SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC95803 PDF
CONSTITUTION RESTORATION ACT OF 2004
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SEPTEMBER 13, 2004
Page 2 PREV PAGE TOP OF DOCSerial No. 105
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Page 3 PREV PAGE TOP OF DOCSTEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Page 4 PREV PAGE TOP OF DOCSubcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JOHN R. CARTER, Texas
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
Page 5 PREV PAGE TOP OF DOCBLAINE MERRITT, Chief Counsel
DAVID WHITNEY, Counsel
JOE KEELEY, Counsel
ALEC FRENCH, Minority Counsel
C O N T E N T S
SEPTEMBER 13, 2004
The Honorable Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Howard L. Berman, a Representative in Congress From the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Robert B. Aderholt, a Representative in Congress From the State of Alabama
Mr. Michael J. Gerhardt, Professor of Law, The College of William & Mary, School of Law
Page 6 PREV PAGE TOP OF DOC
Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh School of Law
The Honorable William E. Dannemeyer, Member of Congress, 1979-92
The Honorable Roy S. Moore, Foundation for Moral Law, Inc.
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Berman
Prepared Statement of the Honorable John Conyers, Jr.
Supplemental Prepared Statement of the Honorable Roy S. Moore
Letter to the Honorable Lamar Smith, Chairman, Subcommittee on Courts, the Internet and Intellectual Property and the Honorable Howard Berman, Ranking Member, Subcommittee on Courts, the Internet and Intellectual Property from Mr. Michael J. Gerhardt, The College of William & Mary, School of Law
Page 7 PREV PAGE TOP OF DOC
CONSTITUTION RESTORATION ACT OF 2004
MONDAY, SEPTEMBER 13, 2004
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 4:40 p.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith (Chair of the Subcommittee) presiding.
Mr. SMITH. This Subcommittee on Courts, the Internet, and Intellectual Property will come to order. Today's hearing is on H.R. 3799, the ''Constitution Restoration Act of 2004.'' I am going to recognize myself for an opening statement, then the Ranking Minority Member, Mr. Berman, and then proceed to introduce the witnesses. Without objection, all Members will be able to submit their opening statements for the record. And also without objection we will include the entire testimony of all witnesses today since, as they know, we are limited to 5 minutes for each of their testimonies.
Today's hearing addresses an important subject matter, the right of Congress to prevent the Supreme Court and the lower Federal courts from reviewing a specialized category of cases that touches upon religious faith. The legislation before us that facilitates this also imposes a tough penalty, impeachment on any Federal judge who ignores Congress's directive. The bill addresses tangential but related issues as well, including the obligation of State courts to observe Federal precedence and the ability of Federal judges to use foreign legal servicesexcuse me, foreign legal sources when interpreting the Constitution.
Page 8 PREV PAGE TOP OF DOC
H.R. 3799 is the latest in a series of legislative and oversight responses to questionable, or at least controversial Federal court decisions. For the most part, I subscribe to the notion that the American justice system is the envy of the world. But it is far from perfect, as the behavior of unprincipled trial lawyers and activist judges attest. Religious faith and practice are part of the American culture. Many of our ancestors fled to the colonies that became this country to avoid religious persecution. Hundreds of years later, our respective faiths inform and influence our behavior as individuals and as a Nation.
I firmly believe that Americans are the most prosperous and caring people in world history, largely because we are a religious people. But our status as the leader of the free and civilized world is also based on our commitment to the rule of law. All are bound by it from presidents to truck drivers to judges to waitresses. We cannot function as a society if some citizens are beyond the law's reach. We cannot pick and choose those laws we will obey.
Academics, legislators, and other interested parties are divided as to whether court-stripping bills are constitutionally sound. We look forward to our hearing because we have a balanced panel of experienced and learned witnesses, and I am confident that our discussion this afternoon will be both informative and constructive.
That concludes my opening remarks. And the gentleman from California, Mr. Berman, is recognized for his.
Mr. BERMAN. Thank you very much, Mr. Chairman.
Page 9 PREV PAGE TOP OF DOC I am not sure whether the greater irony is that this bill is called the Constitutional Restoration Act when it does the opposite of restoring the Constitution's integrity. Or that this hearing is taking place days before the Jewish High Holidays, a time in which Jews spend days reciting prayers replete with acknowledgment of God and his sovereignty.
America was founded by those attempting to escape religious persecution. The pilgrims set forth to a new continent in the hope of establishing what was at the time a radical idea, a society free from the tyranny of religious discrimination. This tradition led the framers of the first amendment to our Constitution to insist on the principle of separation of church and State. They enshrined in our founding document the twin pillars of our country's policy toward religion, a commitment to allow freedom of religious expression and a rejection of the State's establishment of religion. They entrusted our courts with the ability to differentiate between the two.
H.R. 3799 is a reactionary piece of legislation. It is borne out of an attempt to politicize recent decisions of the supreme court and lower Federal courts. And the most egregious part, H.R. 3799, would seemly make it an impeachable offense for a Federal judge to decide that H.R. 3799 or a specific portion of it violates the U.S. Constitution.
This bill attempts to circumvent the only available process for legislators to reverse the effects of judicial decisions concerning the Constitution. That process is called a constitutional amendment. The Framers deliberately made it difficult to achieve because it did not want legislators repeatedly tinkering with the founding document.
Supporters of this bill have repeatedly promoted the concept of court stripping in an effort to give legislators the power to take decisions out of the hands of judges, an approach that is thoroughly at odds with what the Framers of the Constitution intended. I'm surprised at it in an age where we are trying to eradicate the Taliban, a group that infused a fundamentalist interpretation of their religion in every aspect of public life; we are here now talking about removing Federal judicial oversight in some religion cases.
Page 10 PREV PAGE TOP OF DOC
The Constitution created the most delicate balance between the branches of Government. We must protect the sanctity of the autonomous nature of our judiciary. By giving Congress power to overturn the judiciary's core function of constitutional interpretation, this bill would fundamentally alter that constitutional balance.
The bill is not about freedom of expression, as some might proclaim. It is a mockery of what our Founders considered to be an integral part of our system of Government, the separation of powers, and the system of checks and balances between the branches of Government. Are we to chain the hands of the judicial branch of the Federal Government so that they merely serve as a rubber stamp for the political mores of the moment? Ironically, while supporters of H.R. 3799 seek to assert greater congressional control over review of the laws it passes, making State courts the primary avenue for challenges to Federal legislation actually erodes Congress's control over judicial review. Unlike with the Federal judiciary, Congress has no impeachment power over State judges or authority to regulate State courts, and the Senate has no power to advise and consent in their selection.
Speaking of our Framers, are we now to question the influence foreign law played in the development of the Constitution? And what about the usage of foreign law in decisions that the sponsor presumably likes? As Professor Gerhardt states in his written testimony, if this bill were law in 1986, then the majority in the Bowers v. Hardwick case presumably would have been subject to impeachment for their reliance on the judiciums on Western civilization and the Judeo-Christian civilization.
The attack on usage of foreign law is said to be a way to clamp down on unacceptable judicial activism. But the opposition to judicial activism is selective, limited to a specific type of decision with which the sponsor disagrees. The sponsors are content to allow other examples of judicial activism to pass unchallenged. For example, of relevance to this Subcommittee but not at all addressed in the bill is the judicial activism evident in the Florida prepaid cases.
Page 11 PREV PAGE TOP OF DOC
In those cases, the Supreme Court based its decisions not on the text of the Constitution, but rather on fundamental postulates that directly contradict the actual language of the 11th amendment. Apparently, the sponsors of this bill are only opposed to judicial activism when it runs counter to their political ideology. This legislation would give asking the power that our Founding Fathers specifically intended to deny the political branches; namely, the power to ensure that judicial decisions aren't held postage to prevailing political sentiment in the country. That is not the role the Founding Fathers intended for Congress or the independent Federal judiciary. That Congress would threaten to impeach Federal judges because of the substance of their constitutional decisions is itself an abuse of power and one which our system of Government cannot tolerate.
Other than that, I remain open-minded on this bill. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Berman. And your voice was running out concurrent with the 5 minutes, I think.
Let me say that we have been joined by a colleague of ours from Alabama, Representative Aderholt. And I am going to recognize him to introduce a former colleague of ours and a constituent of his, and then I will proceed to introduce the remaining witnesses. Representative Aderholt.
Ms. LOFGREN. Could I just very quicklyI don't have an opening statement, but I do haveI am hosting a briefing at the Science Committee at 5:00, and I wanted to apologize to the witnesses. I have read the testimony.
Page 12 PREV PAGE TOP OF DOC
Mr. SMITH. I didn't see that the gentlewoman was seeking to be recognized. But she is. And are youbut you are not seeking to make an opening statement?
Ms. LOFGREN. No. I am just apologizing to the witnesses in advance, and letting them know I have read the written testimony, and I appreciate it and I can't get out of my 5:00 meeting.
Mr. SMITH. Okay. Thank you.
Mr. ADERHOLT. Good afternoon, Chairman Smith, Members of the Subcommittee, distinguished guests, and members of the public. I thank you for this opportunity to join in with you here in the Judiciary Committee to introduce the Former Chief Justice of the Alabama Supreme Court, Roy Moore.
Judge Moore has been at the heart of controversy surrounding the display of the Ten Commandments in the State of Alabama. Anyone who has followed the series of events regarding the public display of the Ten Commandments in Alabama knows Roy Moore.
Many Government buildings across the Nation have displayed the Ten Commandments since this Nation was born as a reminder that the laws of this Nation acknowledge God as a sovereign source of law and liberty. Shortly after being appointed circuit judge, Roy Moore displayed a copy of the Ten Commandments in his assigned courtroom at the Etowah County Courthouse. He did this without fanfare or a desire for media attention.
Page 13 PREV PAGE TOP OF DOC
The acknowledgment of God has been at the heart of the top Government that was set in place by our Founding Fathers going back to the 1700's. A brief reading of the writings of the Founders on the way they incorporated opening prayer for the United States House of Representatives and the United States Senate are clear examples that our laws were built on this type of acknowledgment. It is that acknowledgment that has set the United States of America apart from all other republics in the history of man kind.
I say acknowledgment of God because acknowledgment of God should not be confused with the establishment of religion. I think everyone here agrees that establishment of religion was not favored by the Founders just as it is not favored by those who will be testifying this afternoon.
The legislation that is at the focus today is the Constitutional Restoration Act, H.R. 3799. Since there has been hostility toward even the acknowledgment of God over the past several years by the Federal courts, this legislation would remove from the jurisdiction of the Federal court system any case involving acknowledgment of God by a public official. The acknowledgment of God as a sovereign source of law, liberty, and Government is contained within the Declaration of Independence which is cited as the organic law of our country by the United States Code Annotated.
Furthermore, the Constitution of every State in the union acknowledges God and his sovereignty as do the three branches of the Federal Government.
The Constitutional Restoration Act, which will be discussed by Judge Moore, would restore the balance of power among the various branches of Government and restore the fundamental precepts upon which our Constitution and Government is based. To prohibit a State official from acknowledging God is a violation of the tenth amendment as well as the first amendment of the United States Constitution as completely contrary to the intent of our Founding Fathers. Because of the comprehensive nature of this legislation, it addresses several issues, such as the pledge, the Ten Commandments, our national motto, ''In God We Trust.'' and other acknowledgments of God. The public recognition of God by State and Federal authorities exist today in oaths, mottos, documents, prayers, monuments, and various other medium.
Page 14 PREV PAGE TOP OF DOC
Judge Moore is a native of Etowah County, Alabama. He graduated from Etowah High School in 1965 and obtained a bachelor of science degree in 1969 from the United States Military Academy at West Point. After military service, Judge Moore returned to Alabama where he completed his juris doctorate degree in 1977 from the University Alabama school of law. Judge Moore served our country as captain in the military police corps of the United States Army. During his professional career, he became the first full-time deputy district attorney in Etowah County and served in this position from 1977 until 1982.
In 1984, he undertook private practice in the city of Gadsden until his appointment to the circuit bench in 1992. Judge Moore served in this capacity until his election as chief justice of the Supreme Court of Alabama in November of 2000, where he served until 2000November of 2003. Judge Moore currently travels throughout the United States speaking about America's history and our right to acknowledge God. He also serves as chairman of the Moral Law Foundation, an organization in Montgomery, Alabama dedicated to the defending of the public acknowledgment of God.
I think the Committee will find Judge Moore's testimony enlightening this afternoon, and see that this is an issue that Judge Moore believes in with all sincerity.
Mr. SMITH. Thank you, Mr. Aderholt. And let me say, you are welcome to stay and join us and listen to the hearing as well.
Mr. ADERHOLT. Thank you.
Page 15 PREV PAGE TOP OF DOC Mr. SMITH. Our next witness is the Honorable William E. Dannemeyer, an alumnus of our Committee while a Member of Congress from 1979 to 1992. He also served on the Budget and Energy and Commerce Committees, and chaired the Republican Study Committee. Mr. Dannemeyer worked as a special agent in the Army counterintelligence corps during the Korean War. He has also practiced law and served as the deputy district attorney, a State judge, and a member of the California State assembly. Mr. Dannemeyer is a graduate of Valparaiso University and the Hastings college of law.
Our next witness is Professor Arthur D. Hellman of the Pittsburgh school of law. He possesses expertise in the areas of Federal courts and constitutional law, and is a familiar witness to Members of our Subcommittee. Professor Hellman received his bachelor's degree from Harvard with high honors and his law degree from Yale.
Our last witness is Michael J. Gerhardt, professor of law at William and Mary, who is currently a visiting professor of law at the University of Minnesota. He is the author of several books, including The Federal Impeachment Process. Professor Gerhardt has served as a special consultant to the National Commission on Judicial Discipline and Removal, and the 1992 presidential transition team. He has also taught law at Princeton, Cornell, and Duke. Professor Gerhardt received his bachelor's degree from Yale, a master's from the London School of Economics, and a law degree from the University of Chicago.
We welcome you all. And as I mentioned a while ago, your full testimony will be made a part of the record. It is a tradition with the full Committee and with the Subcommittee that we swear in witnesses, so I would like to ask you all to stand and take the oath. If you will raise your right hand, please.
Page 16 PREV PAGE TOP OF DOC
Mr. SMITH. Thank you. Please take your seats.
Professor Gerhardt, we are going to begin with you.
STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW, WILLIAM & MARY LAW SCHOOL
Mr. GERHARDT. Thank you very much, Mr. Chairman; and also thank you to Congressman Berman and the whole Subcommittee for the great privilege of being able to appear today.
You have my written statement, and I won't try your patience by going through it in any detail here. But it does amplify some of the points that I hope to make briefly right now.
As I have suggested, one of the things that struck me when I first read the Constitution Restoration Act of 2004 was a quote from Justice Antonin Scalia. In his prescient dissent in Morrison versus Olsen, Justice Scalia described the Independent Counsel Act as a wolf that comes as a wolf. And my concern with this statute is that this statute comes as a wolf before this Committee. It is very clear what the purpose of this statute is, and at least to me I think it is very clear the constitutional problems with it.
Page 17 PREV PAGE TOP OF DOC Very briefly, the first is that it attempts to dilute several constitutional precedents of article III courts. As we all know, there are only two ways in which to overturn or to eradicate article III courts' decisions that we don't like. One is by constitutional amendment, and the other is by asking the courts that rendered them to overturn them. In a case of an inferior court and a superior court, the superior court might reverse the lower court. But this statute, of course, doesn't satisfy those conditions. This statute, by its very name, I think, is attempting to do something that is only permissible through those means I just described. If there are any problems with the particular precedents of article III courts, they cannot be, as I said, diluted or diminished by statutory means.
And by requiring thator by allowing every State court the judge not to be bound by precedents that might touch upon the substance of this Act, I think this Act essentially allows State courts to have final word on the application of the United States Supreme Court precedent. And I don't think that's consistent with the United States Constitution.
Secondly, I think the Act does intrude upon the core functioning of article III judges. That core functioning does include the power to say what the law is, and the power to say what the law is includes within it the power to determine appropriate sources on which to rely. Reference to, for example, a foreign law, might well arise or might well be appropriate in the course of constitution adjudication. We have seen that reliance, for example, in Bowers versus Hardwick, we have seen it in very few other cases. One of the few other cases in which we do see it is Lawrence v. Texas.
But as Congressman Berman just pointed out, the application of this statute would allow for, I think, a use of impeachment that goes far beyond anything the Framers of the Constitution permit. I don't think that it is appropriate for people to be impeached and removed from office because of something they have written or declared in the course of rendering a judicial opinion. That exercise of power, that act lies well within the core functioning of an article III judge, and the judiciary is constitutionally independent from political interference.
Page 18 PREV PAGE TOP OF DOC
Moreover, this Act, I think, does raise some problems under the fifth amendment due process clause. That clause, at the very least, would require a neutral justification for this Act, and I am at a loss to know what that neutral justification is. As far as I can tell, the objective or the animating force behind this Act is distrust of the Federal judiciary, and I don't think that's an appropriate objective for Congress to pursue through statutory means.
There are other difficulties with this statute, but, of course, I have limited time, and I am happy to amplify those later. Thank you.
Mr. SMITH. Thank you, Professor Gerhardt.
[The prepared statement of Mr. Gerhardt follows:]
PREPARED STATEMENT OF MICHAEL J. GERHARDT
I appreciate greatly the honor and privilege of being allowed to participate in today's hearing on ''The Constitution Restoration Act of 2004'' (hereafter ''the Act''). I understand the purpose of today's hearing is to examine the constitutionality of Congress' power to limit all federal jurisdiction with respect to ''any matter to the extent relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official capacity), by reason of that element's or officer's acknowledgment of G-d as the sovereign source of law, liberty, or government.'' As I pondered the constitutionality of this proposed bill, I could not help but think of Justice Antonin Scalia's prescient defense in Morrison v. Olsen.(see footnote 1) There, in a memorable turn of phrase, he denounced the now-defunct Independent Counsel Act as ''a wolf that comes as a wolf.''(see footnote 2) With all due respect, I think that the same could be said of the ''Constitution Restoration Act of 2004.'' It is a wolf that comes before this Subcommittee as wolf. The name of the Act alone admit to an unconstitutional objective; Congress has no constitutional authority to overturn, or dilute, the constitutional opinions of Article III courts through any of its legislative powers. This bill is a transparent attempt to diminish if not eliminate the status of certain constitutional decisions of Article III courts as constitutional law, to weaken the independence of the federal judiciary, and to subject certain constitutional claims and claimants to disparate treatment.
Page 19 PREV PAGE TOP OF DOC
In my opinion, there is nothing magical about Congress' power to regulate federal jurisdiction. It is tempting to construe this power as unlimited; it has never been clear whether Article III sets any limits on this power. Scholars have long disagreed about whether Article III imposes any so-called ''internal'' constraints on the Congress' power to regulate federal jurisdiction. But it is a major mistake to read Article III as if the only constraints on it are those that may be set forth in Article III. It is a further mistake to read it as if it were not affected by subsequent constitutional amendments. Both the Fifth Amendment Due Process Clause and its equal protection component constrain how Congress may withdraw federal jurisdiction. There is no question, for instance, it may not force African-Americans, women, or Jews to litigate their constitutional claims in state courts, while leaving everyone else access to Article III courts for their constitutional claims.
It should go without saying that the Congress has no unlimited powers. Nor, for that matter, do any other constitutional actors have unlimited powers. Congress' power to regulate federal jurisdiction is subject to the same constitutional limitations as every other plenary power, even those pertaining to war. If the invocation of the war powers were not a ''blank check'' to do as Congress or the President pleases (as Justice O'Connor declared at the end of last Term), this is no less true for every other power, including the power to regulate federal jurisdiction. Consequently, the latter is subject to separation of powers and federalism limitations and to the individual rights guarantees set forth in the Bill of Rights.
An especially troubling aspect of this bill is that it appears to lack a legitimate objective. At the very least, the Fifth Amendment requires that every congressional enactment must at least have a legitimate objective, but it is not possible to find one for the Act. It is motivated by distrust of the federal judiciary. Distrust of the federal judiciary is, however, not a legitimate objective. Nor is either disagreement with certain constitutional precedents of the courts or a desire to displace those decisions a legitimate objective. Under our Constitution, the federal judiciary is 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.
Page 20 PREV PAGE TOP OF DOC
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 Subcommittee to do as its illustrious predecessors have done in recognizing the benefits of our constitutional systems of separation of powers, federalism, and due process far outweigh whatever their costs. Below, I explain the principal grounds on which I believe this proposed bill is unconstitutional.
A few general principles should guide our consideration of the constitutionality of the Constitution Restoration Act of 2004. I discuss each briefly before considering how the proposed bill threatens each of them.
A. The Constitution Restricts the Means by which Article III Courts' Constitutional Decisions May Be Overturned. The United States Constitution allows the decisions of Article III courts on constitutional issues to be overturned 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.
Page 21 PREV PAGE TOP OF DOC
The second means for displacing an erroneous constitutional decision is by a superior court or by a court's overruling its own decisions. Since the Constitution places the Supreme Court at the apex of the federal judicial system, it has no superior; it is the only Article III court that may overturn its constitutional decisions. And it has done so expressly in more than a 150 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 Supreme Courtor any other court, for that matterto reconsider a constitutional decision.
It follows that the Congress may not, even through the exercise of its plenary power to regulate federal jurisdiction, to overrule a federal court's decision on constitutional law or to require inferior courts not to follow it. Nor, for that matter, may Congress direct the Court to ignore, or not to rely on or make reference to, some of its constitutional opinions. 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 override substantive judicial decisions. See, e.g., City of Boerne v. Flores,(see footnote 3) Dickerson v. United States,(see footnote 4) and Eichman v. United States.(see footnote 5) Efforts, taken in response to or retaliation against judicial decisions, to withdraw all federal jurisdiction 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 restricting judicial review with respect to certain war-time measures, but I am unaware of any jurisdiction-stripping proposals pending in the House designed to protect national security.
Page 22 PREV PAGE TOP OF DOC
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. Indeed, the Fifth Amendment Due Process requires that the Congress must have a neutral justification, or legitimate objective, for every piece of legislation that it enacts. While national security and promoting the efficiency of the federal courts qualify plainly as neutral justifications, distrust of the federal judiciary does not.
B. Constitutional Precedents Have the Status of Constitutional Law. It is tempting to think that when the Supreme Court makes a mistake that its mistake is not entitled to inclusion as a part of constitutional law. The mistake is to yield to this temptation. The fact is that the major sources of constitutional meaningtext, original understanding, structure, and historical practicesupport treating all the Supreme Court's constitutional opinions as constitutional law, which only may be altered in by either a constitutional amendment or the Court's change of mind.
Page 23 PREV PAGE TOP OF DOC First, the Constitution extends ''the judicial Power'' of the United States over certain ''cases'' or ''controversies.'' Judicially decided cases or controversies constitute precedents. Article V sets forth the requirements for the ratifications of amendments overturning erroneous precedents. The fact that amendments have been chronologically added to the Constitution, rather than integrated within the original text (with appropriate deletions), suggests that constitutional law remains static unless or until such time as amendments are ratified.
Second, ''the judicial Power'' set forth in Article III of the Constitution was understood historically to include a power to create precedents of some degree of binding force. In Federalist Number 78, Alexander Hamilton specifically referred to rules of precedent and their essential connection to the judicial power of the United States: ''To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents . . .'' Indeed, legal scholars have found that the doctrine of precedent either was established or becoming established in state courts by the time of the Constitutional Convention.''(see footnote 6) The framers, in other words, were familiar with reliance on precedent as a source of constitutional decision.
Third, historical practices uniformly support treating precedents as constitutional law and thus unalterable except through extraordinary constitutional mechanisms. As one of my colleagues and a distinguished critic of the doctrine of stare decisis has acknowledged, ''the idea that 'the judicial Power' establishes precedents as binding law, obligatory in future cases,'' traces at least to the early nineteenth century, ''perhaps presaged by certain Marshall Court opinions.''(see footnote 7) Another commentator recently found that the framers rejected ''the notion of a diminished standard of deference to constitutional precedent'' as distinguished from common-law precedents.'' Justice Joseph Story agreed that the ''conclusive effect of [constitutional adjudication] was in the full view of the Framers of the Constitution.''
Page 24 PREV PAGE TOP OF DOC
Fourth, constitutional structure supports the status of constitutional precedents as constitutional law. As one of the nation's foremost authorities on constitutional law and federal jurisdiction, Richard Fallon of Harvard Law School, has observed, ''Under the Constitution, the judiciary, like the executive branch, has certain core powers not subject to congressional regulation under the Necessary and Proper Clause. For example, it is settled that the judicial power to resolve cases encompasses a power to invest judgments with 'finality'; congressional legislation purporting to reopen final judgments therefore violate Article III. And there can be little doubt that the Constitution makes Supreme Court precedents binding on lower courts. If higher court precedents bind lower courts, there is no structural anomaly in the view that judicial precedents also enjoy limited constitutional authority in the courts that rendered them.''(see footnote 8)
It follows that any attempt by the Congress to dilute the authority of Supreme Court opinions on constitutional law within the federal court system would be plainly unconstitutional. Congress could not, for instance, enact a statute directing the Court either to ignore its precedents on abortion rights as a source of decision altogether or to forego ever reconsidering certain 11th amendment precedents. Either enactment would be unconstitutional.
C. The Constitution Guarantees The Independence of Federal Judges from Political Reprisals. The Constitution vests Article III judges and justices with life tenure and undiminished compensation in order to ensure that they may decide cases or controversies without fear of political retaliation. The independence from political reprisals that federal judges enjoy includes the authority to prioritize sources of constitutional meaning. This authority is at the core of the judicial function. As Professor Fallon has argued, ''The power to say what the Constitution means or requiresrecognized in Marbury v. Madisonimplies a power to determine the sources on which constitutional rulings may properly rest. To recognize a congressional power to determine the weight to be accorded to [the Court's] precedentno less than to recognize congressional authority to prescribe the significance that should attach to the original understandingwould infringe that core judicial function.''(see footnote 9)
Page 25 PREV PAGE TOP OF DOC
D. The Supreme Court is Essential for Ensuring the Uniformity and Finality of Constitutional Law. Referring to the Court's decision in Martin v. Hunter's Lessee,(see footnote 10) Justice Oliver Wendell Holmes remarked, ''I do not think that the United States would come to an end if we [judges] lost our power to declare an Act of Congress void. I do think that the Union would be imperiled if we could not make that declaration as to the laws of the several states.''(see footnote 11) Without the authority to review state court judgments on federal law recognized in Martin (and ever since), there would be no means by which to ensure uniformity and finality in the application of federal law across the United States. This would be particularly disastrous for constitutional law. Federal rights, for instance, would cease to mean the same thing in every state. States could dilute or refuse to recognize these rights without any fear of reversal; they would have no incentive to follow the same constitutional law. Indeed, many state court judges are subject to majoritarian pressure to rule against federal rights, particularly those whose enforcement would result in a diminishment in state sovereignty. The Fourteenth Amendment would amount to nothing if Congress were to leave to state courts alone the discretion to recognize and vindicate the rights guaranteed by the Fourteenth Amendment. Judicial review within the federal courts is indispensable to the uniform, resolute, final application of federal rights protected by the Fourteenth Amendment.
In effect, the Constitution Restoration Act of 2004 allows the highest courts in each of the fifty states to become the courts of last resort within the federal judicial system for interpreting, enforcing, or adjudicating certain claims under the Establishment and Free Exercise Clauses. This Act allows different state courts to reach different conclusions regarding the viability of various claims differently, without any possibility of review in a higher tribunal to resolve conflicts among the states. Thus, the Act precludes any finality and uniformity across the nation in the enforcement and interpretation of the affected rights.
Page 26 PREV PAGE TOP OF DOC
An equally troubling aspect of the bill is its implications for the future of judicial review. The Constitution does not allow the Congress to 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.'' 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
Page 27 PREV PAGE TOP OF DOC
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.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES SEPARATION OF POWERS
With the aforementioned principles in mind, I believe that the Constitution Restoration Act violates separation of powers in several ways. First, it attempts to dilute several constitutional precedents of the Supreme Court, the Eleventh Circuit (on the Ten Commandments), and the Ninth Circuit (on the Pledge of Allegiance). Part III, Section 301 of the Act, provides that ''Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any state court.'' The Supreme Court no doubt qualifies as one of the federal courts covered by this provision. In previous cases, the Supreme Court has held that posting the Ten Commandments in public school classrooms violates the First Amendment,(see footnote 12) that mandatory school prayer is unconstitutional,(see footnote 13) and that students may not be required to recite the Pledge of Allegiance.(see footnote 14) The Constitution Restoration Act allows state courts to ignore each of these precedents. Indeed, this is the purpose of the Act. Moreover, it invites state courts to overturn these precedents. State courts could, for instance, choose simply to post the Ten Commandments and allow mandatory school prayer or mandatory recitation of the Pledge of Allegiance, without any fear the Court might order them to comply with its precedents. The precedents will lose their constitutional significance.
Page 28 PREV PAGE TOP OF DOC
Second, Title II, section 201 of the Act, provides that in constitutional adjudication ''a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.'' This provision is almost certainly unconstitutional, because it interferes with the core function of federal judges to decide for themselves on how much weight to attach to particular sources of constitutional meaning. In almost every instance in which Supreme Court justices have referenced foreign law in their constitutional opinions, the justices' reliance on foreign law has been de minimis. In those few instances, they took great pains to explain that they have attached no, or little, weight to the foreign law referenced in their opinions. Moreover, some foreign law is arguably pertinent to constitutional interpretation; for instance, the bill mentions ''English common law'' as being relevant to constitutional interpretation but does not mention some precedents from classical antiquity on which some Framers relied in fashioning certain parts of the Constitution, such as separation of powers.(see footnote 15)
Third, Section 302 of Title III of the Act declares that ''any activity'' by a federal judge ''that exceeds the jurisdiction of the court of that judge or justice, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act,'' is ''deemed to constitute the commission of'' an impeachable offense. This provision is constitutionally problematic for many reasons. To begin with, ''any activity'' might include striking down the Act as unconstitutional. If, for instance, the Supreme Court struck the law down, then the House will have to determine whether it must then impeach the offending majority, perhaps the entire Court itself. I do not believe that such a result is at all consistent with our constitutional traditions, historical practices, and structure, including our cherished notion of judicial independence.
Page 29 PREV PAGE TOP OF DOC
Nor does the Act qualify how much reliance on foreign law is unacceptable. It seems outlandish to treat minimal reliance on foreign law as constituting the grounds for a judge's removal from office.
Though the Act allows judges and justices to rely on ''constitutional law'' in interpreting the Constitution, the Act does not define the terms. While some members of Congress might reach different conclusions than some justices about both the appropriate sources of constitutional meaning and how much weight to attach to them, the opposite holds true as well: Justices are not, nor may they be required, to comply with the directives of Congress on which constitutional conclusions they may reach, which sources they may consult, or how much weight they ought to attach to these sources.
Moreover, it is difficult, if not impossible, to make a judge's bad decision grounds for his or her impeachment.(see footnote 16) Judicial independence requires relatively wide latitude of discretion in determining how to prioritize sources of decision. Indeed, this independence is an important feature within the appellate system, which is designed in part to correct judicial errors. Bad decisions may be appealed, and they may be overturned on appeal. They may also be overturned by constitutional amendment. So, it is not clear why impeachment is required to check these mistakes. I assume that some think it necessary to correct mistakes that cannot be corrected by these other means. But if the decisions are made by a group of judges or justices, then the entire group would have to be removed. I know of no source of constitutional meaning that would support such an outlandish outcome. The fact that the Congress has never impeached and removed a group of judges for a collective decision is telling. If, however, dissenting justices have made the bad decisions, then it seems silly to impeach them, because their decisions carry remarkable little weight in constitutional law. The same would be true for many, if not most, sole concurrences.
Page 30 PREV PAGE TOP OF DOC
Applying this Act to real cases produces disturbing results. For instance, if the Act were strictly interpreted, then the majority in Bowers v. Hardwick(see footnote 17) should have all been subject to impeachment for relying on the Judeo-Christian tradition and the history of Western civilization in reaching their conclusion. The reference to the Judeo-Christian tradition and Western civilization was made to rebut the argument that there was a tradition of not criminalizing homosexual sodomy, and it is this reference that prompted Justice Kennedy in Lawrence v. Texas(see footnote 18) to reference European law. Thus, a strict reading of the Act would allow not only the impeachment and removal of the majority in Bowers but also the justices who joined Justice Kennedy's opinion in Lawrence.
I believe the justices in both those cases acted in good faith. An impeachable offense requires both mens reus (a criminal intent) and actus reus (a bad act); and it is impossible to prove that the justices in both Bowers and Lawrence not only acted in bad fath but had the requisite malicious intent to deviate from the Constitution.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES EQUAL PROTECTION
I have no doubt that the Constitution Restoration Act of 2004 violates 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. The Constitution Restoration Act of 2004 does both.
Page 31 PREV PAGE TOP OF DOC
First, the Constitution Restoration Act of 2004 may be based on a suspect classification. The natural plaintiffs to challenge this law may be people who belong to particular religious faiths which do not believe in paying homage to idols, such as Jehovah's Witnesses and Seventh Day Adventists; people who do not want the state to tell them how and when to pray (and may adhere to particular religious faiths); or people, such as atheists, who do not believe in G-d. Each group has a claim to being a suspect class, because each is defined by virtue of its exercise of a fundamental right. Government needs a compelling justification to burden a suspect class, but mistrust of ''unelected judges'' is not a compelling justification.
Even if there were no suspect class burdened by the Act and only the rational basis test had to be satisfied, a court might conclude that the Act does not even satisfy that standard. The bill lacks a neutral justification. Distrust of federal judges is inconsistent with the very structure of our Constitution. While the Act also purports to be promoting federalism, federalism is the term we use to refer to the complex relationship between the federal and state governments. This term encompasses not just states rights but also the power of the federal judiciary to review state action. Federalism limits what the Congress may do, even with respect to regulating federal jurisdiction. It limits what Congress may do to enhance state sovereignty at the expense of the federal judiciary.
THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES THE FIFTH AMENDMENT DUE PROCESS CLAUSE
In all likelihood, the Constitution Restoration Act of 2004 violates 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 footnote 19)
Page 32 PREV PAGE TOP OF DOC
Excluding all federal jurisdiction with respect to particular federal claims forces people seeking to vindicate those rights in state courts, which are often thought to be hostile or unsympathetic to such claims. 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.
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.'' The Court has further 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.
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. 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 all jurisdiction over particular classes of constitutional claims.
Page 33 PREV PAGE TOP OF DOC
CONSTITUTIONAL STRUCTURE FURTHER BARS CONGRESS FROM ELIMINATING FEDERAL JURISDICTION OVER CLAIMS AGAINST FEDERAL OFFICIALS
Another aspect of federalism, to which I have alluded, is that it is not just concerned with protecting the states from federal encroachments. It also protects the federal government and officials from state encroachments. In a classic decision in Tarble's Case,(see footnote 20) the Supreme Court held that the Constitution precluded state judges from adjudicating federal officials' compliance with state habeas laws. The prospect of state judges exercising authority over federal officials is not consistent with the structure of the Constitution. They could then direct, or impede, the exercise of federal power. The Act allows, however, state courts to do this. By stripping all federal jurisdiction over certain claims against federal officials, the Act leaves only state courts with jurisdiction over claims brought against those officials. The popular will might lead state judges to be disposed to be hostile to federal claims or federal officials. Hostility to the federal claims poses problems with the Fifth Amendment, while hostility to federal officials poses serious federalism difficulties.
Beyond the constitutional defects with the Constitution Restoration Act of 2004, it may not be good policy. It may send the wrong signals to the American people and to people around the world. It expresses hostility to our 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.
Page 34 PREV PAGE TOP OF DOC
Mr. SMITH. Professor Hellman.
STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW
Mr. HELLMAN. Thank you, Mr. Chairman.
Any citizen who cares deeply about public affairs and particularly about the role of Government in the life of the nation is going to experience frustration from time to time with decisions handed down by the Federal courts. The sponsors of H.R. 3799 plainly feel a great deal of frustration with certain decisions interpreting the establishment clause as well as decisions in which courts have relied on foreign law. And Members of this Subcommittee may share those views. But however much you might disagree with those court decisions, this bill is not an appropriate response. Most of its provisionsnot all of them, but most of themare unconstitutional.
And the bill as a whole is bad public policy because it seeks to impair the independence of the judiciary, an independence that has been forged through 200 years of history and also a set of traditions that have served this Nation well.
I will begin with what is the most radical provision of the bill, section 302. That is the impeachment provision that Mr. Berman and Professor Gerhardt have referred to. It seems to me that this is something the Constitution just doesn't allow Congress to do. Now, the Constitution doesn't say that in so many words, but it does say that Congress cannot dock the pay of judges because they don't like their decisions, not even 1 percent. And the reason the Framers put that in the Constitution is that they thought it was essential to have an independent judiciary. And what they meant by that was a judiciary not beholden to Congress.
Page 35 PREV PAGE TOP OF DOC
Well, if you can't reduce their salary by even 1 percent for decisions that you disagree with, how could it be constitutional to impeach and remove them from office?
In addition to the text, we have guidance from tradition, and the authoritative expositor of that tradition is Chief Justice Rehnquist in his book Grand Inquests, and I have included some extracts from that in my statement.
The second mechanism for enforcement is the section 301, which says that decisions made by Federal courts contrary to this bill, before or after it, are not binding precedents. And it seems to me that that's plainly unconstitutional under the decision just 4 years ago in Dickerson, a decision written by the Chief Justice saying that Congress does not have the power to legislatively supersede the Supreme Court's decisions interpreting and applying the Constitution. But that is just what this provision attempts to do.
I think that Dickerson also dictates the unconstitutionality of the provision on foreign law, although I don't think you need Dickerson for that. I think all you have to do is to read Marbury v. Madison, the foundational decision of American constitutional law, and the familiar statement that it is emphatically the province and duty of the judicial department to say what the law is.
Now, that brings me to the two jurisdictional provisions of the bill. I believe that those two jurisdictional provisions raise very different issues. The provision on the Supreme Court appellate jurisdiction I think is a very closely balanced constitutional question, and perhaps we can get to that during the questions.
Page 36 PREV PAGE TOP OF DOC
On the other side, I think that the billthe provisions of the bill on district court jurisdiction are constitutional; that the Congress is not required to have Federal courts, and Congress has very wide discretion in deciding which kinds of matters to vest in the jurisdiction of the Federal courts. But to say that a provision, or perhaps two of them are constitutional is not to say that they are good policy, and they are not.
There have been many bills like this over the past 50 years. None have been enacted. And I think that that history has established a tradition almost as strong as the one that Chief Justice Rehnquist discussed with respect to impeachment.
There is more that could be said about the particular provisions, but I will close with these thoughts: Ours is a pluralistic nation. We are closely divided on many issues.
What that means is that depending on the time and the circumstances, anyone can be part of a minority. And the availability of an independent Federal court with power to hear everyone's constitutional claims is a source of reassurance to all of us. For that reason and for the others I have indicated, Congress, and in thisin the first instance this Subcommittee, should adhere to these long and valuable traditions and should reject this bill in its entirety. Thank you.
Mr. SMITH. Thank you, Professor Hellman.
[The prepared statement of Mr. Hellman follows:]
Page 37 PREV PAGE TOP OF DOC
PREPARED STATEMENT OF ARTHUR D. HELLMAN
Mr. SMITH. Representative Dannemeyer.
STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER, MEMBER OF CONGRESS, 1979 TO 1992
Mr. DANNEMEYER. Thank you.
Mr. Chairman and Members of the Subcommittee, I think we need to really recognize what the issue is today: Do the political leaders of this country, you elected Members, have the courage to acknowledge that God exists as the means whereby we teach the next generation in this country in our public schools?
Page 38 PREV PAGE TOP OF DOC
Now, that acknowledgment of God is totally different from a religion. A religion is man's effort to reach God; but God's effort to reach us and his word, the Bible, which is the basis upon which this Nation was founded, was the philosophy that our political leaders followed until about a little after World War II. And, today, we have a majority of justices on the U.S. Supreme Court, sadly for all of us, who really have established a religion for America called secular humanism which says there is no God.
That is why we are here. And you Members have the authority under article III, section 2, to cut it out, and to tell those nine distinguished folk across the street where the line is. And the line is that America's a people who says that God exists who created rules for man to live by. Not a religion, but an acknowledgment of basis of God, the basis of Judaism, Muslim, and Christianity, throughout history. We should be able to come together on that affirmation.
Now, among the papers that I've filed with you is a letter signed by representatives of 27 organizations across this country that really are asking Congress to adopt legislation of the type now pending before you. I won't take my time to read all the names, but believe me, almost all of the people active in the evangelical community of this country are asking Congress to adopt this legislation.
As to article III, section 2, there is nothing novel about it, also in this packet of information that I filed with this Committee. Congress used this authority 12 times in the last Congress. One of note is, of course, by Senator Daschle of South Dakota that used it as a means of cutting down some trees assertedly to assist one of his colleagues in his reelection campaign. He was wise enough to understand that Congress can pass the law, but the moment somebody doesn't like it, they go to a Federal court and get an injunction; and so he put a provision in that bill that says this cannot be taken to the Federal court.
Page 39 PREV PAGE TOP OF DOC
Now, I have passed out to you a book who I believe is one of the greatest scholars on this issue is David Barton of Texas. He has worked on a group called Americans for Voluntary School Prayer, was co-chairman of that group. He has written a book, and I have got a copy here that I have left with you. And on page 9 to 11, if you have time, you can read, court rulings that have really prevented the free exercise of religious thought in this country. And also on pages 11 to 14, decisions by public officials prohibiting the free exercise by people, among them the valedictorian of a public high school, graduating class, should be able publicly to State his or her religious convictions, whatever they happen to be, even though they may be out of synch with some Federal judge in this area.
And then, lastly, let me just say that, you know, the American people are totally with us by a big majority. This may come to a shock to my friend from California, Mr. Berman. About 75 percent of the American people want this legislation to be adopted. And the questions for all of you who are elected Members of Congress: Why are we taking so long to get it done?
So that's the pitch that I want to share with you today, and I thank you very much for this time.
Mr. SMITH. Thank you, Representative Dannemeyer.
[The prepared statement of Mr. Dannemeyer follows:]
PREPARED STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER
Page 40 PREV PAGE TOP OF DOC
Mr. Chairman and members of the Subcommittee:
Thomas Jefferson is generally recognized by most historians as the principal author of the Declaration of Independence and James Madison as the father of the U.S. Constitution. Our founding fathers created a federal system of three branchesexecutive, legislative and judicial. The system was not designed to be efficient; on the contrary, the checks and balances of these branches of government, as they struggled for power, were designed to provide the best chance of preserving freedom for the people of America.
On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed that of the three branches of government, the one he feared the most was the federal judiciary: ''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. Here's a brief sampling:
Enacting ''a wall of separation between church and state''; Everson vs. Board of Education, 1947.
Banning nondenominational prayer from public schools; Engel vs. Vitale, 1962.
Page 41 PREV PAGE TOP OF DOC Removing the Ten Commandments from public school walls; Stone vs. Graham, 1980.
Striking down a ''period of silence not to exceed one minute . . . for mediation or voluntary prayer''; Wallace vs. Jaffree, 1985.
Censoring creationist viewpoints when evolutionist viewpoints are taught; Edwards vs. Aguillard, 1987.
Barring prayers at public school graduations; Lee vs. Weisman, 1992.
On Jan. 12, Supreme Court Justice Antonin Scalia gave a speech at Fredericksburg, Va., in which he did a rare thing for a sitting justice: He publicly criticized decisions of the U.S. Supreme Court and lower federal courts. The sense of his comments was that the courts have gone overboard in keeping God out of government. He cited the recent decision of Judge Alfred Goodwin of the 9th Circuit Court of Appeals barring students in a public school from using the word ''God'' in the Pledge of Allegiance.
Polling data shows overwhelmingly support for legislation that would prevent such prohibitions.
For example, in 1985, 69 percent of Americans supported school prayer; by 1991, that number had increased to 78 percent. Similarly, in 1988, 68 percent of Americans supported a constitutional amendment to reinstate school prayer; by 1994, that number had risen to 73 percent.
Page 42 PREV PAGE TOP OF DOC Furthermore, the public is strongly unified on the subject of spokennot silentprayer. In 1995, support for spoken prayers by students of all faiths was at 75 percent; by 2001, before the terrorist attacks, it was at 77 percent.
Congress can correct the wrong interpretation of the 1st Amendment by decisions of the federal judiciary in two different ways.
One method is a constitutional amendment which would apply to the federal judiciary and to the supreme courts of the states. This, of course, requires a two-thirds vote in the House and the Senate and the approval of three-fourths of the states. It is a very daunting hurdle, to say the least.
The other alternative is a statutory approach. It would require a majority vote in the House and the Senate and the signature of the president. It would utilize Article III, Section 2.2 of the U.S. Constitution, which authorizes Congress to except certain subject matter from jurisdiction of the federal courts. This authority was used by the last Congress, the 107th, 12 different times.
Legislation using this approach has been introduced in Congress.
Sen. Wayne Allard, R-Colo., has introduced Senate Bill 1558 to allow display of Ten Commandments and to retain ''God'' in the pledge and ''In God We Trust'' as national motto. It uses the Article III exception.
Rep. Ernest Istook, R-Okla., has introduced House Joint Resolution 46 with 95 co-sponsors for a constitutional amendment to allow voluntary prayer in public schools.
Page 43 PREV PAGE TOP OF DOC
Rep. Robert Aderholt, R-Ala., has introduced House Resolution 3799, the Constitutional Restoration Act of 2004. A statute, it would allow voluntary prayer in public schools, the display of the Ten Commandments and keep God in the Pledge and in the National Motto. It utilizes Article 3 Sec. 2.2.
Page 44 PREV PAGE TOP OF DOC
Page 45 PREV PAGE TOP OF DOCdanne16.eps
Page 46 PREV PAGE TOP OF DOC
Mr. SMITH. Judge Moore.
STATEMENT OF THE HONORABLE ROY S. MOORE, FOUNDATION FOR MORAL LAW, INC.
Mr. MOORE. Mr. Chairman, Mr. Berman, I want you to know that I have the greatest respect for the man sitting at this
Mr. SMITH. Is your microphone on, Judge Moore?
Mr. MOORE. Okay. Mr. Chairman, Mr. Berman, I want you to know I have the greatest respect for the gentlemen which have come before me here. But entertaining as I do sentiments in direct opposition, I hope I may be understood not to be critical of them and their opinions. But this is a momentous moment to our country. And, quite frankly, I'm confused. I agree with Mr. Gerhardt that the purpose of this bill is very clear. One can't read the simple lines of this thing without understanding that this is about the right of State and Federal officials to acknowledge God.
And I'm confused. I got up here this afternoon and I walked around Washington. I passed by the Washington Monument standing 555 feet, 5 and 125/1000 inches above this city, at the top of which is the Latin phrase, Laus Deo, ''Praise Be To God.'' It certainly wasn't an offense to our Founding Fathers. This Nation was founded upon a belief in God, not upon a belief in Buddha, not upon Hinduism. Nothing in western theology or western jurisprudence indicates otherwise. The acknowledgment of God was not prohibited by the first amendment to the United States Constitution. Is not then, is not now.
Page 47 PREV PAGE TOP OF DOC
I walked by Oscar Straus memorial, saw a carved thing of the Ten Commandments. At least that's what Oscar Straus said it was. There was a woman leaning on it in prayer. Adolph Weinman designed that. It is an exact duplicate of what hangs over the Chief Justice of the United States Supreme Court's head; and yet they say, if you go to the Supreme Court, that it's the Bill of Rights. But in 1975, the United States Supreme Court pamphlet said it was the Ten Commandments. You see, we are erasing our history right under your noses in this Congress, right under your watchful eye.
We are losing our right to acknowledge God as the sovereign source. And it is very important. Our liberty of public worship is not a concession nor a privilege, but an inherent right. Those words are written on that monument. And that truth was recognized that God gives us the right to be a pluralistic society to believe what we want. That right was recognized quite clearly in 1931 by both the minority and the majority of the United States Supreme Court. In the case of the U.S. versus Macintosh, it was written by Justice Sutherland for the majority: We are Christian people, according to one another the equal right of religious freedom and acknowledging with reverence the duty of obedience to the will of God.
The minority, written by Chief Justice Charles Evans Hughes said: One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God. Indeed, the acknowledgment of God lies at the very basis of the first amendment.
There was another Judiciary Committee in 1853, both of the House and the Senate which undertook objections by certain people that wanted to eliminate chaplaincy. I have the legislative histories here. Both the United States Senate and House of Representatives recognized that acknowledgment of God was essential. In the Senate, they said they did not intend to prohibit a just expression of religious devotion by the legislators of the Nation.
Page 48 PREV PAGE TOP OF DOC
Even in their public character as legislators, they did not intend to send our armies and navies forth to do battle for their country without a national recognition of that God upon whom success or future depends. They did not intend to spread over all the public and over the whole action of the Nation, the dead and resulting spectacle of atheistical apathy. And that's exactly what's being spread over this country today.
The acknowledgment of God is part of our organic law. They say this is a court stripping bill. I'm not trying and the proponents of this bill are not trying to deny the Supreme Court the right to say what the law is, when they improperly interpret the law. We are not trying to interfere with the independence of the judiciary. Indeed, they must be independent. I was a Supreme Court Chief Justice. I believe in independence. I'm not trying to deny judicial review. Judicial review is a valid part of the Constitution. But that's not judicial tyranny.
You see, the rule of law requires that we go by the written text of the Constitution. And I defy anybody in this room, any professor, any lawyer to stand up and tell me what religion means under the first amendment of the United States Constitution. Unless they go by what the Supreme Court said in 1892, in 1890, and 1878. Religion was the duties which we owe to the creator and the manner of discharging it. James Madison's Memorial and Remonstrance remarks. And James Madison ought to know what the first amendment was about. He promoted it and offered it into Congress. He said in his Memorial that, because we hold it for a fundamental and undeniable truth that religion or the duty which we owe to the Creator and manner of discharging it can be directed only by reason and conviction, not by force and violence.
The rule of law is very simple. We go by written definition. Recently, I believe last week or not long ago you had a football game here between the Washington Redskins and the Tampa Bay Buccaneers. And I understand a lot of people in Washington are big Washington Redskins fans. What would have happened if Tampa Bay had gotten down to the five yard line, and the time ran out and they were behind in score, but the referee stood up and said: Touchdown; Tampa Bay, they win? They were on the five yard line. You would run to the referee and say, what do you mean, referee? That's not a touchdown. What would you say if the referee said: Well, ma'am, or sir, we don't know how to define touchdown. But, you know, we really thought they tried to play a hard game and we felt sorry for them and they should have won.
Page 49 PREV PAGE TOP OF DOC
That's exactly what the United States Supreme Court and Federal district court does in first amendment cases. They do not go by the law. And there is a reason for that. They have no law. The law is Congress, part of the Federal Government, shall make no law respecting the establishment of religion, being the duties we owe to the Creator and the manner of discharging it, or prohibiting the free exercise of the duties we owe to the Creator and the manner of discharging it. It was to keep Federal Government out of the affairs of the State.
Mr. SMITH. Judge Moore, to follow up on your football metaphor, I'm afraid I'm going to need to call a time out. And we will proceed with our questions. Thank you for your testimony.
[The prepared statement of Mr. Moore follows:]
PREPARED STATEMENT OF THE HONORABLE ROY S. MOORE
Page 50 PREV PAGE TOP OF DOC
Page 51 PREV PAGE TOP OF DOCMoore18.eps
Mr. SMITH. Professor Hellman, let me just ask you for a point of clarification. Did I understand you to say that you thought Congress had the constitutional right to define impeachable offenses, to define the jurisdiction of the Federal courts even though you thought the bill that we are having a hearing on today was not good public policy.
Mr. HELLMAN. I think the comment you are referring to is a comment about the authority of Congress to define the jurisdiction of a lower Federal court.
Mr. SMITH. Correct.
Mr. HELLMAN. I think that is a very, very broad power. It is subject, I perhaps should have added, and as Professor Gerhardt has said, to the specific prohibitions in the Constitution, first amendment and so forth.
But apart from those specific prohibitions, I think that Congress has very broad power to say that this or that class of case cannot be heard in the first instance by the district courts.
Page 52 PREV PAGE TOP OF DOC
Mr. SMITH. Thank you. That's what I thought you had said.
Professor Gerhardt, I read a book over the weekend not necessarily expecting it to have any interconnection to what we are called today. But the book was called Weapons of Mass Distortion by Brent Bozell. But in that book he does refer to the case that Judge Moore was so involved with. And according to a CNN, USA Today Gallup poll, 77 percent of Americans disapproved of the Federal court order to remove the Ten Commandments monument from public display.
My question for you is, suppose you have a Federal judge who regularly makes decisions that most of the American people and most of their elected representatives felt was really legislating from the bench, not deciding on the basis of strict constitutional interpretation. Absent a so-called court-stripping bill like the one we are considering today, what recourse do the American people's representatives have, if not Congress, to determine what is an impeachable offense, to determine what the jurisdiction of the Federal courts should be? Again, assuming you have a sitting judgewe are not talking about appointments, a sitting judge who routinely seems to legislate rather thanlegislate rather than base his rulings upon a reading of the Constitution.
Mr. GERHARDT. How much time do I have to answer that question?
Mr. SMITH. Unfortunately, I am hoping you will answer it fairly quickly.
Page 53 PREV PAGE TOP OF DOC Mr. GERHARDT. Well, with all due respect, I think there are very limited means for addressing what the judge has ruled, what the judge that you just described has ruled. The fact is, that article III judges, particularlywell, I should say article III judges, including those on the Supreme Court of the United States, create precedents which are themselves part of the rule of law in this country. I think every source of decision supports that. And in the course of rendering constitutional interpretations, judges and justices will oftentimes make decisions that are not popular with majorities.
Mr. SMITH. I understand that, and I will even concede that. But my question was, what recourse do we have if a majority of the American people, a majority of their representatives feel that a judge has overstepped his or her bounds? If it's not article III, what is it?
Mr. GERHARDT. You have a couple possibilities. One is a Constitutional amendment, as prescribed by article V. So article V offers one possibility. You can look to overturn the judicial decisions through a Constitutional amendment. For example, that's what the eleventh amendment does, that's what the fourteenth amendment does in part.
A second is to of course pass a resolution or even back a brief before the judges in question or the courts in question and ask them to reverse themselves.
Mr. SMITH. Of course, a resolution doesn't have the force of law; so that can be ignored as well. Okay. Thank you, Professor Gerhardt.
Obviously, Representative Dannemeyer and Judge Moore, you have a different take on article III. I want to give you the opportunity to answer two questions. One, if you feel there is more than what you have already said about Congress's power to, in fact, use article III to impose some restraints on Federal judges. The second question is not unrelated and is this: Do you feel that the Founding Fathers would have disagreed with a lot of what you would call and many people would call an anti-religious bias found among many of the Federal court decisions in the last 40 years, since 1962? Representative Dannemeyer, you can start.
Page 54 PREV PAGE TOP OF DOC
Mr. DANNEMEYER. I don't think there is any question about that being the status of our lifetime. From 1789 to right after World War II, if you asked the leaders of elites of the country what is the basis on which America was founded, they would say God. And we acknowledged God exists. And thattaking away of that acknowledgment began in the case of Everson versus Board of Education in 1947, where the judge who wrote that opinion put a last clause, was that separation of church and State. He didn't quote a reference for where he got that because there wasn't any. If he had stated one, there was one in the previous century in the case arising out of Utah.
But separation of church and State means basically this: We will not have a national religion in America. That's the establishment and origin. We don't want any part of that. I don't seek that.
Mr. SMITH. That answers my question. Let me move on. And without objection, I will recognize myself for an additional minute so that Judge Moore can answer the question.
Mr. MOORE. Well, I think we have several options to use against the judicial branch, impeachment being one by Congress.
Mr. SMITH. Your mike still may not be on there.
Mr. MOORE. I'm sorry, I'm not used to turning it on.
Page 55 PREV PAGE TOP OF DOC We have several remedies against the judicial branch, impeachment being one, that Congress can defund the Federal courts. They create them, they can defund them.
But I think in this case it is clear what the remedy is, is article III jurisdiction.
And I will say this first. I disagree most strongly with the use of the words ''court stripping.'' because, you see, this is a jurisdiction that the Federal courts do not have regarding the acknowledgment of God. Every State in this union, every one of the congressmen here, California included, acknowledges God in their Constitution. All three branches of the Federal Government acknowledge God. The United States Supreme Court opens with, God save the United States and this Honorable Court. You all open with prayer. It's written all over these walls. And then the President declares national days of prayer.
The acknowledgment of God is not within the jurisdiction of the Federal courts. If someone were breaking in your house and stealing and you found out after 20 years, you wouldn't just say, just don't come into my house and take my silverware; you would say stay out of my house.
This is not a court stripping bill. This is one to regulate the jurisdiction when the judges have usurped that jurisdiction and gone outside.
I asked a very important question about definition, and I tried to give an example. It is because of that that you must understand they cannot, will not even today define the word religion. In my case in Alabama, the judge said he did not have the expertise. He said it was dangerous and unwise to define the word. When you can't define the word, you can't interpret the statute, you rule by your own feelings, and it is the rule of man not the rule of law. The rule of law is the Constitution of the United States and the first amendment and the Constitution of each State in which you live. That's what the rule of law is. And all of it acknowledges God. And I could go on for hours telling you about what James Madison said about the law of God and so forth.
Page 56 PREV PAGE TOP OF DOC
Mr. SMITH. Thank you, Judge Moore.
The gentleman from California, Mr. Berman, is recognized for his questions.
Mr. BERMAN. Thank you, Mr. Chairman.
Judge Moore, if it's appropriate, if you think it's appropriate to impeach a judge whose interpretation of the Constitution leads him to violate the terms of the Constitution Restoration Act, is it also appropriate to impeach a judge whose religious convictions and interpretation of the Constitution leads him to flagrantly violate the dictates of the superior courts by displaying a religious monument?
Mr. MOORE. First, Mr. Berman, this statute doesn't require impeachment of anybody. It says Congress can impeach. It repeats something that's already in the Constitution.
Mr. BERMAN. It's says it's an impeachable offense.
Mr. MOORE. It's an impeachable offense. If someone violates the Constitution, if someone takes an oath of the Constitution under article VI to uphold that Constitution and disregards it and rules according to foreign law, which is not the law they are sworn to uphold, yes, I think Congress can impeach them. And, indeed, in 1986, in Bowers versus Hardwick, they said sodomy was not a right under the Constitution by a majority of the Supreme Court. 17 years later, they found it in a European court of human rights.
Page 57 PREV PAGE TOP OF DOC
Mr. BERMAN. And in deciding that it was not a human right, did they rely on any foreign laws and foreign customs and practices?
Mr. MOORE. Absolutely. They said in their opinion
Mr. BERMAN. Should those judges beshouldwas thatwas relying on that an impeachable offense?
Mr. MOORE. When they go to swear to the Constitution to uphold it and the morality under that Constitution, and they go to foreign law to destroy that morality, absolutely they could be impeached.
Mr. BERMAN. What about when they go to foreign law to support that morality?
Mr. MOORE. They should not go to foreign law whatsoever, sir, if they are sworn to the Constitution of the United States.
Mr. BERMAN. Okay. What if there weredo you think Congress has the authority to prohibit a class of persons from bringing a Federal case, say under the equal protection clause, to say that no African Americans can bring a legal action.
Mr. MOORE. No.
Page 58 PREV PAGE TOP OF DOC Mr. BERMAN. Challenging a governmental policy on the basis that it violates equal protection?
Mr. MOORE. No, I don't think they have that authority.
Mr. BERMAN. What about atheists?
Mr. MOORE. Pardon?
Mr. BERMAN. What about atheists?
Mr. MOORE. Atheists are not a class of persons under the Constitution.
Mr. BERMAN. Because?
Mr. MOORE. Because just like Christians are not a class of persons under the Constitution.
Mr. BERMAN. All right. What aboutso therefore?
Mr. MOORE. So Christians couldn't bring it and atheists couldn't bring it.
Mr. BERMAN. All right.
Page 59 PREV PAGE TOP OF DOC
Mr. MOORE. We're talking about the definition of first amendment
Mr. BERMAN. Then, for instance, you could pass a law stripping Jews of the right to bring certain kinds of Federal court actions?
Mr. MOORE. No, sir.
Mr. BERMAN. You just said they're not a class ofblacks are, and
Mr. MOORE. That's a system of belief. You cannot forbid anyone because of their beliefsthe Government's actions must stay out of the beliefs of people. The beliefs are given by God. It's between God and man that those beliefs exist.
Mr. BERMAN. I asked you whether or not Congress could pass a law stripping African Americans of the right to bring Federal actions claiming that a particular policy violated the equal protection clause.
Mr. MOORE. And I said no.
Mr. BERMAN. And you said no. But then you said atheists could be stripped of that right becauseand Christians could.
Page 60 PREV PAGE TOP OF DOC Mr. MOORE. Could be stripped of what rights, sir?
Mr. BERMAN. To bring a Federal action.
Mr. MOORE. Anybody can bring an action that they want. But there is no class of people of atheists that havewe're talking about freedom of thought and conscience. For them to recognize a class
Mr. BERMAN. I'm talking about who has access to the Federal courts to raise a constitutional issue.
Mr. MOORE. Every person, no matter if he's an atheist or a Christian. But to recognize
Mr. BERMAN. And what does this bill do?
Mr. MOORE. But to recognize people for what they believe
Mr. BERMAN. What does this bill do?
Mr. MOORE. This allows every State and Federal official to acknowledge God as the sovereign source of law, liberty and Government. It is something that is historical, legal, and logical. That freedomnow listen.
Page 61 PREV PAGE TOP OF DOC Mr. BERMAN. What does it prohibit? What does this bill prohibit?
Mr. MOORE. It prohibitsit prohibits when they acknowledge God by its instance
Mr. BERMAN. What does the bill prohibit?
Mr. MOORE. The bill prohibits Government from interfering with the freedom of conscience of individuals by acknowledging God as sovereign source of law, liberty, and Government. Atheist, Hindus, Buddhists, all have the right to identify with God without Government interference. It carries out the restoration of the first amendment.
Mr. BERMAN. Would this stripping of Federal jurisdictionhear my question, please. Would this stripping of Federal jurisdiction apply to a challenge to a mandated school prayer?
Mr. MOORE. If it was mandated as a form of worship under articles of faithit would depend on what the State officials said what it was done for. If it's acknowledging God as the sovereign source of law, liberty, and Government, not necessarily.
Mr. BERMAN. It requires a specificit requires everyone to require a specific prayer to
Mr. MOORE. Any requirement is absolutely establishment. That's right. Any requirement to tell people how they must worship is an establishment of the duties you owe to God and the manner of discharging them.
Page 62 PREV PAGE TOP OF DOC
Mr. BERMAN. So this will not apply to
Mr. MOORE. It would depend on
Mr. BERMAN. This would not apply to a prescribed prayer, the stripping of federal
Mr. MOORE. It would have to go to court to see the specifics. I would have to see the
Mr. BERMAN. CouldI would like to hear Professor Gerhardt respond on this issue on the class of people.
Mr. GERHARDT. Well, first, I think there is no question at all that it would be violative of the fourthexcuse me, of the fifth amendment for Congress to create any classification that disadvantaged, for example, women, Jews, African Americans. So any court stripping measure that was directed against a particular class such as those I just listed would be, I think, unconstitutional.
But I might also take the liberty of adding that, with all due respect to Chief Justice Moore, that I don't think the Constitutional Restoration Act of 2004 does allow public officials to acknowledge God. That's not what it does. For example, State courts could strike it down. That's certainly a possibility. What this Act does is to precludes all judicial review in any article III court over the subject matter of this statute. That's what it does. And as a result, you can have 50 different States reaching different conclusions regarding Federal rights and Federal claims. That kind of chaos, I believe, is prohibited by the United States Constitution. It ensures that the Supreme Court is here at the very least to guarantee the uniformity and finality in interpreting the Constitution and Federal laws.
Page 63 PREV PAGE TOP OF DOC
Mr. SMITH. The gentleman's time has expired.
Before I recognize Mr. Bachus, let me explain to you all that I have to leave to go appear before the Rules Committee on behalf of a piece of legislation that's going to be on the House floor tomorrow, and I am expected to be there at 5:30, so I am going to have to leave. The Subcommittee will continue to be chaired by Bob Goodlatte of Virginia.
And now let me recognize the gentleman from Alabama, Mr. Bachus, for his questions.
Mr. BACHUS. I thank the Chairman.
I would ask Mr. Gerhardt, Dr. Gerhardt, and Mr. Hellman, who is the interpreter of the law and what is constitutional? Who interprets the law and what is constitutional?
Mr. GERHARDT. Everyone who takes an oath, of course, under the Constitution is in the position of interpreting that law for purposes of exercising their duties.
Mr. BACHUS. So every Government official has a duty to interpret the law themselves?
Mr. GERHARDT. But there is an interpretive authority that the United States Supreme Court has that ultimately I think many other officials cannot supersede. It has the authority to say what the law is.
Page 64 PREV PAGE TOP OF DOC
Mr. BACHUS. And who is that?
Mr. GERHARDT. The United States Supreme Court has the authority to say what law is.
Mr. BACHUS. They are the final interpreter or arbiter of what the law is?
Mr. GERHARDT. In many cases they are.
Mr. BACHUS. Professor Hellman, do you subscribe to that, that the Supreme Court and the Federal courts are the final interpreters of what the law is and what is constitutional and what is not?
Mr. HELLMAN. Well, I think we do have to distinguish between the Supreme Court and other Federal courts.
Mr. BACHUS. Okay.
Mr. HELLMAN. For example, decisions of lower Federal courts are not binding on State courts. But that is an example of a broader point that I might make just to supplement what Professor Gerhardt has said. We have many questions of constitutional interpretations that are very difficult, that will be disputed by people, people in good faith.
Page 65 PREV PAGE TOP OF DOC Mr. BACHUS. Oh, sure. And when there are these disputes, who is the final arbiter?
Mr. HELLMAN. We have to have a system. The system that has developed over 200 years is that in the end, the Supreme Court makes those judgments.
Mr. BACHUS. Okay. And you say it is developed over 200 years because certainly, at the start of this country under the Constitution, the Supreme Court was not perceived as the final arbiter of what the law is and what is constitutional; is that right?
Mr. HELLMAN. It was unclear, because the constitutional questions that arose didn't come to the Supreme Court in the way that they routinely do today.
Mr. BACHUS. Professor Gerhardt.
Mr. GERHARDT. Of course, I agree with that, but I would also add that I think some of the early decisions of the Supreme Court are consistent withare themselves historical practices and reflect traditions under which the Supreme Court does resolve constitutional conflicts.
Mr. BACHUS. So they actually began to exercise jurisdiction and become the final arbiter of what the law was?
Mr. GERHARDT. That was permitted by the Constitution.
Page 66 PREV PAGE TOP OF DOC Mr. BACHUS. Well, let me ask you this: Would you agree or disagree with Thomas Jefferson when he saidhe was responding to someone when they asked him if the Supreme Court or the Federal courts were or the judges werewell, he actually asked if the Supreme Court was the final arbiter or interpreter of what was constitutional and what was not. He said, you seem to consider that Federal judges are the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power and privilege. The Constitution has erected no single tribunal, knowing that to whatever hand is confided with the corruption of time and party, its members become despots. If Federal judges become the final arbiters, then indeed our Constitution is a complete act of suicide.
Do you agree with what Thomas Jefferson said, or is he indicating there that he is very uncomfortable with this single tribunal becoming the
Mr. GERHARDT. I could agree with President Jefferson because what he is saying is there is no final arbiter of allthat is the quote you just gaveof all constitutional questions, and the fact is not all constitutional questions come before the United States Supreme Court. Some are decided finally in other fora. But when questions do come before the United States Supreme Court, its interpretations of the Constitution
Mr. BACHUS. Oh, when they do come before it. But I am saying he obviouslyAbraham LincolnI will close with this. He said thethis was in his first inaugural address. The candid citizen must confess that if the policy of the Government upon final questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, that people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of an eminent tribunal.
Page 67 PREV PAGE TOP OF DOC
Do you agree with his statement?
Mr. GERHARDT. Again, I can agree with it in part because I know that President Lincoln was talking in part about Dred Scott. And one thing that President Lincoln did
Mr. BACHUS. But he doesn't talk about that here. He just says that if we give that right to the Supreme Court, then we will have ceased to be our own rulers.
Mr. GERHARDT. Right. But President Lincoln also acknowledged more than once, in fact repeatedly, he was a lawyer after all, that the critical factor, of course, has to do with who the parties to a particular case happen to be. And for President Lincoln, a greatone of things that mattered a great deal was the fact that he felt he had the unilateral authority to interpret the law with respect to sort of the war conditions under which he was operating
Mr. BACHUS. I understand that he, on many occasions, just disregarded it.
Mr. GERHARDT. But I don't believe he did disregard the Court. In fact, what he tried to argue the Courts precedent did not involve his conducthe took great pains to do this.
Mr. BACHUS. Well, he argued that they weren't binding on him.
Page 68 PREV PAGE TOP OF DOC
Mr. GERHARDT. Because he felt that he was not a party to those lawsuits.
Mr. BACHUS. I mean, he acted in disregard of them for whatever reason.
Mr. GERHARDT. But I think that is a very significant reason. Technically you are disregarding
Mr. BACHUS. Well, he had a reason.
Mr. GERHARDT. Well, with all due respect, I don't think it is disregarding, at least from his point of view.
Mr. BACHUS. No. I agree. I don't think he saw it as disregard. I think he figured they didn't have the power to do that.
Mr. GERHARDT. He felt he was not obliged to follow a case in which he wasn't a party, in which his office was not really involved or his particular powers were not directly challenged.
Mr. BACHUS. Okay. Thank you.
Judge Moore had his hand up, if I could let him.
Page 69 PREV PAGE TOP OF DOC
Mr. GOODLATTE. The time of the gentleman has expired.
The gentlewoman from California is recognized for 5 minutes.
Ms. WATERS. Thank you very much, Mr. Chairman.
I would like to request Mr. Moore or any other panelist who would like to respond to this question, do you agree with the proposition in Professor Gerhardt's testimony that the only way that a decision of the Supreme Court may be overturned is through a constitutional amendment, or when the Supreme Court itself overrules a prior opinion of the Court? If you agreewell, if not, why not? And if so, explain, then, how this bill possibly could be constitutional.
Mr. DANNEMEYER. I will just read to you
Ms. WATERS. My friend Mr. Dannemeyer.
Mr. DANNEMEYER. Thank you.
Just very briefly. We do not by this legislation seek to do anything to the United States Constitution. All we seek to do is to utilize an existing provision of the Constitution, article III, section 2, which says Congress has the authority to except from the jurisdiction of the Federal court system such subjects as it chooses to except. That is the authority this Congress has. So Iconstitutional amendment, of course, is one course. The other course is what the Constitution says.
Page 70 PREV PAGE TOP OF DOC
And the challenge that I have shared with the Members is very clearly do the elected leaders of this country have the courage, the political courage, to tell to the nine Justices of the U.S. Supreme Court, who literally have stolen the Judeo-Christian heritage on which this Nation was founded. That is why we are here.
Ms. WATERS. Has it ever been done before?
Mr. DANNEMEYER. There has been a series of decisions over the last half century that those rascals across the street have been in their mischief.
Ms. WATERS. Has this ever been done before?
Mr. DANNEMEYER. Twelve times in the last Congress that article III, section 2 was used by thisby the Congress, the previous Congress, to except areas from the jurisdiction of the Federal court system. Twelve times. And in the papers that I have filed with you, you will find a history of the use of article III, section 2 by Congress from 1789 to 1992. It is an op/ed piece. It was published in the Washington Times last September, and it is among your packet.
Ms. WATERS. What you are telling me is if you have documentation that decisions of the Supreme Court have been overturned by the Congress of the United States as relates to
Mr. DANNEMEYER. No. I am saying that Congress exercised the authority under article III, section 2 12 times in the last congress to except the subject matter of those areas from the jurisdiction of the Court.
Page 71 PREV PAGE TOP OF DOC
Mr. BERMAN. Will the gentlelady yield?
Ms. WATERS. Yes, I will yield.
Mr. BERMAN. Dealing with interpretations of constitutional provisions? Cite me one situation where the Congress removed the jurisdiction of the Court to decide a constitutional question based on unhappiness with previous Supreme Court decisions.
Mr. DANNEMEYER. We need to recognize
Mr. BERMAN. Cite me one example. Where in your
Mr. DANNEMEYER. Let me respond.
Mr. BERMAN. Well, you have a Washington Times article.
Mr. DANNEMEYER. Let me respond. We need to acknowledge the difference between the interpretation of the U.S. Constitution by the U.S. Supreme Court and the authority of Congress utilized in article III, section 2. Those provisions are sometimes in conflict.
Mr. BERMAN. All the gentlelady requested was interpreting that Constitution, in cases arising under the Constitution, has the Congress ever removed jurisdiction from the Supreme Court?
Page 72 PREV PAGE TOP OF DOC
Mr. DANNEMEYER. Well, I think it isyou can go down those 12 cases.
Mr. BERMAN. That doesn't make it good or bad. She just asked whether.
Ms. WATERS. I don't think so. I think that's
Mr. DANNEMEYER. Well, see, article III, section 2, we need to understand something. It doesn't say that there is a limitation on the power of Congress to use that section. You are trying to suggest, if I may make this addition, Congress can use article III, section 2 for little matters, but not for matters of substance. For example, if the U.S. Supreme Court has interpreted what the U.S. Constitution means, well, Congress can't touch that. Nonsense. Congress has the authority to correct an erroneous interpretation of the first amendment by the U.S. Supreme Court which says, in effect, that God doesn't exist.
Ms. WATERS. What little matters would you direct us to where it has been done?
Mr. DANNEMEYER. Well, just use the power and see what happens.
Ms. WATERS. Yes.
Page 73 PREV PAGE TOP OF DOC
Mr. MOORE. Ma'am, first let me clarify something. The premise upon which your questions are asked is that we are trying to overturn any decision of the Supreme Court or Federal district court. That's not the purpose of this bill. Yes, constitutional amendment is a way you can overturn a decision. And article III is not trying to overturn a decision.
But as far as the use of article III in the courts, to stop the Supreme Court, it has been used many times. And one particular time was in the McCardle case in 1868. There was an 1867 statute that authorized the Supreme Court to hear appeals from denials of writ of habeas corpus. A Mississippi writer had spoken out against the Reconstruction efforts of the Congress, and Congress moved to repeal that statute.
This is what Chief Justice Salmon P. Chase said about article III restrictions: 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. What then is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the Court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining of the Court is that of announcing the fact and dismissing the cause.
Now, what we are trying to clarify in this constitutional restoration act is the right of Justices on the Supreme Court to say, you cannot, as a State, acknowledge God. Every State does. All three branches of the Federal court do. The first amendment does not give them that right. That is the law. And the reason it is so important to interpret the words of the statutes to define the words is you can't interpret the law unless you define the words.
Page 74 PREV PAGE TOP OF DOC
It is a simple thing. IfI could use many examples, but if you walked down by a creek, and you picked up a stick, and you were arrested for fishing without a license, and you went before a judge and he said, I am going to have to fine you and put you in jail, and you said, why, he said, you are fishing without a license, he said. You said, Judge, I wasn't fishing without a license. I didn't have a line on the stick. I didn't have a weight, a hook; didn't have any bait, and I wasn't in the water. If the judge said, but, Mr. Jones, sir, or, Mrs. Jones, you could kill a fish with that stick, couldn't you? I am going to have to put you in jail. Would he be interpreting law? No, he would be making law. And that's exactly what the Supreme Court does when it forbids the acknowledgment of God.
The first amendment's only purpose was to allow that freedom to worship God, and it is from that worship of God that we get freedom of conscience to do and believe. That's why there is no class of citizen called atheist or Christians or Buddhists. They are all free to believe, because Government can't interfere with their right to believe and worship. That's the purpose of the first amendment. And the purpose of the first amendment was to prohibit the Federal Government, and especially the lawmaking branch, from interfering with that right. They never anticipated that the Supreme Court would be making law. And that's exactly what happened.
And how did they make law? Not by the first amendment. Congress shall make no law respecting an established religion. They do it by test, tests that have no relevance to law. Law is supposed to be a prescribed rule by the supreme authority of the State commanding what is right and prohibiting what is wrong. You are supposed to know what the law is. When you go out on the highway and you proceed down the highway, and it is marked 60 miles an hour, you know how fast you can go. If that law just says, don't go fast, and you have to come before a judge to find out whether you violated that law or not, then you are subject to tyranny. And that's exactly what the first amendment stands for.
Page 75 PREV PAGE TOP OF DOC
The first amendment doesn't prohibit the acknowledgment of God. The very definitions under it acknowledge God. And yet they say you cannot acknowledge God. That was done in this case. I have my opinion right here. Federal courts do not have that authority. Nor does the Supreme Court. And it is the right of Congress who recognizes acknowledgment of God to be the right of every person. It doesn't discriminate against anybody.
Ms. WATERS. My time has long since been up. I mean, we could debate this for a long time. Thank you very much, Mr. Chairman.
Mr. GOODLATTE. I thank the gentlewoman.
The gentleman from Indiana is recognized for 5 minutes.
Mr. PENCE. I thank the acting Chairman and the Committee and all the witnesses for this very stirring and, in many ways, engaging debate. I was one, along with Congressman Aderholt, who authored the legislation. I was one of two original cosponsors of this legislation, so my biases should be fairly obvious from the beginning. This is one of those hearings, though, Mr. Chairman, that I do think that if the Founding Fathers could wander onto Capitol Hill for a year, this would be one of those hearings where their mouths would just hang open.
I think just George Washington, Thomas Jefferson, the quote that my colleagues Mr. Bachus used was so on point. I think the idea that the freedom of religion would evolve in this country into the freedom from religion, I think, would astound the Founders of this country. And there has been some acknowledgment of that by the very distinguished experts who have spoken in opposition to this legislation isthat particularly heard Mr. Gerhardt speak, who has been very impressive. And back in my days in law school I would have loved to have been in your class, and I would have sat on the front row.
Page 76 PREV PAGE TOP OF DOC
But you made the comment that over time, that these matters have been entrusted to the Federal judiciary, and that's absolutely correct. I grant the point. And in your dialogue with Mr. Bachusbut you suggested, and I think this is exactly right, that if, in fact, the Constitution Restoration Act became law, the 50 States in this country would be left entirely on their own to define what constitutes acceptable religious expression in the public square; which sounds for all the word like 1776 to me.
When you study the 13 Original Colonies, there was a wide varietyand I think 11 of the 13 original States had established religions. But there was a wide variety of religious expression that was approved and sanctioned and in some ways mandated, if the truth of that history be told.
And Iso, I go back to the idea of the Founders being stunned at an official Washington that feels that it is the duty of the Court toirrespective of the clear language of article III, section 2, clause 2, that it is nevertheless the duty of the Court to exclusively harmonize what is acceptable in the public square with regards to the acknowledgment of the Creator that is referenced in the Declaration of Independence.
Now, as to my colleague Mr. Berman, who I would come just to hear him today, his comment about this beingI think if I am quoting you correctly, I think the reference was to this being a reactionary piece of legislation. Well, Iit probably is to some extent. It is a reaction to banning nondenominational prayer from the New York schools in 1962. It is a reaction of the Court's removing the 10 Commandments from public school walls in 1980, a reaction to striking down a period of silence in the Wallace v. Jaffrey case. It is a reaction to barring prayers at public school graduations in 1992. Now, it is a 42-years-in-coming reaction, which is not a reflexive reaction. One could maybe acknowledge that Congress in coming to this place has come in a fairly deliberate manner and in a thoughtful way. And let me just close by saying that.
Page 77 PREV PAGE TOP OF DOC
Mr. BERMAN. Would the gentleman yield just on this question, just since you mentioned my name?
Mr. PENCE. Yes, I will. I will yield to my friend.
Mr. BERMAN. Infirst of all, as you point out, reactionary can be good, and reactionary can be bad. I think we disagree about this particular reaction, but that's all right. But you mentioned when they banned nondenominational prayer in the New York City Schools
Mr. PENCE. Right.
Mr. BERMAN. what if they had banned a denominational prayer?
Mr. PENCE. But they didn't though.
Mr. BERMAN. I am just curious. Does this bill strip the Federal courts of the power to hear cases challenging a denominational
Mr. PENCE. Let me respond to that, reclaiming my time, because I think it is a very excellent question. This bill, as I have been given to understand, and the plain language of the legislation simply denies from the article III courts the ability to except cases where the acknowledgment of Godwhich was all the New York City public school prayer did. The acknowledgement of God is the point in controversy. I think that under the long history of cases, there would be veryit would be very difficult to say that the courts could not consider sectarian prayer or the imposition of an established religion, and I frankly, as a Libertarian, would support that jurisdiction strongly.
Page 78 PREV PAGE TOP OF DOC
What this legislation speaks to, Mr. Berman, I believe, is simply the ability of people in the public square, including public officials and States for that matter, to simply acknowledge God, as our Founders did, as the source of law and as, in a very simple sense, the ethical monotheism upon which this Nation was founded.
Mr. BERMAN. Would the gentleman yield further?
Mr. PENCE. Yes.
Mr. BERMAN. Context is important. The chief witness for this bill was involved in the case involving not simply the acknowledgement of God, but a belief that God also laid out 10 Commandments.
Mr. MOORE. No, sir. I have got the opinion right here. I can read the first paragraph and the second paragraph. The judge in this case said the 10 Commandments are not improper necessarily in a public office building, he said, but when you do it with the specific purpose and effect, as the Court finds from the evidence, of acknowledging the Judeo-Christian God as the moral foundation of law, you have committed a constitutional violation. In his last paragraph he said the same thing. It was not about the 10 Commandments. It was not about a rock.
Mr. BERMAN. No, I know it wasn't. It wasn't about the 10 Commandments historically. The question is whether your notion and the proponent's notion of acknowledgment of God involves something more than the acknowledgment of God, because if you acknowledge God, you have to acknowledge the following things about God, and Iand no one can challenge forcing me to acknowledge God that way.
Page 79 PREV PAGE TOP OF DOC
Mr. PENCE. Reclaiming my time. I think
Mr. GOODLATTE. The gentleman is recognized for an additional minute.
Mr. PENCE. I thank the Chairman for the courtesy, and I will close.
The purpose here is while the gentleman raises a number of points about other issues that may become in controversy or be of interest to individuals, I know that millions of the American people and I know tens of thousands of my constituents across the heartland of Indiana are deeply troubled in their hearts about this intolerance of the simple and profound acknowledgment of God as the cornerstone and the foundation of our law and our liberty. And the purpose of this legislation, very simply, is to restore that basic freedom of expression that I believe was contemplated by our Founders and is in keeping according to the express language of the Declaration of Independence, as we open this Congress every day in prayer, as we did today, and we open the Supreme Court in prayer. Allowing and ensuring that the courts will not meddle with the ability of individuals in the discharge of their public duties in the public square to acknowledge that same good that we so freely acknowledge in Washington, D.C., is the aim of this legislation. And I yield back my time.
Mr. GOODLATTE. The time of the gentleman has expired.
We will now recognize the gentleman from Virginia Mr. Forbes for 5 minutes.
Page 80 PREV PAGE TOP OF DOC
Mr. FORBES. Thank you, Mr. Chairman. And I do thank all of you for being here. Many of you have been here on panels before, and this is justit is an honor for me just to sit here and listen to you and be able to hear your thoughts and the distinguished people on this panel, and I am always so impressed with them. They come with great quotes, and I am going to get my legislative director Andy Halataei to get me some of those nice quotes to bring in here and cite.
But, you know, so many times one of the things that just baffles me is this, that process ought to be designed to get us to the truth. And that's what we should be seeking, but yet so often we spend so much time on process and talking about process that we never get to the truth. And sometimes we even get to the point that if we can talk long enough, we can run out the clock, and we never get to ask the tough questions about what the truth really is.
And I just want to ask you, members of the panel, today if you can give me a yes or no answer on this one, because I have only got 5 minutes. But from what I read on this bill, it talks about the acknowledgment of God as the sovereign source of law, liberty and Government. And my question to you today is do you believe that God is the sovereign source of law, liberty and Government? And if each of you could just give me a yes or no answer.
Mr. Moore, since you have got your hand up, I will go to you first.
Mr. MOORE. Yes.
Mr. FORBES. Mr. Dannemeyer.
Page 81 PREV PAGE TOP OF DOC
Mr. DANNEMEYER. Yes, I do.
Mr. FORBES. Professor Hellman.
Mr. HELLMAN. I don't think my view on that is of any importance or should be to this Committee.
Mr. FORBES. Well, it could be important to me, but if you don't want to answer that, I certainly understand that. I mean, when you come before us and testify, we like to know what your feelings are, and if you don't want to answer it, we certainly understand, and I appreciate that. But that's a question that I would posit to you, and if you don't want to answer it, certainly you don't have to. We are not compelling anybody to answer.
Mr. HELLMAN. Thank you.
Mr. FORBES. Mr. Gerhardt.
Mr. GERHARDT. Representative Forbes, I am actually a deeply religious person and aspirituality is very important in our household. We are going to celebrate Rosh Hashanah soon ourselves. But I have always made a practice of not talking about my religion publicly.
Mr. FORBES. Okay. Let me ask you this question. Do you believe that the Supreme Court or the fellow judiciary has before been wrong in their interpretation of the United States Constitution? Is that a question that you feel you can answer?
Page 82 PREV PAGE TOP OF DOC
Mr. GERHARDT. Yes, sir. We know the Supreme Court has certainly made its mistakes; for example, in Dred Scott, overturned by constitutional amendment.
Mr. FORBES. Okay. But let me ask you this. How do you know they were not wrong? And the reason I say that, because if you tell us that what the Supreme Court says is the Constitution, what they say is wrong, how can you say that they are wrong at that particular point in time?
Mr. GERHARDT. Because I believe the Constitution allows us to say that. I think until such time as there is an amendment, they were wrong.
Mr. FORBES. So until such time as there is an amendment, then what they say is the Constitution, and they are not wrong is that what you are saying?
Mr. GERHARDT. I think that Supreme Court interpretations of the Constitution are part of the constitutional law of this country and, therefore, under the supremacy clause would be binding on an inferior
Mr. FORBES. But that was not my question. My question is whether or not they were wrong. And your comment was that they were wrong at times or that they were not wrong? How can they be wrong, is my question to you, if what they say is the Constitution? How can you say they were wrong? We may amend it and change it later, but how do you say they were wrong when they rendered that decision? What do you compare it to to say they were wrong?
Page 83 PREV PAGE TOP OF DOC
Mr. GERHARDT. I think there we maybe perhaps even come full circle. You mentioned process. And there is a process by which mistakes determine that, and article V sets forth that process.
Mr. FORBES. Okay. On the process.
Mr. HELLMAN. Mr. Forbes, I'd like to add to that, because it goes back to the original question about not being concerned enough about truth and focusing too much on process. I think Professor Gerhardt has addressed that. There are many questions on which we will not be able to agree, you or I or any two citizens or any 10 citizens, on what is the truth. And therefore, we have a process for establishing the answer, at least provisionally, in an authoritative way, and that's the way the system has developed, that the Supreme Court does that until superseded by constitutional amendment or the Court's own rejection of its prior ruling.
Mr. FORBES. Judge Moore, you had a comment?
Mr. MOORE. Yes, sir. I can't, right now, remember the judgeJustice on Dred Scott that dissented, but, of course, we know Abraham Lincoln didn't follow the ruling. And we know onetwo Justices dissented, one of which said this, and this is how you know the Supreme Court's wrong on the Constitution: When the strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution. We are under a Government of individual men who for the time being have the power to declare what the Constitution is according to their own views of what they think it ought to mean.
Page 84 PREV PAGE TOP OF DOC
That's exactly what the Supreme Court and the Federal district courts are doing today with regard to the first amendment. It does not forbid acknowledgment of God. I will agree with Mr. Berman, and I couldn't leave this hearing without agreeing with Mr. Berman, that no Government can mandate the duties you owe to the Creator and the manner of discharging it. They can't tell you how to pray. But the acknowledgment of God is not the establishment the religion. They can't tell you how to pray, because that isthat is completely foreign. That would establish the duties you owe to the Creator and how you perform those duties. But to acknowledge God as the sovereign source of law, liberty and Government is not the establishment of religion and cannot be forbidden by the Federal courts.
Mr. FORBES. I have a red light, so thank you, Mr. Moore, and thank you, Mr. Chairman.
Mr. GOODLATTE. I thank the gentleman.
Well, I want to thank all the gentlemen on this panel for their contribution. I have a few questions myself. This has been a very enlightening debate, and I think you can tell by the debate that we have right up here on the dais that this is not something that's going to be resolved easily.
But I will tell you that I very much sympathize with the sentiments of the gentleman from Indiana, and I am troubled by some of the observations about some of the solutions that the Congress has to addressing the courts when the Congress, as the elected representatives of the people, feel that the courts have strayed their boundaries.
Page 85 PREV PAGE TOP OF DOC
Professor Gerhardt, you started out your remarks by citing Justice Scalia in his comments about the Independent Counsel Act, calling that a wolf coming as a wolf, and saying this legislation is in the same manner. You then went on to say that you felt that there were appropriate circumstances in which the Supreme Court and other courts could look to the guidance of foreign court decisions in interpreting the U.S. Constitution. I must tell you I am deeply troubled by that. Did you want to respond to that? Is that an accurate
Mr. GERHARDT. I don't think that's quite what I said, sir.
Mr. GOODLATTE. What did you say?
Mr. GERHARDT. What I said was, there is a paragraph in my statement, I don't have it front of me, in which we talk about the fact that reference to foreign law has been certainly done in some Supreme Court cases, but in almost every instance in which it is done, Justices have taken great pains to minimize their reliance on it; in fact, even to say, they are not going to attach any weight to it. That's basically I think what I said. I am notI don't believeI mean, I am not saying that
Mr. GOODLATTE. Well, do you object to the provision in this bill that prohibits that, that effectively removes the jurisdiction of the Court to rely upon such opinions?
Mr. GERHARDT. Well, the part of the bill that concerns me about foreign law the most is the one that would make a judge or Justice impeachable for relying on it. The fact is that every reliance that I know of has been de minimis, and it has only been probably less than a handful of times, and it is troubling to me in any event
Page 86 PREV PAGE TOP OF DOC
Mr. GOODLATTE. I am referring to title 2, interpretation, which simply prohibits the consequences of violating that are contained in the enforcement section, title 3. Are you objecting to title 2 of the bill?
Mr. GERHARDT. I am sorry. Do you mind if I
Mr. GOODLATTE. I have a particular interest in this because I have introduced legislation along with Congressman Feeney, another Member of this Committee, which does not have the enforcement provisions of title 3, but has a sense of the Congress, a resolution that the Court should not rely upon foreign decisions in arriving at the interpretation of the U.S. Constitution. And I am leading back to my own citing of Justice Scalia, who is appalled by that practice, as you may well know, in his dissent in the Adkins v. Virginia death penalty case. He said that Justice Stevens' invoking the authority of, quote, the world community was irrelevant, and he ridiculed the practices of the world community whose notions of justice are thankfully not always those of our people. Similarly, in the Lawrence case, he said the Court's discussion of these foreign views, ignoring, of course, the many countries that have retained criminal prohibitions of sodomy, is meaningless dicta, dangerous dicta, however, since this Court should not impose foreign moods, fads or fashions on Americans.
Mr. GERHARDT. Well, again, my concern with this is that this makes any reliance whatsoever, even if it is appropriate, even if it is logical in the context of the case, an impeachable offense. For example, my recollection of Justice Stevens' opinion, and, again, I don't have it in front of me, so I could be mistaken, is that the reference he makes is in a footnote, and then he goes on to suggest that he rises in that cause because he is trying to determine what's cruel or unusual, and he is suggesting, well, it may look odd or unusual in comparison to what's happening elsewhere in the world, but then he says basically he is not going to rely on that.
Page 87 PREV PAGE TOP OF DOC
Mr. GOODLATTE. Well, what if we simply said it is a violation of statute to do that?
Mr. GERHARDT. A violation of Federal statute to have a footnote like that?
Mr. GOODLATTE. To interpret and apply to the Constitution the directives, policies, judicial decisions or any other action of any foreign state or international organization.
Mr. GERHARDT. I think that it is veryagain, I would have to admit to being very troubled, because the fact is that there areforeign authorities were part of what the Framers had to consult at the time they drafted
Mr. GOODLATTE. All right. Well, let meI want to get to Professor Hellman with one last question. I will recognize myself for aone additional minute.
I am a little concerned about something that I think did not follow in your own analysis of whether or not it was appropriate for the Congress to exercise its impeachment powers to remove Justices for bad decisions, something, to my knowledge, we have never done, but certainly increasingly talk about given the fact that we have decisions coming down we think are further and further from what we think was the intent of the Founding Fathers or the intent of the public today in terms of what our Constitution means. But your analysis was that we can't, and I think you are correct in this, dock the pay of judges for making bad decisions. We can't give them a cut in pay by even 1 penny, as you noted, if we don't like their decisions. Therefore, you said it followed that we certainly wouldn't be able to remove them from office for doing that. On the other hand, if a judge engages in bribery, we can't dock his pay even a penny to punish him for that action, can we?
Page 88 PREV PAGE TOP OF DOC
Mr. HELLMAN. No, but you can
Mr. GOODLATTE. No. So it doesn't follow then. We certainly can remove him, and I think you'd agree with us that in appropriate circumstances should remove a judge for engaging in bribery.
Mr. HELLMAN. Yes. And the difference lies in the reason the compensationthe provision in the Constitution prohibiting the Congress from diminishing compensation is in there. The reason that is in there is to protect the independence of the judiciary, and the specific independence that they were concerned with was independence from Congress. They didn't want judges to beto feel that they had to decide cases in a way that would please Congress.
Mr. GOODLATTE. I don't think you can make that step. I think that if you have a judge who repeatedly and willfully constantly enters outrageous, erroneous decisions, I don't believe that the Constitution would prohibit the Congress from removing that individual from office. It is an extreme remedy, and it is a remedy that requires considerable showing on the part of the Congress, action by the House, and then a two-thirds vote from the Senate to effectuate the removal from office.
So it is not an easy remedy to pursue. But I don't think you can conclude from the fact that we can't reduce the pay of judges that we want to remove judges from office for a variety of actions that many of us would regard as misfeasance of office when they make outrageouslydecisions that are outrageously contrary to the Constitution that we were sworn to uphold, just as they are.
Page 89 PREV PAGE TOP OF DOC
Mr. HELLMAN. If I might respond briefly to that, because it actually goes both to the impeachment provision and to the jurisdiction restricting provision. We don't have to call it jurisdiction stripping or court stripping, if people are bothered by that. Most of these remedies have been proposed, but from time to time
Mr. GOODLATTE. Well, the court-stripping remedy has been used.
Mr. HELLMAN. Not the way this bill would do.
Mr. GOODLATTE. No. I agree with that.
Mr. HELLMAN. It has not been successful even though
Mr. GOODLATTE. But there is nothing in the Constitution that draws a line between the ways in which Congress has utilized it and the ways that this bill proposes to utilize it.
Mr. HELLMAN. Well, what I would like to suggest is this: That the fact that bills of this kind and even impeachment have been proposed from time to time, but have always been rejected in the end, that's a long history. And history creates a tradition. And I think one of the things that Congress should be respectful of is tradition, not just because it is old and has a lot of history behind it, but because the fact that so many of your predecessors have been tempted by bills like this, have looked at them and in the end decided they didn't want to do it. It seems to me that history should carry some weight. Now, that's not to say that people in the past were right about everything, but the cumulative weight of their judgments, it seems to me, is usually a pretty good guide.
Page 90 PREV PAGE TOP OF DOC
Mr. GOODLATTE. Well, I have obviously exceeded my time as well, and I will take note of Ms. Waters' observation that this debate could persist on and on. But I will close by saying that I fully agree with you that we would like people to follow the full weight of history and tradition. We had 50 State laws that prohibited the desecration of the American flag. That history and tradition was thrown out by the courts in disregard of that. And I think the same thing, the same thing is very much true of what the Court's recent history of decisionmaking in this area of religious freedom has been. And so I
Mr. BERMAN. Will the gentleman yield?
Mr. GOODLATTE. I will yield to the gentleman.
Mr. BERMAN. Well, when Justice Scalia, relying on the American Constitution, decided that that was speech, I didn't think it was callous disregard.
Mr. GOODLATTE. But I will throw Justice Black back at you, who also determined in a previous decision that he didn't see any reason why the Supreme Court should interfere with the rights of the States to pass those laws. I am not going to take any statements from the witness.
Mr. BERMAN. And you are head of the new technology caucus?
Mr. GOODLATTE. Absolutely. Absolutely. And you are a Member.
Page 91 PREV PAGE TOP OF DOC With that, gentleman
Mr. BACHUS. Are we going to have a second round?
Mr. GOODLATTE. I don't think we are going to have a second round. Is that the plan? I think the fact that we are going to have votes in about 10 minutes dictates that we need to bring it to a conclusion.
Mr. BACHUS. Could we have 5 minutes on each side?
Mr. GOODLATTE. Well, why don't we give you 2 minutes. I will give the gentleman from Alabama 2 minutes, and if the gentlelady from California wants to take 2 minutes in response, we will do that.
Mr. BACHUS. Thank you, and I appreciate the Chairman's indulgence.
Mr. Gerhardt, you talked about you were uncomfortable with publicly acknowledging your religious beliefs or acknowledging God, and I understand that. But do you believe that citizens who choose to do so, do you think they are protected by the Constitution, or do you think they are prohibited from the Constitution from acknowledging God or from discussing their religious beliefs?
Mr. GERHARDT. Well, I think the critical thing is time and place. The Constitution is all about allocating particular authority to particular officials and also putting limits on
Page 92 PREV PAGE TOP OF DOC
Mr. BACHUS. Well, you think citizensthere are a lot of limits putby the Constitution put on their expression of religious beliefs?
Mr. GERHARDT. Um
Mr. BACHUS. Do you think there are any limits on the Constitution on them expressing their
Mr. GERHARDT. On public citizens expressing their beliefs? Well, as long aswell, in the course of
Mr. BACHUS. Well, go ahead.
Mr. GERHARDT. If I understand the question correctly, I think the answer will probably be no, because as long as they are acting
Mr. BACHUS. You started talking about Government officials, soyou got into what Governmentand let's talk about Government officials. Do you think there is anything in the Constitution that prohibits Government officials in their official positions from acknowledging God?
Mr. GERHARDT. Again, I
Mr. BACHUS. Or from the free exercise of
Page 93 PREV PAGE TOP OF DOC
Mr. GERHARDT. I think it is how you do it and what form it takes.
Mr. BACHUS. All right. What about invoking a prayer to God asking for his assistance in a public place?
Mr. GERHARDT. Well, again, it depends on the public place.
Mr. BACHUS. Well, what if it is under their official duties? What if they were doing it as part of their official duties? Would that violate the Constitution?
Mr. GERHARDT. Well, we know that
Mr. BACHUS. I in my official duties in an official session of Congress pray to God and ask for his blessings. Would that be a violation of the Constitution?
Mr. GERHARDT. Well, we know that prayer, at the House of legislative sessions is constitutional. It becomes much more problematic if you are also doing that in a public school.
Mr. BACHUS. Well, if it isin other words, it is constitutional for our Congressmen to do it in a session of Congress, but it is unconstitutional for our schoolchildren to do it in the schools.
Page 94 PREV PAGE TOP OF DOC Mr. GERHARDT. I accept the Supreme Court doctrine on this.
Mr. BACHUS. And is that what you are saying, that that's the law of our land?
Mr. GERHARDT. I believe that is.
Mr. BACHUS. So we are limiting our schoolchildren and what they can do under the Constitution, yet we, as Congressmen, can pray to God ask for his assistance, ask for his blessings on our deliberations, but the same Government that allows its representatives to do that prohibits schoolchildren from doing that, or schoolteachers or principals. Is that right? Is that kind of ironic to you?
Mr. GERHARDT. No.
Mr. BACHUS. It is not to you and Ms. Waters. Okay.
Mr. GERHARDT. I think the logic of the Supreme Court's opinions happens to be that in the school settings, the extent to which the sort of coercive influences which can control the circumstances is very high.
Mr. BACHUS. Well, I meanbut, I mean, if the Constitution grants a right, it is not up to the Supreme Court to sayto try to find a motive, is it?
Mr. GOODLATTE. The time of the gentleman has expired.
Page 95 PREV PAGE TOP OF DOC
Mr. BACHUS. Let me justjust one.
Mr. GOODLATTE. We will yield the same amount of time to Ms. Waters when you are done.
Mr. BACHUS. Mr. Hellman and Mr. Gerhardt, you are talking about what the courts found and what the tradition is, and theyprayer in the schools as a tradition from the 1700's to 1947 when the first decision was made which start eroding that. So that's a good case of history being thrown out the window; is it not? In fact, the New and Old Testament were taught in the schools in New York State up until right before that. I have those copies in my office, because a relative of mine was taughtthe New Testament and the Old Testament was a part of their education in the public schools. When did that become unconstitutional? I will just close with that.
Mr. GERHARDT. The New York State? That's Engel v.
Mr. BACHUS. When did it start violating the Constitution to have public prayers in the schools? It was constitutional until a certain point, right, and then it became unconstitutional.
Mr. GERHARDT. Not necessarily. I mean
Mr. BACHUS. You think it was unconstitutional from the start?
Page 96 PREV PAGE TOP OF DOC
Mr. GERHARDT. It may have been. Let me explain. And then I have to deal with the higher authority of my wife.
Mr. GOODLATTE. The gentleman has to catch a 7 o'clock train.
Mr. GERHARDT. And I am going to get into trouble one way or another.
Mr. GOODLATTE. You have to catch the train.
Mr. BACHUS. You would acknowledge the Constitution hasn't changed, right?
Mr. GERHARDT. Right. But with all due respect
Mr. GOODLATTE. Let the gentleman have a final answer to the question.
Mr. GERHARDT. With all due respect, I mean, I think these are great questions, and this is a very important line of inquiry. But we also know the schools were segregated for decades, for a very, very long time.
Mr. BACHUS. But the law changed. The amendments of the Constitution changed.
Page 97 PREV PAGE TOP OF DOC
Mr. GERHARDT. Right. I am talking about between the 14th amendment and the time of Brown v. Board of Education, they were segregated.
Mr. BACHUS. But
Mr. GOODLATTE. The gentleman suspend. We will accept the answer of the witness, and now I am going to recognize the gentlewoman from California for 3 minutes.
Ms. WATERS. I yield to Professor Gerhardt.
Mr. BERMAN. I think Professor Gerhardt should be able to leave.
Ms. WATERS. Yes, to continue.
Mr. BERMAN. Well, I think he wants to catch that train. So I think we should let him.
Ms. WATERS. Well, I would like to hear your answer if you have got a few more minutes.
Mr. GERHARDT. Okay. But I just was going to add that theI think that the other development that arose, Congressman, washad to deal with the incorporation of the 14th amendment to the States, and that, of course, arose as a result of the 14th amendment as well. So the practice that you are talking about to some extent predated, of courseI am not real sure it predated the 14th amendment, but in any event it predated the time that the Supreme Court had considered challenges to practices like that. Once the 14th amendment gets enacted, and once incorporation takes place, incorporation of that amendment against the States, that is going to allow the Court to adjudicate matters like prayer and segregation.
Page 98 PREV PAGE TOP OF DOC
Ms. WATERS. Thank you. On my time. This is my time. On my time.
Mr. GERHARDT. And I apologize to the Committee. I'm sorry.
Ms. WATERS. Thank you.
Reclaiming my time. A question of any of the panelists, because I must admit I am playing a little bit of catch-up on this. Is there a definition of God in the legislation, in the proposed legislation? Definition of God?
Mr. DANNEMEYER. Well, let me just say that the Declaration of Independence makes reference to a Creator, and when you look at the signature on the Constitution of the United States, it makes reference to God. So this legislation, 3799, does not seek to define God.
Ms. WATERS. Well, whatwhat I am not clear about, and perhaps this is even the wrong place to try and hold this discussion, is whether this is synonymous with Allah, is it synonymous with Jehovah, Buddha, Mohammed? Iwhat
Mr. DANNEMEYER. Throughout the history of Western civilization, the word God, G-O-D, encompasses the existence of a sovereign supreme being, and there are those of us who believe in the Bible that this supreme being created the world as described in Genesis. That's the basis on which the Nation was founded, and that was what we believed and taught and professed from 1789 to 1947, when the series of decisions of the U.S. Supreme Court have really stolen that.
Page 99 PREV PAGE TOP OF DOC
Ms. WATERS. Sir, I guess what we are saying is when you talk about symbols or you define the teachings, whether it is the 10 Commandments or something else, that if it is different from the God that someone else believes in, that that would be illegitimateI mean, that would be legitimate for everyone, whatever the symbols are or the teachings are thatof the God that you are describing here.
Mr. DANNEMEYER. Let me respond this way, if I may. I think in the public square, which is what we are talking about, in public policy, we should strive, those of us who have different religious convictions, to find a common ground. That's why I am here. I believe the common ground historically has been the existence of God. That's what this fight's all about.
Ms. WATERS. Mr. Dannemeyer, do you believe God is black?
Mr. DANNEMEYER. That's not the question. The Bible makes very clear that is God not a respecter of any person's color.
Ms. WATERS. So if we had a symbol in the public square of a black God, that would be perfectly acceptable tofor you?
Mr. DANNEMEYER. It certainly would. It certainly would.
Ms. WATERS. Okay.
Page 100 PREV PAGE TOP OF DOC Mr. BERMAN. Will the gentlelady yield?
Ms. WATERS. Yes, I will yield.
Mr. BERMAN. I mean, we really haven't explored the article III issues. The proponents both on the Committee and the two of you gentlemen have talked about this exception provision. There is a very different interpretation of article III, and I think Professor Hellman and Gerhardt spoke about it. But where I amwhat I can't quite put my hands on is your insistence that the acknowledgment of God is divorced from a religion. I understand your quickness to define, and it is interesting that you don't choose to define God in response to Ms. Waters' question, but you are talking about defining fishing.
Mr. MOORE. Wait a minute. I haven't answered Ms. Waters yet.
Mr. BERMAN. Well, I was taking your comments about fishing and her question about defining God. My only point wasthis isn't even a question. It isI don't have my hands on the acknowledgment of God, and then all of a sudden we have a bill that applies to school prayer, the 10 Commandments, a number of other things which you lump into an acknowledgment of God because you know you can't establish religion, but looks to me like you get down the road toward establishing a religion, or at least excluding some religions from your definition. And I justI don't mean this as a question because we can go on this forever, but I just want to leave with that observation.
Mr. MOORE. You don't want an answer?
Page 101 PREV PAGE TOP OF DOC Mr. BERMAN. I mean someday, but not this moment.
Mr. MOORE. But not here. Is that what you are saying?
Mr. BERMAN. Here is fine. Now is the problem.
Mr. MOORE. The Goddid I misunderstand? I can answer? I can't?
Mr. GOODLATTE. I think the time has expired.
Mr. MOORE. Okay.
Mr. GOODLATTE. I would like to thank the witnesses for their testimony. The Subcommittee very much appreciates their contribution.
This concludes the legislative hearing on H.R. 3799, the Constitution Restoration Act of 2004. The record will remain open for 1 week. Thank you for your cooperation. The Subcommittee stands adjourned.
[Whereupon, at 6:30 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Page 102 PREV PAGE TOP OF DOC
PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
I'm not sure whether the greater irony is that this bill is called the Constitution Restoration Act, when it does the opposite of restoring the Constitution's integrity, or that this hearing is taking place days before the Jewish High Holidays, a time in which Jews spend days reciting prayers replete with acknowledgements of God and His sovereignty.
America was founded by those attempting to escape religious persecution. The pilgrims set forth to a new continent in the hope of establishing what was at the time a radical idea, a society free from the tyranny of religious discrimination. This tradition led the framers of the First Amendment to our Constitution to insist on the principle of separation of church and state. They enshrined in our founding document the twin pillars of our country's policy toward religion: a commitment to allow freedom of religious expression, and a rejection of the state's establishment of religion. They entrusted our courts with the ability to differentiate between the two.
H.R. 3799 is a reactionary piece of legislation. It is born out of an attempt to politicize recent decisions of the Supreme Court and lower federal courts. And the most egregious part: H.R. 3799 would seemingly make it an impeachable offense for a federal Judge to decide that H.R. 3799 violates the U.S. Constitution.
Page 103 PREV PAGE TOP OF DOC This bill attempts to circumvent the only available process for legislators to reverse the effects of judicial decisions concerning the Constitution. That process is called a constitutional amendment, and the framers deliberately made it difficult to achieve because they did not want legislators repeatedly tinkering with the founding document. Supporters of this bill have repeatedly promoted the concept of court stripping in an effort to give legislators the power to take decisions out of the hands of judges, an approach that is thoroughly at odds with what the framers of the Constitution intended.
I am surprised that, in an age when we are trying to eradicate the Taliban, a group that infused a fundamentalist interpretation of their religion into every aspect of public life, we are here, now, talking about removing federal judicial oversight in some religion cases. The Constitution created the most delicate balance between the branches of government. By giving Congress power to overturn the judiciary's core function of constitutional interpretation, this bill would fundamentally alter that constitutional balance.
This bill is not about freedom of expression, as some might proclaim. It is a mockery of what our founders considered to be an integral part of our system of governmentthe separation of powers and the system of checks and balances between the branches of government. Are we to chain the hands of the judicial branch of the federal government so that they merely serve as a rubber-stamp for the political mores of the moment?
Ironically, while supporters of H.R. 3799 seek to assert greater congressional control over review of the laws it passes, making state courts the primary avenue for challenges to federal legislation actually erodes Congress' control over judicial review. Unlike with the federal judiciary, Congress has no impeachment power over state judges or authority to regulate state courts, and the Senate has no power to advise and consent in their selection.
Page 104 PREV PAGE TOP OF DOC
And speaking of our framers, are we now to question the influence foreign law played in the development of the Constitution? And what about the usage of foreign law in decisions that the sponsors presumably likes? As Professor Gerhardt states in his written testimony, If this bill were law in 1986, then the majority in the Bowers v. Hardwick case presumably would have been subject to impeachment for their reliance on the traditions of Western civilization and the Judeo-Christian tradition.
The attack on usage of foreign law is said to be a way to clamp down on unacceptable judicial activism. But the opposition to judicial activism is selective, limited to a specific type of decision with which the sponsor disagrees. The sponsors are content to allow other examples of judicial activism to pass unchallenged. For example, of relevance to this subcommittee, but not at all addressed in the bill, is the judicial activism evident in the Florida Prepaid cases. In those cases, the Supreme Court based its decisions not on the text of the Constitution, but rather on ''fundamental postulates'' that directly contradict the actual language of the 11th amendment. Apparently the sponsors of this bill are only opposed to judicial activism when it runs counter to their political ideology.
This legislation would give Congress the power that our founding fathers specifically intended to deny the political branchesnamely, the power to ensure that judicial decisions are held hostage to prevailing political sentiment in the country. That is not the role the founding fathers intended for Congress or the independent federal judiciary. That Congress would threaten to impeach federal judges because of the substance of their constitutional decisions is itself an abuse of power and one which our system of government cannot tolerate.
Page 105 PREV PAGE TOP OF DOC I urge my colleagues to reject this bill in its entirety.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
This legislation is merely the latest Republican political assault on our independent federal judiciary. The bill is unconstitutional, undermines our system of government, is unnecessary, and is hypocritical. It is a Republican tactic to avoid debating issues of real importance during an election: the economy, jobs, domestic security, and health care.
Just a few months ago, we passed a bill stripping federal courts from reviewing challenges to the 1996 Defense of Marriage Act. In two days, we will vote on whether to strip courts from hearing challenges to the pledge of allegiance. Today, we are considering legislation that furthers alienates federal courts from issues that are important to right-wing conservatives: affirmations of God and foreign legal judgments. Like the other two bills, this has no chance of becoming law, so why are we here? Because the Republican leadership does not like to talk about its deficit-raising tax cuts or its intelligence failures or its backstabbing of American workers in a close election year. Also, it wants to coddle its right-wing, extremist base.
I could not be more certain of how unconstitutional this legislation is. Separation of powers prevents Congress from managing the deliberations of the judicial branch, yet this proposal would prevent the judiciary from enforcing the Constitution and ensuring separation of church and state.
Page 106 PREV PAGE TOP OF DOC
The legislation also undermines the supremacy of federal law as governed by article VI of the Constitution. By preventing federal courts from reviewing certain cases, the bill serves to weaken and divide our Nation. If supporters of H.R. 3799 had their way, our schools would never have become integrated because the federal courts should not have ''interfered'' in state matters during the civil rights era. Ultimately, the bill would result in fifty different state court interpretations of constitutional law.
The legislation goes even further in this radical direction by being retroactive. State courts would not be bound to related federal court that may have been issued prior to enactment.
This is why anti-liberal thinkers such as former-Attorney General William French Smith and former Rep. Bob Barr have written in opposition to these extreme, anti-American initiatives.
It is also unheard of to state that a specific act is impeachable. Never before has Congress statutorily deemed certain acts to be impeachable. If we start down this road, it is only a matter of time before it will be a statutorily impeachable offense to mislead the American people into war and to use that war to line the pocketbooks of friends and political contributors. Decisions about impeachment should be made on a case-by-case basis by Congress, and hopefully only rarely.
I have to admit that all this back and forth on federalization has me a little confused. Last week, Republicans moved a bill that subjects lawyers in state lawsuits to federal sanctions. Every year, they move tort reform legislation that moves class action cases into federal court. Finally, they made it a federal offense for a doctor to comply with a woman's right to choose. Perhaps if my colleagues on the other side could provide a list of which issues should be federal and which should be left to the states, I could follow along better in the future.
Page 107 PREV PAGE TOP OF DOC
SUPPLEMENTAL PREPARED STATEMENT OF ROY S. MOORE
The Constitution Restoration Act of 2004 (H.R. 3799) (CRA) exempts from federal courts cases brought over a public official's or element's public ''acknowledgment of God as the sovereign source of law, liberty or government.'' During the course of my testimony before this honorable subcommittee, I did not have an opportunity to answer a question asked by a subcommittee member who wanted to know whether ''God'' was defined in the CRA, or, as the subcommittee member put it, ''Which God is this legislation referring to?''
The answer is so obvious it forces one to wonder about the real purpose for asking. There can be no doubt as to which God the legislation must be referring to when it discusses acknowledgments of God as ''the sovereign source of law, liberty, and government'' because a basic knowledge of America's history and of our Founders' innumerable acknowledgments of the same God reveals that the God America always acknowledges is the God of the Holy Scriptures.
The brave pioneers who in 1620 landed at Plymouth Rock bound themselves to a governing compact before departing from the Mayflower onto dry land ''[h]aving undertaken for the Glory of God and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern Parts of Virginia. . . .''(see footnote 21) The Fundamental Orders of Connecticut of 1639, the first permanent governing document of that colony, summarized its purpose stating that, ''where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require. . . .'' The Declaration of Independence expressly relies upon the ''Laws of Nature and of Nature's God''(see footnote 22) as self-evident proof for its claims, and after several references to God, appeals to the ''Supreme Judge of the World for the Rectitude of our Intentions.'' The Continental Congress, on November 1, 1777, declared a day of national thanksgiving even in the midst of the war for independence because they believed ''it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; to acknowledge with Gratitude their Obligation to him for benefits received, and to implore such further Blessings as they stand in Need of. . . .'' Our sixth President of the United States, John Quincy Adams, on the anniversary of the Declaration of Independence in 1837, noted that ''the Declaration of Independence first organized the social compact on the foundation of the Redeemer's mission upon earth [and] laid the corner stone of human government upon the first precepts of Christianity.''(see footnote 23) In his Thanksgiving Day proclamation of October 3, 1863, President Abraham Lincoln noted the many blessings that had been bestowed upon this country even in the midst of the Civil War and acknowledged that ''[t]hey are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy.'' In 1931, the United States Supreme Court observed that ''[w]e are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God.''(see footnote 24) I cited some other examples in my original written statement to this subcommittee and there are a myriad of others throughout the history of this country and in the present day.
Page 108 PREV PAGE TOP OF DOC
In short, there never has been a question as to ''which God'' the people of this country have recognized as the source of our law, liberty, and government. When Congress sang ''God Bless America'' on the steps of the Capitol Building on September 11, 2001, no member balked because they were concerned about ''which God.'' When Congress recites the Pledge of Allegiance, there is no question raised as to ''which God'' our nation is under. Our official national motto, ''In God We Trust,'' is not footnoted with a question about ''which God.'' When presidents or would-be presidents conclude their speeches or addresses with ''God bless America,'' no one objects because they are concerned about ''which God'' is being invoked.
A person shrinks from the idea that there is one God who should be acknowledged above others when he or she does not want to acknowledge that there is any authority higher than himself or herself. In his Bill for Religious Freedom, Thomas Jefferson speaks of ''fallible and uninspired men'' who have ''established and maintained false religions over the greatest part of the world, and through all time.''(see footnote 25) The common characteristic among false religions is the installation of man as the ultimate determiner of right and wrong. Have we become like those ''fallible and uninspired men''?
When we refuse to acknowledge the God Whom our forefathers recognized, the only God Who gives freedom of conscience to man, we reject the founding principle of the First Amendment and enshrine the message of totalitarian regimes throughout time: that man is god and will save us from ourselves. Indeed, this nation specifically placed the phrase ''under God'' in the Pledge of Allegiance to contrast us with the atheism of such regimes.(see footnote 26) The public acknowledgment of God has been a part of this country from its inception. We must preserve this right before the federal courts completely take it away.
Page 109 PREV PAGE TOP OF DOC
(Footnote 1 return)
487 U.S. 654 (1988).
(Footnote 2 return)
Id. at 698 (Scalia, J., dissenting).
(Footnote 3 return)
521 U.S. 507 (1997).
(Footnote 4 return)
530 U.S. 428 (2000).
(Footnote 5 return)
496 U.S. 310 (1990).
(Footnote 6 return)
See, e.g., Morton J. Horwitz, The Transformation of American Law, 17801860, at 89 (1977). See also Thomas Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 659 (1999) (''legal historians generally agree that the doctrine of stare decisis [was] of relatively recent origin'' at the time of the Founding and had begun to resemble its modern form only during the eighteenth century).
(Footnote 7 return)
Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535,1578 n.115 (2000).
(Footnote 8 return)
Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 579 (2001) (footnotes and citations omitted).
(Footnote 9 return)
Id. at 592.
(Footnote 10 return)
14 U.S. (1 Wheat.) 304 (1816).
(Footnote 11 return)
Oliver Wendell Holmes, Collected Papers 29596 (1920).
(Footnote 12 return)
See Stone v. Graham, 449 U.S. 39 (1980).
(Footnote 13 return)
See, e.g., Engel v. Vitale, 370 U.S. 421 (1962).
(Footnote 14 return)
See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
(Footnote 15 return)
The leading expert on this question is David Bederman of Emory Law School. He has just completed a manuscript of a forthcoming book on the influence of ancient precedents in the drafting and ratification of the Constitution.
(Footnote 16 return)
A few years ago I had the opportunity explore in depth the question about whether Article III judges may be impeached and removed for their decisions. See Michael J. Gerhardt, Chancellor Kent and the Search for the Elements of Impeachable Offenses, 74 Chi.-Kent L. Rev. 91 (1998).
(Footnote 17 return)
478 U.S. 186 (1986).
(Footnote 18 return)
539 U.S. 558 (2003).
(Footnote 19 return)
See Martin v. Hunters' Lessee, 14 U.S. 304 (1816).
(Footnote 20 return)
80 U.S. (13 Wall.) 197 (1871).
(Footnote 21 return)
Our Nation's Archive: The History of the United States in Documents 46 (Bruun & Crosby eds. 1999).
(Footnote 22 return)
Sir William Blackstone in his Commentaries on the Law of England, the definitive legal commentary of the late Eighteenth Century and heavily relied upon by the Founders, described the ''law of nature'' as originating from God: ''The doctrines thus delivered [by divine revelation] we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.'' I Blackstone Commentaries 42 (Univ. of Chi. Facs. ed. 1765).
(Footnote 23 return)
William J. Federer, America's God and Country 18 (1996).
(Footnote 24 return)
United States v. Macintosh, 283 U.S. 605, 625 (1931) (citation omitted).
(Footnote 25 return)
Documents of American History 125 (Henry Steele Commager, ed., 6th ed. 1973).
(Footnote 26 return)
''At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual.'' H.R. 1693, 83rd Cong., 2nd Sess. (1954).