SPEAKERS CONTENTS INSERTS
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LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
JUNE 24, 2004
Serial No. 92
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOCAvailable 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
Page 3 PREV PAGE TOP OF DOCJOHN 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
Page 4 PREV PAGE TOP OF DOCJOHN 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
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
Page 5 PREV PAGE TOP OF DOC 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
Mrs. Phyllis Schlafly, Founder and President, Eagle Forum
Mr. Michael Gerhardt, Arthur B. Hanson Professor of Law, William and Mary Law School
Mr. Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern Law School
The Honorable William E. Dannemeyer, former U.S. Representative
Page 6 PREV PAGE TOP OF DOCLETTERS, 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
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,
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:]
Page 11 PREV PAGE TOP OF DOCPREPARED 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 thatquote''[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 thatquote''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 judgesquote''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 1861quote''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, thatquote''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 thethe 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.
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.
Page 23 PREV PAGE TOP OF DOC 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 rightwe 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 rightwe 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.
Page 32 PREV PAGE TOP OF DOC 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.
Page 34 PREV PAGE TOP OF DOC 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.
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 Constitutionnot the power to regulate interstate commerce, not the Spending power, and not the authority to define federal jurisdictionin 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 jurisdictionor, for that matter, any other of its powersin 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 Courtnamely, 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 resultallowing the Congress to command the federal courts on how they should resolve constitutional results. In Ex Parte Klein, 80 U.S. at 14647, 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 samepreserving 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 attributeslife tenure and guarantee of undiminished compensationthat 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 courtsall 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 practiceeven a traditionthat 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 fromon 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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Mr. CHABOT. Thank you, Professor.
[The prepared statement of Mr. Redish follows:]
PREPARED STATEMENT OF MARTIN H. REDISH
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.
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 Constitutiondue process, separation of powers, and equal protectionmay 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, 5255 (1975). The framers' assumption appears to have been that were Congress to have chosen not to create the lower federal courts, the state courtswho are explicitly bound to enforce federal law under the Constitution's Supremacy Clause, Article VI, cl. 2would 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, 84243 (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 caseeither a lower court or the Supreme Courtwould be violated. However, even if Story were correct in his assumption that the words, ''shall be vested'' are to be construed to be a commandby no means an obviously correct constructionhe 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 79 (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 2527 (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, 20102 (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 levelthe 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
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 4849. 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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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 legislatureState 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 thisin 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.
Page 60 PREV PAGE TOP OF DOC For example, I justif I have time left here, Members, the use of article III, section 2 by Congress is not something with which they are unfamiliar. In the last Congress it was used 12 times, and I submit that if it was used 12 times in the last Congress, it can be used 1 time in this current Congress. There have been a number of articles that have been written by distinguished scholars on the use of article III, section 2, and I would hope that the Members of this Subcommittee and the full Subcommittee will give due consideration to them.
Mr. CHABOT. Thank you very much, Congressman.
[The prepared statement of Mr. Dannemeyer follows:]
PREPARED STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER
Mr. Chairman and members of the Subcommittee:
Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal system of three branches, Executive, Legislative and Judicial.
On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear that, of the three branches of government which were created, the one he feared the most was the federal judiciary in these words:
Page 61 PREV PAGE TOP OF DOC''The federal judiciary is working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one (i.e., federalization).''
Decisions of the federal judiciary over the last half century have resulted in the theft of our Judeo-Christian heritage, a brief sampling is as follows:
Enacting ''a wall of separation between church and state''
Banning nondenominational prayer from public schools
Removing the Ten Commandments from public school walls
Removing God from the Pledge of Allegiance
Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading ''Jurisdiction of Supreme and Appellate Courts,'' the clause says:
''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 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.''
Page 62 PREV PAGE TOP OF DOC Over the last 200 years, Congress has exercised this authority to except certain areas from the jurisdiction of the federal court system. In Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799)), the Supreme Court concluded that the federal courts derive their judicial power from Congress, not the Constitution.
In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made final the decision of the secretary of the Treasury in certain tax deductions. The statute was challenged as an unconstitutional deprivation of the judicial power of the courts. The Supreme Court concluded that the jurisdiction of the federal courts (inferior to the Supreme Court) was in the sole power of Congress.
In Sheldon vs. Sill 8 How (49 U.S. 441(1850)), involved the validity of the assignee clause of the Judicial Act of 1789 restricting such action to establish federal court jurisdictions. The Supreme Court sustained the power of Congress to limit the jurisdiction of the inferior federal courts.
In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1 868), the Supreme Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court. Congress, fearful the Supreme Court would honor the writ, passed a law repealing the act which authorized the appeal. The Supreme Court dismissed the case for lack of jurisdiction.
In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the Supreme Court upheld the power of Congress to define and limit the jurisdiction of the inferior courts of the United States in the form restrictions on the issuance of injunctions in labor disputes under the Norris-La Guardia Act of 1932.
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In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for a special court to appeal price control decisions under the Emergency Price Control Act of 1942. The Supreme Court sustained this restriction.
One of the outstanding Constitutional scholars in the Senate is Robert Byrd, West Virginia Democrat. In 1979, in order to once again allow voluntary prayer in public schools, he introduced a law to except this subject from the federal court system under Article III, 2.2. Unfortunately, it was not enacted into law.
In the 107th Congress (20012002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.
Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III, 2.2 in order to cut some timber in South Dakota.
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Page 65 PREV PAGE TOP OF DOCConst12.eps
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Mr. CHABOT. At this time the Committee Members have 5 minutes each to ask questions of the panel, and I recognize myself for that purpose for 5 minutes.
Professor Redish, let me begin with you. You've written that, quote, ''the States' courts have, since the Nation's beginning, been deemed both fully capable of and obligated under the supremacy clause to enforce Federal law. I am quoting the Constitution. Congress has complete authority to have constitutional rights enforced exclusively in the State courts,'' unquote. And I think you basically reiterated that here this morning.
In your opinion, why did the Founders leave open the possibility that State courts could be the ultimate arbiters of constitutional questions, or at least some constitutional questions?
Mr. REDISH. Mr. Chairman, the history is surprisingly well documented on that part of the Constitution. There was a struggle between the States' righters who wanted no lower Federal courts created and only State courts having power to interpret and enforce Federal law with Supreme Court review, and then the pro-Federal wing wanted to dictate the requirement that lower Federal courts be created. And Madison came up with what is now appropriately referred to as the Madisonian Compromise, which was basically to punt to the first Congress. Congress had the power to create them, but was not compelled to create them. It was really the outgrowth of a political deadlock at the convention.
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Mr. CHABOT. Thank you.
Let me follow up. How does the Judiciary Act of 1789 then form an understanding of the original meaning of Congress' authority over Federal court jurisdiction?
Mr. REDISH. Well, it shows that the original Congress recognized that it had this so-called greater includes the lesser power. They did create lower Federal courts immediately. That's certainly true. But they excluded from their jurisdiction numerous issues. So it was clearly the understanding of the initial Congress postframing that they had authority to limit Federal court jurisdiction.
At the time, for purposes of context, I should indicate the power to interpret Federal law was not really an important issue, because there was so little substantive Federal legislation. Most things were left to the States anyway, but at least in theory it clearly underscores mythe interpretation that I'm giving you of article III.
Mr. CHABOT. Thank you.
Professor Gerhardt, let me turn to you. Do you agree that under the Constitution State courts have full and coequal authority with Federal courts to decide Federal constitutional questions? And if not, why not?
Mr. GERHARDT. Well, if I understand the question, I think clearly State courts can adjudicate constitutional claims. I don't think there's any doubt about that. I don't know that that's what we're really concerned with here today though. I think that if you leave the State courts alone, without any possible review in the United States Supreme Court, the constitutional claim, then I think you do have a constitutional problem.
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I think there's no question that State courts, as I said, and as Professor Redish has said, can adjudicate these claims. But you move into a much different realm if you're withdrawing Federal jurisdiction in retaliation against their judicial decisions or aimed at a particular class of citizens. I think those present constitutional difficulties.
Mr. CHABOT. Thank you.
Now, Mrs. Schlafly, let me turn to you at this point. Is H.R. 3313, the Marriage Protection Act, consistent with a traditional understanding of congressional authority over Federal court jurisdiction?
Mrs. SCHLAFLY. Oh, absolutely. It is consistent with it. And I think everything we've heard here today shows that Congress does have the power to limit and regulate the authority of the Federal courts on this issue.
I think that the bill that you referred to is somewhat limited. I think, as I said in my testimony, that we should also remove jurisdiction from Federal courts to hear a challenge to State DOMAs because we already have a case filed on that. And it's very important that the Federal courts not have the opportunity to override the legislatures and the Congress on this issue of marriage.
We heard a lot of talk about the separation of powers here today, but under the separation of powers, we expect these decisions to be made by our elected representatives, not by some activist judge.
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Mr. CHABOT. Thank you very much.
And unfortunately, my time is going to run out in 5 seconds, so I'll terminate my time at this time.
The gentleman from New York is recognized for 5 minutes.
Mr. NADLER. Thank you.
Mrs. Schlafly, you stated in your testimony, you quoted approvingly Professorexcuse mePresident Bush in which he said, quote, ''we will not stand for judges who undermine democracy by legislating from the bench and trying to remake the culture of America by court order,'' close quote. You go on to say ''he's right, we won't stand for such judicial arrogance.'' Brown v. Board of Education of Topeka, 1954, which outlawed Jim Crow, the segregation of public schools, changed the culture of a third of the United States, said that what they had been doing for 100 years was unconstitutional. Do you have the same disapproval? Was that remaking the culture of America by court order? And was that illegitimate, in your opinion?
Mrs. SCHLAFLY. No, it was not.
Mr. NADLER. Because? How do you distinguish it?
Mrs. SCHLAFLY. I would distinguish it because what Brown did was to overrule Plessy. And if you take the position that the Constitution is whatever the Supreme Court says it is, then you have to accept Dred Scott and Plessy v. Ferguson. And Brown came along and overturned that, and that was the right thing to do.
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Mr. NADLER. And that may have been the right thing to do, but that wasn't remaking the culture of America by court order?
Mrs. SCHLAFLY. No. It was correcting a previous bad mistake.
Mr. NADLER. And how about Loving v. Virginia that outlawedthat allowed interracialthat said States couldn't outlaw interracial marriages, which is probably more to the point here?
Mrs. SCHLAFLY. Yes. Well
Mr. NADLER. Was that remaking the culture of America by court order?
Mrs. SCHLAFLY. No, it wasn't. I think it was
Mr. NADLER. Okay. Professor Redish, Judge McDougal of the Southern District of Slobovia has just come down with a decision that I find outrageous and has promised to come down with more such decisions. So I am introducing a bill to eliminate the Southern District of Slobovia. Do weunder our plenary power to create or abolish Federal courts, can we abolish a particular Federal court because we don't like that judge? And if we can, how does that square with the constitutional power, with the constitutional prohibition about limiting tenure of judges?
Page 71 PREV PAGE TOP OF DOC Mr. REDISH. I assume you don't intend to eliminate the judge in any way other than
Mr. NADLER. He can still be there. He just won'the'll be a judge in a nonexistent court.
Mr. REDISH. I think it's well established. I don't think it would be controversial at all that you have power to rearrange the Federal courts. This Congress created the 11th circuit out of the fifth circuit.
Mr. NADLER. No, I'm not talking about that.
Mr. REDISH. Oh, you're saying based on that action.
Mr. NADLER. I don't likein South Dakota they only have one district. They've only got three judges, let's say. I don't know if that's true. But, for exampleand I'm going to abolish the district of South Dakota. They won't have any Federal judges in South Dakota because I don't like the three judges.
Mr. REDISH. Well, the citizens of South Dakota would have to have access to some independent judicial forum. Either you have to put them into Federal courts in North Dakota or assign the jurisdiction to the State courts. But if what you're suggesting is does the fact that you're doing it out of an animosity toward a particular
Mr. NADLER. No, no, no. I'm sayingforget the motive. I am saying do we have the power to abolish a court and abolish, in effect, the judge as a judge by abolishing the court?
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Mr. REDISH. Sure. They have life tenure under article III.
Mr. NADLER. So they would have life tenure in a nonexistent court.
Mr. REDISH. I've seen baseball managers have long-term contracts after they've been fired.
Mr. NADLER. Okay. Let me change the subject. You'veI'm tryingyou disagreed with Professor Gerhardt about the power of Congress, about the phantom constitutional restriction on our power to limit jurisdiction. Do you disagree that if we were to say that the Federal courts have no jurisdiction to hear claims of religious discrimination against Jews or Quakers, could we do that?
Mr. REDISH. I certainly agree that the equal protection component of the fifth amendment limits this Congress' power. You could not say Jews do not have access to Federal courts, African Americans do not have access to Federal courts.
Mr. NADLER. And we could not say that the Federal courts have no jurisdiction to judge the constitutionality of the law that you said couldn't have intermarriage between two different religious groups.
Mr. REDISH. No, I don't agree with that. I see a big distinction there. There was a Supreme Court decision in the 1970's named Geduldig v. Aiello, which suggested that it is quite a different thing to discriminate directly as opposed to discriminating indirectly. As long as individuals who wanted to challenge whatever laws are involved to protect their rights have access to an independent forum, I see
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Mr. NADLER. So you think we could do that.
Mr. REDISH. It would depend on exactly how it's phrased, but, yeah, I think you certainly would have the power.
Mr. NADLER. Mr. Gerhardt, could you comment to that?
Mr. GERHARDT. Well, I guess a couple of comments. I mean, the first is I think clearly if you, this body, Congress, passes a law, it gets evaluated under the Equal Protection Clause and relativelyI should say equal protection component of the fifth amendmentin a relatively straightforward manner. You ask whether there was a suspect classification. You ask whether or not it impedes a fundamental right. You also might ask whether or not it passes, in the absence of either of those things, the rational basis test. It's conceivable you may have a law that's passed that the Supreme Court evaluates under the rational basis test and strikes down. That's exactly Evans v. Roemer.
Mr. CHABOT. The gentleman's time has expired, but you can continue your answer.
Mr. GERHARDT. The only other comment I would then make is that I think if Congress abolishes an article III court in which there is a sitting judge, that's plainly violation of separation of powers. If this body were to eviscerate the Presidency, subpoena the President to testify, for example, that might well be unconstitutional. So I think that the invasion, the exercise of a power to undermine the effectiveness of another branch, violates separation of powers.
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Mr. CHABOT. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. And I thank the Chairman for holding these hearings, and I thank the witnesses for their testimony, and apologize for not being here to absorb it all. I will read the text of this subsequent to that.
I'm very interested in this issue, and interested in the response of Professor Gerhardt. As I read the Constitution, and it establishes clearly that the inferior courts are established by Congress. So I won't be a response to the position that if Congress establishes all inferior courts, then constitutionally, what Congress gives, Congress can take away. If there is a branch ofor not a branch of Government, but if there's a department that's established by Congress, and we decide to abolish that departmentan example a decade ago would be the Department of Educationconstitutionally we could abolish that, then why could not Congress abolish the inferior courts that are established by Congress?
Mr. GERHARDT. Well, I think there are a few limitations onthat will arise. And we have mentioned them today. The first one is separation of powers. If you abolish a court in which there is a sitting judge, I think that that does raise very serious separation of powers concerns. Moreover, I think you are going to raise concerns under article III because that judge's life tenure may be put in jeopardy as well.
Beyond that, I think that you may have other concerns depending on whatwhether or not that withdrawal has been in retaliation against a judicial decision. Say that the lower court hassay the Supreme Court has not reached the question on flag burning, whether or not that is something that is a first amendment right, but the Circuit Court has done that. You then withdraw, try to withdraw jurisdiction in that case, that's effectively trying to overrule that court. I think that's not a permissible exercise of power.
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Mr. KING. But, Professor, if Congress grants power to a court, a court that is defined as an inferior court in the Constitution, then why could they not withdraw that power constitutionally?
Mr. GERHARDT. Because there are limits on exercise of power.
Mr. KING. And the basis of those limits would be what?
Mr. GERHARDT. The Constitution.
Mr. KING. And if the Constitution grants us power to establish thatlet's say, for example, then Congressthis definition, this line of the separation of powers between these two branches of Government that are in question here, Congress established the courts, and by precedent we allow the judicial branch to take jurisdiction over any number of subject matter and law. And as that jurisdiction grows, and the influence of the courts grow, and we're very well aware the expansiveness of that interest and the activeness of the courts, then as that grows, then, would you then prescribe for us at what point Congress might intervene, under what circumstances legally, and also with public opinion in mind?
Mr. GERHARDT. Well, as I suggest in my statement, I think one would analyze that would be that Congress has got to have a neutral reason to contract jurisdiction. It's one thing to expand it, but once you get into the business of contracting, withdrawing jurisdiction, you need a neutral justification, such as national security, judicial efficiency. But I don't think distrust of Federal judges qualifies as a neutral justification. I don't think hostility to the fundamental right that may be adjudicated in a particular case also constitutes neutral justification.
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Mr. KING. Who will define neutral justification?
Mr. GERHARDT. Ultimately the courts.
Mr. KING. Correct. So eventually we're around that tautological logic that brings us back to where we began; that is, that if Congress can't make definitions, if they can't define the subject matter, eventually the courts can then be linkedthey can link the logic back together and do whatever they will, without congressional intervention.
Mr. GERHARDT. Congressman, we just may have a respectful disagreement here, but I think that you've characterized it as do whatever they say. They will, of course, I believe in good faith, construe the Constitution, and I believe they would likely construe the Constitution in the way that would protect the vitality of the Federal court system. But howbut I don't thinkI don't view their activity as an unlicensed one.
Mr. KING. And I'm not willing myself to concede the good faith argument, because I think that's been breached many times in the past. And probably the most obvious one would be Dred Scott, and there's a series of those and the linkage of those cases that get us to this point. I mean, I would go back then to say, for example, Griswold v. Connecticut and the establishment of the right to privacy that wasn't conceived by our Founders, and how that was built upon to get us to this point where we have a constitutional right to partial-birth abortion. I mean, the Founders didn't envision this, and the logic of the courts support this. The logic of the Congress does not. And so at some point we must find a way to intervene.
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And I'd turn to Mrs. Schlafly on, again, a final recommendation on how we might do that definitively.
Mrs. SCHLAFLY. Well, I would urge that you pass legislation that takes away from the Federal courts the power to hear challenges to the traditional definition of marriage. And I'm very fascinated by Professor Gerhardt's continual references to separation of powers. The clearest thing about the separation of powers is that all legislative power is in the hands of Congress. And what we're confronted with here is that judges are trying to override the specific definition about the definition of marriage that has to be decided by our elected Representatives, and that is what the separation of powers means.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Virginia Mr. Scott is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. And I'd like to kind of follow up on that, because if we're talking about legislative powers and the abuse of the judiciary and the havoc raised by these unelected judges, Mrs. Schlafly, I'd like you to comment on the havoc created when these unelected judges required Virginia to recognize marriages of people of different races.
Mrs. SCHLAFLY. Well, we all know that race is in a particular category in our country, and the courts have done some helpful things on that. As I pointed out, the main case that people talk about, Brown, was simply correction of a previous mistake, and it was one of the greatest examples of judicial supremacy when they started the whole bad line of cases with Dred Scott.
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Mr. SCOTT. You agree with that list of cases, but these are unelected judges, not the legislative branch. If we waited for the legislative branch to allow mixed marriages, it would still be prohibited in Virginia.
Mrs. SCHLAFLY. Well, most of the other States did allow mixed marriages so it was notit was just some States.
Mr. SCOTT. But in that, the unelected judges imposing their will did not wreak havoc becauseyou agree?
Mrs. SCHLAFLY. I am not saying all courts' decisions are bad, just lots of them. I think it is a perfectly valid, neutral argument to say we do not trust the judges in the issue of marriage.
Mr. SCOTT. And if we set a policy that we did not trust the judges, then that ruling could not have been made; is that right?
Mrs. SCHLAFLY. Yes, but we did not do that. The American people were perfectly acceptable of that. But it is clear we do not trust the judges on the issue of marriage.
Mr. SCOTT. That was an issue of marriage.
Let me ask Professor Gerhardt, you are talking about a neutral justification for court stripping. Does motive make a difference if it has the effect of eliminating the jurisdiction on a constitutional issue?
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Mr. GERHARDT. Well, it sometimes might. The critical thing is the purpose and effect of a law, and sometimes the court will infer that from just looking at the law itself, and sometimes it looks at the context in which the law is passed. But looking at either context or effect might well bring you to an illegitimate purpose or motivation, at which point I think courts strike laws down.
Mr. SCOTT. Professor Redish, you have indicated if something unconstitutional is going on, you have to have access to some court. Would you have an appeal to the Supreme Court at some point even though Congress has stripped it of, or tried to strip it of jurisdiction?
Mr. REDISH. That is actually a fascinating question. My answer I think is no, because the right to an adequate judicial forum derives from the Due Process Clause. The Supreme Court itself has made clear that due process requires no right of appeal. There is no constitutionally dictated right of appellate review. So as long as you had an adequate and independent trial forum, who possessed sufficient power to enforce its decrees, there would be no due process violation from excluding Supreme Court review power.
Mr. SCOTT. The Supreme Court has jurisdiction over consideration of constitutional issues. That is part of article III.
Mr. REDISH. Absolutely. But all of its appellate power under article III and its power over most constitutional issues which comes within its appellate power, is qualified by the Exceptions Clause. And I see no way to read that other than this Congress may make plenary exceptions to that jurisdiction.
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Mr. SCOTT. So if something unconstitutional is going on in Virginia, and Congress allowed it to happen, as long as Virginia courts approved it there would be no access to fix it?
Mr. REDISH. That is right. I should emphasize that nothing in the Exceptions Clause empowers, allows this Congress to overrule a preexisting Supreme Court decision. Ironically, to the contrary, it locks it in because the only court that can change a Supreme Court decision is the Supreme Court. But the whole notion of the Exceptions Clause and the power over lower Federal courts is premised on the notion that the State courts are going to be good-faith protectors of Federal rights. Whether that is empirically true one could debate, but it certainly was the assumption of the framers.
Mr. SCOTT. Mr. Gerhardt, would you like to comment on that? If something is unconstitutional in Virginia, you would have no Federal remedy as long as Congress just allowed it to happen?
Mr. GERHARDT. I would read the Supreme Court doctrine differently and read constitutional law differently. I think that there certainly are circumstances in which the Supreme Court of the United States will not trust the State courts as final adjudicators of certain Federal or constitutional claims. You might go as far as Martin v. Hunters Lessee as one example of that. I don't think the Constitution generally sets up the State courts in a position to be the final adjudicators of Federal law. I don't think that situation would be consistent with how constitutional law has grown over time.
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It just bears repeating: I don't believe there is any unlimited power that is granted in the Constitution to any branch. The Supreme Court and other Federal courts, might well make mistakes. The Constitution prescribes the methods for overruling those mistakes if they happen to pertain to constitutional law, and those are limited.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.
Mr. HOSTETTLER. I thank the Chairman.
As we contemplate the issue of same-sex marriage and the notion of an independent judiciary, I think it is important to look at the Supreme Court case which has brought us to this point to be very concerned about the future of traditional marriage in America.
In Lawrence v. Texas, the Supreme Court determined that for a variety of reasons a Texas sodomy law was unconstitutional. But what is intriguing in the opinion of the majority, as written by Justice Kennedy and the concurring opinion by Justice O'Connor, is the idea of speaking to the issue of marriage. Now, the case of Lawrence v. Texas did not have anything to do with marriage. It is my understanding of the facts of the case with regard to the arrest that was made, that the individuals involved in the case were not involved in a wedding ceremony at the time of the arrest. But rather, the case, Lawrence v. Texas, does speak to the issue of same-sex marriage, and that is intriguing to me in that Justice Kennedy implicitly speaks to the issue when he says, ''The present case does not involve whether the Government must give formal recognition to any relationship that homosexual persons seek to enter.'' obviously what other type of relationship is he talking about but the issue, in my opinion, of same-sex marriage, because it is more explicitly brought out in Justice O'Connor's concurring opinion when she says that ''Texas cannot assert any legitimate State interest here, such as preserving the traditional institution of marriage.''
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Once again, the case was not about marriage but the court seems, for whatever reason, to want to talk about the issue of marriage. She goes on to say, ''Unlike the moral disapproval of same-sex relations, other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.''
So the Court both implicitly and explicitly speaks to the fact that they are not talking about same-sex marriage, and by the wording of their opinions, at least Kennedy and O'Connor seem to tell us that they would not be in favor of expanding these rights to include same-sex marriage.
I wanted to clarify that and ask Professor Gerhardt some questions. I find, like Mrs. Schlafly, your discussion of separation of powers intriguing.
Do you believe that the power to impeach and remove from office of Congress is a violation of separation of powers?
Mr. GERHARDT. You are asking whether the impeachment and removal of a Senator or Member of Congress is a violation of separation of powers? I want to make sure I understand the question. You are asking if Congress sets out to impeach and remove a Member of Congress
Mr. HOSTETTLER. No. Impeachment is done in the House, removal is done in the Senate. And we impeach and remove from office officers of the Government: President, Vice President, judges, justices, anyone. I am asking if that is a violation of separation of powers, in your opinion.
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Mr. GERHARDT. The impeachment of whom, is what I am trying to find out.
Mr. HOSTETTLER. The Constitution says the House shall have sole power of impeachment. Let us say the impeachment of, say, a Federal judge and the removal of that Federal judge by the Senate. Do you believe that is a violation of separation of powers?
Mr. GERHARDT. The way you phrase it, I would probably have to say no; but I would have to know what the Federal judge had done to give you a fuller answer.
Mr. HOSTETTLER. Are you saying that the House cannot impeach
Mr. GERHARDT. Yes, the House can impeach Federal judges. It has done that.
Mr. HOSTETTLER. But you are saying except for something else?
Mr. GERHARDT. If you are asking if the power of impeachment can ever exceed its limitations, I suppose the answer is yes. If the House impeached a private citizen
Mr. HOSTETTLER. I understand what you are saying. I don't know how we would do that. That is intriguing.
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Mr. GERHARDT. I would hope you wouldn't.
Mr. HOSTETTLER. Do you think the power to pardon after a Supreme Court has upheld a lower court's ruling with regard to an individual, do you think the power to pardon by the President is a violation of separation of powers? When the courts have determined that an individual has violated a Federal law and the Supreme Court has upheld the conviction, do you believe that the pardon is
Mr. GERHARDT. Given what you have suggested, no, I would not think that would be a problem. If it is a Federal offense, obviously the pardon power does not pertain to State offenses but it pertains to Federal offenses. The President has been given that authority, so if the President exercises that authority, as Presidents have done, I am not sure there is a problem there.
Mr. HOSTETTLER. I ask unanimous consent for one additional minute.
Mr. CHABOT. Without objection.
Mr. HOSTETTLER. Do you believe the power of Congress to repeal a previously enacted statute is a violation of separation of powers?
Mr. GERHARDT. I can answer that question generally as probably yes. But again, we have to understand that the particulars may make a great deal of difference to the answer.
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Mr. HOSTETTLER. You are saying it is a violation of separation?
Mr. GERHARDT. No, I said generally it would not be; but obviously I would need to know the particulars. There may be withdrawals of jurisdiction and other statutory entitlements and how that is done may make a great deal of difference to the answer.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from California, Mr. Schiff, is recognized for 5 minutes.
Mr. SCHIFF. Thank you, Mr. Chairman. This is now the fourth of five hearings on the subject, and I think on this side of the aisle we do not wish to be outdone. We would like to propose five more hearings on this subject, because Lord knows there is nothing else to have a hearing on in the Congress.
I have been trying now for 2 1/2 years to get a hearing on whether the Constitution permits the President to detain American citizens without access to counsel, without access to judicial review, based on its sole determination that an American is an unlawful enemy combatant. I have not been able to get a hearing on that in almost 3 years, and we now have had five hearings on this subject. We have not been able to get a hearing on whether we should have a constitutional amendment to continue the Government if we were obliterated in a terrorist attack, but we do have time for five hearings on this subject, and I would like to propose that we have five more hearings.
Page 86 PREV PAGE TOP OF DOC I would like to ask some of the witnesses where their theory of the Constitution leads them. Mrs. Schlafly, you say that you do not trust the Federal courts to decide some of these questions, and you have greater trust in the State courts, so you would like to remove some of the Federal courts' jurisdiction and give it to the State courts?
Mrs. SCHLAFLY. Well, the Congress cannot legislate about the State courts. We are only considering here today the limiting of the Federal courts.
Mr. SCHIFF. Mrs. Schlafly, you would remove the Federal courts' jurisdiction over the marriage issue and allow the State courts to decide that?
Mrs. SCHLAFLY. Yes, I would. Marriage has always been a State matter.
Mr. SCHIFF. So you would be content with the Massachusetts Supreme Court deciding that issue rather than the U.S. Supreme Court?
Mrs. SCHLAFLY. I am not content with Massachusetts, no; but I would not be encouraged to think that the Supreme Court would do the right thing, and I don't think they should be handling it. Personally, I think the people of Massachusetts should take care of their problem, just like the people of Hawaii and Alaska took care of their courts.
Mr. SCHIFF. If the people of Massachusetts decided to amend their constitution to make it abundantly clear that they supported gay marriage, andare you a citizen of Florida?
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Mrs. SCHLAFLY. Missouri.
Mr. SCHIFF. I'm sorry; Missouri. Do you think the people of Massachusetts have that right, and would you find that has a place in the federalist system?
Mrs. SCHLAFLY. I think they have the right but I don't think it would possibly happen.
Mr. SCHIFF. But you are willing to allow the people of Massachusetts to make that decision for themselves?
Mrs. SCHLAFLY. Yes. There are a lot of people who are not apparently willing to let the people of Massachusetts, because the legislature did everything that they could to keep that from going to the people. I think it is clear that the American people do not want to legislate same-sex marriage.
Mr. SCHIFF. Mrs. Schlafly, then you probably would not be comfortable with the current proposed constitutional amendment because that precludes a State constitution from allowing any marriage other than that between a man and a woman; you would not want to prohibit a State from writing that in their constitution or writing the converse, correct?
Mrs. SCHLAFLY. I would not object to that, if the American people want to have an amendment on that, providing we know exactly what it does. I mean, I believe in the legislative process.
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Mr. SCHIFF. If you believe that the people of Missouri should not decide for the people of Massachusetts what kind of constitutional laws they should have, then I would think that you would not want a constitutional amendment that precludes the people of Massachusetts from doing that, would you?
Mrs. SCHLAFLY. There are a number of instances where States had made certain determinations but we decided we wanted to make it a national rule. If the American people want to have a marriage amendment, I would support that.
Mr. SCHIFF. But at the moment, I am asking what you want. Do you want the people of Missouri to be able to determine what the people of Massachusetts have for their own marriage laws?
Mrs. SCHLAFLY. At the moment, I want you to fix it so the Federal courts cannot overturn the laws of the State of Missouri, because we have a good State DOMA law, and we do not want Federal judges interfering with it.
Mr. SCHIFF. Mr. Dannemeyer, you would have us remove Federal court jurisdiction over marriage and over the Pledge of Allegiance as well; is that correct?
Mr. DANNEMEYER. Yes.
Mr. SCHIFF. Would you have us remove Federal court jurisdiction over legal tender so they could not remove ''In God We Trust'' from legal tender?
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Mr. DANNEMEYER. Well, I think if the issue is we acknowledge keeping the motto ''In God We Trust,'' I think we should keep that motto.
Mr. SCHIFF. I think we should keep that motto, too, and I think we should keep ''under God'' in the Pledge of Allegiance. But my question is: Should we remove jurisdiction from the Federal courts in case they might decide otherwise?
Mr. DANNEMEYER. Well, yes, I do. I think Congress has the authority.
Mr. SCHIFF. I am not asking whether we have the authority, I am asking whether you think we should do this; assuming we have the authority, should we remove the Federal court jurisdiction over abortion?
Mr. DANNEMEYER. I think that article III, section 2 presents a good opportunity for reaching that very issue. In fact Roe v. Wade of 1973 was based on a premise that was created out of thin air for justification of the Constitution.
Mr. SCHIFF. I ask unanimous consent for an additional minute.
Mr. CHABOT. Without objection.
Mr. SCHIFF. Thank you, Mr. Chairman.
Page 90 PREV PAGE TOP OF DOC Mr. Dannemeyer, would you propose, then, since many of these issues that we have talked about, the Pledge, ''In God We Trust'' on legal tender, are issues regarding separation of church and State, shall we remove the Federal court jurisdiction over the first amendment of the Bill of Rights that provides, ''Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,'' and in my view, that amendment does not preclude having ''under God'' in the Pledge, which I support, but just in case some court may find otherwise, shall we remove the jurisdiction of the Federal courts over the first amendment just to be safe?
Mr. DANNEMEYER. No, I don't think that we should give a broad reach of that nature. I think in this instance we are dealing with correcting. For example, we should make clear that people have the ability to express faith in public, which is what voluntary prayer in public schools is all about. We should be able to post the Ten Commandments on the walls of public buildings, and on that issue it is just as important as having the Ten Commandments on walls of public buildings.
Mr. CHABOT. The gentleman's time has expired. Does the gentleman wish an additional 30 seconds?
Mr. SCHIFF. Yes, thank you.
So rather than completely removing the jurisdiction of Federal courts over the first amendment, you would merely enumerate all of the first amendment issues involving the Pledge of Allegiance or abortion orwell, that involves a different amendment, I supposereally, any separation of church and State issues within the first amendment, you simply enumerate those and remove those from the Federal Government?
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Mr. DANNEMEYER. I would say to the gentleman from California that H.R. 3799 by Congressman Aderholt from Alabama is now pending before this Committee and should be adopted. It speaks to the specific issues that you described. It would allow retaining God in the Pledge of Allegiance, God in the national motto. It would allow expressions of faith, voluntary prayer in school, it would allow displaying the Ten Commandments on the walls of public buildings, and I hope you would support it.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. FEENEY. Thank you, Mr. Chairman.
Professor Gerhardt, as I understand it your position is that Congress, having the article I and article III power to create lower courts, we do not necessarily have the automatic plenary authority, as Professor Redish suggests, to abolish those Federal courts; is that right?
Mr. GERHARDT. It depends on the circumstances. With respect to abolition, I think it depends on whether or not the court itself is vacant. If it is not vacant, I think there is a constitutional problem.
Mr. FEENEY. Would you agree that in Lockerty v. Phillips and Sheldon v. Sill, the U.S. Supreme Court has, on several occasions, suggested that having created the lower courts, that Congress has the implied power to repeal or abolish those courts?
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Mr. GERHARDT. I would respectfully read those decisions differently, but the bottom line for me is if you are talkingI think the withdrawal of the jurisdiction is itself subject to various constitutional limitations.
Mr. FEENEY. My question is about abolishing what we have created. You are basically saying there may be restraints on abolishing things that we had the power to create under certain circumstances?
Mr. GERHARDT. We created a lower court.
Mr. FEENEY. But we do not necessarily have the automatic right to repeal or abolish that court, is what your position is. And would that be true with respect to creating an executive agency? If we created a Cabinet officer, the nanny State baby-sitter Cabinet officer, if we decided that did not work out, would we be limited in our ability to abolish what we created in the legislative branch just like in the judicial branch?
Mr. GERHARDT. I think in that particular circumstance it is likely to be different. I think you could have something like the Department of Homeland Security where you reorganize things.
Mr. FEENEY. Having created an executive agency, would we potentially be limited if we decided to abolish what we created?
Mr. GERHARDT. I am not sure you would be limited in doing that.
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Mr. FEENEY. So when we create a Federal or an executive agency to repeal what we have done we are not limited, but with respect to the judicial branch they may be depending on the circumstances?
Mr. GERHARDT. I assume you have a neutral justification with regard to the executive agency. But if you have a neutral justification, you can reorganize jurisdiction. But if you do not have a neutral jurisdiction, in my opinion
Mr. FEENEY. I would ask you in writing to tell us where in the text of the Constitution our powers are limited with respect to abolishing a judicial agency or entity we created, whereas it is different from the article II power, agencies that we have created.
Look, the fundamental issue is here, who creates constitutional rights. Some of us believe deeply when the 13 States ratified the Constitution, the people of those States spoke through their republican forms of Government. That is how constitutional rights were established and guaranteed to the people of the country. When new States adopted the Constitution as they became part of our Constitution, when constitutional amendments pursuant to article V were adopted pursuant to the provisions of the Constitution, that is how constitutional rights are created.
But I would like the professors to follow with me, because the problem here is when the Massachusetts Supreme Court, out of thin air, after 250 years of interpretation and history and tradition, its own constitution decides there is suddenly some new inherent right to marriageI want to ask the professors to follow with me because I think this hypothetical gets to the text. This gets to the fundamental issue here: How are these rights created, and what do we do about run-away courts?
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Supposing sometime in the future, five or more justices on the United States Supreme Courtmaybe they decide to import foreign laws, as the Lawrence case did; maybe they cite a European human rights decision; supposing they decided the 14th amendment Equal Protection Clause guarantees pedophiles the right to have relations with minor children at all times in all places, that they are constitutionally protected in this behavior and it is a fundamental right. Notwithstanding the fact that 50 States may have antipedophilia laws, the Constitution may have antipedophilia law, what is the remedy, Professor Gerhardt, and then Professor Redish, what is the remedy of the people? And I would ask you to cite in light of article IV, section 4, the Constitution, guaranteeing that we live under a republican form of Governmentmeaning we get to select the people that make and establish our lawswhat would be the remedy if five justices decided to create a new right to pedophilia-type behavior tomorrow?
Mr. GERHARDT. Frankly, I think it would not be unlike Dred Scott. The remedy there was the 14th amendment. That is how Dred Scott got overruled. That is one of the ways prescribed under the Constitution.
A second way is you try, once people leave the Court, you might try to appoint people with different views.
A third way is you go back to the Court itself and try to convince them they are wrong. That is some of the ways that the Constitution allows.
Mr. CHABOT. The gentleman's time has expired.
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Mr. FEENEY. Mr. Speaker, I ask unanimous consent for 30 seconds for Professor Redish to answer.
Mr. CHABOT. Without objection.
Mr. REDISH. I believe the Dred Scott case is one illustration. The other illustration is a case called Chisolm v. Georgia, where the very early Supreme Court construed article III to revoke State sovereign immunity; and very rapidly an amendment, the 11th amendment, was adopted overruling Chisolm v. Georgia. And I am sure in the example you give, there would be outrage throughout the Nation when we are dealing with a decision of that kind of unpopularity, a constitutional amendment would follow at least as rapidly as the 11th amendment did.
Mr. CHABOT. The gentleman's time has expired. The gentlewoman from Wisconsin is recognized for 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman.
Before turning to questions, I wanted to ask, Mr. Chairman, unanimous consent to submit for the record a report received earlier this week addressed to you from the Congressional Budget Office entitled the ''Potential Budgetary Impact of Recognizing Same Sex Marriages.''
Mr. CHABOT. Without objection.
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Ms. BALDWIN. Thank you. I offer that for the record, based in part on two of our prior hearings. I know there was a lot of questioning back and forth about the potential cost to the Federal Government, were the States and the Federal Government to someday recognize same-sex marriages. This report goes through some estimating and looks at effects on Federal revenues, income tax revenues, estate tax revenues. It further looks at effects on outlays and concludes, while the numbers are very negligible, a slight boon to the U.S. economy or the Federal Government were those relationships to be recognized sometime in the future. I am glad to have their thinking on the topic added to the record of this Committee as we look at the issue.
Turning to today's topic, I had occasion to review the Congressional Research Service report on court stripping, and one of the things that they note is that there are all sorts of legislative proposals that could be characterized as court stripping: abolishing courts, limiting remedies in certain cases. But here today we are looking at a particular type of what is known as court stripping: proposals that have been made to limit the jurisdiction of Federal courts to hear cases in particular areas of constitutional law. Oftentimes the proposals that are brought forward in Congress, or most of the times they are brought forward in response to what can be characterized as a controversial court ruling. Issues that have resulted in court stripping proposals in Congress include rulings on busing, abortion, prayer in school and, recently, the reciting of the Pledge of Allegiance, and clearly the issue that brings us here today.
Because most of these proposals historically have not passed through Congress and been signed into law, an analysis of the constitutionality of these really relies predominantly on very, very old case law, a textual analysis of the Constitution and sort of scholarly discussion about what might happen given the lack of clear and recent precedent.
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I wanted to direct my questions to our two law professors, and sort of expanding on Congressman Nadler's questions about the equal protection limits to this court stripping practice. I know our two professors draw that line in a different place.
Professor Redish, I was pleased to hear your commentary about whether this is constitutional or not, a lot of these court stripping bills would be unwise because they would have an impact on the legitimacy and public confidence in the Congress and the Federal courts. But your analysis in your testimony clearly says that the constitutional directive of equal protection restricts congressional power to employ its power to reject or restrict jurisdiction in an unconstitutionally discriminatory manner. And later on you elaborate that you could not, for example, exclude Federal judicial power in cases brought by African Americans, Jews or women.
I am wondering how much further, since there is a corollaryand you had that question a little bit before, of combining or revoking Federal jurisdiction in substantive matters which disproportionately affect those same protected classes. And I would also like to hear Professor Gerhardt's comments on where that line is in his analysis.
Mr. REDISH. My understanding of the equal protection law is that outside the area of race, the disproportionate impact for facially neutral aspects of the law do not render it a violation of equal protection. That was the Goodridge case I referred to earlier, where the Supreme Court said a law not including pregnancy in certain health benefits, although obviously it could only have an impact on women, was not a violation of equal protection.
Page 98 PREV PAGE TOP OF DOC So I believe under existing constitutional doctrine as I read it, that a law that said women or African Americans or Jews would not have access to the Federal courts would be unconstitutional. A law that restricted jurisdiction over a particular issue that happened to indirectly impact only women or Jews, African Americans, I believe is a different issue, I would say would not violate equal protection.
Mr. CHABOT. The gentlewoman's time has expired.
Ms. BALDWIN. If Professor Gerhardt could also be allowed to respond?
Mr. CHABOT. Without objection.
Mr. GERHARDT. I think if the law were directed plainly at women, then it gets heightened scrutiny in Federal court and it is only going to be upheld if it has substantial justification.
Even if the law does not mention plainly that it is directed against women, the court has held in other context, for example, a race-specific provisionand this is out of Washington, Washington v. Seattle, the court subjected that law to strict scrutiny because it could only have been African Americans who would have been disadvantaged by that law. If you have a law that is directed at burdening gays and lesbians and it is inevitable that they would be the plaintiffs in challenging DOMAs, then it is the natural inference that is what the law is directed against. The court would have to at least subject that to a rational-basis test, and in Evans v. Romer, for example, has struck it down for lacking a legitimate or neutral justification.
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Mr. CHABOT. The gentlewoman's time has expired. The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Mr. Chairman, I thank the panel for their comments today. Mr. Nadler and Mr. Schiff have suggested that we have spent too much time on dealing with the marriage issue. In all due respect, there are some of us on this Subcommittee who believe, rightly or wrongly, that this is a major issue impacting families as we know them in America. Likewise, there are some of us on this Committee who feel that the American family unit is so crucial to the success of America, and America so crucial to the concept of freedom throughout the world, that it merits a significant amount of time to be spent on it.
I know none of my colleagues would make recommendations that they did not believe in, so if we need to have five more hearings, let us have five more hearings on this issue until we flesh it out and make sure that we make the right decisions.
I have heard many of you on the panel today being asked all kinds of questions other than the questions that you came prepared to answer. I could probably ask you about how you feel about the New York Yankees or the Washington Redskins, but we are here to look at the issue of marriage in this particular legislation. It may be simple, but it comes down to two basic issues: Can we as Congress limit this jurisdiction? And the second question is, should we?
Mrs. Schlafly, you have indicated that you feel, one, we can; and two, we should; is that a fair statement?
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Mrs. SCHLAFLY. That is absolutely correct. I think it is clear from this panel and the historical record that you can do it. The issue is you have a wonderful law. DOMA is a well written, elegantly written law, that says what the American people want. We are faced with the possibility, through various litigation, that some activist judges may throw it out, and you have had predictions that judges will do that.
I would suggest that it is up to Congress to prevent that from happening by using the power that we know you have. We do believe that these major decisions should be made by elected representatives, and the whole idea of unelected, lifetime judges to be able to overrule the fine law that Congress passed, and similar laws in all of the other States, is simply not tolerable in a democratic system of self-government.
Mr. FORBES. Mr. Gerhardt, thank you for your thoughts today. If you can help me today or submit your answer later in writing, my question is the concept that Mr. Feeney was talking about a little bit, that even though Congress has no mandate to create courts or jurisdiction or give them jurisdiction, that somehow once we have done that, whether in this area or the bankruptcy court or whatever, that we cannot withdraw that jurisdiction subsequently, if we decide to do that, without a motive or basis that the court approves. I am just wondering if you can at some point in time tell me not other court cases but just the constitutional principle upon which you base that statement?
Mr. GERHARDT. Well, I think it is, for example, the fifth amendment, and that amendment would require, among other things, that if you undertake a legislative action, it has to comply with the equal protection standard. That would then lead us down a particular path, depending on what the classification is, that this withdrawal of jurisdiction seeks to effectuate. So I think that is one limitation. I think every congressional power is subject to some limitation, just like Presidential powers are, and even judicial powers are subject to limitations.
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I think it would be incorrect, at least in my judgment, to believe that there is such a thing as an unlimited congressional power.
Mr. FORBES. Mr. Redish, as I understand your comments today, you believe that we have the authority to do what is in this legislation, but that we should not exercise that authority in this way at this time?
Mr. REDISH. Yes. And I should emphasize once again, that has nothing to do with my views on the substantive merits of this particular law. It is my belief, just as a matter of the American political and judicial process, this is a very powerful authority this Congress has with some very negative consequences that can flow from its exercise, and great caution should be used before it is employed in any substantive area of law.
Mr. FORBES. Mr. Dannemeyer, you believe that we have the authority and that we should exercise the authority; is that a fair summation? I am out of time.
Mr. DANNEMEYER. Yes. Yes, I do.
Mr. CHABOT. Thank you. The gentleman's time has expired.
I would ask unanimous consent that the Ranking Member be granted the time to ask one final question.
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Mr. NADLER. Thank you, Mr. Chairman.
This is a factual question for Professor Redish, I suppose. Have we ever adopted a constitutional amendment or has Congress ever proposed to the States a constitutional amendment to overturn an anticipated court decision that had not yet occurred?
Mr. REDISH. Nothing occurs to me off the top of my head. That has not yet occurred?
Mr. NADLER. Has not at the time it was proposed.
Mr. HOSTETTLER. Would the gentleman yield? Such as the Bill of Rights?
Mr. REDISH. Well, I am not sure that was designed to fend off a particular court decision. It was a broad-based, categorical, normative directive as to what the rights should be; but I don't think it was grounded in any concern that otherwise courts would decide something that Congress did not like.
Mr. NADLER. I thank the gentleman.
Mr. CHABOT. I think that is a very good response. Without objection, Members will have 5 days to include additional responses.
Page 103 PREV PAGE TOP OF DOC I want to thank the panel. I thought this was excellent testimony on behalf of all four of the witnesses. I want to thank the Members for being here in such high numbers.
If there is no further business to come before the Committee, we are adjourned. Thank you.
[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF CHARLES E. RICE
The subject of this hearing is the power of Congress over the jurisdiction of lower federal courts and its power over the appellate jurisdiction of the Supreme Court. This issue arises in the context of H.R. 3313, which provides:
'No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of Title 1.'(see footnote 31)
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This statement, however, offers a general analysis of the power of Congress to remove classes of cases from federal court jurisdiction rather than a specific and detailed analysis of H.R. 3313.
THE POWER OF CONGRESS OVER THE JURISDICTION OF LOWER FEDERAL COURTS
The Constitution [Art III, Sec. 1) provides, ''The juridical 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.'' The Constitution itself did not create the lower federal courts. Instead it left to Congress the decision whether to create such courts and, if Congress chose to create them, how much of the jurisdiction encompassed within the federal judicial power it ought to confer upon them. Congress need not have created such lower courts at all. Having created them, it need not vest in them jurisdiction to decide the full range of cases within the federal judicial power. For instance, until 1875, the lower federal courts had no general jurisdiction in cases arising under the Constitution or laws of the United States.(see footnote 32) Today, the jurisdiction of the lower federal courts is limited in some respects by the requirement of jurisdictional amount and in other respects as to the classes of cases in which they are empowered to exercise jurisdiction. The Norris La Guardia Act, for example, withdrew from the lower federal courts jurisdiction to issue injunctions in labor disputes. The constitutionality of the Norris La Guardia Act was sustained by the Supreme Court in Lauf v. E. G. Shinner and Co.(see footnote 33)
In an extensive dictum in Palmore v. U.S.(see footnote 34) the Supreme Court summarized the status of the lower federal courts under Article III:
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Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested ''in such interior Courts as the Congress may from time to time ordain and establish.'' The decision with respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the juridical power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art III. ''[T]he juridical power of the United States . . . is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) . . . and 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.'' Cary v. Curtis, 3 How 236, 245, 11 L.Ed. 576 (1845).  Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts.
9. This was the view of the Court prior to Martin v. Hunter's Lessee, 1 Wheat 304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall 8, 1 L.Ed.718, (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed.259 (1812). And the contrary statements in Hunter's Lessee, supra, at 327339, 4 L.Ed. 97, did not survive later cases. See for example, in addition to Cary v. Curtis, 3 How 236, 11 L.Ed. 576 (1845), quoted in the text, Rhode Island v. Massachusetts, 12 Pet 657, 721722, 9 L.Ed. 1233 (1838); Sheldon v. Sill, 8 How 441, 12 L.Ed. 1147 (1850); Case of the Sewing Machine Companies, 18 Wall 553, 577578, 21 L.Ed. 914 (1874); Kline v. Burke Construction Co., 260 U.S. 226, 233234, 67 L.Ed. 226, 43 S.Ct. 79, 24 ALR 1077 (1922).
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While various theories have been advanced to argue for restrictions on Congress' power over the jurisdiction of the lower federal courts, none of them is supported by the Supreme Court. Not only does the greater discretion to create, or not, the federal courts themselves include the lesser power to define their jurisdiction, the evident intent of the framers was to vest in the Congress the capacity to make the prudential judgment as to which courts, state or federal, should decide constitutional cases on the lower and intermediate levels.
A statute withdrawing a particular class of cases from the lower federal courts or forbidding those courts to issue specified types of order, would clearly be within the constitutional power of Congress to enact.
THE POWER OF CONGRESS OVER THE APPELLATE JURISDICTION OF THE SUPREME COURT
The Exceptions Clause of Article III, Section 2, provides that ''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 was intended, according to Alexander Hamilton, to give ''the national legislature . . . ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove'' the ''inconveniences'' which might arise from the powers given in the Constitution to the federal judiciary.(see footnote 35) There was evidently concern in the Constitutional Convention and in some of the ratifying conventions that the Supreme Court would exercise appellate power to reverse jury verdicts on issues of fact. Nevertheless, the language of Article III, Section 2, explicitly give the Supreme Court ''appellate Jurisdiction, both as to Law and Fact.'' And it is evident that the power of Congress to make exceptions to that appellate jurisdiction extends to the Court's power to review questions of law as well as questions of fact. As Hamilton observed in The Federalist, no. 81, ''the Supreme Court will possess an appellate jurisdiction both as to law and fact, in all cases referred to [the subordinate tribunals], both subject to any exceptions and regulations which may be thought advisable.''(see footnote 36)
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This power of Congress was so broadly interpreted that a specific authorization by Congress of appellate jurisdiction was construed by the Supreme Court to imply that such jurisdiction was excluded in all other cases. This ''negative pregnant'' doctrine was enunciated by Chief Justice John Marshall in U.S. v. More, in which the Court held that it had no criminal appellate jurisdiction because none had been expressly stated by Congress. Marshall, speaking for the Court, said:
. . . an affirmative description of its powers must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described.(see footnote 37)
It is interesting to note that no criminal cases were appealable to the Supreme Court until 1891, simply because until then Congress had not specified that they could be so appealed. The only way a criminal case could be brought to the Supreme Court was ''by certificate of division of opinion'' in the Circuit Court ''upon specific questions of law.''(see footnote 38)
In 1810, in Durousseau v. U.S.,(see footnote 39) Chief Justice Marshall emphasized that the Court is bound even by implied exceptions to its appellate jurisdiction, so that, in effect, it can exercise it only where expressly granted by Congress.'' The ''first legislature of the union,'' he said, ''have not declared, that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative in the exercise of such appellate power as is not comprehended within it.'' When Chief Justice Taney spoke to the issue in Barry v. Mercein, he said, ''By the constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.''(see footnote 40)
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Prior to 1868, the Supreme Court never had to decide the validity of an act of Congress making a specific exception to its appellate jurisdiction. But when William H. McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities on account of statements he had made, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under a statute specifically permitting such appeals. After the Supreme Court heard arguments on the case and while the Court was deliberating, Congress enacted a statute repealing that part of the prior statute which had given the Supreme Court jurisdiction to hear such appeals from the circuit court. The Court, in confronting for the first time the issue of the positive congressional exception to the appellate jurisdiction, dismissed the petition for what of jurisdiction, even though the case had already been argued and was before the Court. ''We are not at liberty to inquire into the motives of the legislature,'' said the Court. ''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 . . . without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case. And this is not less clear upon authority than upon principle.''(see footnote 41)
It is true that the statute upheld in McCardle did not bar the Supreme Court from reviewing all habeas corpus cases. Rather, it only barred review sought under the 1867 statute which had provided an avenue of review of such cases from the circuit court. The Supreme Court retained the habeas corpus review power which had been given it by the Judiciary Act of 1789 and which Congress had chosen not to withdraw. Later in 1868, the Court applied this distinction in Ex parte Yerger,(see footnote 42) where the Court held that the 1868 statute left untouched the Supreme Court's power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication whatever that the Court would not have upheld an act withdrawing appellate jurisdiction in all habeas corpus cases from the Court.
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Four years later, in U.S. v. Klein,(see footnote 43) the Court had occasion to spell out one important limitation of the Exceptions Clause. Klein is the only Supreme Court decision ever to strike down a statute enacted under the Exceptions Clause. The claimant in Klein, who had been a Confederate, sued in the Court of Claims to recover the proceeds from the sale of his property seized and sold by the Union forces. He had received a full presidential pardon for his Confederate activities, and the Court of Claims ruled in his favor for that reason. If he had not received a pardon, the governing statute would have prevented his recovery. While the appeal of his case was pending before the Supreme Court, a state was enacted which provided that, whenever it appears that a judgment of the Court of Claims has been founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he has been guilty of any act of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court expressly reiterated that Congress does have the power to deny appellate jurisdiction ''in a particular class of cases'':
Undoubtedly the legislature has complete control over the organization and existence of that court and may confer or withhold the right to appeal from its decisions. And if this act did nothing more, it would be our duty to give it effect. If it simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make ''such exceptions from the appellate jurisdiction'' as should seem to it expedient.(see footnote 44)
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The statute in Klein attempted to dictate to the Court how and by what processes it should decide the outcome of a particular class of cases under the guise of limiting it jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, that is, a pardon. And the statute further prescribed that the effect of the pardon would be such that the recitals in the pardon of acts of rebellion and disloyalty would be conclusive proof of those acts. ''What is this,'' said the Court, ''but to prescribe a rule for the decision of a cause in a particular way?'' It is difficult to imagine a more flagrant intrusion upon the judicial process than this effort to dictate the rules to be used in deciding cases. Moreover, the statute in Klein intruded upon the President's pardoning power by attempting ''to deny to pardons granted by the President the effect which this court had adjudged them to have.'' In these major respects the statute involved in Klein was wholly different from a statute simply withdrawing appellate jurisdiction over a certain class of cases.
Since the Klein case, the Supreme Court has not had occasion to define further any limits to the Exceptions Clause. In The ''Francis Wright,''(see footnote 45) the Court said that what the ''appellate powers'' of the Supreme Court ''shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. 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.'' Chief Justice Waite, in his opinion for the Court in The ''Francis Wright'' referred to ''the rule, which has always been acted on since, that 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.''(see footnote 46) Several statements of individual justices in the intervening years reinforce this conclusion. Thus Justice Frankfurter, in his dissenting opinion in National Insurance Co. v. Tidewater Co.(see footnote 47) Noted that ''Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; 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. Ex parte McCardle, 7 Wall. 506.''(see footnote 48)
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In summary, the holdings of the Supreme Court and the statements of various individual justices compel the conclusion that Congress clearly has power under the Exceptions Clause to withdraw appellate jurisdiction from the Supreme Court in particular classes of cases. Indeed, this power is so strong that an exception will be implied in cases where Congress has not specifically ''granted'' appellate jurisdiction to the Court.
It will be useful here to mention some arguments that have been advanced against the use of the exception power by Congress. It has been urged, as Professor Henry Hart put it, that the exceptions ''must not be such as to destroy the essential role of the Supreme Court in the constitutional plan.''(see footnote 49) In addition to the difficulty of determining what is the Supreme Court's ''essential role,'' that test would make the Court itself the final arbiter as to the extent of its powers. Despite the clear grant of power to Congress in the Exceptions Clause, no statute could deprive the Court if its ''essential role;'' but that role would be whatever the court said it was. It is hardly in keeping with the spirit of checks and balances to read such a virtually unlimited power into the Constitution. If the Framers intended so to permit the Supreme Court to define its own jurisdiction even against the will of Congress, it is fair to say that they would have made that intention explicit.
Furthermore, the ''essential role'' test was advanced by Professor Hart in response to the suggestion that Congress could satisfy the Exceptions Clause by removing all but a ''residuum of jurisdiction,'' for example, by withdrawing appellate jurisdiction in ''everything but patent cases.'' Whatever the cogency of Professor Hart's ''essential role'' test would be to a wholesale withdrawal of jurisdiction, if it were ever attempted by Congress, his test cannot properly be applied to narrowly drawn withdrawals of jurisdiction over particular types of cases. It could hardly be argued that the ''essential role'' of the Supreme Court depends on its exercising appellate jurisdiction in every type of case involving constitutional rights. Such a contention would be contrary to the clear language of the Exceptions Clause and to the consistent indications given by the Supreme Court itself.
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A related but more substantial argument against the exercise of Congress' Exceptions Clause power is that Supreme Court review of cases involving important constitutional rights is necessary to ensure uniformity of interpretation and the supremacy of federal statutes over state laws.
The argument that fundamental rights should not be allowed to vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The argument overlooks the fact that the Exceptions Clause is itself part of the Constitution. As Alexander Hamilton wrote in No. 80 of the Federalist, the Exceptions Clause is a salutary means ''to obviate and remove'' the ''inconveniences'' resulting from the exercise of the federal judicial power. Judging from what the Supreme Court has said about it over the years, it is not only an important element of the system of checks and balances, but one which grants a wide discretion to Congress in its exercise. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, the more dramatic personal rights, such as speech, privacy, free exercise of religion, would quickly be reduced to nullities. This right to preservation of the system of checks and balances is itself one of our most important constitutional rights.
If it be contended that the Exceptions Clause cannot be used to deprive the Supreme Court of appellate jurisdiction in cases involving fundamental constitutional rights, it must be replied that such a limitation can be found neither in the language of the clause nor in its explications by the Supreme Court. Indeed, the Supreme Court's conclusion, prior to 1891, that there was no general right of appeal to that Court in criminal cases surely involved the denial of the right to appeal in cases involving constitutional rights. For what constitutional right is more fundamental than the Fifth Amendment right not to be deprived of life or liberty without due process of law?
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A withdrawal of Supreme Court appellate jurisdiction and lower federal court jurisdiction over a subject such as same-sex marriage, school prayer or whatever, would not reverse any rulings the Supreme Court had already made on the subject. Some state courts might apply previous Supreme Court decisions but others might not. The constitutional commitment of complete discretion to Congress as to whether even to create lower federal courts, the resulting discretion of Congress to limit that jurisdiction, and the explicitly conferred control of Congress over the appellate jurisdiction, all combine to compel the conclusion that there is no constitutional right to uniformity of interpretation among the states as to constitutional rights. There would therefore be no constitutional obstacle to the effect of H.R. 3313 in permitting each state to make its own decision on the definition and legal incidents of marriage.
In his First Inaugural Address, President Abraham Lincoln warned that ''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 instant they are made, in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal.'' Supreme Court decisions in several areas are distortions of the constitutional intent in matters of substantial importance. It is within the powerand it is the dutyof Congress, to remedy this wrong. The withdrawal of jurisdiction would be a measured and appropriate response. It would be preferable to a constitutional amendment in that it would have no permanent impact on the Constitution. If experience showed it to be unwise, it could be readily repealed by a statute. But it would restore the balance of governmental powers and help to undo some of the unfortunate consequences of judicial excess.
Page 114 PREV PAGE TOP OF DOCBOSTON COLLEGE LAW REVIEW ARTICLE, VOLUME XXVI, NUMBER 5, SEPTEMBER 1985
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PREPARED STATEMENT OF THE HONORABLE SPENCER BACHUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA
Thank you Chairman Cabot for holding this very important hearing today on ''Limiting Federal Court Jurisdiction to Protect Marriage for the States.'' I would also like to thank the witnesses for giving their time to be here today. You should know that this is an issue that is personally important to me, as well as many of my constituents.
The circumstances that we find ourselves in are occasioned by an increasingly intrusive and tyrannical judiciary, who through recent court decisions are redefining for all Americans the institution of marriage. These decisions demonstrate a judiciary out of touch with the intent of the Framers as well as the moral norms of society.
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I believe that marriage is a sacred commitment between a man and a woman and that it is this commitment that is the foundation of all families. Children deserve to be raised and nurtured by parents who are spiritually devoted to one another. Recognizing that past government studies indicate that giving same-sex couples the same benefits as married heterosexual couples could cost the federal Treasury billions of dollars, it is important that we remember that the consequences of legally recognizing same-sex marriage extend beyond healthcare, insurance, pensions, and taxes. These consequences include: discouraging the rearing of children in two-parent biological families, the creation of fatherless or motherless families by design and the further erosion of an institution that has proved to be a crucial social stabilizer. The fact that these consequences may fall upon some of the most vulnerable members of societyour childrenmakes it incumbent upon us to act to preserve the institution of marriage which is dedicated to protecting them.
Congress, as an elected body of the people, has a duty to defend marriage against assaults by the judiciary. I will continue to work with my colleagues to prevent activist judges from standing our Constitution on its head.
PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA
Thank you, Mr. Chairman, for holding this hearing today. It has become increasingly clear in recent times that our federal judiciary no longer sees a line between itself and the legislature. From the Supreme Court's decision in Lawrence v. Texas to the Partial Birth Abortion Ban decision in San Francisco, the courts are proving to us that they are sitting as super-legislatures, and challenging us to do something about it.
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Our Founders created a system of checks and balances, in which each branch would keep the others in line and, in turn, be kept in line by the others. Thomas Jefferson discussed these checks and balances as they relate to the judiciary. In essence, he stated that, if the judiciary is always given the final say on constitutional issues, there is no one to check that power. This is why it is so important for the 535 Members of Congress, elected by the people, to reassert our power and perform our constitutional duties.
Whenever jurisdiction limitation is discussed, the argument that the judiciary is the final arbiter of the Constitution is sure to arise. It is time for this Congress to ask who gave the courts this right? The answer is the Supreme Court itself, in Marbury v. Madison. Over the last 200 years, however, the judiciary has continued to seize legislative powers, and the legislature has done little to stop that confiscation. I think the words of Thomas Jefferson sum this up best: ''Our judges are as honest as other men and not more so. . . . [T]heir power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.'' In other words, there is no reason to believe that the judiciary can be trusted more to ensure that our laws reflect our Constitution than the legislature. It is very likely that the status of the federal judiciary as unelected officials might allow judges to interject more of their personal beliefs into their decisions.
The role of the Supreme Court is to determine whether laws are consistent with the Constitution of the United States. Legislators and the people who elect them get to decide if laws are unwise or unpopular, not judges and justices. It is our duty, on behalf of the American people, to rein in the federal judiciary and prevent them from usurping the role of elected legislatures. Thank you, Mr. Chairman.
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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
I should thank my Republican colleagues for one thing; for the first time, I truly understand the phrase ''beating a dead horse.'' This is the fourth of five hearings on whether we should pass an amendment enshrining discrimination into the Constitution. All we have heard in this tedium is that right-wing conservatives really, really want a discriminatory amendment in the Constitution.
The fact is, though, that such an amendment does not have the two-thirds support it needs to pass in Congress. That begs the question of why we are even discussing it. To most Americans, the answer is clear: the Republican leadership wants to score political points with its right-wing base in an election year.
The point of this particular hearing is for Republicans to reiterate their opinion that federal judges do not share the values of mainstream Americans and thus should not hear cases involving same sex marriage. I think the word ''reiterate'' is important because whenever a federal court issues a ruling that conflicts with their conservative leanings, the Republicans try to strip federal courts from hearing similar cases. They did not like the Ten Commandments or Pledge of Allegiance decisions, so they introduced numerous bills to prevent federal courts from hearing cases on those two declarations. They also severely limited the ability of federal courts to issue writs of habeas corpus for state convictions.
What is confusing is that Republicans strongly favor federal court jurisdiction in other instances. Last year, they made it a federal offense for a doctor to comply with a woman's right to choose. In the 1980's, the Republicans clogged up federal courts with new drug prosecutions that were normally handled at the state level. For at least a decade, they have been trying to move all tort cases from state to federal courts.
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Finally, but for the highest federal court in the land overruling a state court and the will of the people, George W. Bush would not be the current occupant of the White House. I do not hear my conservative colleagues complaining about that instance of federal court overreaching.
My careful analysis of this matter shows that Republicans favor federal court jurisdiction when state courts and juries issue rulings that conservatives do not like. These areas generally include crime, torts, and presidential elections in which the Democratic candidate has won.
THREE LETTERS SUBMITTED BY THE THE HONORABLE JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
LETTER FROM WITNESS PROFESSOR MICHAEL GERHARDT TO THE HONORABLE TOM FEENEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
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CBO REPORT SUBMITTED BY THE HONORABLE TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN
(Footnote 1 return)
Public Law 104-199 (Sep. 21, 1996)
(Footnote 2 return)
1 U.S.C. Sec 7
(Footnote 3 return)
28 U.S.C. Sec 1738C
(Footnote 4 return)
Dallas, March 8, 2004
(Footnote 5 return)
GAO-04-353R (Feb. 24, 2004), revising and updating GAO/OGC-97-16 (Jan. 31, 1997)
(Footnote 6 return)
The Daschle law about brush clearing, Public Law 107-206, Sec. 706(j), states: ''Any action authorized by this section shall not be subject to judicial review by any court of the United States.'' The law authorized the Interior Department to clear timber in the Black Hills of South Dakota in order to fight and prevent forest fires. Environmental groups had filed several lawsuits to stop timber clearing. At least one court had issued an order and other suits were pending. The Daschle law terminated all these suits so that timber clearing could continue without judicial interference.
(Footnote 7 return)
Lawrence v. Texas, 539 U.S. 558 (2003)
(Footnote 8 return)
Goodridge v. Department of Public Health, 440 Mass. 309 (2003)
(Footnote 9 return)
Turner v. President, Directors and Company, of the Bank of North America, 4 U.S. 8 (1799)
(Footnote 10 return)
Marbury v. Madison, 5 U.S. 137 (1803)
(Footnote 11 return)
Ex parte Bollman, 8 U.S. 75 (1807)
(Footnote 12 return)
United States v. Hudson and Goodwin, 11 U.S. 32 (1812)
(Footnote 13 return)
Sheldon v. Sill, 49 U.S. 441 (1850)
(Footnote 14 return)
42 U.S.C. Sec. 1973c
(Footnote 15 return)
Ex parte McCardle, 74 U.S. 506 (1869)
(Footnote 16 return)
National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949)
(Footnote 17 return)
The Francis Wright, 105 U.S. 381 (1881)
(Footnote 18 return)
29 U.S.C. Sec. 101-115
(Footnote 19 return)
Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938)
(Footnote 20 return)
Lockerty v. Phillips, 319 U.S. 182 (1943)
(Footnote 21 return)
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944)
(Footnote 22 return)
29 U.S.C. Sec. 252(d)
(Footnote 23 return)
Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)
(Footnote 24 return)
Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)
(Footnote 25 return)
Hatami v. Ridge, 270 F. Supp. 2d 763 (E.D. Va. 2003)
(Footnote 26 return)
42 U.S.C. Sec. 1395w-4(i)(1)
(Footnote 27 return)
American Society of Dermatology v. Shalala, 962 F. Supp. 141 (D.D.C. 1996)
(Footnote 28 return)
For more elaborate discussions of the Court's essential functions, see, e.g., Leonard Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill. L. Rev. 929 (1982); Lawrence Sager, Forward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 1 (1981); Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157 (1960).
(Footnote 29 return)
Some authorities suggest a different, or additional basis, for the unconstitutionality of excluding all federal jurisdiction over a particular federal law or constitutional claim. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) (1816), Justice Story construed the vesting clause of Article III as requiring, inter alia, ''the whole judicial power of the United States should be, at all times, vested in an original or appellate form, in some courts created under its authority.'' His point was that at least some article III court ought to be empowered to wield the entire judicial power of the United States. Yale Law School professor Akhil Amar has modifed this argument. He contends that article III requires that ''all'' cases arising under federal law, ''all'' cases affecting ambassadors, and ''all'' cases of admiralty or maritime jurisdiction must be vested, either as an original or appellate matter, in some Article III court. Akhil Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 Boston U. L. Rev. 205 (1985).
(Footnote 30 return)
Professor Theodore Eisenberg has argued that the Framers understood ''that the federal courts, whatever their form, could be expected to hear any litigant whose case was within the federal constitutional jurisdiction, either at trial or on appeal.'' Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498 (1974). He suggests that the Framers assumed that the Supreme Court could accomplish this objective, but argues, as do many other scholars, that this assumption is no longer practical. Eisenberg argues that Congress may exclude cases from federal jurisdiction for ''neutral'' policy reasons, such as to avoid case overloads or promote the efficiency of federal courts.
(Footnote 31 return)
108th Cong., 1st Sess.; Section 1738c, of Title 28, is the Defense of Marriage Act; Section 7 of Title 1, of the Constitution is the Full Faith and Credit Clause.
(Footnote 32 return)
See Hart and Wechaler, The Federal Courts and the Federal System ()1953), 72733.
(Footnote 33 return)
303 U.S. 323, 330 (1938).
(Footnote 34 return)
411 U.S. 389, 400402 (1973).
(Footnote 35 return)
The Federalist, No. 80. Emphasis in original.
(Footnote 36 return)
Emphasis in original.
(Footnote 37 return)
7 U.S. (3 Cranch) 159, 172 (1805).
(Footnote 38 return)
U.S. v. Sanges, 144 U.S. 310, 319 (1892); see also U.S. v. Cross, 145 U.S. 571 (1892); Ex parte Bigelow, 113 U.S. 328, 329 (1885).
(Footnote 39 return)
10 U.S. (6 Cranch) 307, 314 (1810).
(Footnote 40 return)
46 U.S. (5 How.) 103, 119 (1847).
(Footnote 41 return)
Ex parte McCurdle, 74 U.S. (7 Wall.) 506, 51314 (1868).
(Footnote 42 return)
75 U.S. (8 Wall.) 85 (1868).
(Footnote 43 return)
80 U.S. (13 Wall.) 128, 14546 (1872).
(Footnote 44 return)
(Footnote 45 return)
105 U.S. 381, 386 (1881).
(Footnote 46 return)
105 U.S. at 385 (emphasis added).
(Footnote 47 return)
337 U.S. 582, 655 (1949).
(Footnote 48 return)
See also the opinion of Justice Harlan in Glidden v. Zdanok, 370 U.S. 56768 (1962); and see the concurring opinion of Justice Douglas in Flast v. Cohen, 392 U.S. 83, 109 (1968), stating that ''As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Art. III. See Ex parte McCardle, 7 Wall. 506.''
(Footnote 49 return)
Henry Hart, ''The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic,'' 66 Harv. L. Rev. 1362, 1365 (1953).