ''if we invalidate a state law, Congress can in effect overturn our judgment.'' United States v. Lopez, 514 U.S. 549, 580 (1995).
(Footnote 14 return)
United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 847 (5th Cir. 1966), cert. denied sub nom., East Baton Rouge Parish Sch. Bd. of Davis, 389 U.S. 840 (1967 (emphasis in original).
(Footnote 15 return)
Louis Fisher, ''Separation of Powers: Interpretation Outside the Courts,'' 18 Pepperdine L. Rev. 57 (1990); Louis Fisher, Constitutional Conflicts between Congress and the President (4th ed. 1997).
(Footnote 16 return)
These provisions typically require agencies to obtain the prior approval of the Appropriations Committees; e.g., 110 Stat. 3009-321 (1996). See Louis Fisher, ''The Legislative Veto: Invalidated, It Survives,'' 56 Law & Contemp. Prob. 273 (Autumn 1993).
(Footnote 17 return)
I provide further details on three-branch interpretation in the following works: Political Dynamics of Constitutional Law (with Neal Devins) (2d ed. 1996); American Constitutional Law (2d ed. 1995); Constitutional Dialogues: Interpretation as Political Process (1988); ''Congress and the Fourth Amendment,'' 21 Georgia L. Rev. 107 (Special Issue 1986); and ''Constitutional Interpretation by Members of Congress,'' 63 N.C. L. Rev. 707 (1985).
(Footnote 18 return)
117 SCt 2157 (1997).
(Footnote 19 return)
5 US 137 (1803).
(Footnote 20 return)
The Federalist No 78. See also Madison's remarks in introducing the Bill of Rights in the House, 1 Annals of Congress 457 (1789).
(Footnote 21 return)
US Const, Art VI.
(Footnote 22 return)
David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 296 (Chicago, 1997).
(Footnote 23 return)
1 F.D.R.—His Personal Letters, 1928–1945 459–60 (Elliott Roosevelt ed. 1950).
(Footnote 24 return)
2 Richardson, Messages and Papers of the Presidents 576 (1896).
(Footnote 25 return)
See Jefferson to Abigail Adams, Sep 11, 1804, 8 Writings of Thomas Jefferson 310 (Ford ed. 1897).
(Footnote 26 return)
Lincoln-Douglas Debates, in 3 Collected Works of Abraham Lincoln 255 (Basler ed 1953).
(Footnote 27 return)
358 US 1, 18 (1958).
(Footnote 28 return)
Herbert Wechsler, The Courts and the Constitution, 65 Colum L Rev 1001, 1008 (1965).
(Footnote 29 return)
Employment Division v Smith, 494 US 872 (1990).
(Footnote 30 return)
107 Stat 1488 (1993), 42 USC §2000bb et seq.
(Footnote 31 return)
117 SCt 2157 (1997).
(Footnote 32 return)
E.g., Michael McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv L Rev 153 (1997).
(Footnote 33 return)
David P. Currie, RFRA (forthcoming in Wm & Mary L Rev (1998)).
(Footnote 34 return)
Philip B. Kurland, Religion and the Law (Chicago, 1978).
(Footnote 35 return)
406 US 205 (1972).
(Footnote 36 return)
42 USC §2000bb-1.
(Footnote 37 return)
117 SCt at 2176 (O'Connor, J, dissenting).
(Footnote 38 return)
Contrast US Const, Art I, §8, cl 10, which gives Congress authority to ''define'' as well as to punish piracies and felonies on the high seas and offenses against the law of nations.
(Footnote 39 return)
See David P. Currie, The New Deal Court in the 1940's: Its Constitutional Legacy, 1997 J Sup Ct Hist 87.
(Footnote 40 return)
West Virginia Bd of Educ v Barnette, 319 US 624, 648–49 (1943).
(Footnote 41 return)
384 US 641, 656 (1966).
(Footnote 42 return)
See, e.g., Adamson v California, 332 US 46 (1947).
(Footnote 43 return)
117 SCt at 2168.
(Footnote 44 return)
400 US 112 (1970). See also South Carolina v Katzenbach, 383 US 301 (1966).
(Footnote 45 return)
117 SCt at 2169.
(Footnote 46 return)
Id at 2164. See also id at 2169, 2170, 2171.
(Footnote 47 return)
Cf. United States v Lopez, 514 US 549 (1995); Printz v United States, 117 SCt 2365 (1997).
(Footnote 48 return)
Contrast the Court's discussion of the impeachment provisions in Nixon v United States, 506 US 224 (1993).
(Footnote 49 return)
For a detailing of the defensive nature of Court invocations of judicial supremacy, see Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va. L. Rev. (forthcoming, Feb 1998). I have attached a copy of this article to my testimony.
(Footnote 50 return)
Nomination of Anthony M. Kennedy to be Associate Justice of the United States Supreme Court of the United States: Hearings Before the Senate Judiciary Comm., 100th Cong., 1st. Sess. 222–23 (1987).
(Footnote 51 return)
Speaking in a Judicial Voice, 67 N.Y.U. L.Rev. 1185, 1198 (1992).
(Footnote 52 return)
Stephen J. Wermeil, Confirming the Constitution: The Role of the Senate Judiciary Committee, 56 Law & Contemp. Probs. 121, 122 (Autumn 1993).
(Footnote 53 return)
Id.
(Footnote 54 return)
Staggers Rail Act of 1980, 94 Stat. 1895 (1980).
(Footnote 55 return)
1 Annals of Congress 500 (Joseph Gales ed., 1834).
(Footnote 56 return)
Act of June 19, 1862, c.111, 12 Stat. 432.
(Footnote 57 return)
Fair Labor Standard Act of 1938, 52 Stat. 1060.
(Footnote 58 return)
Title II of the 1964 Civil Rights Act, 78 Stat. 241, 243.
(Footnote 59 return)
See generally Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996).
(Footnote 60 return)
Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 292 (Autumn 1993).
(Footnote 61 return)
Leslie Goldstein, The ERA and the U.S. Supreme Court, 1 Law and Political Studies 145 (1987). See also Jane Mansbridge, Why We Lost the ERA 47 (1989).
(Footnote 62 return)
National Defense Authorization Act for Fiscal Years 1988 and 1989, 101 Stat. 1019, 1087 (1987).
(Footnote 63 return)
S. Rep. No. 97–417 at 13 (1982).
(Footnote 64 return)
For an elaboration of why I think Boerne is of limited reach, see Neal Devins, How Not to Challenge the Court, 39 Wm. & Mary L.Rev. (forthcoming 1998).
(Footnote 65 return)
Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U.L. Rev. 269, 273 (1993).
(Footnote 66 return)
Id.
(Footnote 67 return)
Cass Sunstein, Supreme Caution: Once Again the High Court Takes Only Small Steps, Wash. Post, July 6, 1997 at C–1.
(Footnote 68 return)
Owen J. Roberts, The Court and the Constitution 61 (1951).
(Footnote 69 return)
Owen Fiss, The Forms of Justice, 93 Harv. L.Rev. 1, 10 (1979).
(Footnote 70 return)
For a detailed treatment of this point, see Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (1996).
(Footnote 71 return)
For a critical examination of Congress's employment of an expedited judicial review provision in 1996 item veto legislation, see Neal Devins and Michael A. Fitts, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court's Attempt to Control Constitutional Confrontations, 86 Geo. L.J. 351 (1997).
(Footnote 72 return)
Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 50 (1993).
(Footnote 73 return)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
(Footnote 74 return)
117 S. Ct. 2157 (1997).
(Footnote 75 return)
The Supreme Court has invoked the doctrine of separation of powers to resolve a large number of recent controversies, see, e.g., Printz v. United States, 117 S. Ct. 2365 (1997); Edmond v. United States, 117 S. Ct. 1573 (1997); Clinton v. Jones, 117 S. Ct. 1636 (1997); Loving v. United States, 116 S. Ct. 1737 (1996); Plaut v. Spendthrift Farm Co., 115 S. Ct. 1447 (1995), including at least one case where the litigants apparently did not realize the doctrine was implicated. See Lebron v. National Passenger Railroad Corp., 115 S. Ct. 961 (1995).
(Footnote 76 return)
See, e.g., Loving v. United States, 116 S. Ct. 1737, 1743 (1996); Plaut v. Spendthrift Farm Co., 115 S. Ct. 1447, 1463 (1995) (Breyer, J., concurring); Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 272 (1991); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 824 (1987); Bowsher v. Synar, 478 U.S. 714, 730 (1986); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–35 (1952) (Jackson, J., concurring); The Federalist No. 47, at 302–03 (Madison) (Clinton Rossiter, ed. 1961).
(Footnote 77 return)
See generally The Federalist Nos. 47–49, 51.
(Footnote 78 return)
The Federalist No. 51, at 337 (Edward Mead Earle, ed. 1976)
(Footnote 79 return)
See, e.g., The Federalist No. 15 (Hamilton) (Clinton Rossiter, ed. 1961); The Federalist No. 51, at 321 (Madison). The Court has repeatedly identified effective self-government as an important policy derived from, and to be applied in questions regarding, the constitutional structure of the federal government. See, e.g., Mistretta v. United States, 488 U.S. 361, 381 (1989); Buckley v. United States, 424 U.S. 1, 121 (1976) (per curiam); Panama Ref'g Co. v. Ryan, 293 U.S. 388, 421 (1935); Union Bridge Co. v. United States, 27 S. Ct. 367, 374 (1907) Buttfield v. Stranahan, 24 S. Ct. 349, 355 (1904); Field v. Clark, 12 S. Ct. 495, 505 (1892).
(Footnote 80 return)
U.S. Const. Art. I, §8 cl. 17. On Congress's broad authority under the Necessary and Proper Clause, see M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). The Constitution specifically confers significant latitude in Congress to structure the federal judiciary in Article III. See U.S. Const. Art. III, §1, 2.
(Footnote 81 return)
In the case of the judiciary, it creates and structures the various article III courts and the agencies and offices that support those courts, such as the Administrative Office of United States Courts and magistrate judgeships.
(Footnote 82 return)
On the importance of effective self-government as a constitutional value, see Gerhard Casper, Separating Power: Essays on the Founding Period (1997); Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984).
(Footnote 83 return)
I mean to distinguish those cases where Congress has impermissibly aggrandized itself by assigning non-legislative power to itself, one of its committees, or an official subject to its control. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986). I discuss this anti-aggrandizement principle infra.
(Footnote 84 return)
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).
(Footnote 85 return)
Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).
(Footnote 86 return)
Id.
(Footnote 87 return)
See, e.g., Mistretta v. United States, 488 U.S. 361, 393 (1989); CFTC v. Schor, 478 U.S. 833, 851 (1986) (emphasizing minimal practical effect on the judiciary and importance of asserted encroachment to challenged legislative scheme).
(Footnote 88 return)
While the Court has typically upheld statutes against the assertion that they impermissibly encroach upon the judiciary, see Schor; Thomas v. Union Carbide, 473 U.S. 568 (1985), the Court has occasionally struck down a statute on the grounds of encroachment on the judiciary, see Schor, 478 U.S. at 851–52 (characterizing Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982), and Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792)). In contrast, the Court has never struck down a statute as an encroachment on the executive branch.
(Footnote 89 return)
478 U.S. 833 (1986).
(Footnote 90 return)
478 U.S. at 855; see also Thomas v. Union Carbide, 473 U.S. 568, 594 (1985). Compare Morrison v. Olson, 487 U.S. 654 (1988) (applying test in the context of asserted interference with the executive branch).
(Footnote 91 return)
See, e.g., Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991); Bowsher, 478 U.S. at 727; Myers v. United States, 272 U.S. 52 (1926).
(Footnote 92 return)
The Federalist No. 48, at 323 (Madison) (Edward Mead Earle, ed. 1976).
(Footnote 93 return)
See, e.g., M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
(Footnote 94 return)
The Appointments Clause requires the President to obtain the Senate's advice and consent and allows Congress, in establishing inferior offices, to provide for appointment by the President, a court of law, or a department head without Senate confirmation. However one characterizes the President's role, what is clear is that the Constitution specifically and intentionally withheld the power to fill offices from Congress. The framers were concerned placing the power to create offices and the power to fill them in the same hands would lead to abuse.
(Footnote 95 return)
A closely related issue would arise if legislation were to abolish an office and recreate it. In this case, the issue would be whether Congress had exercised the executive removal power under the guise of its structural power under the Necessary and Proper Clause.
(Footnote 96 return)
Until 1989 the savings and loan, or thrift, industry was regulated by the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation. FIRREA abolished these entities and replaced them with the Office of Thrift Supervision and the Savings Association Insurance Fund. OTS differed from FHLBB primarily in that it would be headed by an individual director, rather than a three-member board. FIRREA provided that the chairman of the board of the FHLBB would serve as the initial director of OTS. See Olympic Fed. Sav. & Loan v. Director, Office of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990).
(Footnote 97 return)
Weiss v. United States, 114 S. Ct. 752 (1994).
(Footnote 98 return)
117 S. Ct. 2157 (1997).
(Footnote 99 return)
I do not mean to suggest that this determination turns on Congress's motive. In the Shoemaker context, for example, Congress may not add extraneous duties to an office, regardless of its motive for doing so. Compare Weiss, 114 S. Ct. at 759 (suggesting that where the legislation adds the new duties not to a specific office but to a large class of offices, germaneness may be required only if there is evidence that the legislation is motivated by a congressional attempt to exercise the appointment power). It is, in that sense, an objective standard. If Congress adds non-germane duties to an existing office, it has exercised the appointment power, whether it subjectively meant to or not.
(Footnote 100 return)
Id. at 2164.
(Footnote 101 return)
Id.
(Footnote 102 return)
See, for example, the extensive history cited by Boerne itself. Id. at 2169.
(Footnote 103 return)
An analogy may be illuminating. Merely articulating the strict scrutiny standard, which requires that legislative means be narrowly tailored to a compelling governmental interest, does not fully capture strictness with which that standard is applied. This can be seen most clearly by examining the practical application of the standard in the Court's precedents. Similarly, a full appreciation for the deference due Congress is most clearly seen from the deference actually accorded in separation of powers cases involving the judiciary, such as Schor, as compared with those involving the executive, such as Morrison, as well as those involving concern that Congress has exercised the power of another branch, such as Shoemaker and Weiss.
(Footnote 104 return)
Boerne, 117 S. Ct. at 2164.
(Footnote 105 return)
See id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); see also United States v. Lopez, 115 S. Ct. 1624 (1995).
(Footnote 106 return)
462 U.S. 919 (1983). See Louis Fisher, The Legislative Veto: Invalidated It Survives, 56 L. & Contemp. Probs. 273, 288 (1993).
(Footnote 107 return)
117 S. Ct. at 2162.
(Footnote 108 return)
494 U.S. 872 (1990). The Boerne Court began its analysis by observing that ''Congress enacted RFRA in direct response to the Court's decision in . . . Smith.'' 117 S. Ct. at 2160. The findings and purposes set forth in RFRA support the Court's view. These findings include statements that may be taken to assert the meaning of religious liberty protected under the first amendment, criticize Smith, and articulate a different constitutional standard for assessing First Amendment claims than the Court had fashioned in Smith. See 42 U.S.C. §2000bb(a) & (b). The Court appears to have adopted this understanding of RFRA. 117 S. Ct. at 2161 (''Many [members of Congress] criticized the Court's reasoning [in Smith], and this disagreement resulted in the passage of RFRA.'').
(Footnote 109 return)
I do not mean to say Congress can necessarily, or easily, satisfy the Court. The legislative record that Congress compiled to support enactment of RFRA included an understandable deficiency; it did not recognize that Congress's authority under Section 5 of the Fourteenth Amendment was limited to remedial and preventive action. This deficiency is understandable because, until the Court decided Boerne, the Court had not articulated that limitation. It is now possible for Congress torevisit the question of how to remedy and prevent religious discrimination with these limitations in mind and to draft a bill supported by a legislative record that reflects Congress's constitutional judgment that the measure will remedy and prevent religious discrimination in ways that are proportional to and congruent with the limitations of Congress's authority under Section 5. The Boerne opinion demonstrates that the Court will regard such the constitutional judgment contained in such a legislative record with great deference.
(Footnote 110 return)
U.S. Const. Art. I, §8, cl. 3.
(Footnote 111 return)
See 115 S. Ct. at 1632. But see id. at 1659–61 (Breyer, J., dissenting).
(Footnote 112 return)
See Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 Case W. Res. L. Rev. 695 (1996) (reviewing the benefits of requiring legislative findings to determine whether Congress acted within its Commerce Clause power).
(Footnote 113 return)
See Boerne, 117 S. Ct. at 2176 (O'Connor, J., dissenting); id. at 2185–86 (Souter, J., dissenting) (expressing desire to reconsider Smith and articulating grave doubts about its its ''precedential value and its entitlement to adherence'').
(Footnote 114 return)
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
(Footnote 115 return)
I do not mean to endorse contumacious adherence to rejected interpretations. Such resistance can significantly undermine the ability of the judiciary to fulfill its constitutional role. The possibility of such a course of action does not alone eliminate the benefits that may follow on a responsible adherence to a constitutional interpretation in conflict with Supreme Court precedent. As is often the case, this is a question of balance.
(Footnote 116 return)
See, for example, the article by Ken Chowder in the current issue of the Smithsonian Magazine (January, 1998), ''The ACLU Defends Everybody'' (p. 86). He writes, ''No matter what you think of the ACLU, it is probably the most potent legal organization in America. . . . Its story is virtually a highlight reel of 20th-century legal history. . . . [O]ur modern definition of liberty has been greatly influenced by the ACLU.'' Id. at 88, 97. For a comparable assessment from an ardent critic of the ACLU—and of ''judicial activism''—see Robert Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (1996) at 97 (''[T]he American Civil Liberties Union . . . has had, through litigation and lobbying, a very considerable effect upon American law and culture.''); id. at 98 (''The ACLU is the premier litigating and lobbying arm of modern liberalism, and it has been extremely successful.'').
(Footnote 117 return)
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996).
(Footnote 118 return)
Coalition for Economic Equity v. Wilson, 107 F. 3d 704, rehearing denied, 122 F. 3d 692 (9th Cir.), cert. denied, 118 S. Ct. 17 (1997).
(Footnote 119 return)
349 U.S. 294 (1954).
(Footnote 120 return)
163 U.S. 537 (1896).
(Footnote 121 return)
410 U.S. 113 (1973).
(Footnote 122 return)
See Planned Parenthood v. Casey, 505 U.S. 833 (1992).
(Footnote 123 return)
Many prominent conservatives have expressed grave concerns about the campaign against ''judicial activism,'' voicing many of the same misgivings set out in this testimony, including that this campaign threatens the independence of the judiciary and the security of constitutional guarantees of individual liberty. See, e.g., Statement of Roger Pilon, Senior Fellow and Director, Center for Constitutional Studies, Cato Institute, before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, United States House of Representatives, May 15, 1997; Bruce Fein (Associate Deputy Attorney General in the Reagan Administration), Judge Not, N.Y. TIMES, May 8, 1997 at A31.
(Footnote 124 return)
See Bruce Fein, The Chief Justice vs. Hatch, THE WASHINGTON TIMES, Jan. 6, 1998, at A12 (quoting Chief Justice Rehnquist as stating: ''The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed during 1994. . . . The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. In the latter case, the President can then send up another nominee.''); id. (quoting the Chief Justice as stating that ''Vacancies [on our nation's federal court benches] cannot remain at such high levels without eroding the quality of justice'').
(Footnote 125 return)
See generally Nadine Strossen, Religion and Politics: A Reply to Justice Antonin Scalia, 24 Fordham Urban Law Journal 427 (1997).
(Footnote 126 return)
5 U.S. (1 Cranch) 137 (1803).
(Footnote 127 return)
349 U.S. 294 (1954).
(Footnote 128 return)
319 U.S. 624, 638 (1943).
(Footnote 129 return)
A Biographical Statement is attached. Pursuant to House Rule XI, clause 2(g)(4), I affirm that neither I nor the American Civil Liberties Union receives any federal funds—as a matter of organizational policy.
(Footnote 130 return)
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).
(Footnote 131 return)
1 Cranch (5 U.S.) 137 (1803). See Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: Univ. Press of Kansas, 1989), passim. See also Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: Univ. Press of Kansas, 1996), 47–71; Matthew J. Franck, Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People (Lawrence: Univ. Press of Kansas, 1996), 65–105; and James Burnham, Congress and the American Tradition (Washington, D.C.: Regnery, 1959, 1996), 129–36.
(Footnote 132 return)
Gibbons v. Ogden, 9 Wheaton (22 U.S.) 1 (1824), at 197.
(Footnote 133 return)
Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, D.C.: AEI Press, 1997), 100. See also Franck, Against the Imperial Judiciary, 83–87.
(Footnote 134 return)
See Richard G. Stevens, ''Due Process of Law,'' in Stevens, The American Constitution and Its Provenance (Lanham, Md.: Rowman & Littlefield, 1997), 123–42; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, 2nd ed. (Indianapolis: Liberty Fund, 1997), 155–89; and Berger, The Fourteenth Amendment and the Bill of Rights (Norman: Univ. of Oklahoma Press, 1989).
(Footnote 135 return)
How the Court could have applied RFRA to nullify any subsequent act of Congress is a mystery, since any such contradictory act would naturally be considered an implicit repeal of RFRA's terms, at least in part.
(Footnote 136 return)
Senate Report 103–111, at 14 n. 40. See Cantwell v. Connecticut, 310 U.S. 296 (1940), at 303.
(Footnote 137 return)
Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
(Footnote 138 return)
Reynolds v. United States, 98 U.S. 145 (1879), at 166, 167. Justice Scalia partially quoted these words in Smith, 494 U.S. at 885. See also Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976; reprint, Chicago: Regnery Gateway, 1985), 35–55.
(Footnote 139 return)
See City of Boerne v. Flores,XXU.S.XX(1997), slip op. at 6 (Kennedy, J., for the Court).
(Footnote 140 return)
Ibid., at 9.
(Footnote 141 return)
358 U.S. 1 (1958).
(Footnote 142 return)
The speech was later printed as Edwin Meese III, ''The Law of the Constitution,'' Tulane Law Review 61 (1987): 979–90.
(Footnote 143 return)
See Reno v. ACLUXXU.S.XX(decided June 26, 1997).
(Footnote 144 return)
Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge: Louisiana State University Press, 1988), 168–96.
(Footnote 145 return)
United States v. Lopez, 514 U.S. 549 (1995); Printz v. United States,XXU.S.XX(decided June 27, 1997).
(Footnote 146 return)
See Steven G. Calabresi, ''A Constitutional Revolution,'' Wall Street Journal, 10 July 1997, A14.
(Footnote 147 return)
See William H. Rehnquist, ''The 1997 Year-End Report on the Federal Judiciary,'' 1 January 1998, section I.A.
(Footnote 148 return)
See Dennis Teti, ''The Ten Commandments and the Constitution,'' The Weekly Standard (July 21, 1997), 21–24.
(Footnote 149 return)
See Richard John Neuhaus, ''The Anatomy of a Controversy,'' in Mitchell S. Muncy, ed., The End of Democracy? The Judicial Usurpation of Politics: The Celebrated First Things Debate with Arguments Pro and Con (Dallas: Spence Publishing, 1997), 254–55.
(Footnote 150 return)
Compare Ex parte McCardle, 74 U.S. 506 (1869), and United States v. Klein, 80 U.S. 128 (1872).
(Footnote 151 return)
See Franck, Against the Imperial Judiciary, 45–51; and ''The Supreme Court and the Politics of Impeachment,'' On Principle (Ashbrook Center), vol. IV, no. 4 (August 1996): 3–5. See also McDowell, Curbing the Courts, 121.
(Footnote 152 return)
Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), no. 65, pp. 396–97; no. 81, p. 485.
(Footnote 153 return)
Joseph Story, Commentaries on the Constitution of the United States, 1st ed. (Boston: Hilliard, Gray, 1833), §686–87, 740–801, 1629.
(Footnote 154 return)
See Franck, Against the Imperial Judiciary, 223–24 n. 90.
(Footnote 155 return)
Story's Commentaries, quoted in Franck, Against the Imperial Judiciary, 213.
(Footnote 156 return)
Federalist No. 10, p. 84; No. 51, p. 322.
(Footnote 157 return)
Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence, Kansas: University Press of Kansas, 1989).
(Footnote 158 return)
Robert Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley, California: University of California Press, 1989), pp. 1–2. See also Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism (Lawrence, Kansas: University Press of Kansas, 1997), pp. 13–14.
(Footnote 159 return)
Ibid., p. 2; Clinton, God and Man in Law, p. 14.
(Footnote 160 return)
Ibid., p. 3; Clinton, God and Man in Law, p. 14.
(Footnote 161 return)
Soterios A. Barber, ''Michael Perry and the Future of Constitutional Theory,'' Tulane Law Review 63 (1989): 1289–1303, at 1298; Clinton, God and Man in Law, p. 14.
(Footnote 162 return)
Ibid., at 1290; Clinton, God and Man in Law, p. 14.
(Footnote 163 return)
Michael Perry, ''Review,'' Ethics, October 1985 (1985): 202–203, at 203; Clinton, God and Man in Law, pp. 14–15.
(Footnote 164 return)
Mark Tushnet, ''Judicial Review,'' Harvard Journal of Law and Public Policy 7 (1984): 77–79, at 77; Clinton, God and Man in Law, p. 15.
(Footnote 165 return)
See Clinton, Marbury and Review, pp. 72–77; Clinton, God and Man in Law, p. 15.
(Footnote 166 return)
Ibid.; Clinton, God and Man in Law, p. 27.
(Footnote 167 return)
Ibid., p. 113; Clinton, God and Man in Law, p. 15.
(Footnote 168 return)
See Keith E. Whittington, Constitutional Constructions: Divided Powers and Constitutional Meaning (typescript, Department of Politics, Catholic University of America, Washington, D.C., 1996), esp. chap. 1; Clinton, God and Man in Law, p. 24.
(Footnote 169 return)
See Cooper v. Aaron, 358 U.S. 1, at 18 (1958); see also Clinton, Marbury and Review, pp. 14–15; Clinton, God and Man in Law, p. 15.
(Footnote 170 return)
See Clinton, Marbury and Review, pp. 190–191; Clinton, God and Man in Law, p. 15.
(Footnote 171 return)
Ibid., p. 121, notes 46–48 and accompanying test; Clinton, God and Man in Law, p. 15.
(Footnote 172 return)
Ibid., chap. 5; Clinton, God and Man in Law, p. 27.
(Footnote 173 return)
Clinton, Marbury and Review, chapter 10–11; Clinton, God and Man in Law, p. 15.
(Footnote 174 return)
See Cooper v. Aaron, 358 U.S. 1, at 18 (1958); see also Clinton, Marbury and Review, pp. 14–15; Clinton, God and Man in Law, p. 15.
(Footnote 175 return)
On the ''Letters of Brutus,'' probably penned by prominent antifederalist Robert Yates, and Alexander Hamilton's (Publius's) response to them, see Clinton, Marbury and Review, pp. 69–71. Brutus clearly saw vast potential for expansive judicial development in the 1787 Constitution; but his worst fears did not materialize until a century later. The relevant letters of Brutus may be found in Cecelia Kenyon, ed., The Antifederalists (Indianapolis: Bobbs-Merrill, 1966), pp. 334–357. Tocqueville's best discussion of the level of judicial power being exercised roughly a half-century after the Constitution's adoption may be found in Alexis de Tocqueville, Democracy in America, 2 vols., trans. George Lawrence, ed. J.P. Mayer and Max Lerner (New York: Harper & Row, 1966), pp. 89–93; Clinton, God and Man in Law, p. 27.
(Footnote 176 return)
See Clinton, Marbury and Review, chapter 6; Clinton, God and Man in Law, p. 27.
(Footnote 177 return)
Cooper v. Aaron, 358 U.S. 1 (1958); see also Clinton, Marbury and Review, pp. 14–15, 207–211; Clinton, God and Man in Law, p. 27.
(Footnote 178 return)
Ibid., at p. 18. The Court there declared that ''the federal judiciary is supreme in the exposition of the law of the Constitution.'' See also Clinton, God and Man in Law, p. 27.
(Footnote 179 return)
1 Cranch (5 U.S.) 137 (1803); Clinton, God and Man in Law, p. 36.
(Footnote 180 return)
See, e.g., Leonard Levy, ed., Judicial Review and the Supreme Court (New York: Harper and Row, 1967); Clinton, God and Man in Law, p. 36.
(Footnote 181 return)
Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, Conn.: Yale University Press, 1990), esp. chapter 3; Clinton, God and Man in Law, p. 38.
(Footnote 182 return)
Clinton, Marbury and Review, esp. chapter 5; Clinton, God and Man in Law, p. 38.
(Footnote 183 return)
Dred Scott v. Sanford, 19 Howard 393 (1857); Clinton, God and Man in Law, p. 38
(Footnote 184 return)
Clinton, Marbury and Review, chapter 7; Clinton, God and Man in Law, p. 38.
(Footnote 185 return)
117 S.Ct. 2157.
(Footnote 186 return)
494 U.S. 872.
(Footnote 187 return)
117 S.Ct. 2157, at 2164.
(Footnote 188 return)
117 S.Ct. 2157, at 2168.
(Footnote 189 return)
Clinton, Marbury and Review, chap. 7. Full citations for all the cases may be found in the notes accompanying chapter 7, at pp. 266–274.
(Footnote 190 return)
United States Constitution, Article III, Section 2: ''The Judicial Power shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.''
(Footnote 191 return)
Max Farrand, Records of the Federal Convention, 4 vols. (New Haven, Connecticut: Yale University Press, 1911). vol. 2. p. 430.
(Footnote 192 return)
Benjamin F. Wright, The Growth of American Constitutional Law (Boston: Houghton Mifflin, 1942; Chicago: University of Chicago Press, Phoenix Books, 1967 (reprint)), p. 18.
(Footnote 193 return)
Ralph A. Rossum, ''The Courts and the Judicial Power,'' in Leonard Levy and Dennis Mahoney, eds., The Framing and Ratification of the Constitution (New York: Macmillan, 1987), p. 236.
(Footnote 194 return)
James Madison, ''Comments on the Removal Power of the President,'' June 17, 1789, in Charles F. Hobson and Robert A. Rutland, eds., The Papers of James Madison, 15 vols. (Charlottesville, Virginia: University Press of Virginia, 1979), vol. 12, p. 234.
(Footnote 195 return)
Wolfe, The Rise of Modern Judicial Review, p. 95.
(Footnote 196 return)
Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803).
(Footnote 197 return)
See, e.g., Hayburn's Case, 2 Dallas 409 (1792); United States v. Yale Todd (unreported at the time), summarized by Chief Justice Taney in United States v. Ferreira, 13 Howard (54 U.S.) 40, at 52–53 (1851). Speaking of the judgments in both Hayburn and Todd, Taney said that the administrative power ''proposed to be conferred on the Circuit Courts of the United States [by Congress] was not judicial power within the meaning of the Constitution, and was therefore unconstitutional, and could not be lawfully exercised by the courts.'' See also Case of the Judges, 4 Call (Va.) 135(1788); Turner v. Turner, 4 Call (Va.) 234 (1792); Page v. Pendleton, Wythe's Reports 211 (Va) 1793; Kamper v. Hawkins, 1 Va Cases 21 (1793).
(Footnote 198 return)
August 8, 1793. Here the Court refused to render an advisory opinion requested by the president and secretary of state, on the ground that such an opinion would be ''extrajudicial'' and thus violative of the separation of powers. See David P. Currie, ''The Constitution in the Supreme Court: 1789–1801,'' University of Chicago Law Review 48 (1981): 819–885, p. 829.
(Footnote 199 return)
See, e.g., Austin Scott, ''Holmes v. Walton: The New Jersey Precedent,'' American Historical Review 4 (1899): 456–469; Trevett v. Weeden (Rhode Island, 1786), reported in J.B. Thayer, Cases on Constitutional Law, 2 vols. (Cambridge, Mass.: George H. Kent, 1895), vol. 1, pp. 73–78; Bayard v. Singleton, 1 Martin (N.C.) 42 (1787). See generally William E. Nelson, ''The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence,'' Michigan Law Review 76 (May 1978): 893–960. See also Bowman v. Middleton, 1 Bay (S.C.) 252 (1792); Stidger v. Rogers, 2 Sneed (Ky.) 129 (1802); Enderman v. Ashby, 2 Sneed (Ky.) 53 (1801).
(Footnote 200 return)
See, e.g., Commonwealth v. Caton, 4 Call (Va.) 5 (1782); Kamper v. Hawkins, 1 Va. Cases 21 (1793); Caldwell v. The Commonwealth, 2 Sneed (Ky.) 129 (1802).
(Footnote 201 return)
Marbury v. Madison, 1 Cranch (5 U.S.) 137, at 177 (1803).
(Footnote 202 return)
Ibid., at 177–178.
(Footnote 203 return)
United States Constitution, Article III, Section 3.
(Footnote 204 return)
Clinton, Marbury v. Madison and Judicial Review, pp. 117–121, 207–211.
(Footnote 205 return)
Dred Scott v. Sanford, 19 Howard (60 U.S.) 393 (1857).
(Footnote 206 return)
Clinton, Marbury v. Madison and Judicial Review, p. 121, pp. 207–208.
(Footnote 207 return)
Ibid., pp. 208–210.
(Footnote 208 return)
Ibid., pp. 208–209.
(Footnote 209 return)
Ibid., pp. 209–210
(Footnote 210 return)
Donald G. Morgan, Congress and the Constitution: A Study of Responsibility (Cambridge, Massachusetts: Harvard University Press, 1966), p. vii.
(Footnote 211 return)
Ibid., p. 362.
(Footnote 212 return)
Ibid.
(Footnote 213 return)
Ibid. (Jacket).