SPEAKERS CONTENTS INSERTS
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94–458 PDF
2004
LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
JUNE 24, 2004
Serial No. 92
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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JOHN CONYERS, Jr., Michigan
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
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JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ADAM B. SCHIFF, California
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
JUNE 24, 2004
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable John N. Hostettler, a Representative in Congress From the State of Indiana
WITNESSES
Mrs. Phyllis Schlafly, Founder and President, Eagle Forum
Oral Testimony
Prepared Statement
Mr. Michael Gerhardt, Arthur B. Hanson Professor of Law, William and Mary Law School
Oral Testimony
Prepared Statement
Mr. Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern Law School
Oral Testimony
Prepared Statement
The Honorable William E. Dannemeyer, former U.S. Representative
Oral Testimony
Prepared Statement
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Notre Dame Law School, submitted by Rep. Steve Chabot
Boston College Law Review Article, Volume XXVI, Number 5, September 1985, submitted by Rep. Steve Chabot
Prepared Statement of the Honorable Spencer Bachus, a Representative in Congress From the State of Alabama
Prepared Statement of the Honorable Steve King, a Representative in Congress From the State of Iowa
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
Three letters submitted by the Honorable John N. Hostettler, a Representative in Congress From the State of Indiana
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Letter from witness Professor Michael Gerhardt to the Honorable Tom Feeney, a Representative in Congress From the State of Florida
CBO Report submitted by the Honorable Tammy Baldwin, a Representative in Congress From the State of Wisconsin
LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES
THURSDAY, JUNE 24, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order. Good morning. This is the Subcommittee on the Constitution. This is the fourth hearing that we've had relative to the issue at hand.
When the Supreme Court in Lawrence v. Texas struck down a State law criminalizing same-sex sodomy last year, Justice Scalia in his dissent pointed out that, quote, ''State laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, fornication, bestiality and obscenity'' are all ''called into question'' by the Court's decision. That is a very disturbing prospect, and it should concern legislators nationwide.
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The threat posed to traditional marriage by Federal judges whose decisions can have an impact across State boundaries has renewed concern over the abuse of power by Federal judges. This concern has roots as old and venerable as our Nation's history.
Thomas Jefferson lamented that, quote, ''the germ of dissolution of our Federal Government is in the constitution of the Federal judiciary; . . . advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped . . .'' Jefferson wrote of Federal judges, quote, ''Their power is the more dangerous as they are in office for life and not responsible . . . to the elective control,'' unquote. And Abraham Lincoln said in his first inaugural address in 1861, quote, ''The candid citizen must confess that if the policy of the Government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having, to that extent, practically resigned their Government into the hands of that eminent tribunal,'' unquote.
A remedy to abuses by Federal judges has long been understood to lie, among other places, in Congress' authority to limit Federal court jurisdiction, and that is the subject of our hearing today.
Regarding the Federal courts below the Supreme Court, article III of the Constitution provides that, quote, ''the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.'' Regarding the Supreme Court, article III provides that, quote, ''in all cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all other cases the Supreme Court shall have appellate Jurisdiction with such Exceptions and under such Regulations as the Congress shall make,'' unquote.
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Consequently the Constitution provides that the lower Federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction; that is, cases involving ambassadors or in which one of the States is a party.
In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of Congress' authority to amend Federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that, quote, ''it ought to be recollected that the national legislature,'' us, the Congress, ''will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences'' posed by the decisions of the Federal judiciary.
That understanding prevails today. As a leading treatise on Federal court jurisdiction has pointed out, quote, ''Beginning with the first Judiciary Act in 1789, Congress has never vested the Federal courts with the entire 'judicial power' that would be permitted by article III'' of the Constitution. And as eminent Federal jurisdiction scholar Herbert Wechsler has stated, ''Congress has the power by enactment of a statute to strike at what it deems judicial excess by delimitations of the jurisdiction of the lower courts and of the Supreme Court's appellate jurisdiction. . . .''
Limiting Federal court jurisdiction to avoid abuses is not a partisan issue. Senate Minority Leader Daschle has supported provisions that would deny all Federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That amendment provided that neither the lower Federal courts nor the Supreme Court would have jurisdiction to review any case arising out of State laws relating to voluntary prayers in public schools and buildings. In this Congress, several similar bills limiting Federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 would remove from Federal court jurisdiction certain cases involving the Federal Defense of Marriage Act.
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Federal legislation that precludes Federal court jurisdiction over certain constitutional claims to remedy perceived abuses and to preserve for the States and their courts the authority to determine constitutional issues rests comfortably within our constitutional system. The Supreme Court has clearly rejected claims that State courts are less competent to decide Federal constitutional issues than Federal courts. Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun and Stevens, that, quote, ''virtually all matters that might be heard in article III courts could be also be left by Congress to State courts,'' unquote.
Far from violating the ''separation of powers,'' legislation that reserves to State courts jurisdiction to decide certain classes of cases would be an exercise of one of the very ''checks and balances'' provided for in the Constitution. No branch of the Federal Government can be entrusted with absolute power, and certainly not a handful of tenured judges appointed for life. The Constitution allows the Supreme Court to exercise ''judicial power,'' but it does not grant the Supreme Court unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of Government's responsibility to use its powers to prevent overreaching by the other branches.
We look forward to hearing from all of the witnesses here this morning, and I'll now yield to the Ranking Member of the Committee, the gentleman from New York Mr. Nadler for his opening statement.
[The prepared statement of Mr. Chabot follows:]
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PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
When the Supreme Court in Lawrence v. Texas struck down a state law criminalizing same-sex sodomy last year, Justice Scalia, in his dissent, pointed out that—quote—''[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution . . . adultery, fornication, bestiality, and obscenity'' are all ''called into question'' by the Court's decision. That is a very disturbing prospect, and it should concern legislators nationwide.
The threat posed to traditional marriage by federal judges whose decisions can have an impact across state boundaries has renewed concern over the abuse of power by federal judges. This concern has roots as old and venerable as our Nation's history.
Thomas Jefferson lamented that—quote—''the germ of dissolution of our federal government is in the constitution of the federal judiciary; . . . advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped . . .'' Jefferson wrote of federal judges—quote—''their power [is] the more dangerous as they are in office for life and not responsible . . . to the elective control.''
And Abraham Lincoln said in his first inaugural address in 1861—quote—''The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers having, to that extent, practically resigned their government into the hands of that eminent tribunal.''
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A remedy to abuses by federal judges has long been understood to lie, among other places, in Congress' authority to limit federal court jurisdiction, and that is the subject of our hearing today.
Regarding the federal courts below the Supreme Court, Article III of the Constitution provides that ''The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.'' Regarding the Supreme Court, Article III provides that ''[i]n all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases . . . the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make.''
Consequently, the Constitution provides that the lower federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction.
In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of Congress' authority to amend federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that ''it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences'' posed by decisions of the federal judiciary.
That understanding prevails today. As a leading treatise on federal court jurisdiction has pointed out, ''Beginning with the first Judiciary Act in 1789, Congress has never vested the federal courts with the entire 'judicial Power' that would be permitted by Article III'' of the Constitution. And as eminent federal jurisdiction scholar Herbert Wechsler (pronounced Wex-ler) has stated, ''Congress has the power by enactment of a statute to strike at what it deems judicial excess by delimitations of the jurisdiction of the lower courts and of the Supreme Court's appellate jurisdiction . . .''
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Limiting federal court jurisdiction to avoid abuses is not a partisan issue. Senate Minority Leader Daschle has supported provisions that would deny all federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That amendment provided that neither the lower federal courts nor the Supreme Court would have jurisdiction to review any case arising out of state laws relating to voluntary prayers in public schools and buildings. In this Congress, several similar bills limiting federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 would remove from federal court jurisdiction certain cases involving the federal Defense of Marriage Act.
Federal legislation that precludes federal court jurisdiction over certain constitutional claims to remedy perceived abuses, and to preserve for the states and their courts the authority to determine constitutional issues, rests comfortably within our constitutional system. The Supreme Court has clearly rejected claims that state courts are less competent to decide federal constitutional issues than federal courts. Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun, and Stevens, that—quote—''virtually all matters that might be heard in Article III courts could also be left by Congress to state courts.''
Far from violating the ''separation of powers,'' legislation that reserves to state courts jurisdiction to decide certain classes of cases would be an exercise of one of the very ''checks and balances'' provided for in the Constitution. No branch of the federal government can be entrusted with absolute power, and certainly not a handful of tenured judges appointed for life. The Constitution allows the Supreme Court to exercise ''judicial power,'' but it does not grant the Supreme Court unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of government's responsibility to use its powers to prevent overreaching by the other branches.
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I look forward to hearing from all our witnesses today.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, today we begin our fourth in a series of five hearings on the topic of same-sex marriage. We have already devoted more time in this Committee to this topic than to the means by which we might preserve our democratic form of Government if terrorists wipe out our Government. One would think that the possibility that somewhere a lesbian or gay couple might live out their years peacefully and happily were a greater threat to the United States than is al Qaeda.
Today, however, the topic is a very serious one. The hysteria over the marriage question has brought some to the point of suggesting that Congress should strip the Federal courts of the jurisdiction to hear cases involving alleged violations of an individual's rights protected under the Constitution. These proposals are neither good law nor good public policy. Past attempts to restrict court jurisdiction have followed many civil rights decisions, including the reapportionment cases. Fortunately, cooler heads in Congress prevailed at the time, and the decisions that gave rise to these outlandish proposals are now no longer controversial for the most part. Unless I am greatly mistaken, no one in this room would question the constitutional protection of one person, one vote. I trust that decades from now these debates will find their way into the textbooks next to the segregationist backlash, the Court-packing plan of the 1930's and other attacks on our system of Government.
The disabilities that lesbian and gay families suffer are widely known. Today I will be introducing the Equal Access to Social Security Act, for example, that would allow same-sex couples to receive the same Social Security benefits as every other couple, that would allow the children of same-sex couples to receive survivors' benefits and disability benefits, benefits for which these people pay taxes just the same as everyone else. While this would address only a small portion of the more than 1,000 benefits denied to same-sex families, it would correct one terrible injustice.
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In today's hearing, Mr. Chairman, it is our very system of Government and the constitutional system of checks and balances that are under attack. If the Congress by statute were to prevent the Federal courts from applying the Constitution to any subject matter it chooses, then the protections of an independent judiciary, the protections to our individual liberties afforded by the institution of the independent judiciary and by the existence of the Bill of Rights would be no more than a puff of smoke. The Bill of Rights, in other words, could be undone by a simple refusal by Congress to allow the courts jurisdiction to enforce any particular one of the Bill of Rights.
Imagine if we passed a bill stripping the courts of jurisdiction to hear alleged violations of the freedom of the press or freedom of religion. It would be unpopular minorities, of course, whether religious minorities, political minorities, lesbians or gays, or whoever is unpopular at the moment, who will lose their rights. After all, it is the unpopular whose rights must be protected from the majority by a Bill of Rights. The majority rarely needs its rights protected.
As Hamilton said in Federalist No. 78, the complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it should pass no bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.
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Gay marriage does not threaten the future of this country. The evisceration of our Constitution and the Bill of Rights does threaten the future of the liberties of our citizens. We are playing with fire at this hearing, and that fire could destroy our liberties. I hope we don't use that fire.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you.
It's my understanding that the gentleman from Indiana would like to make an opening statement. He's the principal sponsor of 3313.
Mr. HOSTETTLER. I thank the Chairman.
Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, ''constitutional,'' end quote.
But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, ''the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,'' end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866.
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While we will hear today what is considered to be, quote, ''constitutional,'' end quote, according to the desires of the Federal judiciary, this is not the House Subcommittee on Constitutional Law. This is the House Subcommittee on the Constitution. Today we will hear a wide range of means by which we can deal with the situation of a judiciary that has time and time again worked outside of its boundaries, and that response can be everything from doing nothing to an amendment to the Constitution. And that amendment to the Constitution can be, in the most extreme case, repeal of article III of the Constitution itself.
Now, I am not suggesting that we go that far, but rather, we are to know that the Constitution grants Congress the authority, a wide range of authority, from impeachment of justices and judges to the limitation of funds for the enforcement of their decisions, to the limitation of jurisdiction, as well as constitutional amendments.
My bill, H.R. 3313, employs one of those checks on the judiciary, a constitutional check, a constitutional check that is found explicitly, not implicitly, but explicitly, in the Constitution itself, in article III, section 2 of the Constitution; for example, where it says, ''in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make,'' end quote.
The word ''all'' is very clear even to this nonlawyer, that, in fact, the Supreme Court's appellate jurisdiction can be limited in all other cases before mentioned, and those cases are mentioned in article III, section 2, subsection 1. Congress has the authority to limit the jurisdiction of the—the appellate jurisdiction of the United States Supreme Court in all the other cases that have been mentioned in article III, section 2, and because the lower courts are creations of the Congress, as a result of article I, section 8, and article III, section 1, it is obvious that Congress has the authority; if we have the authority to create these inferior Federal courts by statute, then we have also the constitutional authority by our lawmaking powers to eliminate these inferior Federal courts.
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And so, from the spectrum of creating courts as well as eliminating courts, there can be assumed within that spectrum the idea of limiting the jurisdiction of the inferior Federal courts. And so if we can, according to the plain text of the Constitution, limit the Federal jurisdiction, limit the jurisdiction of inferior Federal courts, and we have by explicit wording of article III of the Constitution the power to limit the appellate jurisdiction of the Supreme Court, it is obvious that the Marriage Protection Act is something that Congress can do. The idea that it is something that Congress should do is going to be a matter of debate of this Subcommittee, the full Committee and this House, but it is my hope that after today's hearing we will conclude that it is definitely something that the Constitution grants Congress the power to do.
Yield back the balance of my time.
Mr. CHABOT. I thank the gentleman.
Without objection, all Members will have 5 days to submit written opening statements.
Also I'd ask unanimous consent that the gentlelady from Wisconsin, although she's not a Member of this Subcommittee, have the opportunity to question the witnesses like any other Member. Without objection, so ordered.
And we will now introduce our witnesses here this morning. Our first witness today is Phyllis Schlafly, the founder and president of the Eagle Forum, a national organization of volunteer citizens who participate in the public policymaking process. Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, and she received her master's in government from Harvard University. Mrs. Schlafly is the author or editor of 20 books on subjects as varied as family and feminism, history, education and child care, and her radio commentaries are heard daily on 460 stations. She was named one of the 100 most important women in the 20th century by Ladies Home Journal.
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We welcome you here this morning, Mrs. Schlafly.
Our second witness is Michael Gerhardt, a Hanson Professor of Law at the William and Mary School of Law. I want to especially welcome Professor Gerhardt here since I'm a product of not William and Mary's law school, but an undergraduate; spent 4 of the best years of my life there and enjoyed it tremendously. It's a tremendous university. And we welcome you here this morning. We may not necessarily agree on all our views on everything, but I certainly think you picked a great school to teach law at.
Professor Gerhardt clerked for Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit, and he has practiced law at Miller, Cassidy, Larocca & Lewin in Washington, D.C. He has also served as dean of Case Western University School of Law, taught at Wake Forest University School of Law, and he has been a visiting professor at Cornell and Duke University law schools.
And we welcome you here this morning, Professor.
Our third witness is Martin Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. Professor Redish is a nationally renowned authority on the subject of Federal jurisdiction. He received his A.B. With honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, ''without a doubt the foremost scholar on issues of Federal court jurisdiction in this generation,'' unquote.
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Professor Redish is the author or coauthor of 70 articles and 13 books, including Federal Jurisdiction: Tensions in the Allocation of Federal Power. He was recently included on a list of the 100 most cited legal scholars of all time.
And we welcome you here this morning, Professor.
And our fourth and final witness is William ''Bill'' Dannemeyer. Mr. Dannemeyer was first elected to the U.S. House of Representatives in 1978 where he served 7 terms, 14 years, serving on the Budget, Judiciary and Energy and Commerce Committees. He also was elected Chairman of the Republican Study Committee. Mr. Dannemeyer is a graduate of Valparaiso University and the Hastings College of Law. He has served as a special agent in the Army Counterintelligence Corps during the Korean War. He has also been a lawyer in private practice, a deputy district attorney, and judge pro tem and a California State assemblyman. In January 1995, Mr. Dannemeyer helped organize Americans for Voluntary School Prayer.
We welcome all our witnesses here today. And it's the practice of the Committee to swear in all witnesses appearing before it, so if you would please stand and raise your right hand.
[Witnesses sworn.]
Mr. CHABOT. Okay. We thank all the witnesses for being here, and as a number of you have testified here before, as you know, we have a 5-minute rule, and there is a lighting system, so the green light will be on for 4 minutes. The yellow light will be on when you have 1 minute to wrap up. When the red light comes on, we'd appreciate it if you would stop close to that time. We will give you a little leeway, but if you could stay within the 5 minutes, and then we have to stay within those same 5 minutes ourselves, so we expect nothing less of the folks up here.
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So we will begin with you, Mrs. Schlafly. You are recognized for 5 minutes.
TESTIMONY OF PHYLLIS SCHLAFLY, FOUNDER AND PRESIDENT, EAGLE FORUM
Mrs. SCHLAFLY. Thank you, Mr. Chairman and Members of the Committee. The assault on the Defense of Marriage Act has already begun. A lawsuit claiming that the Federal DOMA violates the U.S. Constitution was filed last month in Federal district court in Miami. A similar case claiming that a State DOMA violates the U.S. Constitution is pending in Federal district court in Nebraska, where a Clinton-appointed Federal judge ruled that the case can proceed to trial. The very idea that unelected, unaccountable judges could nullify both other branches of Government and the will of the American people is an offense against our right of self-government and must not be tolerated.
DOMA was adopted 8 years ago by an overwhelming majority of both Houses of Congress and signed by President Clinton. DOMA provides that whenever the word ''marriage'' or ''spouse'' is used in Federal law, marriage means only a legal union between one man and one woman as husband and wife, and spouse refers only to a person of the opposite sex who is a husband or a wife.
DOMA also protects each State's right to adopt the same traditional definition of marriage, and so at least 39 States have passed State DOMAs which refuse recognition to same-sex marriages performed elsewhere.
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DOMA is a splendid, well-written law that fully comports with our great Constitution. So what's the problem? You said at the last hearing on May 13, Mr. Chairman, that it is increasingly clear that activist judges will probably declare Federal and State DOMAs unconstitutional. When you polled the witnesses at last month's hearing, all agreed that DOMA would not be given its intended effect by the Federal courts.
President Bush says repeatedly in his speeches around the country, ''We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order.'' He's right. We won't stand for such judicial arrogance.
Congress must back up this rhetoric with action. The American people expect Congress to use every constitutional weapon at its disposal to protect marriage from attack. Congress cannot stand by and let activist judges cause havoc in our system of marriage law. The General Accounting Office has compiled a list of over 1,000 Federal rights and responsibilities that are contingent on DOMA's definition of marriage. This GAO report states that the marital relationship is ''integral'' to Social Security and ''pervasive'' to our system of taxation.
We know that Congress has the unquestioned power to prevent an activist judge from doing what your previous witnesses have predicted. In 2002, Congress passed Senator Daschle's law taking away jurisdiction from the Federal courts to hear lawsuits about brush-clearing in South Dakota. Surely the definition of marriage is as important as brush-clearing in South Dakota.
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The long list of Federal statutes in which Congress successfully restricted the jurisdiction of the Federal courts includes the Norris-LaGuardia Act of 1932, the Emergency Price Control Act of 1942, the Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the Voting Rights Act of 1965, and the 1996 immigration amendments. Isn't the protection of marriage just as important as any of those issues on which Congress effectively withdrew jurisdiction from the Federal courts? I think the American people think so.
I urge Congress to protect us from the judicial outrage that your previous witnesses have predicted by passing legislation providing that no court of the United States shall have jurisdiction to hear or determine any question pertaining to the interpretation or validity of the Defense of Marriage Act or any State law that limits the definition or recognition of marriage to the union of one man and one woman. It is urgent that this law be passed now. This is Congress' proper way to dismiss the pending lawsuits challenging marriage, exactly like the Daschle law that terminated pending lawsuits about brush-clearing.
The Founding Fathers gave Congress the power to curb the judicial supremacists by deciding what cases they can or cannot hear. We don't trust the courts to respect the wishes of the Congress or of the American people on the matter of marriage. Instead of basing their rulings on the U.S. Constitution, activist judges are more likely to use unconstitutional criteria such as ''emerging awareness,'' used in Lawrence v. Texas, or ''evolving paradigm,'' used in Goodrich v. Department of Public Health.
My written testimony recites the long historical record which conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress' exercise of this power. This record is impressive, authoritative and unquestioned.
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And thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much.
[The prepared statement of Mrs. Schlafly follows:]
PREPARED STATEMENT OF PHYLLIS SCHLAFLY
The assault on the Defense of Marriage Act (DOMA) has already begun. A lawsuit claiming that the federal DOMA violates the U.S. Constitution was filed last month in federal district court in Miami, Florida. A similar case claiming that a state DOMA violates the U.S. Constitution is pending in federal district court in Nebraska, where a Clinton-appointed federal judge ruled on November 12, 2003 that the case has legal sufficiency to proceed to trial.
The very idea that unelected, unaccountable judges could nullify both other branches of government and the will of the American people is an offense against our right of self-government that must not be tolerated.
The federal Defense of Marriage Act (DOMA) was adopted eight years ago by an overwhelming majority of both Houses of Congress and signed by President Clinton.(see footnote 1) DOMA provides that whenever the word ''marriage'' or ''spouse'' is used in federal law, ''marriage means only a legal union between one man and one woman as husband and wife,'' and ''spouse refers only to a person of the opposite sex who is a husband or a wife.''(see footnote 2)
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DOMA also protects each state's right to adopt the same traditional definition of marriage.(see footnote 3) In response to the shelter offered by the federal DOMA, at least 39 states passed state DOMAs, which refuse recognition to same-sex marriages performed elsewhere. Four state DOMAs have been put in state constitutions; proposals to do likewise are on the ballot in several other states this year.
DOMA is a splendid, well-written law that fully comports with our great U.S. Constitution. So, what's the problem? You said at the last hearing on May 13, Mr. Chairman, that it is ''increasingly clear'' that activist judges will probably declare federal and state DOMAs unconstitutional. When you polled the witnesses at last month's hearing, all agreed that DOMA would not be given its intended effect by the federal courts.
President Bush says repeatedly in his speeches around the country: ''We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order.''(see footnote 4) He's right—we won't stand for such judicial arrogance.
Congress must back up this rhetoric with action! The American people expect Congress to use every constitutional weapon at its disposal to protect marriage from attack.
Congress cannot stand by and let one activist judge cause havoc in our system of marriage law. The General Accounting Office has compiled a 58-page list of 1,049 (since revised to 1,138)(see footnote 5) federal rights and responsibilities that are contingent on DOMA's definition of marriage. The GAO report states that the man-woman marital relationship is ''integral'' to the Social Security system and ''pervasive'' to our system of taxation. The widespread social and familial consequences of DOMA also impact on adoption, child custody, veterans benefits, and the tax-free inheritance of a spouse's estate.
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We know that Congress has the unquestioned power to prevent an activist judge from doing what all your previous witnesses have predicted. For example, in 2002, Congress passed a law at Senator Tom Daschle's urging to prohibit all federal courts from hearing lawsuits challenging brush clearing in the Black Hills of South Dakota. Surely the definition of marriage is as important as brush fires in South Dakota!(see footnote 6)
The long list of federal statutes in which Congress successfully restricted the jurisdiction of the federal courts (restrictions upheld by the federal courts) includes the Norris-LaGuardia Act of 1932, the Emergency Price Control Act of 1942, the Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the Voting Rights Act of 1965, and the 1996 Immigration Amendments. The Voting Rights Act of 1965 is a dramatic manifestation of what Congress can constitutionally do when it wants to limit court jurisdiction. This law denied jurisdiction to southern federal district courts, requiring the southern states to bring their cases in the District Court for the District of Columbia.
Isn't the protection of marriage just as important as any of the issues on which Congress effectively withdrew jurisdiction from the federal courts? The American people think so.
I urge Congress to protect us from the judicial outrage that your previous witnesses have predicted by passing legislation providing that no court of the United States shall have jurisdiction to hear or determine any question pertaining to the interpretation or validity of the Defense of Marriage Act or any state law that limits the definition or recognition of marriage to the union of one man and one woman.
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It is urgent that this legislation be passed now. This is Congress's proper way to dismiss the pending lawsuits challenging marriage exactly as the Daschle law terminated pending lawsuits about brush clearing.
The Founding Fathers in their wisdom put into the United States Constitution the power for Congress to curb the power of the judicial supremacists by deciding what cases they can or cannot hear. The argument will be made that such legislation means we don't trust the federal courts or the Supreme Court, and that's exactly right—we don't trust the courts to respect the wishes of Congress or of the American people on the matter of marriage. Instead of basing their rulings on the U.S. Constitution, activist judges are more likely to use unconstitutional criteria such as ''emerging awareness'' (as in Lawrence v. Texas(see footnote 7)) or ''evolving paradigm'' (as in Goodridge v. Department of Public Health(see footnote 8)).
My written testimony recites the long historical record which conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress's exercise of this power. The record is impressive, authoritative, and unquestioned.
The record supports Congress's power to limit court jurisdiction
In Turner v. Bank of North America (1799),(see footnote 9) Justice Chase commented: ''The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the Constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal.''
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Even Chief Justice John Marshall, who defined the power of judicial review in Marbury v. Madison,(see footnote 10) made similar assertions. For example, in Ex parte Bollman (1807),(see footnote 11) Marshall said that ''courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.''
Early decisions of the Supreme Court were sprinkled with the assumption that the power of Congress to create inferior federal courts necessarily implied, as stated in U.S. v. Hudson & Goodwin (1812),(see footnote 12) ''the power to limit jurisdiction of those Courts to particular objects.'' The Court stated, ''All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them.''
The Supreme Court held unanimously in Sheldon v. Sill (1850)(see footnote 13) that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting Rights Act of 1965,(see footnote 14) in which Congress required covered states that wished to be relieved of coverage to bring their actions in the District Court for the District of Columbia.
The Supreme Court broadly upheld Congress's constitutional power to define the limitations of the Supreme Court ''with such Exceptions, and under such Regulations as the Congress shall make'' in Ex parte McCardle (1869).(see footnote 15) Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction: ''We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.''
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McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later cases. For example, in 1948 Justice Frankfurter commented: ''Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice [already before the court].''(see footnote 16)
In The Francis Wright (1882),(see footnote 17) the Court said: ''While the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. . . . Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.''
Numerous restrictions on the exercise of appellate jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in criminal cases except upon a certification of divided circuit courts.
In the 1930s, liberals in Congress thought the federal courts were too pro-business to fairly handle cases involving labor strikes. In 1932 Congress passed the Norris-LaGuardia Act(see footnote 18) removing jurisdiction in this field from the federal courts, and the Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co. (1938).(see footnote 19) The Supreme Court declared, ''There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.''
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Liberals followed the same procedure when they passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates. These laws worked well and no one has suggested they be repealed.
Another celebrated example was the Emergency Price Control Act of 1942, in which Congress removed from federal courts the jurisdiction to consider the validity of any price-control regulation. In the test case upholding this law in Lockerty v. Phillips (1943),(see footnote 20) the Supreme Court held that Congress has the power of ''withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good.''
After the Supreme Court ruled in Tennessee Coal v. Muscoda (1944)(see footnote 21) that employers had to pay retroactive wages for coal miners' underground travel to and from their work station, Congress passed the Portal-to-Portal Act of 1947(see footnote 22) prohibiting any court from enforcing such liability.
Even one of the leading judicial activists, Justice William Brennan, acknowledged Congress's constitutional power to limit the jurisdiction of the federal courts. In 1982 he wrote for the Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.:(see footnote 23) ''Of course, virtually all matters that might be heard in Art. III courts could also be left by Congress to state courts . . . [and] the principle of separation of powers is not threatened by leaving the adjudication of federal disputes to such judges.''
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In 1999 the Supreme Court upheld Congress's power to restrict the jurisdiction of the federal courts to interfere in certain immigration disputes (Reno v. American-Arab Anti-Discrimination Committee).(see footnote 24) In 2003 the Supreme Court upheld a 1996 law signed by President Clinton that gave exclusive authority to the U.S. Attorney General to deport certain illegal aliens and specified that federal courts have no jurisdiction to review such removal orders (Hatami v. Ridge).(see footnote 25)
Another statute that prohibits judicial review is the Medicare law,(see footnote 26) on which nearly everyone over age 65 relies for health care. Congress mandated that ''there shall be no administrative or judicial review'' of administrative decisions about many aspects of the Medicare payment system. When someone sued in federal court anyway, the court dismissed the lawsuit based on this prohibition of judicial review (American Society of Dermatology v. Shalala, 1996).(see footnote 27)
Article I, Section 8 of the Constitution states: ''The Congress shall have power . . . to constitute tribunals inferior to the Supreme Court.'' Article III, Section 1 states: ''The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'' These two sections mean that all federal courts except the Supreme Court were created by Congress, which defined their powers and prescribed what kind of cases they can hear. Whatever Congress created it can uncreate, abolish, limit or regulate.
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The Supreme Court explained this in Lockerty v. Phillips (1943)20: ''All federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to 'ordain and establish' inferior courts, conferred on Congress by Article III, 1, of the Constitution. Article III left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe. . . . The Congressional power to ordain and establish inferior courts includes the power 'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.' ''
Article III, Section 2 states: ''The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'' This section means that Congress can make ''exceptions'' to the types of cases that the Supreme Court can decide. This is the most important way that Congress can and should bring an end to the reign of judges legislating from the bench.
The American people expect Congress to use its constitutional power so clearly available, and the voters are currently alienated because of Congress's failure to put down the attacks on marriage. We believe it is Congress's constitutional duty to protect the American people from judicial supremacists who might commit the outrage of overruling the federal and all state laws about marriage. Do we have self-government by our elected representatives, or don't we?
The argument will be made that we should accept any activist judge's ruling as ''the law of the land'' and that it is impertinent for Congress to preempt the courts. However, House Judiciary Committee Chairman Sensenbrenner made it clear in a speech to the U.S. Judicial Conference on March 16 of this year that he stands up for Congress's ''constitutionally authorized'' and ''appropriate'' powers over the judiciary. Mr. Sensenbrenner was not referring to the subject of this hearing, but it seems to me that the principle is the same. Congress must not shrink from subjecting activist judges to criticism or from Congress's use of its ''constitutionally authorized'' powers.
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It is imperative that Congress to stop federal judges from asserting judicial supremacy over our rights of self-government.
Mr. CHABOT. Professor Gerhardt, you're recognized for 5 minutes.
TESTIMONY OF MICHAEL GERHARDT, ARTHUR B. HANSON PROFESSOR OF LAW, WILLIAM AND MARY LAW SCHOOL
Mr. GERHARDT. Thank you, Mr. Chair. It's a great privilege to be here this morning. I appreciate the opportunity to be here and to be on a panel of such distinguished people, including someone I would certainly acknowledge as one of the Nation's leading experts on Federal jurisdiction.
You've got my written statement. I will only make a few comments that reiterate the points therein.
While the Supreme Court has broad authority to regulate Federal jurisdiction, this power is not unlimited. There's nothing magical about the power to regulate Federal jurisdiction
Mr. NADLER. Excuse me, Professor. You said the Supreme Court. I assume you meant Congress has authority.
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Mr. GERHARDT. I'm sorry. Forgive me. That's correct. I'm sorry. That is certainly correct. There is certainly nothing magical about this great body's power to regulate Federal jurisdiction. It is susceptible to the same limits as all the other great powers that this body has got. It is limited by federalism, it is limited by separation of powers, it is limited by due process, it is limited by equal protection.
Hence, if Congress acts with the purpose and effect of violating a constitutional right, that violates the Constitution. If Congress acts in a way to prevent the Federal courts from ensuring a State complies with the Constitution, that violates article VI of the Constitution. If Congress keeps article III courts from invalidating an unconstitutional law, that violates separation of powers. If Congress withdraws jurisdiction in such a way that eviscerates the Supreme Court's basic function in deciding cases arising under the Constitution and ensuring finality and uniformity in the interpretation and enforcement of Federal law, that, too, violates separation of powers. If Congress withdraws Federal jurisdiction for a particular class of American citizens or based on their exercise of fundamental rights, that violates the fifth amendment.
In short, Congress cannot use its power to regulate Federal jurisdictions in ways that violate rights and equal protection, offends federalism, or infringes separation of powers.
A few other points bear repeating. First, I think it is noteworthy that Congress has shown admirable restraint in the past in not endorsing numerous proposals for withdrawing Federal jurisdiction in particular classes pertaining to constitutional claims or particular plaintiffs. Moreover, Congress needs a neutral justification to withdraw Federal jurisdiction, I think, in classes with respect to particular classes of constitutional claims or particular plaintiffs.
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Distrust of unelected judges is not a neutral justification. Unelected judges in the form of our Federal judiciary are integral to protecting the rule of law in our legal system, the balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority. For good reason the Supreme Court has never upheld efforts to use the regulatory power over Federal jurisdictions to regulate substantive constitutional law. At the same time, I think that it would be impermissible for you to relegate a particular class of citizens of the United States, gays and lesbians, to litigate their claims in retaliation against either them or judicial decisions that might conceivably be in their favor. With all due respect, I urge the Committee not today to do as its predecessors have done in recognizing the benefits of our constitutional systems of separation of powers and federalism far outweigh whatever their costs.
Thank you.
Mr. CHABOT. Thank you, Professor.
[The prepared statement of Mr. Gerhardt follows:]
PREPARED STATEMENT OF MICHAEL J. GERHARDT
It is an enormous privilege to participate in today's hearing, ''Limiting Federal Court Jurisdiction to Protect Marriage for the States.'' I understand the purpose of today's oversight hearing is to examine the Congress' power to limit federal jurisdiction, or to employ what are commonly called jurisdiction-stripping measures, in response to recent court decisions on marriage. As members of this Committee well know, jurisdiction-stripping raises some profound questions of constitutional law. While the Supreme Court acknowledges that the Congress has broad power to regulate federal jurisdiction, this power is not unlimited. In my judgment, the Congress cannot exercise any of its powers under the Constitution—not the power to regulate interstate commerce, not the Spending power, and not the authority to define federal jurisdiction—in a manner that violates the Constitution. If Congress acts with the purpose and effect of violating a constitutional right, that violates the Constitution. If Congress acts in a way that prevents the federal courts from ensuring state law complies with the Constitution, that violates Article VI of the Constitution. If Congress keeps Article III courts from invalidating an unconstitutional law, that violates basic separation of powers. If Congress withdraws jurisdiction in such a way that eviscerates the Supreme Court's basic function in deciding cases arising under the Constitution and ensuring finality and uniformity in the interpretation and enforcement of federal law, that, too, violates separation of powers. If Congress withdraws or restricts federal jurisdiction for a particular class of American citizens or based on the exercise of fundamental rights, that violates the Fifth Amendment. In short, Congress cannot use its power to restrict federal jurisdiction in ways that violate rights and equal protection, offends federalism, or infringes separation of powers.
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Distrust of ''unelected judges'' does not qualify as a legitimate basis, much less a compelling justification, for congressional action. ''Unelected judges,'' in the form of our federal judiciary, are integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority. For good reason, the Supreme Court has never upheld efforts to use the regulatory power over federal jurisdiction to regulate substantive constitutional law. With all due respect, I urge the Committee today to do as its predecessors have done in recognizing the benefits of our constitutional systems of separation of powers and federalism far outweigh whatever their costs. Below, I explain in greater detail the basic principles restricting congressional regulations of jurisdiction in retaliation against, or in efforts to influence, substantive judicial outcomes.
I. GENERAL PRINCIPLES
The Constitution allows judicial decisions on constitutional means to be displaced by two means and two means only. The first is by a constitutional amendment. Article V of the Constitution sets forth the requirements for amending the Constitution. In our history, constitutional amendments have overruled only a few constitutional decisions, including both the Eleventh and Fourteenth Amendments. Thus, it would not be constitutional for the Congress to enact a statute to overrule a court's decision on constitutional law. For instance, it would be unconstitutional for the Congress to seek to overrule even an inferior court's decision on the Second Amendment by means of a statute. The second means for displacing an erroneous constitutional decision is by a court's overruling its own decisions or by a superior court. For instance, the United States Supreme Court has expressly overruled more than a hundred of its constitutional decisions. On countless other occasions, the Court has modified, clarified, but not overruled its prior decisions on constitutional law. It is perfectly legitimate to ask the Court, but not to command it, to reconsider a constitutional decision.
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To be sure, Article III grants the Congress authority to regulate federal jurisdiction. This power is acknowledged almost universally as a broad grant of authority, but it is not unlimited. The Congress has no authority to overrule a judicial decision on constitutional law, even under the guise of regulating federal jurisdiction. Indeed, the Supreme Court has long recognized that the Congress may not use its power to regulate jurisdiction—or, for that matter, any other of its powers—in an effort to influence substantive judicial outcomes. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Dickerson v. United States, 530 U.S. 428 (2000). See also Ex Parte Klein, 80 U.S. 128 (1871). Efforts, taken in response to or retaliation against judicial decisions, to withdraw all federal jurisdiction or even jurisdiction of inferior federal courts on questions of constitutional law are transparent attempts to influence, or displace, substantive judicial outcomes. For several decades, the Congress, for good reason, has refrained from enacting such laws. The closest the Congress has come to doing this has been in insulating certain war-time measures from judicial review, but I am unaware of any jurisdiction-stripping proposals pending in the House designed to protect national security.
Moreover, proposals that would limit the methods available to Article III courts to remedy constitutional injuries are constitutionally problematic. The problem with such restrictions is that, as the Task Force of the Courts Initiative of the Constitution Project found, ''remedies are essential if rights are to have meaning and effect.'' Indeed, the bipartisan Task Force was unanimous ''there are constitutional limits on the ability of legislatures to preclude remedies. At the federal level, where the Constitution is interpreted to vest individual rights, it is unconstitutional for Congress to preclude the courts from effectively remedying deprivations of those rights.'' While Congress clearly may use its power to regulate jurisdiction to provide for particular procedures and remedies in inferior federal courts, it may do so in order to increase the efficiency of Article III courts not to undermine those courts. The Congress needs a neutral reason for procedural or remedial reform. While national security and promoting the efficiency of the federal courts qualify plainly as such reasons, distrust of the federal judiciary does not.
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II. RESTRICTING ALL FEDERAL JURISDICTION OVER PARTICULAR FEDERAL LAWS OR CLAIMS
Sometimes the House considers proposals to restrict all federal jurisdiction with respect to certain federal laws (or actions). For instance, bills have been introduced to preclude inferior federal courts from deciding cases involving abortion rights, school prayer, and gay marriage. In effect, such proposals would restrict both inferior federal courts and the Supreme Court from enforcing, interpreting, or adjudicating certain substantive matters. Consequently, the courts of last resort for interpreting, enforcing or entertaining challenges to laws restricting federal jurisdiction over such matters are the highest courts in each of the fifty states.
Any proposal to withdraw all federal jurisdiction over a particular federal law has several constitutional defects, in my judgment. The first is that it eviscerates an essential function of the United States Supreme Court—namely, to declare what the Constitution means in ''cases arising under the Constitution.'' Perhaps the most famous statement of this principle can be found is Professor Henry Hart's observation a half century ago that restrictions on federal jurisdiction are unconstitutional when ''they destroy the essential role of the Supreme Court in the constitutional system.'' Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953). The Court's essential function includes at the very least, as the Supreme Court famously declared in Marbury v. Madison, 5 U.S. 137 (1803), to ''say what the law is,'' particularly in cases involving the interpretation of the Constitution or federal law;(see footnote 28) and Congress may not undermine this function under the guise of regulating federal jurisdiction.(see footnote 29) As the Task Force of the Courts Initiative of the Constitution Project recognized, ''legislation precluding court jurisdiction that prevents the judiciary from invalidating unconstitutional laws is impermissible. Neither Congress nor state legislatures may use their powers to keep courts from performing their essential functions of upholding the Constitution.''
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Moreover, Congress cannot vest jurisdiction in courts to enforce a law but prohibit it from considering the constitutionality of the law that it is enforcing. The Task Force of the Courts Initiative of the Constitution Project unanimously concluded ''that the Constitution's structure would be compromised if Congress could enact a law and immunize that law from constitutional judicial review.'' This is precisely what a measure excluding all federal jurisdiction with respect to a federal enactment seeks to do. For instance, it would be unconstitutional for a legislature to assign the courts with enforcing a criminal statute but preclude them from deciding the constitutionality of this law. It would be equally unlawful to immunize any piece of federal legislation from constitutional judicial review. If Congress could immunize its laws from the Court's judicial review, then this power could be used to insulate every piece of federal legislation from Supreme Court review. For instance, it is telling that in response to a Supreme Court decision striking down a federal law criminalizing flag-burning, many members of the Congress proposed amending the Constitution. This was an appropriate response allowed by the Constitution, but enacting the same bill but restricting federal jurisdiction over it would be unconstitutional.
In addition, courts must have the authority to enjoin ongoing violations of constitutional law. For example, the Congress may not preclude courts from enjoining laws that violate the First Amendment's guarantee of freedom of speech. If an article III court concludes that a federal law violates constitutional law, it would shirk its duty if it failed to declare the inconsistency between the law and the Constitution and proceed accordingly.
Proposals to exclude all federal jurisdiction would, if enacted, open the door to another, equally disastrous constitutional result—allowing the Congress to command the federal courts on how they should resolve constitutional results. In Ex Parte Klein, 80 U.S. at 146–47, the Supreme Court declared that it
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seems to us that it is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power . . . What is this but to prescribe a rule for the decision of a cause in a particular way? . . . Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department or the government in cases pending before it? . . . We think not . . . We must think that Congress has inadvertently passed the limit which separates the legislature from the judicial power.
The law at issue in Ex Parte Klein attempted to foreclose the intended effect of both a presidential pardon and an earlier Supreme Court decision recognizing that effect. The Court struck the law down. In all likelihood, the same outcome would arise with respect to any other law excluding all federal jurisdiction, for such a law is no different than a law commanding the courts to uphold the law in question, a command no doubt Article III courts would strike down even if they thought the law in question was constitutional. There is no constitutionally meaningful difference between these laws, because the result of a law excluding all federal jurisdiction over a federal law and a command for the courts to uphold the law are precisely the same—preserving the constitutionality of the law in question.
A proposal to withdraw all federal jurisdiction with respect to a particular federal matter conflicts with a second, significant limitation on the Congress' power to regulate jurisdiction: The Congress may not use its power to regulate jurisdiction to control substantive judicial outcomes. The obvious effect of a prohibition of all federal jurisdiction is to make it nearly impossible for the law to be struck down in every part of the United States. The jurisdictional restriction seeks to increase the likelihood that the federal statute will not be fully struck down.
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Moreover, a proposal excluding all federal jurisdiction regarding a particular federal question undermines the Supreme Court's ability to ensure the uniformity of federal law. In effect, such a proposal would allow the highest courts in each of the fifty states to become courts of last resort for interpreting, enforcing, or adjudicating challenges to the law. This allows for the possibility that different state courts will construe the law differently, and no review in a higher tribunal is possible. The Court's essential functions include ensuring finality and uniformity across the United States in the enforcement and interpretation of federal law.
The third major problem with a proposal to exclude all federal jurisdiction is that it may violate the equal protection component of the Fifth Amendment Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (recognizing, inter alia, that congruence requires the federal government to follow the same constitutional standard as the Fourteenth Amendment Equal Protection Clause requires states to follow). The Court will subject to strict scrutiny any classifications that explicitly burden a suspect class or fundamental right. A federal law restricting all federal jurisdiction with respect to it or some other federal law does both. First, it may be based on a suspect classification. A jurisdictional regulation restricting access by African-Americans, or a particular religious group, to Article III courts to vindicate certain interests ostensibly because of mistrust of ''unelected judges'' plainly lacks a compelling justification and thus violates the equal protection class. While the usual constitutional measure of a jurisdictional regulation is the rational basis test, a court might find that even that has not been satisfied if the court finds the argument in support of burdening African-Americans, women, or Jews is illegitimate. While the Court has not employed strict scrutiny to analyze the constitutionality of laws burdening gays and lesbians, the Court has found two such fail even to satisfy the rational basis test. A court analyzing whether a classification precluding a gay or lesbian citizen from petitioning any Article III court would probably conclude that such a restriction is no more rational than the classification struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Court found that the state referendum disadvantaging gays and lesbians failed to pass the rational basis test, because it had been motivated by animus. In all likelihood, a majority of the Supreme Court would strike down such a measure as having been driven by the same illegitimate concerns, or attitudes, that it rejected in that case.
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A federal law restricting all federal jurisdiction may also run afoul of the Fifth Amendment by violating a fundamental right. Such is the case with a proposal restricting all federal jurisdiction over flag burning or school prayer. It is unlikely that the Court would find a compelling justification for burdening fundamental rights. I cannot imagine that the justices would agree that distrusting ''unelected judges'' qualifies as a compelling justification. Nor is a regulation excluding all federal jurisdiction over a matter involving the exercise of fundamental rights, for it precludes Article III courts even from enforcing the law.
In addition, a proposal excluding all federal jurisdiction may violate the Fifth Amendment's Due Process Clause's guarantee of procedural fairness. Over a century ago, the Court declared that due process ''is a restraint on the legislative as well as the executive and judicial powers of the government, and cannot be construed to leave congress free to make 'any due process of law,' by its mere will.'' For instance, the Court has explained ''that the Due Process Clause protects civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs seeking to redress grievances.'' A proposal excluding all federal jurisdiction effectively denies a federal forum to plaintiffs whose constitutional interests have been impeded by the law, even though Article III courts, including the Supreme Court, have been designed to provide a special forum for the vindication of federal interests.
Excluding all federal jurisdiction with respect to some federal law forces litigants into state courts, which are often thought to be hostile or unsympathetic to federal interests. To the extent that the federal law burdens federal constitutional rights, it is problematic both for the burdens it imposes and for violating due process. Basic due process requires independent judicial determinations of federal constitutional rights (including the ''life, liberty, and property'' interests protected explicitly by the Fifth Amendment). Because state courts are possibly hostile to federal interests and rights and under some circumstances are not open to claims based on those rights, due process requires an Article III forum.
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Last but not least, as the authors of a leading casebook on federal jurisdiction have observed, ''At least since the 1930s, no bill that has been interpreted to withdraw all federal court jurisdiction with respect to a particular substantive area has become law.'' R. Fallon, D. Meltzer, D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 322 (2003). This refusal, for good reasons, constitutes a significant historical practice that argues for, rather than against, precluding all federal jurisdiction in retaliation against judicial decision(s).
III. RESTRICTING THE JURISDICTION OF INFERIOR FEDERAL COURTS
Another kind of proposal sometimes made in the Congress is to preclude the jurisdiction of the inferior federal courts. Unlike the kinds of laws considered in the prior section, this kinds of law allows for the possibility of Supreme Court review albeit by way of petition for certiorari from the state courts. Nevertheless, this proposal has at least three constitutional defects. First, this proposal may violate the equal protection component of the Fifth Amendment Due Process Clause because it may burden a suspect class without a compelling justification or narrow tailoring. It is well settled that a group, or class, that is characterized by its exercise of a fundamental right is a suspect class. Hence, a bill that barred inferior federal courts from hearing any constitutional challenges may be directed at a suspect class, particularly if the group it burdens is defined by its exercise of a fundamental right that the restriction at issue is burdening.
The second major problem with withdrawing jurisdiction over a particular class of cases from inferior federal courts is that it may violate separation of powers.(see footnote 30) Imagine, for instance, that an inferior court had struck down a state law prohibiting flag-burning before the Supreme Court had decided on the constitutionality of that law. If Congress had enacted a law precluding any other inferior courts jurisdiction over the flag, its law would be unconstitutional for both attempting to override the effects of a substantive judicial decision and for hindering the exercise of a first amendment right.
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The third problem with a proposal undertaken in retaliation against the federal judiciary is that it may violate the Fifth Amendment due process clause. The Congress' power to regulate jurisdiction may withdraw jurisdiction in Article III courts for neutral reasons, such as promoting their efficiency, national security, or improving the administration of justice. Neither mistrust of the federal judiciary nor hostility to particular substantive judicial decisions (or to particular rights) qualifies as a neutral justification that could uphold a congressional regulation of federal jurisdiction. It is hard to imagine why an Article III court, even the Supreme Court, would treat such distrust as satisfying the rational basis test required for most legislation. By design, Article III judges have special attributes—life tenure and guarantee of undiminished compensation—that are supposed to insulate them from majoritarian retaliation. They are also supposed to be expert in dealing with federal law and more sympathetic to federal claims than their state counterparts. See Martin v. Hunters' Lessee, 14 U.S. 304 (1816). Yet, a proposal that excludes inferior federal court jurisdiction is ill-designed to achieve its purported purpose, because it still allows state courts to hear challenges to the Pledge of Allegiance and retains possible jurisdiction over those challenges in the Supreme Court. As long as Supreme Court review is possible (and it appears to be), ''unelected'' justices will decide the merits of the challenges. It is hard to see that there is even a rational basis for believing that the ''unelected judges'' on the nation's inferior federal courts—all nominated by presidents and confirmed by the Senate (with the exception of two recess appointees)—cannot be trusted to perform their duties in adjudicating claims relating to the Pledge of Allegiance. If a district court judge fails to do this or an appellate federal court fails to do this, their decisions may be appealed to higher courts.
Congress has shown admirable restraint in the past when it has not approved legislation aimed at placing certain substantive restrictions on the inferior federal courts. (I note that pending before the Court is the question whether the President's, rather than the Congress', authority to preclude all jurisdiction over claims brought by people detained in Guantanemo Bay based on their detention.) Over the years, there have been numerous proposals restricting jurisdiction in the inferior courts in retaliation against judicial decisions, but the Congress has not enacted them. The Congress has further refused since 1869 not to expand or contract the size of the Court in order to benefit one party rather than another. These refusals, just like those against withdrawing all federal jurisdiction in a particular class of constitutional claims, constitute a significant historical practice—even a tradition—that argues against, rather than for, withdrawing jurisdiction from inferior courts over particular classes of constitutional claims.
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Beyond the constitutional defects with proposals to exclude certain cases from all federal jurisdiction or inferior federal courts, they may not be good policy. They may send the wrong signals to the American people and to people around the world. Under current circumstances, they express hostility to Article III courts, in spite of their special function in upholding constitutional rights and enforcing and interpreting federal law. If a branch of our government demonstrates a lack of respect for federal courts, our citizens and citizens in other countries may have a hard time figuring out why they should do otherwise. Rejecting proposals to exclude all federal jurisdiction or inferior court jurisdiction for some constitutional claims extends an admirable tradition within the Congress and reminds the world of our hard-won, justifiable confidence in the special role performed by Article III courts throughout our history in vindicating the rule of law.
Mr. CHABOT. Professor Redish, you're recognized for 5 minutes.
TESTIMONY OF MARTIN H. REDISH, LOUIS AND HARRIET ANCEL PROFESSOR OF LAW AND PUBLIC POLICY, NORTHWESTERN LAW SCHOOL
Mr. REDISH. Thank you, Mr. Chairman.
I believe that as a matter of constitutional text, structure and history, many of the issues that we are discussing today are far simpler than numerous complex constitutional issues that the courts deal with. The power of this Congress to limit the jurisdiction of the Federal courts is clear. It is equally clear, however, and I cannot emphasize this enough, about the absence of this Congress' power to exclude all judicial review of constitutional issues. If this Congress limits the jurisdiction of the Federal courts, and as I said before, I believe that power is extremely broad, it must recognize that there still must be available a constitutionally adequate judicial forum to adjudicate constitutional rights and interpret the Constitution.
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This is clearly the plan of the Constitution. There was a reason that the Federal judiciary was insulated from direct popular election and power to be regulated by the majoritarian branches. However, if this Congress limits the jurisdiction of the Federal courts, the State courts may provide that constitutionally adequate forum.
As I tell my students, the State courts are soldiers in the Federal judicial army. They are both empowered and obligated under article VI, clause 2, the supremacy clause, to interpret and enforce the Constitution. However, this Congress should not limit Federal court jurisdiction in the very mistaken belief that it can exclude all judicial review.
As to the power of this Congress over the jurisdiction of the Federal courts, I believe the text and the history are both quite clear that it is not necessarily the way I would have chosen to structure it, but when the text and the history are inexorable, we have no choice. It's what I refer to as the ''I just work here'' view of constitutional interpretation.
Article III explicitly vests in Congress the power not to have created lower Federal courts in the first place. The Framers' assumption was quite clear that if Congress chose not to create the lower Federal courts, the State courts could provide an adequate forum to interpret and enforce Federal law, including the Federal Constitution. While this Congress did create the lower Federal courts immediately, it is well established in the case law that that power to, from time to time, ordain and establish the lower Federal courts includes the power to abolish the lower Federal courts, and the greater power to abolish the lower Federal courts logically subsumes within it the power to leave the courts in existence, but limit their jurisdictions.
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Similarly, as Congressman Hostettler quite accurately pointed out, the Exceptions Clause in article III inescapably says that this Congress may make exceptions to the Supreme Court's appellate jurisdiction. There are external constitutional limits on this power; the Due Process Clause, the concept of separation of powers, and the equal protection directive in the fifth amendment apply. However, there are no internal constitutional limits, no limits in article III on Congress' power. Its power is plenary.
There have been respected constitutional scholars, and I include certainly Professor Gerhardt in this category, who have suggested that Congress may not use its power to limit the so-called essential functions of the Federal judiciary. I find that to be a textual phantom. I consider it to be the equivalent of constitutional wishful thinking. There is nothing that refers to any limit on essential functions from—on this Congress' power. If this Congress wishes to combine its power over the article III lower courts and the Supreme Court under the exceptions clause, the end result is that it can completely exclude Federal judicial power over pretty much any issue, as long as the State courts remain available.
Despite the extent of this power, I consider it as a matter of the American political process highly inadvisable to exercise it. My view has nothing to do with my particular views on the substantive merits of the issue of gay marriage. I claim no expertise on that, and you wouldn't be interested in my views anyway. I'm referring more to the broader issues of American judicial and political process.
I think this Congress should view its power to be the moral equivalent of nuclear war to take away Supreme Court and lower court jurisdiction. There are serious negative consequences. And we would be left with 50 State supreme court interpretations of Federal law. I don't think that's an unconstitutional result. I consider it an inadvisable result.
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Thank you.
Mr. CHABOT. Thank you, Professor.
[The prepared statement of Mr. Redish follows:]
PREPARED STATEMENT OF MARTIN H. REDISH
INTRODUCTION
I have been asked to express my views concerning the scope of Congress's constitutional power to limit federal court jurisdiction over particular classes of cases. While I have both taught and written about the subject on numerous occasions over the last thirty years, I must concede at the outset that it is virtually impossible to say definitively what the outer limits of this congressional power actually are. This confusion results from the relatively limited case law that exists on the subject. In a certain sense, of course, the lack of doctrinal development on this subject may well be a good thing, because the issue arises in the courts only when the judicial and legislative branches are involved in a tense political confrontation, a situation that has occurred only rarely in the nation's history. Yet the fact remains that relatively few decisions have considered the issue, and what little doctrine does exist is occasionally vague or inconsistent. Adding to the confusing state of the law are the dramatically different views expressed by federal jurisdiction scholars over the years. Thus, the most I can do today is to provide my own theoretical take on the subject. While I believe that this approach flows inexorably from both the text and structure of the Constitution and is consistent with what little case law exists, for purposes of full disclosure I must concede that many respected scholars, both current and past, would disagree with all or part of the approach I suggest here.
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In this testimony, I plan to describe my approach to the question and explain why I believe it derives from constitutional text and structure. I will then briefly describe alternative theoretical models, and explain why I consider them to be unacceptable.
CONCLUSIONS
I believe that, at least as a constitutional matter, the issue of congressional power to control federal jurisdiction is far simpler than many other scholars think. The text and internal logic of Article III of the Constitution make clear that congressional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court is extremely broad. There is nothing in the provision's text that in any way confines congressional authority in either area. It is highly likely, however, that the federal courts would construe congressionally imposed, substantively based restrictions on their jurisdiction in a highly grudging manner. Thus, if Congress wishes to exercise its vast authority, it would be advised to state its intent explicitly in the text of the relevant statutes.
To be sure, several other guarantees contained in the Constitution—due process, separation of powers, and equal protection—may well impose limitations on the scope of congressional power. The Due Process Clause of the Fifth Amendment requires that a neutral, independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. But as long as the state courts remain available and adequate forums to adjudicate federal law and protect federal rights, it is difficult to see how the Due Process Clause would restrict congressional power to exclude federal judicial authority to adjudicate a category of cases, even one that is substantively based. Separation of powers, on the other hand, imposes more far reaching restrictions. That doctrine prevents Congress from (1) itself adjudicating individual litigations, (2) directing a federal court how to decide a particular case, (3) employing the federal courts for purposes of enforcement without simultaneously allowing them to interpret the law being enforced or consider its constitutionality, or (4) overturning individual decisions or classes of decisions already handed down by a federal court. However, it is difficult to see how any of those constitutional guarantees would restrict congressional authority completely to exclude substantively based categories of future or presently undecided cases from either the jurisdiction of the lower federal courts or the appellate jurisdiction of the Supreme Court. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner
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It should be noted that the fact that Congress possesses such broad constitutional power in no way implies that it would be either wise or appropriate, as a matter of the American political process, for Congress to exercise its authority to remove specific categories of substantive cases from federal jurisdiction. Purely as a matter of policy, I believe that Congress should begin with a very strong presumption against seeking to manipulate judicial decisions indirectly by selectively restricting federal judicial authority. I also firmly believe that were Congress to take such action it would risk undermining public faith in both Congress and the federal courts. Due to their constitutionally granted independence and insulation from the majoritarian branches of the federal government, the judiciary possesses a unique ability to provide legitimacy to governmental action in the eyes of the populace. Congressional manipulation of federal judicial authority therefore threatens the legitimacy of federal political actions. Moreover, to exclude federal judicial power to interpret or enforce substantive federal law undermines the vitally important function performed by the federal judiciary in the American political system. The expertise and uniformity in interpretation of federal law that is provided by the federal judiciary should generally not be undermined.
CONGRESSIONAL POWER TO CONTROL THE JURISDICTION OF THE LOWER FEDERAL COURTS
Article III, section 1 of the Constitution provides that ''[t]he judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.'' On its face, this language vests in Congress complete discretion whether or not to create the lower federal courts, and the established historical understanding of the so-called ''Madisonian Compromise'' makes clear that this view is accurate. For an extended discussion of the Madisonian Compromise, see Martin H. Redish & Curtis Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 52–55 (1975). The framers' assumption appears to have been that were Congress to have chosen not to create the lower federal courts, the state courts—who are explicitly bound to enforce federal law under the Constitution's Supremacy Clause, Article VI, cl. 2—would be available to serve as the trial forums for the adjudication of claims arising under federal law. See generally Martin H. Redish, 15 Moore's Federal Practice sec. 100.20 (3d ed. 1997). The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to ''abolish'' them as to only certain cases by limiting their jurisdiction.
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Scholars have on occasion raised questions about the validity of the assumption that the power to create the lower courts logically dictates a corresponding power to abolish them. See, e.g., Ronald Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 Geo. L.J. 839, 842–43 (1976). Nevertheless, since the constitutional text provides Congress with the power ''from time to time'' to ordain and establish the lower courts, I believe it is reasonable to infer from this language the power periodically to alter what Congress has already created. And if one accepts congressional power to abolish the lower courts, the power to leave them in existence but simultaneously restrict their jurisdiction seems to flow inexorably. If Congress possesses such authority, it is difficult to see how Article III itself implicitly imposes any restrictions on how that authority is to be employed. Thus, Article III would seem to provide no constitutional bar to the congressional exclusion of substantively based categories of cases from the jurisdiction of the lower federal courts.
Early in the nation's history, Justice Joseph Story argued that the words, ''shall be vested'' in Article III dictate that the lower federal courts must exist to exercise judicial power in those cases constitutionally excluded from both the highly limited original jurisdiction of the Supreme Court and the jurisdiction of the state courts. Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case—either a lower court or the Supreme Court—would be violated. However, even if Story were correct in his assumption that the words, ''shall be vested'' are to be construed to be a command—by no means an obviously correct construction—he ignored the fact that, given the nature of the Madisonian Compromise that led to the drafting of Article III, there are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. Thus, the entire logic of Story's theory breaks down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7–9 (Matthew Bender 1998).
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CONGRESSIONAL POWER TO CONTROL THE APPELLATE JURISDICTION OF THE SUPREME COURT
Article III, section 2 of the Constitution extends extremely limited original jurisdiction to the United States Supreme Court. In all other cases to which the federal judicial power is extended, the Court is given appellate jurisdiction, ''both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'' On its face, this provision provides seemingly unrestrained congressional authority to exclude categories of cases from the Supreme Court's appellate jurisdiction. In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the post-Civil War Supreme Court appeared to recognize the unlimited authority explicitly authorized in the text. See Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 25–27 (2d ed. 1990). However, in a subsequent decision the same year, the Court construed McCardle narrowly, leaving open the possibility that the Exceptions Clause is not to be extended as far as its text suggests. Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868). See also Felker v. Turpin, 518 U.S. 651 (1996). Nevertheless, the Supreme Court has to this day not resolved the outer reaches of the Exceptions Clause, and I fail to comprehend how a textually unlimited power to make exceptions to the Supreme Court's appellate jurisdiction can be construed to be limited in any way. While it is at least conceivable that other constitutional provisions might confine this congressional power, at least the text of the Exceptions Clause itself does not do so.
SUGGESTED SCHOLARLY LIMITATIONS ON CONGRESSIONAL POWER TO CONTROL FEDERAL JURISDICTION
As I have already indicated, I believe that the textual directives of Article III make clear, on their face, that Congress possesses broad constitutional authority to control the jurisdiction of both the lower federal courts and the United States Supreme Court. Nevertheless, several respected scholars have questioned the text's seemingly clear directives. However, none of these scholarly theories can withstand careful critical analysis. Ultimately, all of them amount to what I have described as a form of ''constitutional wishful thinking.'' Redish, Tensions, supra at 28. My prior work has provided detailed critiques of each of these theories (see the previously cited sources). Here I will briefly describe those theories and the fundamental problems with each.
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Henry Hart's ''Essential Functions'' Thesis
Many years ago, Henry Hart cryptically suggested that the Exceptions Clause is somehow restrained by a textually nonexistent limitation that prevents Congress from interfering with the ''essential functions'' of the Supreme Court. Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953). Though Hart never explained either what those supposedly essential functions actually are or from where in the Constitution he derived them, it appears from subsequent work by his supporters that the concept is intended to include the unifying function of federal law interpretation and the policing of state court interpretations of federal law. See Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157, 201–02 (1960). As I have previously argued, however, the historical evidence relied upon to support the ''essential functions'' thesis is ''[a]t best . . . speculative and at worst . . . simply useless.'' Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 908 (1982). In any event, as already noted, the text provides absolutely no suggestion of such a limitation, regardless of what the history demonstrates.
Akhil Amar's Theory
Professor Akhil Amar has suggested an alternative theory that provides that for certain categories of cases to which the federal judicial power is extended in Article III, section 2, Congress may not revoke all federal judicial jurisdiction. Unlike Professor Hart (who confined his constitutional restriction on congressional power to the Supreme Court's appellate jurisdiction), Professor Amar asserts that at least one level—the lower federal courts or the Supreme Court—(but not necessarily both) must remain open to adjudicate any category of cases delineated in Article III, section 2 preceded by the word, ''all.'' He reasons that the selective use of that word, combined with the mandatory ''shall be vested'' language at the start of section 1, provides a textual basis for his conclusion. See generally Akhil Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1569 (1990).
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If Professor Amar's theory were accepted (and I am unaware of any support for it in the modern case law), it would severely restrict congressional power to remove simultaneously from both the lower federal courts and the Supreme Court cases that arise under federal law, since that is one of the categories preceded by the ''all'' qualifier. However, it is difficult to imagine that the drafters of Article III would have attempted to reach the result Professor Amar advocates simply by the cryptic and selective use of the word, ''all.'' This is especially true, when at the very same time they explicitly provided Congress with unlimited discretion not to create the lower federal courts in the first place and to make exceptions to the Supreme Court's appellate jurisdiction.
In any event, purely as a matter of textual construction, Amar's theory makes no sense: If the words, ''shall be vested'' are, in fact, intended to be mandatory, all of the categories of cases enumerated in Article III, section 2, are modified by it. This is so, whether or not those categories are preceded by the word, ''all.'' Thus, if we are to take seriously Amar's out-of-context focus on the words, ''shall be vested,'' his textual argument must logically lead to the conclusion that every category of cases enumerated in Article III, section 2 must be heard by some Article III court, regardless of whether or not it is preceded by the word, ''all.'' For my detailed critique of Professor Amar's theory, see Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990). See also John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997) (criticizing Amar's theory). For a defense of Amar's theory, however, see Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. Rev. 847.
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Professor Sager's Theory
Professor Lawrence Sager has argued that Congress may not use its authority to revoke jurisdiction from both the Supreme Court and the lower federal courts in a substantively selective manner. Lawrence Sager, The Supreme Court 1980 Term, Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Lower Federal Courts, 95 Harv. L. Rev. 17 (1981). However, for the most part Professor Sager's focus appears to be on jurisdictional exclusions for state behavior when constitutional rights are at stake. See id. at 69. Thus, were Congress to exclude the jurisdiction of all Article III federal courts in cases involving questions of purely sub-constitutional law not involving state action, Sager's theory is at best of diluted force. In any event, I have argued that Sager's theory ignores the clear textual directives of Article III. See Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982). For further criticism of Sager's theory, see Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 915 (1984).
RELEVANCE OF OTHER CONSTITUTIONAL PROTECTIONS
Due Process
While the outer reaches of the right remain somewhat unclear, it is established that the Due Process Clause requires adjudication by a neutral, independent forum before government may revoke protected liberty or property interests. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927). See generally Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455 (1986). Thus, where constitutional rights are at stake, Congress may not revoke all forms of access to an independent judicial forum. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). But even the exclusion of both lower federal court and Supreme Court jurisdiction would not bring about such a result, as long as the state courts remain a viable alternative. I have long expressed concern about exactly how viable the state court remedy is (see Redish, 77 Nw. U. L. Rev. 143; Redish & Marshall, supra), but the case law is quite clear that the state courts are deemed to satisfy the due process requirement of a neutral judicial forum. Thus, as long as state courts remain open, congressional exclusion of federal jurisdiction raises no issue of due process.
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Separation of Powers
The separation-of-powers limitations on congressional power to control federal jurisdiction are somewhat more complex than the due process limitation. Derived from both the text and structure of Article III, the separation-of-powers doctrine imposes significant restrictions on congressional authority. Before exploring those restrictions, however, it is important to note that as long as Congress completely excludes federal court jurisdiction over a particular category of cases, including the enforcement power, generally separation-of-powers problems are unlikely to arise. The only concern would be were Congress to exclude federal court jurisdiction and itself attempt to adjudicate individual cases, a clearly unconstitutional usurpation of the judicial power by the legislative branch.
Most of the difficulties occur, however, primarily when Congress vests jurisdiction in the federal courts (lower courts or Supreme Court) while simultaneously imposing restriction on federal judicial ability to interpret the law being enforced or to review its constitutionality. See generally United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). For a more detailed description of the case and its implications, See Redish, Tensions, supra at 48–49. This limitation flows from the theory of the ''quid pro quo:'' the notion that where Congress wishes to invoke the unique legitimacy that the independent federal judiciary possesses, it must allow the judiciary full authority to interpret and review the law that it is asked to enforce. In addition, the Supreme Court has made clear that while Congress may alter the general substantive sub-constitutional law to be applied by the federal courts, it may not reverse specific judgments already entered by the federal courts. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
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Equal Protection
The equal protection directive, deemed to be implicit in the Due Process Clause of the Fifth Amendment, can conceivably also play a role in limiting congressional power to control federal jurisdiction. Despite its seemingly unlimited authority under Article III, Congress quite clearly may not revoke or confine federal jurisdiction in a discriminatory manner. For example, Congress could not successfully argue that its greater constitutional power to exclude federal judicial power completely logically subsumes the lesser power of excluding federal judicial power, for example, in cases brought by African Americans, Jews, or Women.
POLITICAL PROCESS CONSIDERATIONS
It is clear to me that Article III of the Constitution vests broad power in Congress to exclude the jurisdiction of both the Supreme Court and the lower federal courts. While externally derived constitutional doctrines impose distinct limits on that power, I can see absolutely no textual or structural basis for denying Congress power completely to exclude substantive categories of cases from the jurisdiction of the federal courts. This is true, even in cases in which constitutional rights are at stake, as long as an alternative adequate judicial forum has been made available.
It does not follow, however, that Congress should choose to exercise this power. To the contrary, I firmly believe that Congress should choose to exercise this power virtually never. There has long existed a delicate balance between the authority of the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, therefore, that whatever the scope of its constitutional power, Congress should be extremely reluctant to exercise that power.
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Mr. CHABOT. And, Congressman Dannemeyer, you're recognized for 5 minutes.
TESTIMONY OF THE HONORABLE WILLIAM E. DANNEMEYER, FORMER U.S. REPRESENTATIVE
Mr. DANNEMEYER. Thank you, Mr. Chairman.
I think it's appropriate to put this whole issue in the perspective of why we are here this morning in that there is an intense cultural war waging in this Nation over values, and the issue for the political leadership of this country is whether you, the elected Members of Congress, will have the courage to affirm that God exists. That's the issue. This issue over how we define marriage is an important aspect of that cultural war.
Another issue that deserves attention by this Congress deals with whether or not we will affirm in the Pledge of Allegiance and the national motto that God exists.
There's no question that the homosexual political movement is a powerful force in this culture not because of its numbers, but because of the people controlling the media of this country who look upon that movement as an idea and a civil right whose time has come. We need to recognize this.
And so, what exists in the system to correct this effort for political power? This political movement of homosexuals has chosen the judiciary of America as the means of achieving their goals. Why? Because they know they can't get their agenda through the elected representatives in the State legislatures and in the Congress of the United States, and so they've chosen a judiciary in the State of Massachusetts as a happy hunting ground for their goal. And then they rely upon provision of Full Faith and Credit Clause of the U.S. Constitution which says that anybody that goes to Massachusetts and gets a marriage and is married must be recognized in every other State of the Union.
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And then DOMA comes along and says a State has a right to not do that, and then we recognize the reality that the U.S. Supreme Court may pass upon the constitutionality of DOMA, and they may turn it down. We don't know. That's where this place, the Congress of the United States, under the Constitution, can come forward and affirm the values that God created for mankind that have controlled civilizations from the beginning of time. Marriage exists of a man and a woman who form a family, and that's how we provide for the next generation.
In addition, our laws should provide that we will teach in the public schools of this Nation that God exists who created rules for man to live by. This body, Congress, can use article III, section 2 of the Constitution to acxcept these areas of the jurisdiction of the Federal court system. I would urge it to do so.
The other alternative, of course, that the professor has talked about is that this would leave judicial inquiry to State legislature—State judicial courts. I acknowledge that. Well, the answer to that is a constitutional amendment. But do we have two-thirds of the votes in the House and in the Senate to get a constitutional amendment? I don't think so.
So the move at this time, at this—in this Congress is to use article III, section 2, and then if the Supreme Court turns that down, what other recourse do we then have to achieve the goal of affirming that marriage exists and we'll have God in the Pledge of Allegiance is a constitutional amendment? I hope it doesn't come to that. But I think Congress at this time should take that step.
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For example, I just—if I have time left here, Members