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94–458 PDF 2004

LIMITING FEDERAL COURT JURISDICTION TO

PROTECT MARRIAGE FOR THE STATES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JUNE 24, 2004

Serial No. 92

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

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. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania 

TOM FEENEY, Florida 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ADAM B. SCHIFF, California

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

MINDY BARRY, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

JUNE 24, 2004

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress From the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 4

The Honorable John N. Hostettler, a Representative in Congress From the 

State of Indiana .................................................................................................... 5

WITNESSES 

Mrs. Phyllis Schlafly, Founder and President, Eagle Forum 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 10

Mr. Michael Gerhardt, Arthur B. Hanson Professor of Law, William and 

Mary Law School 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 15

Mr. Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public 

Policy, Northwestern Law School 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 21

The Honorable William E. Dannemeyer, former U.S. Representative 

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 27

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress From the State of Ohio, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 3

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, 

Notre Dame Law School, submitted by Rep. Steve Chabot .............................. 89

Boston College Law Review Article, Volume XXVI, Number 5, September 

1985, submitted by Rep. Steve Chabot ............................................................... 95

Prepared Statement of the Honorable Spencer Bachus, a Representative in 

Congress From the State of Alabama ................................................................. 136

Prepared Statement of the Honorable Steve King, a Representative in Congress From the State of Iowa .............................................................................. 136

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress From the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 137

Three letters submitted by the Honorable John N. Hostettler, a Representative in Congress From the State of Indiana ...................................................... 138

Page

IV

Letter from witness Professor Michael Gerhardt to the Honorable Tom 

Feeney, a Representative in Congress From the State of Florida ................... 141

CBO Report submitted by the Honorable Tammy Baldwin, a Representative 

in Congress From the State of Wisconsin .......................................................... 146

(1)

LIMITING FEDERAL COURT JURISDICTION TO 

PROTECT MARRIAGE FOR THE STATES 

THURSDAY, JUNE 24, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 10 a.m., in Room 

2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of 

the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. Good morning. 

This is the Subcommittee on the Constitution. This is the fourth 

hearing that we’ve had relative to the issue at hand. 

When the Supreme Court in Lawrence v. Texas struck down a 

State law criminalizing same-sex sodomy last year, Justice Scalia 

in his dissent pointed out that, quote, ‘‘State laws against bigamy, 

same-sex marriage, adult incest, prostitution, adultery, fornication, 

bestiality and obscenity’’ are all ‘‘called into question’’ by the 

Court’s decision. That is a very disturbing prospect, and it should 

concern legislators nationwide. 

The threat posed to traditional marriage by Federal judges 

whose decisions can have an impact across State boundaries has 

renewed concern over the abuse of power by Federal judges. This 

concern has roots as old and venerable as our Nation’s history. 

Thomas Jefferson lamented that, quote, ‘‘the germ of dissolution 

of our Federal Government is in the constitution of the Federal judiciary; . . . advancing its noiseless step like a thief over the field 

of jurisdiction until all shall be usurped...’’ Jefferson wrote of 

Federal judges, quote, ‘‘Their power is the more dangerous as they 

are in office for life and not responsible . . . to the elective control,’’

unquote. And Abraham Lincoln said in his first inaugural address 

in 1861, quote, ‘‘The candid citizen must confess that if the policy 

of the Government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, 

the people will have ceased to be their own rulers, having, to that 

extent, practically resigned their Government into the hands of 

that eminent tribunal,’’ unquote. 

A remedy to abuses by Federal judges has long been understood 

to lie, among other places, in Congress’ authority to limit Federal 

court jurisdiction, and that is the subject of our hearing today. 

Regarding the Federal courts below the Supreme Court, article 

III of the Constitution provides that, quote, ‘‘the judicial power of 

the United States shall be vested in one Supreme Court and in 

such inferior courts as the Congress may from time to time ordain 

2

and establish.’’ Regarding the Supreme Court, article III provides 

that, quote, ‘‘in all cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be Party, the 

Supreme Court shall have original Jurisdiction. In all other cases 

the Supreme Court shall have appellate Jurisdiction with such Exceptions and under such Regulations as the Congress shall make,’’

unquote. 

Consequently the Constitution provides that the lower Federal 

courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction; that is, cases involving ambassadors or in which 

one of the States is a party. 

In Federalist Paper No. 80, Alexander Hamilton made clear the 

broad nature of Congress’ authority to amend Federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that, quote, ‘‘it ought to be recollected that the national 

legislature,’’ us, the Congress, ‘‘will have ample authority to make 

such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences’’ posed by the decisions of the Federal judiciary. 

That understanding prevails today. As a leading treatise on Federal court jurisdiction has pointed out, quote, ‘‘Beginning with the 

first Judiciary Act in 1789, Congress has never vested the Federal 

courts with the entire ’judicial power’ that would be permitted by 

article III’’ of the Constitution. And as eminent Federal jurisdiction 

scholar Herbert Wechsler has stated, ‘‘Congress has the power by 

enactment of a statute to strike at what it deems judicial excess 

by delimitations of the jurisdiction of the lower courts and of the 

Supreme Court’s appellate jurisdiction....’’

Limiting Federal court jurisdiction to avoid abuses is not a partisan issue. Senate Minority Leader Daschle has supported provisions that would deny all Federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing. 

Democratic Senator Robert Byrd introduced an amendment to a 

Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That 

amendment provided that neither the lower Federal courts nor the 

Supreme Court would have jurisdiction to review any case arising 

out of State laws relating to voluntary prayers in public schools 

and buildings. In this Congress, several similar bills limiting Federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from 

Indiana, who serves on this Subcommittee. H.R. 3313 would remove from Federal court jurisdiction certain cases involving the 

Federal Defense of Marriage Act. 

Federal legislation that precludes Federal court jurisdiction over 

certain constitutional claims to remedy perceived abuses and to 

preserve for the States and their courts the authority to determine 

constitutional issues rests comfortably within our constitutional 

system. The Supreme Court has clearly rejected claims that State 

courts are less competent to decide Federal constitutional issues 

than Federal courts. Even Justice William Brennan has written, in 

an opinion joined by Justices Marshall, Blackmun and Stevens, 

3

that, quote, ‘‘virtually all matters that might be heard in article III 

courts could be also be left by Congress to State courts,’’ unquote. 

Far from violating the ‘‘separation of powers,’’ legislation that reserves to State courts jurisdiction to decide certain classes of cases 

would be an exercise of one of the very ‘‘checks and balances’’ provided for in the Constitution. No branch of the Federal Government 

can be entrusted with absolute power, and certainly not a handful 

of tenured judges appointed for life. The Constitution allows the 

Supreme Court to exercise ‘‘judicial power,’’ but it does not grant 

the Supreme Court unchecked power to define the limits of its own 

power. Integral to the American constitutional system is each 

branch of Government’s responsibility to use its powers to prevent 

overreaching by the other branches. 

We look forward to hearing from all of the witnesses here this 

morning, and I’ll now yield to the Ranking Member of the Committee, the gentleman from New York Mr. Nadler for his opening 

statement. 

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE

CONSTITUTION

When the Supreme Court in Lawrence v. Texas struck down a state law criminalizing same-sex sodomy last year, Justice Scalia, in his dissent, pointed out that— quote—‘‘[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution 

. . . adultery, fornication, bestiality, and obscenity’’ are all ‘‘called into question’’ by 

the Court’s decision. That is a very disturbing prospect, and it should concern legislators nationwide. 

The threat posed to traditional marriage by federal judges whose decisions can 

have an impact across state boundaries has renewed concern over the abuse of 

power by federal judges. This concern has roots as old and venerable as our Nation’s history. 

Thomas Jefferson lamented that—quote—‘‘the germ of dissolution of our federal 

government is in the constitution of the federal judiciary; . . . advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped...’’ Jefferson wrote of federal judges—quote—‘‘their power [is] the more dangerous as 

they are in office for life and not responsible . . . to the elective control.’’ And Abraham Lincoln said in his first inaugural address in 1861—quote—‘‘The 

candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers having, to that 

extent, practically resigned their government into the hands of that eminent tribunal.’’ A remedy to abuses by federal judges has long been understood to lie, among 

other places, in Congress’ authority to limit federal court jurisdiction, and that is 

the subject of our hearing today. 

Regarding the federal courts below the Supreme Court, Article III of the Constitution provides that ‘‘The judicial Power of the United States, shall be vested in one 

supreme Court, and in such inferior Courts as the Congress may from time to time 

ordain and establish.’’ Regarding the Supreme Court, Article III provides that ‘‘[i]n 

all cases affecting Ambassadors, other public Ministers and Consuls, and those in 

which a State shall be Party, the supreme Court shall have original Jurisdiction. 

In all the other Cases . . . the supreme Court shall have appellate Jurisdiction . . . 

with such Exceptions, and under such Regulations as the Congress shall make.’’

Consequently, the Constitution provides that the lower federal courts are entirely 

creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction. 

In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of 

Congress’ authority to amend federal court jurisdiction to remedy perceived abuse. 

He wrote, describing the Constitution, that ‘‘it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences’’ posed by decisions of the federal judiciary. 

4

That understanding prevails today. As a leading treatise on federal court jurisdiction has pointed out, ‘‘Beginning with the first Judiciary Act in 1789, Congress has 

never vested the federal courts with the entire ‘judicial Power’ that would be permitted by Article III’’ of the Constitution. And as eminent federal jurisdiction scholar Herbert Wechsler (pronounced Wex-ler) has stated, ‘‘Congress has the power by 

enactment of a statute to strike at what it deems judicial excess by delimitations 

of the jurisdiction of the lower courts and of the Supreme Court’s appellate 

jurisdiction...’’ Limiting federal court jurisdiction to avoid abuses is not a partisan issue. Senate 

Minority Leader Daschle has supported provisions that would deny all federal 

courts jurisdiction over the procedures governing timber projects in order to expedite 

forest clearing. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by 

Democrats with large bipartisan support. That amendment provided that neither 

the lower federal courts nor the Supreme Court would have jurisdiction to review 

any case arising out of state laws relating to voluntary prayers in public schools and 

buildings. In this Congress, several similar bills limiting federal court jurisdiction 

are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 

would remove from federal court jurisdiction certain cases involving the federal Defense of Marriage Act. 

Federal legislation that precludes federal court jurisdiction over certain constitutional claims to remedy perceived abuses, and to preserve for the states and their 

courts the authority to determine constitutional issues, rests comfortably within our 

constitutional system. The Supreme Court has clearly rejected claims that state 

courts are less competent to decide federal constitutional issues than federal courts. 

Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun, and Stevens, that—quote—‘‘virtually all matters that might be 

heard in Article III courts could also be left by Congress to state courts.’’ Far from violating the ‘‘separation of powers,’’ legislation that reserves to state 

courts jurisdiction to decide certain classes of cases would be an exercise of one of 

the very ‘‘checks and balances’’ provided for in the Constitution. No branch of the 

federal government can be entrusted with absolute power, and certainly not a handful of tenured judges appointed for life. The Constitution allows the Supreme Court 

to exercise ‘‘judicial power,’’ but it does not grant the Supreme Court unchecked 

power to define the limits of its own power. Integral to the American constitutional 

system is each branch of government’s responsibility to use its powers to prevent 

overreaching by the other branches. 

I look forward to hearing from all our witnesses today.

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, today we begin our fourth in a series of five hearings on the topic of same-sex marriage. We have already devoted 

more time in this Committee to this topic than to the means by 

which we might preserve our democratic form of Government if terrorists wipe out our Government. One would think that the possibility that somewhere a lesbian or gay couple might live out their 

years peacefully and happily were a greater threat to the United 

States than is al Qaeda. 

Today, however, the topic is a very serious one. The hysteria over 

the marriage question has brought some to the point of suggesting 

that Congress should strip the Federal courts of the jurisdiction to 

hear cases involving alleged violations of an individual’s rights protected under the Constitution. These proposals are neither good 

law nor good public policy. Past attempts to restrict court jurisdiction have followed many civil rights decisions, including the reapportionment cases. Fortunately, cooler heads in Congress prevailed at the time, and the decisions that gave rise to these outlandish proposals are now no longer controversial for the most 

part. Unless I am greatly mistaken, no one in this room would 

question the constitutional protection of one person, one vote. I 

trust that decades from now these debates will find their way into 

the textbooks next to the segregationist backlash, the Court-packVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
5

ing plan of the 1930’s and other attacks on our system of Government. 

The disabilities that lesbian and gay families suffer are widely 

known. Today I will be introducing the Equal Access to Social Security Act, for example, that would allow same-sex couples to receive the same Social Security benefits as every other couple, that 

would allow the children of same-sex couples to receive survivors’ benefits and disability benefits, benefits for which these people pay 

taxes just the same as everyone else. While this would address only 

a small portion of the more than 1,000 benefits denied to same-sex 

families, it would correct one terrible injustice. 

In today’s hearing, Mr. Chairman, it is our very system of Government and the constitutional system of checks and balances that 

are under attack. If the Congress by statute were to prevent the 

Federal courts from applying the Constitution to any subject matter it chooses, then the protections of an independent judiciary, the 

protections to our individual liberties afforded by the institution of 

the independent judiciary and by the existence of the Bill of Rights 

would be no more than a puff of smoke. The Bill of Rights, in other 

words, could be undone by a simple refusal by Congress to allow 

the courts jurisdiction to enforce any particular one of the Bill of 

Rights. 

Imagine if we passed a bill stripping the courts of jurisdiction to 

hear alleged violations of the freedom of the press or freedom of religion. It would be unpopular minorities, of course, whether religious minorities, political minorities, lesbians or gays, or whoever 

is unpopular at the moment, who will lose their rights. After all, 

it is the unpopular whose rights must be protected from the majority by a Bill of Rights. The majority rarely needs its rights protected. 

As Hamilton said in Federalist No. 78, the complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, 

for instance, as that it should pass no bills of attainder, no ex post 

facto laws and the like. Limitations of this kind can be preserved 

in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of 

particular rights or privileges would amount to nothing. 

Gay marriage does not threaten the future of this country. The 

evisceration of our Constitution and the Bill of Rights does threaten the future of the liberties of our citizens. We are playing with 

fire at this hearing, and that fire could destroy our liberties. I hope 

we don’t use that fire. 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you. 

It’s my understanding that the gentleman from Indiana would 

like to make an opening statement. He’s the principal sponsor of 

3313. 

Mr. HOSTETTLER. I thank the Chairman. 

Mr. Chairman, as a nonlawyer, I count it a high privilege to 

serve as a Member of this Subcommittee. However, as a student of 

the United States Constitution, I would not be truthful if I said 

6

that I have always understood as perceived by this nonlawyer to 

be a disconnect between the plain wording and construction of the 

Constitution and the opinions handed down by the Federal judiciary as, quote, ‘‘constitutional,’’ end quote. 

But this perceived disconnect was explained to me with such 

clarity by, and rightfully so, a lawyer when I read the testimony 

of Dr. Leo Graglia, before the House of Representatives Judiciary 

Committee’s Subcommittee on Courts and Intellectual Property, of 

May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor 

of Law at the University of Texas law school, profoundly observed 

that, quote, ‘‘the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,’’ end quote. At that point, the scales fell from my eyes, 

and I realized that I cannot confuse what is taught in our Nation’s 

law schools and what is expounded by so-called constitutional 

scholars on the 24-hour news talk shows with the work of folks like 

Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 

39th Congress in 1866. 

While we will hear today what is considered to be, quote, ‘‘constitutional,’’ end quote, according to the desires of the Federal judiciary, this is not the House Subcommittee on Constitutional Law. 

This is the House Subcommittee on the Constitution. Today we will 

hear a wide range of means by which we can deal with the situation of a judiciary that has time and time again worked outside of 

its boundaries, and that response can be everything from doing 

nothing to an amendment to the Constitution. And that amendment to the Constitution can be, in the most extreme case, repeal 

of article III of the Constitution itself. 

Now, I am not suggesting that we go that far, but rather, we are 

to know that the Constitution grants Congress the authority, a 

wide range of authority, from impeachment of justices and judges 

to the limitation of funds for the enforcement of their decisions, to 

the limitation of jurisdiction, as well as constitutional amendments. 

My bill, H.R. 3313, employs one of those checks on the judiciary, 

a constitutional check, a constitutional check that is found explicitly, not implicitly, but explicitly, in the Constitution itself, in article III, section 2 of the Constitution; for example, where it says, ‘‘in 

all cases affecting ambassadors, other public ministers and consuls, 

and those in which a State shall be a party the Supreme Court 

shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as 

to law and fact, with such exceptions and under such regulations 

as the Congress shall make,’’ end quote. 

The word ‘‘all’’ is very clear even to this nonlawyer, that, in fact, 

the Supreme Court’s appellate jurisdiction can be limited in all 

other cases before mentioned, and those cases are mentioned in article III, section 2, subsection 1. Congress has the authority to limit 

the jurisdiction of the—the appellate jurisdiction of the United 

States Supreme Court in all the other cases that have been mentioned in article III, section 2, and because the lower courts are creations of the Congress, as a result of article I, section 8, and article 

III, section 1, it is obvious that Congress has the authority; if we 

have the authority to create these inferior Federal courts by statVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
7

ute, then we have also the constitutional authority by our lawmaking powers to eliminate these inferior Federal courts. 

And so, from the spectrum of creating courts as well as eliminating courts, there can be assumed within that spectrum the idea 

of limiting the jurisdiction of the inferior Federal courts. And so if 

we can, according to the plain text of the Constitution, limit the 

Federal jurisdiction, limit the jurisdiction of inferior Federal courts, 

and we have by explicit wording of article III of the Constitution 

the power to limit the appellate jurisdiction of the Supreme Court, 

it is obvious that the Marriage Protection Act is something that 

Congress can do. The idea that it is something that Congress 

should do is going to be a matter of debate of this Subcommittee, 

the full Committee and this House, but it is my hope that after today’s hearing we will conclude that it is definitely something that 

the Constitution grants Congress the power to do. 

Yield back the balance of my time. 

Mr. CHABOT. I thank the gentleman. 

Without objection, all Members will have 5 days to submit written opening statements. 

Also I’d ask unanimous consent that the gentlelady from Wisconsin, although she’s not a Member of this Subcommittee, have 

the opportunity to question the witnesses like any other Member. 

Without objection, so ordered. 

And we will now introduce our witnesses here this morning. Our 

first witness today is Phyllis Schlafly, the founder and president of 

the Eagle Forum, a national organization of volunteer citizens who 

participate in the public policymaking process. Mrs. Schlafly is a 

Phi Beta Kappa graduate of Washington University, and she received her master’s in government from Harvard University. Mrs. 

Schlafly is the author or editor of 20 books on subjects as varied 

as family and feminism, history, education and child care, and her 

radio commentaries are heard daily on 460 stations. She was 

named one of the 100 most important women in the 20th century 

by Ladies Home Journal. 

We welcome you here this morning, Mrs. Schlafly. 

Our second witness is Michael Gerhardt, a Hanson Professor of 

Law at the William and Mary School of Law. I want to especially 

welcome Professor Gerhardt here since I’m a product of not William and Mary’s law school, but an undergraduate; spent 4 of the 

best years of my life there and enjoyed it tremendously. It’s a tremendous university. And we welcome you here this morning. We 

may not necessarily agree on all our views on everything, but I certainly think you picked a great school to teach law at. 

Professor Gerhardt clerked for Judge Gilbert Merritt of the U.S. 

Court of Appeals for the Sixth Circuit, and he has practiced law at 

Miller, Cassidy, Larocca & Lewin in Washington, D.C. He has also 

served as dean of Case Western University School of Law, taught 

at Wake Forest University School of Law, and he has been a visiting professor at Cornell and Duke University law schools. 

And we welcome you here this morning, Professor. 

Our third witness is Martin Redish, the Louis and Harriet Ancel 

Professor of Law and Public Policy at Northwestern University 

School of Law. Professor Redish is a nationally renowned authority 

on the subject of Federal jurisdiction. He received his A.B. With 

8

honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard 

law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, ‘‘without a doubt the 

foremost scholar on issues of Federal court jurisdiction in this generation,’’ unquote. 

Professor Redish is the author or coauthor of 70 articles and 13 

books, including Federal Jurisdiction: Tensions in the Allocation of 

Federal Power. He was recently included on a list of the 100 most 

cited legal scholars of all time. 

And we welcome you here this morning, Professor. 

And our fourth and final witness is William ‘‘Bill’’ Dannemeyer. 

Mr. Dannemeyer was first elected to the U.S. House of Representatives in 1978 where he served 7 terms, 14 years, serving on the 

Budget, Judiciary and Energy and Commerce Committees. He also 

was elected Chairman of the Republican Study Committee. Mr. 

Dannemeyer is a graduate of Valparaiso University and the 

Hastings College of Law. He has served as a special agent in the 

Army Counterintelligence Corps during the Korean War. He has 

also been a lawyer in private practice, a deputy district attorney, 

and judge pro tem and a California State assemblyman. In January 

1995, Mr. Dannemeyer helped organize Americans for Voluntary 

School Prayer. 

We welcome all our witnesses here today. And it’s the practice 

of the Committee to swear in all witnesses appearing before it, so 

if you would please stand and raise your right hand. 

[Witnesses sworn.] 

Mr. CHABOT. Okay. We thank all the witnesses for being here, 

and as a number of you have testified here before, as you know, 

we have a 5-minute rule, and there is a lighting system, so the 

green light will be on for 4 minutes. The yellow light will be on 

when you have 1 minute to wrap up. When the red light comes on, 

we’d appreciate it if you would stop close to that time. We will give 

you a little leeway, but if you could stay within the 5 minutes, and 

then we have to stay within those same 5 minutes ourselves, so we 

expect nothing less of the folks up here. 

So we will begin with you, Mrs. Schlafly. You are recognized for 

5 minutes. 

TESTIMONY OF PHYLLIS SCHLAFLY, FOUNDER AND 

PRESIDENT, EAGLE FORUM 

Mrs. SCHLAFLY. Thank you, Mr. Chairman and Members of the 

Committee. The assault on the Defense of Marriage Act has already begun. A lawsuit claiming that the Federal DOMA violates 

the U.S. Constitution was filed last month in Federal district court 

in Miami. A similar case claiming that a State DOMA violates the 

U.S. Constitution is pending in Federal district court in Nebraska, 

where a Clinton-appointed Federal judge ruled that the case can 

proceed to trial. The very idea that unelected, unaccountable judges 

could nullify both other branches of Government and the will of the 

American people is an offense against our right of self-government 

and must not be tolerated. 

DOMA was adopted 8 years ago by an overwhelming majority of 

both Houses of Congress and signed by President Clinton. DOMA 

9

provides that whenever the word ‘‘marriage’’ or ‘‘spouse’’ is used in 

Federal law, marriage means only a legal union between one man 

and one woman as husband and wife, and spouse refers only to a 

person of the opposite sex who is a husband or a wife. 

DOMA also protects each State’s right to adopt the same traditional definition of marriage, and so at least 39 States have passed 

State DOMAs which refuse recognition to same-sex marriages performed elsewhere. 

DOMA is a splendid, well-written law that fully comports with 

our great Constitution. So what’s the problem? You said at the last 

hearing on May 13, Mr. Chairman, that it is increasingly clear that 

activist judges will probably declare Federal and State DOMAs unconstitutional. When you polled the witnesses at last month’s hearing, all agreed that DOMA would not be given its intended effect 

by the Federal courts. 

President Bush says repeatedly in his speeches around the country, ‘‘We will not stand for judges who undermine democracy by 

legislating from the bench and try to remake the culture of America by court order.’’ He’s right. We won’t stand for such judicial arrogance. 

Congress must back up this rhetoric with action. The American 

people expect Congress to use every constitutional weapon at its 

disposal to protect marriage from attack. Congress cannot stand by 

and let activist judges cause havoc in our system of marriage law. 

The General Accounting Office has compiled a list of over 1,000 

Federal rights and responsibilities that are contingent on DOMA’s 

definition of marriage. This GAO report states that the marital relationship is ‘‘integral’’ to Social Security and ‘‘pervasive’’ to our 

system of taxation. 

We know that Congress has the unquestioned power to prevent 

an activist judge from doing what your previous witnesses have 

predicted. In 2002, Congress passed Senator Daschle’s law taking 

away jurisdiction from the Federal courts to hear lawsuits about 

brush-clearing in South Dakota. Surely the definition of marriage 

is as important as brush-clearing in South Dakota. 

The long list of Federal statutes in which Congress successfully 

restricted the jurisdiction of the Federal courts includes the NorrisLaGuardia Act of 1932, the Emergency Price Control Act of 1942, 

the Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the 

Voting Rights Act of 1965, and the 1996 immigration amendments. 

Isn’t the protection of marriage just as important as any of those 

issues on which Congress effectively withdrew jurisdiction from the 

Federal courts? I think the American people think so. 

I urge Congress to protect us from the judicial outrage that your 

previous witnesses have predicted by passing legislation providing 

that no court of the United States shall have jurisdiction to hear 

or determine any question pertaining to the interpretation or validity of the Defense of Marriage Act or any State law that limits the 

definition or recognition of marriage to the union of one man and 

one woman. It is urgent that this law be passed now. This is Congress’ proper way to dismiss the pending lawsuits challenging marriage, exactly like the Daschle law that terminated pending lawsuits about brush-clearing. 

10

1Public Law 104-199 (Sep. 21, 1996) 

2 1 U.S.C. Sec 7

3 28 U.S.C. Sec 1738C 

4Dallas, March 8, 2004

5GAO-04-353R (Feb. 24, 2004), revising and updating GAO/OGC-97-16 (Jan. 31, 1997) 

The Founding Fathers gave Congress the power to curb the judicial supremacists by deciding what cases they can or cannot hear. 

We don’t trust the courts to respect the wishes of the Congress or 

of the American people on the matter of marriage. Instead of basing their rulings on the U.S. Constitution, activist judges are more 

likely to use unconstitutional criteria such as ‘‘emerging awareness,’’ used in Lawrence v. Texas, or ‘‘evolving paradigm,’’ used in 

Goodrich v. Department of Public Health.

My written testimony recites the long historical record which 

conclusively proves that Congress has the power to regulate and 

limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress’ exercise of this power. This record is impressive, authoritative and unquestioned. 

And thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mrs. Schlafly follows:]

PREPARED STATEMENT OF PHYLLIS SCHLAFLY

The assault on the Defense of Marriage Act (DOMA) has already begun. A lawsuit 

claiming that the federal DOMA violates the U.S. Constitution was filed last month 

in federal district court in Miami, Florida. A similar case claiming that a state 

DOMA violates the U.S. Constitution is pending in federal district court in Nebraska, where a Clinton-appointed federal judge ruled on November 12, 2003 that 

the case has legal sufficiency to proceed to trial. 

The very idea that unelected, unaccountable judges could nullify both other 

branches of government and the will of the American people is an offense against 

our right of self-government that must not be tolerated. 

The federal Defense of Marriage Act (DOMA) was adopted eight years ago by an 

overwhelming majority of both Houses of Congress and signed by President Clinton.1 DOMA provides that whenever the word ‘‘marriage’’ or ‘‘spouse’’ is used in federal law, ‘‘marriage means only a legal union between one man and one woman as 

husband and wife,’’ and ‘‘spouse refers only to a person of the opposite sex who is 

a husband or a wife.’’ 2

DOMA also protects each state’s right to adopt the same traditional definition of 

marriage.3 In response to the shelter offered by the federal DOMA, at least 39 

states passed state DOMAs, which refuse recognition to same-sex marriages performed elsewhere. Four state DOMAs have been put in state constitutions; proposals to do likewise are on the ballot in several other states this year. 

DOMA is a splendid, well-written law that fully comports with our great U.S. 

Constitution. So, what’s the problem? You said at the last hearing on May 13, Mr. 

Chairman, that it is ‘‘increasingly clear’’ that activist judges will probably declare 

federal and state DOMAs unconstitutional. When you polled the witnesses at last 

month’s hearing, all agreed that DOMA would not be given its intended effect by 

the federal courts. 

President Bush says repeatedly in his speeches around the country: ‘‘We will not 

stand for judges who undermine democracy by legislating from the bench and try 

to remake the culture of America by court order.’’ 4 He’s right—we won’t stand for 

such judicial arrogance. 

Congress must back up this rhetoric with action! The American people expect 

Congress to use every constitutional weapon at its disposal to protect marriage from 

attack. 

Congress cannot stand by and let one activist judge cause havoc in our system 

of marriage law. The General Accounting Office has compiled a 58-page list of 1,049 

(since revised to 1,138) 5 federal rights and responsibilities that are contingent on 

DOMA’s definition of marriage. The GAO report states that the man-woman marital 

relationship is ‘‘integral’’ to the Social Security system and ‘‘pervasive’’ to our system 

11

6The Daschle law about brush clearing, Public Law 107-206, Sec. 706(j), states: ‘‘Any action 

authorized by this section shall not be subject to judicial review by any court of the United 

States.’’ The law authorized the Interior Department to clear timber in the Black Hills of South 

Dakota in order to fight and prevent forest fires. Environmental groups had filed several lawsuits to stop timber clearing. At least one court had issued an order and other suits were pending. The Daschle law terminated all these suits so that timber clearing could continue without 

judicial interference. 7Lawrence v. Texas, 539 U.S. 558 (2003) 8Goodridge v. Department of Public Health, 440 Mass. 309 (2003) 9Turner v. President, Directors and Company, of the Bank of North America, 4 U.S. 8 (1799) 10Marbury v. Madison, 5 U.S. 137 (1803) 11 Ex parte Bollman, 8 U.S. 75 (1807) 

of taxation. The widespread social and familial consequences of DOMA also impact 

on adoption, child custody, veterans benefits, and the tax-free inheritance of a 

spouse’s estate. 

We know that Congress has the unquestioned power to prevent an activist judge 

from doing what all your previous witnesses have predicted. For example, in 2002, 

Congress passed a law at Senator Tom Daschle’s urging to prohibit all federal courts 

from hearing lawsuits challenging brush clearing in the Black Hills of South Dakota. Surely the definition of marriage is as important as brush fires in South Dakota! 6

The long list of federal statutes in which Congress successfully restricted the jurisdiction of the federal courts (restrictions upheld by the federal courts) includes 

the Norris-LaGuardia Act of 1932, the Emergency Price Control Act of 1942, the 

Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the Voting Rights Act of 

1965, and the 1996 Immigration Amendments. The Voting Rights Act of 1965 is a 

dramatic manifestation of what Congress can constitutionally do when it wants to 

limit court jurisdiction. This law denied jurisdiction to southern federal district 

courts, requiring the southern states to bring their cases in the District Court for 

the District of Columbia. 

Isn’t the protection of marriage just as important as any of the issues on which 

Congress effectively withdrew jurisdiction from the federal courts? The American 

people think so. 

I urge Congress to protect us from the judicial outrage that your previous witnesses have predicted by passing legislation providing that no court of the United 

States shall have jurisdiction to hear or determine any question pertaining to the 

interpretation or validity of the Defense of Marriage Act or any state law that limits 

the definition or recognition of marriage to the union of one man and one woman. 

It is urgent that this legislation be passed now. This is Congress’s proper way to 

dismiss the pending lawsuits challenging marriage exactly as the Daschle law terminated pending lawsuits about brush clearing. 

The Founding Fathers in their wisdom put into the United States Constitution 

the power for Congress to curb the power of the judicial supremacists by deciding 

what cases they can or cannot hear. The argument will be made that such legislation means we don’t trust the federal courts or the Supreme Court, and that’s exactly right—we don’t trust the courts to respect the wishes of Congress or of the 

American people on the matter of marriage. Instead of basing their rulings on the 

U.S. Constitution, activist judges are more likely to use unconstitutional criteria 

such as ‘‘emerging awareness’’ (as in Lawrence v. Texas 7) or ‘‘evolving paradigm’’ (as 

in Goodridge v. Department of Public Health 8). 

My written testimony recites the long historical record which conclusively proves 

that Congress has the power to regulate and limit court jurisdiction, that Congress 

has used this power repeatedly, and that the courts have consistently accepted 

Congress’s exercise of this power. The record is impressive, authoritative, and unquestioned. 

The record supports Congress’s power to limit court jurisdiction 

In Turner v. Bank of North America (1799),9 Justice Chase commented: ‘‘The notion has frequently been entertained, that the federal courts derive their judicial 

power immediately from the Constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. 

If Congress has given the power to this Court, we possess it, not otherwise: and if 

Congress has not given the power to us, or to any other Court, it still remains at 

the legislative disposal.’’

Even Chief Justice John Marshall, who defined the power of judicial review in 

Marbury v. Madison,10 made similar assertions. For example, in Ex parte Bollman

(1807),11 Marshall said that ‘‘courts which are created by written law, and whose 

jurisdiction is defined by written law, cannot transcend that jurisdiction.’’

12

12 United States v. Hudson and Goodwin, 11 U.S. 32 (1812) 13Sheldon v. Sill, 49 U.S. 441 (1850) 14 42 U.S.C. Sec. 1973c 15 Ex parte McCardle, 74 U.S. 506 (1869) 16 National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949) 17The Francis Wright, 105 U.S. 381 (1881) 18 29 U.S.C. Sec. 101-115 19Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938) 20Lockerty v. Phillips, 319 U.S. 182 (1943) 21Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944) 

Early decisions of the Supreme Court were sprinkled with the assumption that 

the power of Congress to create inferior federal courts necessarily implied, as stated 

in U.S. v. Hudson & Goodwin (1812),12 ‘‘the power to limit jurisdiction of those 

Courts to particular objects.’’ The Court stated, ‘‘All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what 

is given them by the power that creates them.’’

The Supreme Court held unanimously in Sheldon v. Sill (1850) 13 that because the 

Constitution did not create inferior federal courts but rather authorized Congress 

to create them, Congress was also empowered to define their jurisdiction and to 

withhold jurisdiction of any of the enumerated cases and controversies. This case 

has been cited and reaffirmed numerous times. It was applied in the Voting Rights 

Act of 1965,14 in which Congress required covered states that wished to be relieved 

of coverage to bring their actions in the District Court for the District of Columbia. 

The Supreme Court broadly upheld Congress’s constitutional power to define the 

limitations of the Supreme Court ‘‘with such Exceptions, and under such Regulations as the Congress shall make’’ in Ex parte McCardle (1869).15 Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. 

Although the Court had already heard argument on the merits, it dismissed the 

case for want of jurisdiction: ‘‘We are not at liberty to inquire into the motives of 

the legislature. We can only examine into its power under the Constitution; and the 

power to make exceptions to the appellate jurisdiction of this court is given by express words.’’

McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later cases. For example, in 1948 Justice 

Frankfurter commented: ‘‘Congress need not give this Court any appellate power; 

it may withdraw appellate jurisdiction once conferred and it may do so even while 

a case is sub judice [already before the court].’’ 16

In The Francis Wright (1882),17 the Court said: ‘‘While the appellate power of this 

court under the Constitution extends to all cases within the judicial power of the 

United States, actual jurisdiction under the power is confined within such limits as 

Congress sees fit to prescribe. . . . What those powers shall be, and to what extent 

they shall be exercised, are, and always have been, proper subjects of legislative 

control. . . . Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and 

review, while others are not.’’

Numerous restrictions on the exercise of appellate jurisdiction have been upheld. 

For example, Congress for a hundred years did not allow a right of appeal to the 

Supreme Court in criminal cases except upon a certification of divided circuit courts. 

In the 1930s, liberals in Congress thought the federal courts were too pro-business 

to fairly handle cases involving labor strikes. In 1932 Congress passed the NorrisLaGuardia Act 18 removing jurisdiction in this field from the federal courts, and the 

Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co.

(1938).19 The Supreme Court declared, ‘‘There can be no question of the power of 

Congress thus to define and limit the jurisdiction of the inferior courts of the United 

States.’’

Liberals followed the same procedure when they passed the Hiram Johnson Acts 

in order to remove jurisdiction from the federal courts over public utility rates and 

state tax rates. These laws worked well and no one has suggested they be repealed. 

Another celebrated example was the Emergency Price Control Act of 1942, in 

which Congress removed from federal courts the jurisdiction to consider the validity 

of any price-control regulation. In the test case upholding this law in Lockerty v. 

Phillips (1943),20 the Supreme Court held that Congress has the power of ‘‘withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good.’’

After the Supreme Court ruled in Tennessee Coal v. Muscoda (1944) 21 that employers had to pay retroactive wages for coal miners’ underground travel to and 

13

22 29 U.S.C. Sec. 252(d) 23 Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) 24 Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) 25 Hatami v. Ridge, 270 F. Supp. 2d 763 (E.D. Va. 2003) 26 42 U.S.C. Sec. 1395w-4(i)(1) 27 American Society of Dermatology v. Shalala, 962 F. Supp. 141 (D.D.C. 1996) 

from their work station, Congress passed the Portal-to-Portal Act of 1947 22 prohibiting any court from enforcing such liability. 

Even one of the leading judicial activists, Justice William Brennan, acknowledged 

Congress’s constitutional power to limit the jurisdiction of the federal courts. In 

1982 he wrote for the Court in Northern Pipeline Construction Co. v. Marathon Pipe 

Line Co.: 23 ‘‘Of course, virtually all matters that might be heard in Art. III courts 

could also be left by Congress to state courts . . . [and] the principle of separation 

of powers is not threatened by leaving the adjudication of federal disputes to such 

judges.’’ In 1999 the Supreme Court upheld Congress’s power to restrict the jurisdiction 

of the federal courts to interfere in certain immigration disputes (Reno v. AmericanArab Anti-Discrimination Committee).24 In 2003 the Supreme Court upheld a 1996 

law signed by President Clinton that gave exclusive authority to the U.S. Attorney 

General to deport certain illegal aliens and specified that federal courts have no jurisdiction to review such removal orders (Hatami v. Ridge).25

Another statute that prohibits judicial review is the Medicare law,26 on which 

nearly everyone over age 65 relies for health care. Congress mandated that ‘‘there 

shall be no administrative or judicial review’’ of administrative decisions about 

many aspects of the Medicare payment system. When someone sued in federal court 

anyway, the court dismissed the lawsuit based on this prohibition of judicial review 

(American Society of Dermatology v. Shalala, 1996).27

Article I, Section 8 of the Constitution states: ‘‘The Congress shall have power 

. . . to constitute tribunals inferior to the Supreme Court.’’ Article III, Section 1 

states: ‘‘The judicial power of the United States, shall be vested in one Supreme 

Court, and in such inferior courts as the Congress may from time to time ordain 

and establish.’’ These two sections mean that all federal courts except the Supreme 

Court were created by Congress, which defined their powers and prescribed what 

kind of cases they can hear. Whatever Congress created it can uncreate, abolish, 

limit or regulate. 

The Supreme Court explained this in Lockerty v. Phillips (1943)20: ‘‘All federal 

courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to ‘ordain and establish’ inferior courts, conferred on Congress 

by Article III, 1, of the Constitution. Article III left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create 

any such courts, leaving suitors to the remedies afforded by state courts, with such 

appellate review by this Court as Congress might prescribe. . . . The Congressional 

power to ordain and establish inferior courts includes the power ‘of investing them 

with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem 

proper for the public good.’ ’’

Article III, Section 2 states: ‘‘The Supreme Court shall have appellate jurisdiction, 

both as to law and fact, with such exceptions, and under such regulations as the 

Congress shall make.’’ This section means that Congress can make ‘‘exceptions’’ to 

the types of cases that the Supreme Court can decide. This is the most important 

way that Congress can and should bring an end to the reign of judges legislating 

from the bench. 

The American people expect Congress to use its constitutional power so clearly 

available, and the voters are currently alienated because of Congress’s failure to put 

down the attacks on marriage. We believe it is Congress’s constitutional duty to protect the American people from judicial supremacists who might commit the outrage 

of overruling the federal and all state laws about marriage. Do we have self-government by our elected representatives, or don’t we? 

The argument will be made that we should accept any activist judge’s ruling as 

‘‘the law of the land’’ and that it is impertinent for Congress to preempt the courts. 

However, House Judiciary Committee Chairman Sensenbrenner made it clear in a 

speech to the U.S. Judicial Conference on March 16 of this year that he stands up 

for Congress’s ‘‘constitutionally authorized’’ and ‘‘appropriate’’ powers over the judiciary. Mr. Sensenbrenner was not referring to the subject of this hearing, but it 

seems to me that the principle is the same. Congress must not shrink from subjecting activist judges to criticism or from Congress’s use of its ‘‘constitutionally authorized’’ powers. 

14

It is imperative that Congress to stop federal judges from asserting judicial supremacy over our rights of self-government.

Mr. CHABOT. Professor Gerhardt, you’re recognized for 5 minutes. 

TESTIMONY OF MICHAEL GERHARDT, ARTHUR B. HANSON 

PROFESSOR OF LAW, WILLIAM AND MARY LAW SCHOOL 

Mr. GERHARDT. Thank you, Mr. Chair. It’s a great privilege to be 

here this morning. I appreciate the opportunity to be here and to 

be on a panel of such distinguished people, including someone I 

would certainly acknowledge as one of the Nation’s leading experts 

on Federal jurisdiction. 

You’ve got my written statement. I will only make a few comments that reiterate the points therein. 

While the Supreme Court has broad authority to regulate Federal jurisdiction, this power is not unlimited. There’s nothing magical about the power to regulate Federal jurisdiction 

Mr. NADLER. Excuse me, Professor. You said the Supreme Court. 

I assume you meant Congress has authority. 

Mr. GERHARDT. I’m sorry. Forgive me. That’s correct. I’m sorry. 

That is certainly correct. There is certainly nothing magical about 

this great body’s power to regulate Federal jurisdiction. It is susceptible to the same limits as all the other great powers that this 

body has got. It is limited by federalism, it is limited by separation 

of powers, it is limited by due process, it is limited by equal protection. 

Hence, if Congress acts with the purpose and effect of violating 

a constitutional right, that violates the Constitution. If Congress 

acts in a way to prevent the Federal courts from ensuring a State 

complies with the Constitution, that violates article VI of the Constitution. If Congress keeps article III courts from invalidating an 

unconstitutional law, that violates separation of powers. If Congress withdraws jurisdiction in such a way that eviscerates the Supreme Court’s basic function in deciding cases arising under the 

Constitution and ensuring finality and uniformity in the interpretation and enforcement of Federal law, that, too, violates separation of powers. If Congress withdraws Federal jurisdiction for a 

particular class of American citizens or based on their exercise of 

fundamental rights, that violates the fifth amendment. 

In short, Congress cannot use its power to regulate Federal jurisdictions in ways that violate rights and equal protection, offends 

federalism, or infringes separation of powers. 

A few other points bear repeating. First, I think it is noteworthy 

that Congress has shown admirable restraint in the past in not endorsing numerous proposals for withdrawing Federal jurisdiction in 

particular classes pertaining to constitutional claims or particular 

plaintiffs. Moreover, Congress needs a neutral justification to withdraw Federal jurisdiction, I think, in classes with respect to particular classes of constitutional claims or particular plaintiffs. 

Distrust of unelected judges is not a neutral justification. 

Unelected judges in the form of our Federal judiciary are integral 

to protecting the rule of law in our legal system, the balance of 

power among the branches, and protecting unpopular minorities 

from the tyranny of the majority. For good reason the Supreme 

Court has never upheld efforts to use the regulatory power over 

15

Federal jurisdictions to regulate substantive constitutional law. At 

the same time, I think that it would be impermissible for you to 

relegate a particular class of citizens of the United States, gays and 

lesbians, to litigate their claims in retaliation against either them 

or judicial decisions that might conceivably be in their favor. With 

all due respect, I urge the Committee not today to do as its predecessors have done in recognizing the benefits of our constitutional 

systems of separation of powers and federalism far outweigh whatever their costs. 

Thank you. 

Mr. CHABOT. Thank you, Professor. 

[The prepared statement of Mr. Gerhardt follows:]

PREPARED STATEMENT OF MICHAEL J. GERHARDT

It is an enormous privilege to participate in today’s hearing, ‘‘Limiting Federal 

Court Jurisdiction to Protect Marriage for the States.’’ I understand the purpose of 

today’s oversight hearing is to examine the Congress’ power to limit federal jurisdiction, or to employ what are commonly called jurisdiction-stripping measures, in response to recent court decisions on marriage. As members of this Committee well 

know, jurisdiction-stripping raises some profound questions of constitutional law. 

While the Supreme Court acknowledges that the Congress has broad power to regulate federal jurisdiction, this power is not unlimited. In my judgment, the Congress 

cannot exercise any of its powers under the Constitution—not the power to regulate 

interstate commerce, not the Spending power, and not the authority to define federal jurisdiction—in a manner that violates the Constitution. If Congress acts with 

the purpose and effect of violating a constitutional right, that violates the Constitution. If Congress acts in a way that prevents the federal courts from ensuring state 

law complies with the Constitution, that violates Article VI of the Constitution. If 

Congress keeps Article III courts from invalidating an unconstitutional law, that 

violates basic separation of powers. If Congress withdraws jurisdiction in such a 

way that eviscerates the Supreme Court’s basic function in deciding cases arising 

under the Constitution and ensuring finality and uniformity in the interpretation 

and enforcement of federal law, that, too, violates separation of powers. If Congress 

withdraws or restricts federal jurisdiction for a particular class of American citizens 

or based on the exercise of fundamental rights, that violates the Fifth Amendment. 

In short, Congress cannot use its power to restrict federal jurisdiction in ways that 

violate rights and equal protection, offends federalism, or infringes separation of 

powers. 

Distrust of ‘‘unelected judges’’ does not qualify as a legitimate basis, much less 

a compelling justification, for congressional action. ‘‘Unelected judges,’’ in the form 

of our federal judiciary, are integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities 

from the tyranny of the majority. For good reason, the Supreme Court has never 

upheld efforts to use the regulatory power over federal jurisdiction to regulate substantive constitutional law. With all due respect, I urge the Committee today to do 

as its predecessors have done in recognizing the benefits of our constitutional systems of separation of powers and federalism far outweigh whatever their costs. 

Below, I explain in greater detail the basic principles restricting congressional regulations of jurisdiction in retaliation against, or in efforts to influence, substantive 

judicial outcomes. 

I. GENERAL PRINCIPLES

The Constitution allows judicial decisions on constitutional means to be displaced 

by two means and two means only. The first is by a constitutional amendment. Article V of the Constitution sets forth the requirements for amending the Constitution. 

In our history, constitutional amendments have overruled only a few constitutional 

decisions, including both the Eleventh and Fourteenth Amendments. Thus, it would 

not be constitutional for the Congress to enact a statute to overrule a court’s decision on constitutional law. For instance, it would be unconstitutional for the Congress to seek to overrule even an inferior court’s decision on the Second Amendment 

by means of a statute. The second means for displacing an erroneous constitutional 

decision is by a court’s overruling its own decisions or by a superior court. For instance, the United States Supreme Court has expressly overruled more than a hundred of its constitutional decisions. On countless other occasions, the Court has 

16

1For more elaborate discussions of the Court’s essential functions, see, e.g., Leonard Ratner, 

Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill. L. Rev. 929 (1982); Lawrence Sager, Forward: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 1 (1981); 

Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 

U. Pa. L. Rev. 157 (1960). 2Some authorities suggest a different, or additional basis, for the unconstitutionality of excluding all federal jurisdiction over a particular federal law or constitutional claim. In Martin 

v. Hunter’s Lessee, 14 U.S. (1 Wheat.) (1816), Justice Story construed the vesting clause of Article III as requiring, inter alia, ‘‘the whole judicial power of the United States should be, at all 

modified, clarified, but not overruled its prior decisions on constitutional law. It is 

perfectly legitimate to ask the Court, but not to command it, to reconsider a constitutional decision. 

To be sure, Article III grants the Congress authority to regulate federal jurisdiction. This power is acknowledged almost universally as a broad grant of authority, 

but it is not unlimited. The Congress has no authority to overrule a judicial decision 

on constitutional law, even under the guise of regulating federal jurisdiction. Indeed, 

the Supreme Court has long recognized that the Congress may not use its power 

to regulate jurisdiction—or, for that matter, any other of its powers—in an effort 

to influence substantive judicial outcomes. See, e.g., City of Boerne v. Flores, 521 

U.S. 507 (1997); Dickerson v. United States, 530 U.S. 428 (2000). See also Ex Parte 

Klein, 80 U.S. 128 (1871). Efforts, taken in response to or retaliation against judicial 

decisions, to withdraw all federal jurisdiction or even jurisdiction of inferior federal 

courts on questions of constitutional law are transparent attempts to influence, or 

displace, substantive judicial outcomes. For several decades, the Congress, for good 

reason, has refrained from enacting such laws. The closest the Congress has come 

to doing this has been in insulating certain war-time measures from judicial review, 

but I am unaware of any jurisdiction-stripping proposals pending in the House designed to protect national security. 

Moreover, proposals that would limit the methods available to Article III courts 

to remedy constitutional injuries are constitutionally problematic. The problem with 

such restrictions is that, as the Task Force of the Courts Initiative of the Constitution Project found, ‘‘remedies are essential if rights are to have meaning and effect.’’

Indeed, the bipartisan Task Force was unanimous ‘‘there are constitutional limits 

on the ability of legislatures to preclude remedies. At the federal level, where the 

Constitution is interpreted to vest individual rights, it is unconstitutional for Congress to preclude the courts from effectively remedying deprivations of those rights.’’

While Congress clearly may use its power to regulate jurisdiction to provide for particular procedures and remedies in inferior federal courts, it may do so in order to 

increase the efficiency of Article III courts not to undermine those courts. The Congress needs a neutral reason for procedural or remedial reform. While national security and promoting the efficiency of the federal courts qualify plainly as such reasons, distrust of the federal judiciary does not. 

II. RESTRICTING ALL FEDERAL JURISDICTION OVER

PARTICULAR FEDERAL LAWS OR CLAIMS

Sometimes the House considers proposals to restrict all federal jurisdiction with 

respect to certain federal laws (or actions). For instance, bills have been introduced 

to preclude inferior federal courts from deciding cases involving abortion rights, 

school prayer, and gay marriage. In effect, such proposals would restrict both inferior federal courts and the Supreme Court from enforcing, interpreting, or adjudicating certain substantive matters. Consequently, the courts of last resort for interpreting, enforcing or entertaining challenges to laws restricting federal jurisdiction 

over such matters are the highest courts in each of the fifty states. 

Any proposal to withdraw all federal jurisdiction over a particular federal law has 

several constitutional defects, in my judgment. The first is that it eviscerates an essential function of the United States Supreme Court—namely, to declare what the 

Constitution means in ‘‘cases arising under the Constitution.’’ Perhaps the most famous statement of this principle can be found is Professor Henry Hart’s observation 

a half century ago that restrictions on federal jurisdiction are unconstitutional when 

‘‘they destroy the essential role of the Supreme Court in the constitutional system.’’

Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An 

Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953). The Court’s essential function 

includes at the very least, as the Supreme Court famously declared in Marbury v. 

Madison, 5 U.S. 137 (1803), to ‘‘say what the law is,’’ particularly in cases involving 

the interpretation of the Constitution or federal law; 1 and Congress may not undermine this function under the guise of regulating federal jurisdiction.2 As the Task 

17

times, vested in an original or appellate form, in some courts created under its authority.’’ His 

point was that at least some article III court ought to be empowered to wield the entire judicial 

power of the United States. Yale Law School professor Akhil Amar has modifed this argument. 

He contends that article III requires that ‘‘all’’ cases arising under federal law, ‘‘all’’ cases affecting ambassadors, and ‘‘all’’ cases of admiralty or maritime jurisdiction must be vested, either 

as an original or appellate matter, in some Article III court. Akhil Amar, A Neo-Federalist View 

of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 Boston U. L. Rev. 205 (1985). 

Force of the Courts Initiative of the Constitution Project recognized, ‘‘legislation precluding court jurisdiction that prevents the judiciary from invalidating unconstitutional laws is impermissible. Neither Congress nor state legislatures may use their 

powers to keep courts from performing their essential functions of upholding the 

Constitution.’’ Moreover, Congress cannot vest jurisdiction in courts to enforce a law but prohibit 

it from considering the constitutionality of the law that it is enforcing. The Task 

Force of the Courts Initiative of the Constitution Project unanimously concluded 

‘‘that the Constitution’s structure would be compromised if Congress could enact a 

law and immunize that law from constitutional judicial review.’’ This is precisely 

what a measure excluding all federal jurisdiction with respect to a federal enactment seeks to do. For instance, it would be unconstitutional for a legislature to assign the courts with enforcing a criminal statute but preclude them from deciding 

the constitutionality of this law. It would be equally unlawful to immunize any piece 

of federal legislation from constitutional judicial review. If Congress could immunize 

its laws from the Court’s judicial review, then this power could be used to insulate 

every piece of federal legislation from Supreme Court review. For instance, it is telling that in response to a Supreme Court decision striking down a federal law criminalizing flag-burning, many members of the Congress proposed amending the Constitution. This was an appropriate response allowed by the Constitution, but enacting the same bill but restricting federal jurisdiction over it would be unconstitutional. 

In addition, courts must have the authority to enjoin ongoing violations of constitutional law. For example, the Congress may not preclude courts from enjoining 

laws that violate the First Amendment’s guarantee of freedom of speech. If an article III court concludes that a federal law violates constitutional law, it would shirk 

its duty if it failed to declare the inconsistency between the law and the Constitution and proceed accordingly. 

Proposals to exclude all federal jurisdiction would, if enacted, open the door to another, equally disastrous constitutional result—allowing the Congress to command 

the federal courts on how they should resolve constitutional results. In Ex Parte 

Klein, 80 U.S. at 146–47, the Supreme Court declared that it

seems to us that it is not an exercise of the acknowledged power of Congress 

to make exceptions and prescribe regulations to the appellate power . . . What 

is this but to prescribe a rule for the decision of a cause in a particular way? 

. . . Can we do so without allowing that the legislature may prescribe rules of 

decision to the Judicial Department or the government in cases pending before 

it? . . . We think not . . . We must think that Congress has inadvertently 

passed the limit which separates the legislature from the judicial power.

The law at issue in Ex Parte Klein attempted to foreclose the intended effect of both 

a presidential pardon and an earlier Supreme Court decision recognizing that effect. 

The Court struck the law down. In all likelihood, the same outcome would arise 

with respect to any other law excluding all federal jurisdiction, for such a law is 

no different than a law commanding the courts to uphold the law in question, a 

command no doubt Article III courts would strike down even if they thought the 

law in question was constitutional. There is no constitutionally meaningful difference between these laws, because the result of a law excluding all federal jurisdiction over a federal law and a command for the courts to uphold the law are precisely the same—preserving the constitutionality of the law in question. 

A proposal to withdraw all federal jurisdiction with respect to a particular federal 

matter conflicts with a second, significant limitation on the Congress’ power to regulate jurisdiction: The Congress may not use its power to regulate jurisdiction to control substantive judicial outcomes. The obvious effect of a prohibition of all federal 

jurisdiction is to make it nearly impossible for the law to be struck down in every 

part of the United States. The jurisdictional restriction seeks to increase the likelihood that the federal statute will not be fully struck down. 

Moreover, a proposal excluding all federal jurisdiction regarding a particular federal question undermines the Supreme Court’s ability to ensure the uniformity of 

federal law. In effect, such a proposal would allow the highest courts in each of the 

18

fifty states to become courts of last resort for interpreting, enforcing, or adjudicating 

challenges to the law. This allows for the possibility that different state courts will 

construe the law differently, and no review in a higher tribunal is possible. The 

Court’s essential functions include ensuring finality and uniformity across the 

United States in the enforcement and interpretation of federal law. 

The third major problem with a proposal to exclude all federal jurisdiction is that 

it may violate the equal protection component of the Fifth Amendment Due Process 

Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (recognizing, inter alia, that congruence requires the federal government to follow the same constitutional standard 

as the Fourteenth Amendment Equal Protection Clause requires states to follow). 

The Court will subject to strict scrutiny any classifications that explicitly burden a 

suspect class or fundamental right. A federal law restricting all federal jurisdiction 

with respect to it or some other federal law does both. First, it may be based on 

a suspect classification. A jurisdictional regulation restricting access by AfricanAmericans, or a particular religious group, to Article III courts to vindicate certain 

interests ostensibly because of mistrust of ‘‘unelected judges’’ plainly lacks a compelling justification and thus violates the equal protection class. While the usual constitutional measure of a jurisdictional regulation is the rational basis test, a court 

might find that even that has not been satisfied if the court finds the argument in 

support of burdening African-Americans, women, or Jews is illegitimate. While the 

Court has not employed strict scrutiny to analyze the constitutionality of laws burdening gays and lesbians, the Court has found two such fail even to satisfy the rational basis test. A court analyzing whether a classification precluding a gay or lesbian citizen from petitioning any Article III court would probably conclude that such 

a restriction is no more rational than the classification struck down by the Supreme 

Court in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Court found that the 

state referendum disadvantaging gays and lesbians failed to pass the rational basis 

test, because it had been motivated by animus. In all likelihood, a majority of the 

Supreme Court would strike down such a measure as having been driven by the 

same illegitimate concerns, or attitudes, that it rejected in that case. 

A federal law restricting all federal jurisdiction may also run afoul of the Fifth 

Amendment by violating a fundamental right. Such is the case with a proposal restricting all federal jurisdiction over flag burning or school prayer. It is unlikely that 

the Court would find a compelling justification for burdening fundamental rights. 

I cannot imagine that the justices would agree that distrusting ‘‘unelected judges’’

qualifies as a compelling justification. Nor is a regulation excluding all federal jurisdiction over a matter involving the exercise of fundamental rights, for it precludes 

Article III courts even from enforcing the law. 

In addition, a proposal excluding all federal jurisdiction may violate the Fifth 

Amendment’s Due Process Clause’s guarantee of procedural fairness. Over a century 

ago, the Court declared that due process ‘‘is a restraint on the legislative as well 

as the executive and judicial powers of the government, and cannot be construed 

to leave congress free to make ‘any due process of law,’ by its mere will.’’ For instance, the Court has explained ‘‘that the Due Process Clause protects civil litigants 

who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs seeking to redress grievances.’’ A proposal excluding all federal 

jurisdiction effectively denies a federal forum to plaintiffs whose constitutional interests have been impeded by the law, even though Article III courts, including the 

Supreme Court, have been designed to provide a special forum for the vindication 

of federal interests. 

Excluding all federal jurisdiction with respect to some federal law forces litigants 

into state courts, which are often thought to be hostile or unsympathetic to federal 

interests. To the extent that the federal law burdens federal constitutional rights, 

it is problematic both for the burdens it imposes and for violating due process. Basic 

due process requires independent judicial determinations of federal constitutional 

rights (including the ‘‘life, liberty, and property’’ interests protected explicitly by the 

Fifth Amendment). Because state courts are possibly hostile to federal interests and 

rights and under some circumstances are not open to claims based on those rights, 

due process requires an Article III forum. 

Last but not least, as the authors of a leading casebook on federal jurisdiction 

have observed, ‘‘At least since the 1930s, no bill that has been interpreted to withdraw all federal court jurisdiction with respect to a particular substantive area has 

become law.’’ R. Fallon, D. Meltzer, D. Shapiro, Hart and Wechsler’s The Federal 

Courts and the Federal System 322 (2003). This refusal, for good reasons, constitutes a significant historical practice that argues for, rather than against, precluding all federal jurisdiction in retaliation against judicial decision(s). 

19

3Professor Theodore Eisenberg has argued that the Framers understood ‘‘that the federal 

courts, whatever their form, could be expected to hear any litigant whose case was within the 

federal constitutional jurisdiction, either at trial or on appeal.’’ Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498 (1974). He suggests that the Framers assumed that the Supreme Court could accomplish this objective, but 

argues, as do many other scholars, that this assumption is no longer practical. Eisenberg argues 

that Congress may exclude cases from federal jurisdiction for ‘‘neutral’’ policy reasons, such as 

to avoid case overloads or promote the efficiency of federal courts. 

III. RESTRICTING THE JURISDICTION OF INFERIOR FEDERAL COURTS

Another kind of proposal sometimes made in the Congress is to preclude the jurisdiction of the inferior federal courts. Unlike the kinds of laws considered in the prior 

section, this kinds of law allows for the possibility of Supreme Court review albeit 

by way of petition for certiorari from the state courts. Nevertheless, this proposal 

has at least three constitutional defects. First, this proposal may violate the equal 

protection component of the Fifth Amendment Due Process Clause because it may 

burden a suspect class without a compelling justification or narrow tailoring. It is 

well settled that a group, or class, that is characterized by its exercise of a fundamental right is a suspect class. Hence, a bill that barred inferior federal courts from 

hearing any constitutional challenges may be directed at a suspect class, particularly if the group it burdens is defined by its exercise of a fundamental right that 

the restriction at issue is burdening. 

The second major problem with withdrawing jurisdiction over a particular class 

of cases from inferior federal courts is that it may violate separation of powers.3

Imagine, for instance, that an inferior court had struck down a state law prohibiting 

flag-burning before the Supreme Court had decided on the constitutionality of that 

law. If Congress had enacted a law precluding any other inferior courts jurisdiction 

over the flag, its law would be unconstitutional for both attempting to override the 

effects of a substantive judicial decision and for hindering the exercise of a first 

amendment right. 

The third problem with a proposal undertaken in retaliation against the federal 

judiciary is that it may violate the Fifth Amendment due process clause. The Congress’ power to regulate jurisdiction may withdraw jurisdiction in Article III courts 

for neutral reasons, such as promoting their efficiency, national security, or improving the administration of justice. Neither mistrust of the federal judiciary nor hostility to particular substantive judicial decisions (or to particular rights) qualifies as 

a neutral justification that could uphold a congressional regulation of federal jurisdiction. It is hard to imagine why an Article III court, even the Supreme Court, 

would treat such distrust as satisfying the rational basis test required for most legislation. By design, Article III judges have special attributes—life tenure and guarantee of undiminished compensation—that are supposed to insulate them from 

majoritarian retaliation. They are also supposed to be expert in dealing with federal 

law and more sympathetic to federal claims than their state counterparts. See Martin v. Hunters’ Lessee, 14 U.S. 304 (1816). Yet, a proposal that excludes inferior federal court jurisdiction is ill-designed to achieve its purported purpose, because it 

still allows state courts to hear challenges to the Pledge of Allegiance and retains 

possible jurisdiction over those challenges in the Supreme Court. As long as Supreme Court review is possible (and it appears to be), ‘‘unelected’’ justices will decide the merits of the challenges. It is hard to see that there is even a rational basis 

for believing that the ‘‘unelected judges’’ on the nation’s inferior federal courts—all 

nominated by presidents and confirmed by the Senate (with the exception of two recess appointees)—cannot be trusted to perform their duties in adjudicating claims 

relating to the Pledge of Allegiance. If a district court judge fails to do this or an 

appellate federal court fails to do this, their decisions may be appealed to higher 

courts. 

Congress has shown admirable restraint in the past when it has not approved legislation aimed at placing certain substantive restrictions on the inferior federal 

courts. (I note that pending before the Court is the question whether the President’s, rather than the Congress’, authority to preclude all jurisdiction over claims 

brought by people detained in Guantanemo Bay based on their detention.) Over the 

years, there have been numerous proposals restricting jurisdiction in the inferior 

courts in retaliation against judicial decisions, but the Congress has not enacted 

them. The Congress has further refused since 1869 not to expand or contract the 

size of the Court in order to benefit one party rather than another. These refusals, 

just like those against withdrawing all federal jurisdiction in a particular class of 

constitutional claims, constitute a significant historical practice—even a tradition—

that argues against, rather than for, withdrawing jurisdiction from inferior courts 

over particular classes of constitutional claims. 

20

Beyond the constitutional defects with proposals to exclude certain cases from all 

federal jurisdiction or inferior federal courts, they may not be good policy. They may 

send the wrong signals to the American people and to people around the world. 

Under current circumstances, they express hostility to Article III courts, in spite of 

their special function in upholding constitutional rights and enforcing and interpreting federal law. If a branch of our government demonstrates a lack of respect 

for federal courts, our citizens and citizens in other countries may have a hard time 

figuring out why they should do otherwise. Rejecting proposals to exclude all federal 

jurisdiction or inferior court jurisdiction for some constitutional claims extends an 

admirable tradition within the Congress and reminds the world of our hard-won, 

justifiable confidence in the special role performed by Article III courts throughout 

our history in vindicating the rule of law.

Mr. CHABOT. Professor Redish, you’re recognized for 5 minutes. 

TESTIMONY OF MARTIN H. REDISH, LOUIS AND HARRIET 

ANCEL PROFESSOR OF LAW AND PUBLIC POLICY, NORTHWESTERN LAW SCHOOL 

Mr. REDISH. Thank you, Mr. Chairman. 

I believe that as a matter of constitutional text, structure and 

history, many of the issues that we are discussing today are far 

simpler than numerous complex constitutional issues that the 

courts deal with. The power of this Congress to limit the jurisdiction of the Federal courts is clear. It is equally clear, however, and 

I cannot emphasize this enough, about the absence of this Congress’ power to exclude all judicial review of constitutional issues. 

If this Congress limits the jurisdiction of the Federal courts, and 

as I said before, I believe that power is extremely broad, it must 

recognize that there still must be available a constitutionally adequate judicial forum to adjudicate constitutional rights and interpret the Constitution. 

This is clearly the plan of the Constitution. There was a reason 

that the Federal judiciary was insulated from direct popular election and power to be regulated by the majoritarian branches. However, if this Congress limits the jurisdiction of the Federal courts, 

the State courts may provide that constitutionally adequate forum. 

As I tell my students, the State courts are soldiers in the Federal 

judicial army. They are both empowered and obligated under article VI, clause 2, the supremacy clause, to interpret and enforce the 

Constitution. However, this Congress should not limit Federal 

court jurisdiction in the very mistaken belief that it can exclude all 

judicial review. 

As to the power of this Congress over the jurisdiction of the Federal courts, I believe the text and the history are both quite clear 

that it is not necessarily the way I would have chosen to structure 

it, but when the text and the history are inexorable, we have no 

choice. It’s what I refer to as the ‘‘I just work here’’ view of constitutional interpretation. 

Article III explicitly vests in Congress the power not to have created lower Federal courts in the first place. The Framers’ assumption was quite clear that if Congress chose not to create the lower 

Federal courts, the State courts could provide an adequate forum 

to interpret and enforce Federal law, including the Federal Constitution. While this Congress did create the lower Federal courts 

immediately, it is well established in the case law that that power 

to, from time to time, ordain and establish the lower Federal courts 

includes the power to abolish the lower Federal courts, and the 

21

greater power to abolish the lower Federal courts logically subsumes within it the power to leave the courts in existence, but limit 

their jurisdictions. 

Similarly, as Congressman Hostettler quite accurately pointed 

out, the Exceptions Clause in article III inescapably says that this 

Congress may make exceptions to the Supreme Court’s appellate 

jurisdiction. There are external constitutional limits on this power; 

the Due Process Clause, the concept of separation of powers, and 

the equal protection directive in the fifth amendment apply. However, there are no internal constitutional limits, no limits in article 

III on Congress’ power. Its power is plenary. 

There have been respected constitutional scholars, and I include 

certainly Professor Gerhardt in this category, who have suggested 

that Congress may not use its power to limit the so-called essential 

functions of the Federal judiciary. I find that to be a textual phantom. I consider it to be the equivalent of constitutional wishful 

thinking. There is nothing that refers to any limit on essential 

functions from—on this Congress’ power. If this Congress wishes to 

combine its power over the article III lower courts and the Supreme Court under the exceptions clause, the end result is that it 

can completely exclude Federal judicial power over pretty much 

any issue, as long as the State courts remain available. 

Despite the extent of this power, I consider it as a matter of the 

American political process highly inadvisable to exercise it. My 

view has nothing to do with my particular views on the substantive 

merits of the issue of gay marriage. I claim no expertise on that, 

and you wouldn’t be interested in my views anyway. I’m referring 

more to the broader issues of American judicial and political process. 

I think this Congress should view its power to be the moral 

equivalent of nuclear war to take away Supreme Court and lower 

court jurisdiction. There are serious negative consequences. And we 

would be left with 50 State supreme court interpretations of Federal law. I don’t think that’s an unconstitutional result. I consider 

it an inadvisable result. 

Thank you. 

Mr. CHABOT. Thank you, Professor. 

[The prepared statement of Mr. Redish follows:]

PREPARED STATEMENT OF MARTIN H. REDISH

INTRODUCTION

I have been asked to express my views concerning the scope of Congress’s constitutional power to limit federal court jurisdiction over particular classes of cases. 

While I have both taught and written about the subject on numerous occasions over 

the last thirty years, I must concede at the outset that it is virtually impossible to 

say definitively what the outer limits of this congressional power actually are. This 

confusion results from the relatively limited case law that exists on the subject. In 

a certain sense, of course, the lack of doctrinal development on this subject may well 

be a good thing, because the issue arises in the courts only when the judicial and 

legislative branches are involved in a tense political confrontation, a situation that 

has occurred only rarely in the nation’s history. Yet the fact remains that relatively 

few decisions have considered the issue, and what little doctrine does exist is occasionally vague or inconsistent. Adding to the confusing state of the law are the dramatically different views expressed by federal jurisdiction scholars over the years. 

Thus, the most I can do today is to provide my own theoretical take on the subject. 

While I believe that this approach flows inexorably from both the text and structure 

of the Constitution and is consistent with what little case law exists, for purposes 

22

of full disclosure I must concede that many respected scholars, both current and 

past, would disagree with all or part of the approach I suggest here. 

In this testimony, I plan to describe my approach to the question and explain why 

I believe it derives from constitutional text and structure. I will then briefly describe 

alternative theoretical models, and explain why I consider them to be unacceptable. 

CONCLUSIONS

I believe that, at least as a constitutional matter, the issue of congressional power 

to control federal jurisdiction is far simpler than many other scholars think. The 

text and internal logic of Article III of the Constitution make clear that congressional power to control the jurisdiction of the lower federal courts and the appellate 

jurisdiction of the Supreme Court is extremely broad. There is nothing in the provision’s text that in any way confines congressional authority in either area. It is 

highly likely, however, that the federal courts would construe congressionally imposed, substantively based restrictions on their jurisdiction in a highly grudging 

manner. Thus, if Congress wishes to exercise its vast authority, it would be advised 

to state its intent explicitly in the text of the relevant statutes. 

To be sure, several other guarantees contained in the Constitution—due process, 

separation of powers, and equal protection—may well impose limitations on the 

scope of congressional power. The Due Process Clause of the Fifth Amendment requires that a neutral, independent and competent judicial forum remain available 

in cases in which the liberty or property interests of an individual or entity are at 

stake. But as long as the state courts remain available and adequate forums to adjudicate federal law and protect federal rights, it is difficult to see how the Due 

Process Clause would restrict congressional power to exclude federal judicial authority to adjudicate a category of cases, even one that is substantively based. Separation of powers, on the other hand, imposes more far reaching restrictions. That doctrine prevents Congress from (1) itself adjudicating individual litigations, (2) directing a federal court how to decide a particular case, (3) employing the federal courts 

for purposes of enforcement without simultaneously allowing them to interpret the 

law being enforced or consider its constitutionality, or (4) overturning individual decisions or classes of decisions already handed down by a federal court. However, it 

is difficult to see how any of those constitutional guarantees would restrict congressional authority completely to exclude substantively based categories of future or 

presently undecided cases from either the jurisdiction of the lower federal courts or 

the appellate jurisdiction of the Supreme Court. The constitutional directive of equal 

protection restricts congressional power to employ its power to restrict jurisdiction 

in an unconstitutionally discriminatory manner 

It should be noted that the fact that Congress possesses such broad constitutional 

power in no way implies that it would be either wise or appropriate, as a matter 

of the American political process, for Congress to exercise its authority to remove 

specific categories of substantive cases from federal jurisdiction. Purely as a matter 

of policy, I believe that Congress should begin with a very strong presumption 

against seeking to manipulate judicial decisions indirectly by selectively restricting 

federal judicial authority. I also firmly believe that were Congress to take such action it would risk undermining public faith in both Congress and the federal courts. 

Due to their constitutionally granted independence and insulation from the 

majoritarian branches of the federal government, the judiciary possesses a unique 

ability to provide legitimacy to governmental action in the eyes of the populace. 

Congressional manipulation of federal judicial authority therefore threatens the legitimacy of federal political actions. Moreover, to exclude federal judicial power to 

interpret or enforce substantive federal law undermines the vitally important function performed by the federal judiciary in the American political system. The expertise and uniformity in interpretation of federal law that is provided by the federal 

judiciary should generally not be undermined. 

CONGRESSIONAL POWER TO CONTROL THE JURISDICTION

OF THE LOWER FEDERAL COURTS

Article III, section 1 of the Constitution provides that ‘‘[t]he judicial power of the 

United States, shall be vested in one supreme court, and in such inferior courts as 

the Congress may from time to time ordain and establish.’’ On its face, this language vests in Congress complete discretion whether or not to create the lower federal courts, and the established historical understanding of the so-called 

‘‘Madisonian Compromise’’ makes clear that this view is accurate. For an extended 

discussion of the Madisonian Compromise, see Martin H. Redish & Curtis Woods, 

Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical 

Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 52–55 (1975). The framers’ asVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
23

sumption appears to have been that were Congress to have chosen not to create the 

lower federal courts, the state courts—who are explicitly bound to enforce federal 

law under the Constitution’s Supremacy Clause, Article VI, cl. 2—would be available to serve as the trial forums for the adjudication of claims arising under federal 

law. See generally Martin H. Redish, 15 Moore’s Federal Practice sec. 100.20 (3d 

ed. 1997). The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also 

has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 

U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts 

completely, the Court has assumed that it has the logically lesser power to ‘‘abolish’’

them as to only certain cases by limiting their jurisdiction. 

Scholars have on occasion raised questions about the validity of the assumption 

that the power to create the lower courts logically dictates a corresponding power 

to abolish them. See, e.g., Ronald Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 Geo. 

L.J. 839, 842–43 (1976). Nevertheless, since the constitutional text provides Congress with the power ‘‘from time to time’’ to ordain and establish the lower courts, 

I believe it is reasonable to infer from this language the power periodically to alter 

what Congress has already created. And if one accepts congressional power to abolish the lower courts, the power to leave them in existence but simultaneously restrict their jurisdiction seems to flow inexorably. If Congress possesses such authority, it is difficult to see how Article III itself implicitly imposes any restrictions on 

how that authority is to be employed. Thus, Article III would seem to provide no 

constitutional bar to the congressional exclusion of substantively based categories of 

cases from the jurisdiction of the lower federal courts. 

Early in the nation’s history, Justice Joseph Story argued that the words, ‘‘shall 

be vested’’ in Article III dictate that the lower federal courts must exist to exercise 

judicial power in those cases constitutionally excluded from both the highly limited 

original jurisdiction of the Supreme Court and the jurisdiction of the state courts. 

Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case—either a lower court or the Supreme Court—would be violated. However, even if Story 

were correct in his assumption that the words, ‘‘shall be vested’’ are to be construed 

to be a command—by no means an obviously correct construction—he ignored the 

fact that, given the nature of the Madisonian Compromise that led to the drafting 

of Article III, there are absolutely no federal cases constitutionally excluded from 

state court jurisdictional authority. Thus, the entire logic of Story’s theory breaks 

down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda 

Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7–9 (Matthew Bender 1998). 

CONGRESSIONAL POWER TO CONTROL THE APPELLATE JURISDICTION

OF THE SUPREME COURT

Article III, section 2 of the Constitution extends extremely limited original jurisdiction to the United States Supreme Court. In all other cases to which the federal 

judicial power is extended, the Court is given appellate jurisdiction, ‘‘both as to law 

and fact, with such exceptions, and under such regulations as the Congress shall 

make.’’ On its face, this provision provides seemingly unrestrained congressional authority to exclude categories of cases from the Supreme Court’s appellate jurisdiction. In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the post-Civil War Supreme Court appeared to recognize the unlimited authority explicitly authorized in 

the text. See Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of 

Judicial Power 25–27 (2d ed. 1990). However, in a subsequent decision the same 

year, the Court construed McCardle narrowly, leaving open the possibility that the 

Exceptions Clause is not to be extended as far as its text suggests. Ex parte Yerger, 

75 U.S. (8 Wall.) 85 (1868). See also Felker v. Turpin, 518 U.S. 651 (1996). Nevertheless, the Supreme Court has to this day not resolved the outer reaches of the 

Exceptions Clause, and I fail to comprehend how a textually unlimited power to 

make exceptions to the Supreme Court’s appellate jurisdiction can be construed to 

be limited in any way. While it is at least conceivable that other constitutional provisions might confine this congressional power, at least the text of the Exceptions 

Clause itself does not do so. 

24

SUGGESTED SCHOLARLY LIMITATIONS ON CONGRESSIONAL POWER

TO CONTROL FEDERAL JURISDICTION

As I have already indicated, I believe that the textual directives of Article III 

make clear, on their face, that Congress possesses broad constitutional authority to 

control the jurisdiction of both the lower federal courts and the United States Supreme Court. Nevertheless, several respected scholars have questioned the text’s 

seemingly clear directives. However, none of these scholarly theories can withstand 

careful critical analysis. Ultimately, all of them amount to what I have described 

as a form of ‘‘constitutional wishful thinking.’’ Redish, Tensions, supra at 28. My 

prior work has provided detailed critiques of each of these theories (see the previously cited sources). Here I will briefly describe those theories and the fundamental problems with each. 

Henry Hart’s ‘‘Essential Functions’’ Thesis 

Many years ago, Henry Hart cryptically suggested that the Exceptions Clause is 

somehow restrained by a textually nonexistent limitation that prevents Congress 

from interfering with the ‘‘essential functions’’ of the Supreme Court. Henry Hart, 

The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in 

Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953). Though Hart never explained either 

what those supposedly essential functions actually are or from where in the Constitution he derived them, it appears from subsequent work by his supporters that 

the concept is intended to include the unifying function of federal law interpretation 

and the policing of state court interpretations of federal law. See Leonard Ratner, 

Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. 

Pa. L. Rev. 157, 201–02 (1960). As I have previously argued, however, the historical 

evidence relied upon to support the ‘‘essential functions’’ thesis is ‘‘[a]t best . . . 

speculative and at worst . . . simply useless.’’ Martin H. Redish, Congressional 

Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions 

Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 908 (1982). In 

any event, as already noted, the text provides absolutely no suggestion of such a 

limitation, regardless of what the history demonstrates. 

Akhil Amar’s Theory 

Professor Akhil Amar has suggested an alternative theory that provides that for 

certain categories of cases to which the federal judicial power is extended in Article 

III, section 2, Congress may not revoke all federal judicial jurisdiction. Unlike Professor Hart (who confined his constitutional restriction on congressional power to 

the Supreme Court’s appellate jurisdiction), Professor Amar asserts that at least one 

level—the lower federal courts or the Supreme Court—(but not necessarily both) 

must remain open to adjudicate any category of cases delineated in Article III, section 2 preceded by the word, ‘‘all.’’ He reasons that the selective use of that word, 

combined with the mandatory ‘‘shall be vested’’ language at the start of section 1, 

provides a textual basis for his conclusion. See generally Akhil Amar, The TwoTiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1569 (1990). 

If Professor Amar’s theory were accepted (and I am unaware of any support for 

it in the modern case law), it would severely restrict congressional power to remove 

simultaneously from both the lower federal courts and the Supreme Court cases 

that arise under federal law, since that is one of the categories preceded by the ‘‘all’’

qualifier. However, it is difficult to imagine that the drafters of Article III would 

have attempted to reach the result Professor Amar advocates simply by the cryptic 

and selective use of the word, ‘‘all.’’ This is especially true, when at the very same 

time they explicitly provided Congress with unlimited discretion not to create the 

lower federal courts in the first place and to make exceptions to the Supreme 

Court’s appellate jurisdiction. 

In any event, purely as a matter of textual construction, Amar’s theory makes no 

sense: If the words, ‘‘shall be vested’’ are, in fact, intended to be mandatory, all of 

the categories of cases enumerated in Article III, section 2, are modified by it. This 

is so, whether or not those categories are preceded by the word, ‘‘all.’’ Thus, if we 

are to take seriously Amar’s out-of-context focus on the words, ‘‘shall be vested,’’ his 

textual argument must logically lead to the conclusion that every category of cases 

enumerated in Article III, section 2 must be heard by some Article III court, regardless of whether or not it is preceded by the word, ‘‘all.’’ For my detailed critique of 

Professor Amar’s theory, see Martin H. Redish, Text, Structure, and Common Sense 

in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990). See also John 

Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the 

Text of Article III, 64 U. Chi. L. Rev. 203 (1997) (criticizing Amar’s theory). For a 

defense of Amar’s theory, however, see Robert Pushaw, Congressional Power Over 

25

Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article 

III, 1997 B.Y.U. L. Rev. 847. 

Professor Sager’s Theory 

Professor Lawrence Sager has argued that Congress may not use its authority to 

revoke jurisdiction from both the Supreme Court and the lower federal courts in a 

substantively selective manner. Lawrence Sager, The Supreme Court 1980 Term, 

Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Lower Federal Courts, 95 Harv. L. Rev. 17 (1981). However, for the 

most part Professor Sager’s focus appears to be on jurisdictional exclusions for state

behavior when constitutional rights are at stake. See id. at 69. Thus, were Congress 

to exclude the jurisdiction of all Article III federal courts in cases involving questions of purely sub-constitutional law not involving state action, Sager’s theory is 

at best of diluted force. In any event, I have argued that Sager’s theory ignores the 

clear textual directives of Article III. See Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982). For further criticism of Sager’s theory, 

see Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An 

Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 915 (1984). 

RELEVANCE OF OTHER CONSTITUTIONAL PROTECTIONS

Due Process 

While the outer reaches of the right remain somewhat unclear, it is established 

that the Due Process Clause requires adjudication by a neutral, independent forum 

before government may revoke protected liberty or property interests. See, e.g., 

Tumey v. Ohio, 273 U.S. 510 (1927). See generally Martin H. Redish & Lawrence 

C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process,

95 Yale L.J. 455 (1986). Thus, where constitutional rights are at stake, Congress 

may not revoke all forms of access to an independent judicial forum. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). But even the exclusion of both lower federal 

court and Supreme Court jurisdiction would not bring about such a result, as long 

as the state courts remain a viable alternative. I have long expressed concern about 

exactly how viable the state court remedy is (see Redish, 77 Nw. U. L. Rev. 143; 

Redish & Marshall, supra), but the case law is quite clear that the state courts are 

deemed to satisfy the due process requirement of a neutral judicial forum. Thus, as 

long as state courts remain open, congressional exclusion of federal jurisdiction 

raises no issue of due process. 

Separation of Powers 

The separation-of-powers limitations on congressional power to control federal jurisdiction are somewhat more complex than the due process limitation. Derived from 

both the text and structure of Article III, the separation-of-powers doctrine imposes 

significant restrictions on congressional authority. Before exploring those restrictions, however, it is important to note that as long as Congress completely excludes 

federal court jurisdiction over a particular category of cases, including the enforcement power, generally separation-of-powers problems are unlikely to arise. The only 

concern would be were Congress to exclude federal court jurisdiction and itself attempt to adjudicate individual cases, a clearly unconstitutional usurpation of the judicial power by the legislative branch. 

Most of the difficulties occur, however, primarily when Congress vests jurisdiction 

in the federal courts (lower courts or Supreme Court) while simultaneously imposing 

restriction on federal judicial ability to interpret the law being enforced or to review 

its constitutionality. See generally United States v. Klein, 80 U.S. (13 Wall.) 128 

(1871). For a more detailed description of the case and its implications, See Redish, 

Tensions, supra at 48–49. This limitation flows from the theory of the ‘‘quid pro 

quo:’’ the notion that where Congress wishes to invoke the unique legitimacy that 

the independent federal judiciary possesses, it must allow the judiciary full authority to interpret and review the law that it is asked to enforce. In addition, the Supreme Court has made clear that while Congress may alter the general substantive 

sub-constitutional law to be applied by the federal courts, it may not reverse specific 

judgments already entered by the federal courts. Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995). 

Equal Protection 

The equal protection directive, deemed to be implicit in the Due Process Clause 

of the Fifth Amendment, can conceivably also play a role in limiting congressional 

power to control federal jurisdiction. Despite its seemingly unlimited authority 

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tion in a discriminatory manner. For example, Congress could not successfully argue 

that its greater constitutional power to exclude federal judicial power completely 

logically subsumes the lesser power of excluding federal judicial power, for example, 

in cases brought by African Americans, Jews, or Women. 

POLITICAL PROCESS CONSIDERATIONS

It is clear to me that Article III of the Constitution vests broad power in Congress 

to exclude the jurisdiction of both the Supreme Court and the lower federal courts. 

While externally derived constitutional doctrines impose distinct limits on that 

power, I can see absolutely no textual or structural basis for denying Congress 

power completely to exclude substantive categories of cases from the jurisdiction of 

the federal courts. This is true, even in cases in which constitutional rights are at 

stake, as long as an alternative adequate judicial forum has been made available. 

It does not follow, however, that Congress should choose to exercise this power. 

To the contrary, I firmly believe that Congress should choose to exercise this power 

virtually never. There has long existed a delicate balance between the authority of 

the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, 

therefore, that whatever the scope of its constitutional power, Congress should be 

extremely reluctant to exercise that power.

Mr. CHABOT. And, Congressman Dannemeyer, you’re recognized 

for 5 minutes. 

TESTIMONY OF THE HONORABLE WILLIAM E. DANNEMEYER, 

FORMER U.S. REPRESENTATIVE 

Mr. DANNEMEYER. Thank you, Mr. Chairman. 

I think it’s appropriate to put this whole issue in the perspective 

of why we are here this morning in that there is an intense cultural war waging in this Nation over values, and the issue for the 

political leadership of this country is whether you, the elected 

Members of Congress, will have the courage to affirm that God exists. That’s the issue. This issue over how we define marriage is an 

important aspect of that cultural war. 

Another issue that deserves attention by this Congress deals 

with whether or not we will affirm in the Pledge of Allegiance and 

the national motto that God exists. 

There’s no question that the homosexual political movement is a 

powerful force in this culture not because of its numbers, but because of the people controlling the media of this country who look 

upon that movement as an idea and a civil right whose time has 

come. We need to recognize this. 

And so, what exists in the system to correct this effort for political power? This political movement of homosexuals has chosen the 

judiciary of America as the means of achieving their goals. Why? 

Because they know they can’t get their agenda through the elected 

representatives in the State legislatures and in the Congress of the 

United States, and so they’ve chosen a judiciary in the State of 

Massachusetts as a happy hunting ground for their goal. And then 

they rely upon provision of Full Faith and Credit Clause of the 

U.S. Constitution which says that anybody that goes to Massachusetts and gets a marriage and is married must be recognized in 

every other State of the Union. 

And then DOMA comes along and says a State has a right to not 

do that, and then we recognize the reality that the U.S. Supreme 

Court may pass upon the constitutionality of DOMA, and they may 

turn it down. We don’t know. That’s where this place, the Congress 

of the United States, under the Constitution, can come forward and 

27

affirm the values that God created for mankind that have controlled civilizations from the beginning of time. Marriage exists of 

a man and a woman who form a family, and that’s how we provide 

for the next generation. 

In addition, our laws should provide that we will teach in the 

public schools of this Nation that God exists who created rules for 

man to live by. This body, Congress, can use article III, section 2 

of the Constitution to acxcept these areas of the jurisdiction of the 

Federal court system. I would urge it to do so. 

The other alternative, of course, that the professor has talked 

about is that this would leave judicial inquiry to State legislature—

State judicial courts. I acknowledge that. Well, the answer to that 

is a constitutional amendment. But do we have two-thirds of the 

votes in the House and in the Senate to get a constitutional amendment? I don’t think so. 

So the move at this time, at this—in this Congress is to use article III, section 2, and then if the Supreme Court turns that down, 

what other recourse do we then have to achieve the goal of affirming that marriage exists and we’ll have God in the Pledge of Allegiance is a constitutional amendment? I hope it doesn’t come to 

that. But I think Congress at this time should take that step. 

For example, I just—if I have time left here, Members, the use 

of article III, section 2 by Congress is not something with which 

they are unfamiliar. In the last Congress it was used 12 times, and 

I submit that if it was used 12 times in the last Congress, it can 

be used 1 time in this current Congress. There have been a number 

of articles that have been written by distinguished scholars on the 

use of article III, section 2, and I would hope that the Members of 

this Subcommittee and the full Subcommittee will give due consideration to them. 

Thank you. 

Mr. CHABOT. Thank you very much, Congressman. 

[The prepared statement of Mr. Dannemeyer follows:]

PREPARED STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER

Mr. Chairman and members of the Subcommittee: 

Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal 

system of three branches, Executive, Legislative and Judicial. 

On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear 

that, of the three branches of government which were created, the one he feared 

the most was the federal judiciary in these words:

‘‘The federal judiciary is working like gravity by night and by day, gaining a 

little today and a little tomorrow, and advancing its noiseless step like a thief 

over the field of jurisdiction until all shall be usurped from the States, and the 

government of all be consolidated into one (i.e., federalization).’’

Decisions of the federal judiciary over the last half century have resulted in the 

theft of our Judeo-Christian heritage, a brief sampling is as follows:

• Enacting ‘‘a wall of separation between church and state’’

• Banning nondenominational prayer from public schools

• Removing the Ten Commandments from public school walls

• Removing God from the Pledge of Allegiance

Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading ‘‘Jurisdiction of Supreme and Appellate Courts,’’ the clause says:

28

‘‘In all cases affecting ambassadors, other public ministers and consuls, and 

those in which a state shall be party, the Supreme Court shall have original 

jurisdiction. In all the other cases before mentioned, the Supreme Court shall 

have appellate jurisdiction, both as to law and fact, with such exceptions, and 

under such regulations as the Congress shall make.’’

Over the last 200 years, Congress has exercised this authority to except certain 

areas from the jurisdiction of the federal court system. In Turner vs. Bank of North 

America 4 Dall. (4 U.S.,8(1799)), the Supreme Court concluded that the federal 

courts derive their judicial power from Congress, not the Constitution. 

In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made final the decision 

of the secretary of the Treasury in certain tax deductions. The statute was challenged as an unconstitutional deprivation of the judicial power of the courts. The 

Supreme Court concluded that the jurisdiction of the federal courts (inferior to the 

Supreme Court) was in the sole power of Congress. 

In Sheldon vs. Sill 8 How (49 U.S. 441(1850)), involved the validity of the assignee 

clause of the Judicial Act of 1789 restricting such action to establish federal court 

jurisdictions. The Supreme Court sustained the power of Congress to limit the jurisdiction of the inferior federal courts. 

In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1 868), the Supreme Court accepted 

review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court. Congress, fearful the Supreme Court would honor the writ, passed a law 

repealing the act which authorized the appeal. The Supreme Court dismissed the 

case for lack of jurisdiction. 

In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the Supreme Court 

upheld the power of Congress to define and limit the jurisdiction of the inferior 

courts of the United States in the form restrictions on the issuance of injunctions 

in labor disputes under the Norris-La Guardia Act of 1932. 

In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for a special court 

to appeal price control decisions under the Emergency Price Control Act of 1942. 

The Supreme Court sustained this restriction. 

One of the outstanding Constitutional scholars in the Senate is Robert Byrd, West 

Virginia Democrat. In 1979, in order to once again allow voluntary prayer in public 

schools, he introduced a law to except this subject from the federal court system 

under Article III, 2.2. Unfortunately, it was not enacted into law. 

In the 107th Congress (2001–2002), Congress used the authority of Article III, 

Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts. 

Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority 

of Article III, 2.2 in order to cut some timber in South Dakota.

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ATTACHMENTS


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Mr. CHABOT. At this time the Committee Members have 5 minutes each to ask questions of the panel, and I recognize myself for 

that purpose for 5 minutes. 

Professor Redish, let me begin with you. You’ve written that, 

quote, ‘‘the States’ courts have, since the Nation’s beginning, been 

deemed both fully capable of and obligated under the supremacy 

clause to enforce Federal law. I am quoting the Constitution. Congress has complete authority to have constitutional rights enforced 

exclusively in the State courts,’’ unquote. And I think you basically 

reiterated that here this morning. 

In your opinion, why did the Founders leave open the possibility 

that State courts could be the ultimate arbiters of constitutional 

questions, or at least some constitutional questions? 

Mr. REDISH. Mr. Chairman, the history is surprisingly well documented on that part of the Constitution. There was a struggle between the States’ righters who wanted no lower Federal courts created and only State courts having power to interpret and enforce 

Federal law with Supreme Court review, and then the pro-Federal 

wing wanted to dictate the requirement that lower Federal courts 

be created. And Madison came up with what is now appropriately 

referred to as the Madisonian Compromise, which was basically to 

punt to the first Congress. Congress had the power to create them, 

but was not compelled to create them. It was really the outgrowth 

of a political deadlock at the convention. 

Mr. CHABOT. Thank you. 

Let me follow up. How does the Judiciary Act of 1789 then form 

an understanding of the original meaning of Congress’ authority 

over Federal court jurisdiction? 

Mr. REDISH. Well, it shows that the original Congress recognized 

that it had this so-called greater includes the lesser power. They 

did create lower Federal courts immediately. That’s certainly true. 

But they excluded from their jurisdiction numerous issues. So it 

was clearly the understanding of the initial Congress postframing 

that they had authority to limit Federal court jurisdiction. 

At the time, for purposes of context, I should indicate the power 

to interpret Federal law was not really an important issue, because 

there was so little substantive Federal legislation. Most things 

were left to the States anyway, but at least in theory it clearly underscores my—the interpretation that I’m giving you of article III. 

Mr. CHABOT. Thank you. 

Professor Gerhardt, let me turn to you. Do you agree that under 

the Constitution State courts have full and coequal authority with 

Federal courts to decide Federal constitutional questions? And if 

not, why not? 

Mr. GERHARDT. Well, if I understand the question, I think clearly 

State courts can adjudicate constitutional claims. I don’t think 

there’s any doubt about that. I don’t know that that’s what we’re 

really concerned with here today though. I think that if you leave 

the State courts alone, without any possible review in the United 

States Supreme Court, the constitutional claim, then I think you 

do have a constitutional problem. 

I think there’s no question that State courts, as I said, and as 

Professor Redish has said, can adjudicate these claims. But you 

move into a much different realm if you’re withdrawing Federal juVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
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risdiction in retaliation against their judicial decisions or aimed at 

a particular class of citizens. I think those present constitutional 

difficulties. 

Mr. CHABOT. Thank you. 

Now, Mrs. Schlafly, let me turn to you at this point. Is H.R. 

3313, the Marriage Protection Act, consistent with a traditional understanding of congressional authority over Federal court jurisdiction? 

Mrs. SCHLAFLY. Oh, absolutely. It is consistent with it. And I 

think everything we’ve heard here today shows that Congress does 

have the power to limit and regulate the authority of the Federal 

courts on this issue. 

I think that the bill that you referred to is somewhat limited. I 

think, as I said in my testimony, that we should also remove jurisdiction from Federal courts to hear a challenge to State DOMAs because we already have a case filed on that. And it’s very important 

that the Federal courts not have the opportunity to override the 

legislatures and the Congress on this issue of marriage. 

We heard a lot of talk about the separation of powers here today, 

but under the separation of powers, we expect these decisions to be 

made by our elected representatives, not by some activist judge. 

Mr. CHABOT. Thank you very much. 

And unfortunately, my time is going to run out in 5 seconds, so 

I’ll terminate my time at this time. 

The gentleman from New York is recognized for 5 minutes. 

Mr. NADLER. Thank you. 

Mrs. Schlafly, you stated in your testimony, you quoted approvingly Professor—excuse me—President Bush in which he said, 

quote, ‘‘we will not stand for judges who undermine democracy by 

legislating from the bench and trying to remake the culture of 

America by court order,’’ close quote. You go on to say ‘‘he’s right, 

we won’t stand for such judicial arrogance.’’ Brown v. Board of 

Education of Topeka, 1954, which outlawed Jim Crow, the segregation of public schools, changed the culture of a third of the United 

States, said that what they had been doing for 100 years was unconstitutional. Do you have the same disapproval? Was that remaking the culture of America by court order? And was that illegitimate, in your opinion? 

Mrs. SCHLAFLY. No, it was not. 

Mr. NADLER. Because? How do you distinguish it? 

Mrs. SCHLAFLY. I would distinguish it because what Brown did 

was to overrule Plessy. And if you take the position that the Constitution is whatever the Supreme Court says it is, then you have 

to accept Dred Scott and Plessy v. Ferguson. And Brown came 

along and overturned that, and that was the right thing to do. 

Mr. NADLER. And that may have been the right thing to do, but 

that wasn’t remaking the culture of America by court order? 

Mrs. SCHLAFLY. No. It was correcting a previous bad mistake. 

Mr. NADLER. And how about Loving v. Virginia that outlawed— that allowed interracial—that said States couldn’t outlaw interracial marriages, which is probably more to the point here? 

Mrs. SCHLAFLY. Yes. Well—— Mr. NADLER. Was that remaking the culture of America by court 

order? 

73

Mrs. SCHLAFLY. No, it wasn’t. I think it was——

Mr. NADLER. Okay. Professor Redish, Judge McDougal of the 

Southern District of Slobovia has just come down with a decision 

that I find outrageous and has promised to come down with more 

such decisions. So I am introducing a bill to eliminate the Southern 

District of Slobovia. Do we—under our plenary power to create or 

abolish Federal courts, can we abolish a particular Federal court 

because we don’t like that judge? And if we can, how does that 

square with the constitutional power, with the constitutional prohibition about limiting tenure of judges? 

Mr. REDISH. I assume you don’t intend to eliminate the judge in 

any way other than——

Mr. NADLER. He can still be there. He just won’t—he’ll be a judge 

in a nonexistent court. 

Mr. REDISH. I think it’s well established. I don’t think it would 

be controversial at all that you have power to rearrange the Federal courts. This Congress created the 11th circuit out of the fifth 

circuit. 

Mr. NADLER. No, I’m not talking about that. 

Mr. REDISH. Oh, you’re saying based on that action. 

Mr. NADLER. I don’t like—in South Dakota they only have one 

district. They’ve only got three judges, let’s say. I don’t know if 

that’s true. But, for example—and I’m going to abolish the district 

of South Dakota. They won’t have any Federal judges in South Dakota because I don’t like the three judges. 

Mr. REDISH. Well, the citizens of South Dakota would have to 

have access to some independent judicial forum. Either you have 

to put them into Federal courts in North Dakota or assign the jurisdiction to the State courts. But if what you’re suggesting is does 

the fact that you’re doing it out of an animosity toward a particular——

Mr. NADLER. No, no, no. I’m saying—forget the motive. I am saying do we have the power to abolish a court and abolish, in effect, 

the judge as a judge by abolishing the court? 

Mr. REDISH. Sure. They have life tenure under article III. 

Mr. NADLER. So they would have life tenure in a nonexistent 

court. 

Mr. REDISH. I’ve seen baseball managers have long-term contracts after they’ve been fired. 

Mr. NADLER. Okay. Let me change the subject. You’ve—I’m trying—you disagreed with Professor Gerhardt about the power of 

Congress, about the phantom constitutional restriction on our 

power to limit jurisdiction. Do you disagree that if we were to say 

that the Federal courts have no jurisdiction to hear claims of religious discrimination against Jews or Quakers, could we do that? 

Mr. REDISH. I certainly agree that the equal protection component of the fifth amendment limits this Congress’ power. You could 

not say Jews do not have access to Federal courts, African Americans do not have access to Federal courts. 

Mr. NADLER. And we could not say that the Federal courts have 

no jurisdiction to judge the constitutionality of the law that you 

said couldn’t have intermarriage between two different religious 

groups. 

74

Mr. REDISH. No, I don’t agree with that. I see a big distinction 

there. There was a Supreme Court decision in the 1970’s named 

Geduldig v. Aiello, which suggested that it is quite a different thing 

to discriminate directly as opposed to discriminating indirectly. As 

long as individuals who wanted to challenge whatever laws are involved to protect their rights have access to an independent forum, 

I see—— Mr. NADLER. So you think we could do that. 

Mr. REDISH. It would depend on exactly how it’s phrased, but, 

yeah, I think you certainly would have the power. 

Mr. NADLER. Mr. Gerhardt, could you comment to that? 

Mr. GERHARDT. Well, I guess a couple of comments. I mean, the 

first is I think clearly if you, this body, Congress, passes a law, it 

gets evaluated under the Equal Protection Clause and relatively—

I should say equal protection component of the fifth amendment—

in a relatively straightforward manner. You ask whether there was 

a suspect classification. You ask whether or not it impedes a fundamental right. You also might ask whether or not it passes, in the 

absence of either of those things, the rational basis test. It’s conceivable you may have a law that’s passed that the Supreme Court 

evaluates under the rational basis test and strikes down. That’s exactly Evans v. Roemer. 

Mr. CHABOT. The gentleman’s time has expired, but you can continue your answer. 

Mr. GERHARDT. The only other comment I would then make is 

that I think if Congress abolishes an article III court in which 

there is a sitting judge, that’s plainly violation of separation of 

powers. If this body were to eviscerate the Presidency, subpoena 

the President to testify, for example, that might well be unconstitutional. So I think that the invasion, the exercise of a power to undermine the effectiveness of another branch, violates separation of 

powers. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Iowa, Mr. King, is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. And I thank the Chairman 

for holding these hearings, and I thank the witnesses for their testimony, and apologize for not being here to absorb it all. I will read 

the text of this subsequent to that. 

I’m very interested in this issue, and interested in the response 

of Professor Gerhardt. As I read the Constitution, and it establishes clearly that the inferior courts are established by Congress. 

So I won’t be a response to the position that if Congress establishes 

all inferior courts, then constitutionally, what Congress gives, Congress can take away. If there is a branch of—or not a branch of 

Government, but if there’s a department that’s established by Congress, and we decide to abolish that department—an example a 

decade ago would be the Department of Education—constitutionally we could abolish that, then why could not Congress abolish 

the inferior courts that are established by Congress? 

Mr. GERHARDT. Well, I think there are a few limitations on—that 

will arise. And we have mentioned them today. The first one is separation of powers. If you abolish a court in which there is a sitting 

judge, I think that that does raise very serious separation of powers concerns. Moreover, I think you are going to raise concerns 

75

under article III because that judge’s life tenure may be put in 

jeopardy as well. 

Beyond that, I think that you may have other concerns depending on what—whether or not that withdrawal has been in retaliation against a judicial decision. Say that the lower court has—say 

the Supreme Court has not reached the question on flag burning, 

whether or not that is something that is a first amendment right, 

but the Circuit Court has done that. You then withdraw, try to 

withdraw jurisdiction in that case, that’s effectively trying to overrule that court. I think that’s not a permissible exercise of power. 

Mr. KING. But, Professor, if Congress grants power to a court, a 

court that is defined as an inferior court in the Constitution, then 

why could they not withdraw that power constitutionally? 

Mr. GERHARDT. Because there are limits on exercise of power. 

Mr. KING. And the basis of those limits would be what? 

Mr. GERHARDT. The Constitution. 

Mr. KING. And if the Constitution grants us power to establish 

that—let’s say, for example, then Congress—this definition, this 

line of the separation of powers between these two branches of 

Government that are in question here, Congress established the 

courts, and by precedent we allow the judicial branch to take jurisdiction over any number of subject matter and law. And as that jurisdiction grows, and the influence of the courts grow, and we’re 

very well aware the expansiveness of that interest and the activeness of the courts, then as that grows, then, would you then prescribe for us at what point Congress might intervene, under what 

circumstances legally, and also with public opinion in mind? 

Mr. GERHARDT. Well, as I suggest in my statement, I think one 

would analyze that would be that Congress has got to have a neutral reason to contract jurisdiction. It’s one thing to expand it, but 

once you get into the business of contracting, withdrawing jurisdiction, you need a neutral justification, such as national security, judicial efficiency. But I don’t think distrust of Federal judges qualifies as a neutral justification. I don’t think hostility to the fundamental right that may be adjudicated in a particular case also constitutes neutral justification. 

Mr. KING. Who will define neutral justification? 

Mr. GERHARDT. Ultimately the courts. 

Mr. KING. Correct. So eventually we’re around that tautological 

logic that brings us back to where we began; that is, that if Congress can’t make definitions, if they can’t define the subject matter, 

eventually the courts can then be linked—they can link the logic 

back together and do whatever they will, without congressional 

intervention. 

Mr. GERHARDT. Congressman, we just may have a respectful disagreement here, but I think that you’ve characterized it as do 

whatever they say. They will, of course, I believe in good faith, construe the Constitution, and I believe they would likely construe the 

Constitution in the way that would protect the vitality of the Federal court system. But how—but I don’t think—I don’t view their 

activity as an unlicensed one. 

Mr. KING. And I’m not willing myself to concede the good faith 

argument, because I think that’s been breached many times in the 

past. And probably the most obvious one would be Dred Scott, and 

76

there’s a series of those and the linkage of those cases that get us 

to this point. I mean, I would go back then to say, for example, 

Griswold v. Connecticut and the establishment of the right to privacy that wasn’t conceived by our Founders, and how that was 

built upon to get us to this point where we have a constitutional 

right to partial-birth abortion. I mean, the Founders didn’t envision 

this, and the logic of the courts support this. The logic of the Congress does not. And so at some point we must find a way to intervene. 

And I’d turn to Mrs. Schlafly on, again, a final recommendation 

on how we might do that definitively. 

Mrs. SCHLAFLY. Well, I would urge that you pass legislation that 

takes away from the Federal courts the power to hear challenges 

to the traditional definition of marriage. And I’m very fascinated by 

Professor Gerhardt’s continual references to separation of powers. 

The clearest thing about the separation of powers is that all legislative power is in the hands of Congress. And what we’re confronted with here is that judges are trying to override the specific 

definition about the definition of marriage that has to be decided 

by our elected Representatives, and that is what the separation of 

powers means. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Virginia Mr. Scott is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. And I’d like to kind of follow up on that, because if we’re talking about legislative powers 

and the abuse of the judiciary and the havoc raised by these 

unelected judges, Mrs. Schlafly, I’d like you to comment on the 

havoc created when these unelected judges required Virginia to recognize marriages of people of different races. 

[11 a.m.] 

Mrs. SCHLAFLY. Well, we all know that race is in a particular 

category in our country, and the courts have done some helpful 

things on that. As I pointed out, the main case that people talk 

about, Brown, was simply correction of a previous mistake, and it 

was one of the greatest examples of judicial supremacy when they 

started the whole bad line of cases with Dred Scott. Mr. SCOTT. You agree with that list of cases, but these are 

unelected judges, not the legislative branch. If we waited for the 

legislative branch to allow mixed marriages, it would still be prohibited in Virginia. 

Mrs. SCHLAFLY. Well, most of the other States did allow mixed 

marriages so it was not—it was just some States. 

Mr. SCOTT. But in that, the unelected judges imposing their will 

did not wreak havoc because—you agree? 

Mrs. SCHLAFLY. I am not saying all courts’ decisions are bad, just 

lots of them. I think it is a perfectly valid, neutral argument to say 

we do not trust the judges in the issue of marriage. 

Mr. SCOTT. And if we set a policy that we did not trust the 

judges, then that ruling could not have been made; is that right? 

Mrs. SCHLAFLY. Yes, but we did not do that. The American people were perfectly acceptable of that. But it is clear we do not trust 

the judges on the issue of marriage. 

Mr. SCOTT. That was an issue of marriage. 

77

Let me ask Professor Gerhardt, you are talking about a neutral 

justification for court stripping. Does motive make a difference if 

it has the effect of eliminating the jurisdiction on a constitutional 

issue? 

Mr. GERHARDT. Well, it sometimes might. The critical thing is 

the purpose and effect of a law, and sometimes the court will infer 

that from just looking at the law itself, and sometimes it looks at 

the context in which the law is passed. But looking at either context or effect might well bring you to an illegitimate purpose or motivation, at which point I think courts strike laws down. 

Mr. SCOTT. Professor Redish, you have indicated if something unconstitutional is going on, you have to have access to some court. 

Would you have an appeal to the Supreme Court at some point 

even though Congress has stripped it of, or tried to strip it of jurisdiction? 

Mr. REDISH. That is actually a fascinating question. My answer 

I think is no, because the right to an adequate judicial forum derives from the Due Process Clause. The Supreme Court itself has 

made clear that due process requires no right of appeal. There is 

no constitutionally dictated right of appellate review. So as long as 

you had an adequate and independent trial forum, who possessed 

sufficient power to enforce its decrees, there would be no due process violation from excluding Supreme Court review power. 

Mr. SCOTT. The Supreme Court has jurisdiction over consideration of constitutional issues. That is part of article III. 

Mr. REDISH. Absolutely. But all of its appellate power under article III and its power over most constitutional issues which comes 

within its appellate power, is qualified by the Exceptions Clause. 

And I see no way to read that other than this Congress may make 

plenary exceptions to that jurisdiction. 

Mr. SCOTT. So if something unconstitutional is going on in Virginia, and Congress allowed it to happen, as long as Virginia courts 

approved it there would be no access to fix it? 

Mr. REDISH. That is right. I should emphasize that nothing in 

the Exceptions Clause empowers, allows this Congress to overrule 

a preexisting Supreme Court decision. Ironically, to the contrary, 

it locks it in because the only court that can change a Supreme 

Court decision is the Supreme Court. But the whole notion of the 

Exceptions Clause and the power over lower Federal courts is premised on the notion that the State courts are going to be good-faith 

protectors of Federal rights. Whether that is empirically true one 

could debate, but it certainly was the assumption of the framers. 

Mr. SCOTT. Mr. Gerhardt, would you like to comment on that? If 

something is unconstitutional in Virginia, you would have no Federal remedy as long as Congress just allowed it to happen? 

Mr. GERHARDT. I would read the Supreme Court doctrine differently and read constitutional law differently. I think that there 

certainly are circumstances in which the Supreme Court of the 

United States will not trust the State courts as final adjudicators 

of certain Federal or constitutional claims. You might go as far as 

Martin v. Hunters Lessee as one example of that. I don’t think the 

Constitution generally sets up the State courts in a position to be 

the final adjudicators of Federal law. I don’t think that situation 

78

would be consistent with how constitutional law has grown over 

time. 

It just bears repeating: I don’t believe there is any unlimited 

power that is granted in the Constitution to any branch. The Supreme Court and other Federal courts, might well make mistakes. 

The Constitution prescribes the methods for overruling those mistakes if they happen to pertain to constitutional law, and those are 

limited. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Indiana, Mr. Hostettler, is recognized for 5 

minutes. 

Mr. HOSTETTLER. I thank the Chairman. 

As we contemplate the issue of same-sex marriage and the notion 

of an independent judiciary, I think it is important to look at the 

Supreme Court case which has brought us to this point to be very 

concerned about the future of traditional marriage in America. 

In Lawrence v. Texas, the Supreme Court determined that for a 

variety of reasons a Texas sodomy law was unconstitutional. But 

what is intriguing in the opinion of the majority, as written by Justice Kennedy and the concurring opinion by Justice O’Connor, is 

the idea of speaking to the issue of marriage. Now, the case of 

Lawrence v. Texas did not have anything to do with marriage. It 

is my understanding of the facts of the case with regard to the arrest that was made, that the individuals involved in the case were 

not involved in a wedding ceremony at the time of the arrest. But 

rather, the case, Lawrence v. Texas, does speak to the issue of 

same-sex marriage, and that is intriguing to me in that Justice 

Kennedy implicitly speaks to the issue when he says, ‘‘The present 

case does not involve whether the Government must give formal 

recognition to any relationship that homosexual persons seek to 

enter.’’ obviously what other type of relationship is he talking about 

but the issue, in my opinion, of same-sex marriage, because it is 

more explicitly brought out in Justice O’Connor’s concurring opinion when she says that ‘‘Texas cannot assert any legitimate State 

interest here, such as preserving the traditional institution of marriage.’’

Once again, the case was not about marriage but the court 

seems, for whatever reason, to want to talk about the issue of marriage. She goes on to say, ‘‘Unlike the moral disapproval of samesex relations, other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.’’

So the Court both implicitly and explicitly speaks to the fact that 

they are not talking about same-sex marriage, and by the wording 

of their opinions, at least Kennedy and O’Connor seem to tell us 

that they would not be in favor of expanding these rights to include 

same-sex marriage. 

I wanted to clarify that and ask Professor Gerhardt some questions. I find, like Mrs. Schlafly, your discussion of separation of 

powers intriguing. 

Do you believe that the power to impeach and remove from office 

of Congress is a violation of separation of powers? 

Mr. GERHARDT. You are asking whether the impeachment and 

removal of a Senator or Member of Congress is a violation of separation of powers? I want to make sure I understand the question. 

79

You are asking if Congress sets out to impeach and remove a Member of Congress—— Mr. HOSTETTLER. No. Impeachment is done in the House, removal is done in the Senate. And we impeach and remove from office officers of the Government: President, Vice President, judges, 

justices, anyone. I am asking if that is a violation of separation of 

powers, in your opinion. 

Mr. GERHARDT. The impeachment of whom, is what I am trying 

to find out. 

Mr. HOSTETTLER. The Constitution says the House shall have 

sole power of impeachment. Let us say the impeachment of, say, 

a Federal judge and the removal of that Federal judge by the Senate. Do you believe that is a violation of separation of powers? 

Mr. GERHARDT. The way you phrase it, I would probably have to 

say no; but I would have to know what the Federal judge had done 

to give you a fuller answer. 

Mr. HOSTETTLER. Are you saying that the House cannot impeach——

Mr. GERHARDT. Yes, the House can impeach Federal judges. It 

has done that. 

Mr. HOSTETTLER. But you are saying except for something else? 

Mr. GERHARDT. If you are asking if the power of impeachment 

can ever exceed its limitations, I suppose the answer is yes. If the 

House impeached a private citizen—— Mr. HOSTETTLER. I understand what you are saying. I don’t know 

how we would do that. That is intriguing. 

Mr. GERHARDT. I would hope you wouldn’t. 

Mr. HOSTETTLER. Do you think the power to pardon after a Supreme Court has upheld a lower court’s ruling with regard to an 

individual, do you think the power to pardon by the President is 

a violation of separation of powers? When the courts have determined that an individual has violated a Federal law and the Supreme Court has upheld the conviction, do you believe that the pardon is——

Mr. GERHARDT. Given what you have suggested, no, I would not 

think that would be a problem. If it is a Federal offense, obviously 

the pardon power does not pertain to State offenses but it pertains 

to Federal offenses. The President has been given that authority, 

so if the President exercises that authority, as Presidents have 

done, I am not sure there is a problem there. 

Mr. HOSTETTLER. I ask unanimous consent for one additional 

minute. 

Mr. CHABOT. Without objection. 

Mr. HOSTETTLER. Do you believe the power of Congress to repeal 

a previously enacted statute is a violation of separation of powers? 

Mr. GERHARDT. I can answer that question generally as probably 

yes. But again, we have to understand that the particulars may 

make a great deal of difference to the answer. 

Mr. HOSTETTLER. You are saying it is a violation of separation? 

Mr. GERHARDT. No, I said generally it would not be; but obviously I would need to know the particulars. There may be withdrawals of jurisdiction and other statutory entitlements and how 

that is done may make a great deal of difference to the answer. 

Mr. CHABOT. The gentleman’s time has expired. 

80

The gentleman from California, Mr. Schiff, is recognized for 5 

minutes. 

Mr. SCHIFF. Thank you, Mr. Chairman. This is now the fourth 

of five hearings on the subject, and I think on this side of the aisle 

we do not wish to be outdone. We would like to propose five more 

hearings on this subject, because Lord knows there is nothing else 

to have a hearing on in the Congress. 

I have been trying now for 21⁄2 years to get a hearing on whether 

the Constitution permits the President to detain American citizens 

without access to counsel, without access to judicial review, based 

on its sole determination that an American is an unlawful enemy 

combatant. I have not been able to get a hearing on that in almost 

3 years, and we now have had five hearings on this subject. We 

have not been able to get a hearing on whether we should have a 

constitutional amendment to continue the Government if we were 

obliterated in a terrorist attack, but we do have time for five hearings on this subject, and I would like to propose that we have five 

more hearings. 

I would like to ask some of the witnesses where their theory of 

the Constitution leads them. Mrs. Schlafly, you say that you do not 

trust the Federal courts to decide some of these questions, and you 

have greater trust in the State courts, so you would like to remove 

some of the Federal courts’ jurisdiction and give it to the State 

courts? 

Mrs. SCHLAFLY. Well, the Congress cannot legislate about the 

State courts. We are only considering here today the limiting of the 

Federal courts. 

Mr. SCHIFF. Mrs. Schlafly, you would remove the Federal courts’ 

jurisdiction over the marriage issue and allow the State courts to 

decide that? 

Mrs. SCHLAFLY. Yes, I would. Marriage has always been a State 

matter. 

Mr. SCHIFF. So you would be content with the Massachusetts Supreme Court deciding that issue rather than the U.S. Supreme 

Court? 

Mrs. SCHLAFLY. I am not content with Massachusetts, no; but I 

would not be encouraged to think that the Supreme Court would 

do the right thing, and I don’t think they should be handling it. 

Personally, I think the people of Massachusetts should take care of 

their problem, just like the people of Hawaii and Alaska took care 

of their courts. 

Mr. SCHIFF. If the people of Massachusetts decided to amend 

their constitution to make it abundantly clear that they supported 

gay marriage, and—are you a citizen of Florida? 

Mrs. SCHLAFLY. Missouri. 

Mr. SCHIFF. I’m sorry; Missouri. Do you think the people of Massachusetts have that right, and would you find that has a place in 

the federalist system? 

Mrs. SCHLAFLY. I think they have the right but I don’t think it 

would possibly happen. 

Mr. SCHIFF. But you are willing to allow the people of Massachusetts to make that decision for themselves? 

Mrs. SCHLAFLY. Yes. There are a lot of people who are not apparently willing to let the people of Massachusetts, because the legisVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00084 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
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lature did everything that they could to keep that from going to the 

people. I think it is clear that the American people do not want to 

legislate same-sex marriage. 

Mr. SCHIFF. Mrs. Schlafly, then you probably would not be comfortable with the current proposed constitutional amendment because that precludes a State constitution from allowing any marriage other than that between a man and a woman; you would not 

want to prohibit a State from writing that in their constitution or 

writing the converse, correct? 

Mrs. SCHLAFLY. I would not object to that, if the American people 

want to have an amendment on that, providing we know exactly 

what it does. I mean, I believe in the legislative process. 

Mr. SCHIFF. If you believe that the people of Missouri should not 

decide for the people of Massachusetts what kind of constitutional 

laws they should have, then I would think that you would not want 

a constitutional amendment that precludes the people of Massachusetts from doing that, would you? 

Mrs. SCHLAFLY. There are a number of instances where States 

had made certain determinations but we decided we wanted to 

make it a national rule. If the American people want to have a 

marriage amendment, I would support that. 

Mr. SCHIFF. But at the moment, I am asking what you want. Do 

you want the people of Missouri to be able to determine what the 

people of Massachusetts have for their own marriage laws? 

Mrs. SCHLAFLY. At the moment, I want you to fix it so the Federal courts cannot overturn the laws of the State of Missouri, because we have a good State DOMA law, and we do not want Federal judges interfering with it. 

Mr. SCHIFF. Mr. Dannemeyer, you would have us remove Federal 

court jurisdiction over marriage and over the Pledge of Allegiance 

as well; is that correct? 

Mr. DANNEMEYER. Yes. 

Mr. SCHIFF. Would you have us remove Federal court jurisdiction 

over legal tender so they could not remove ‘‘In God We Trust’’ from 

legal tender? 

Mr. DANNEMEYER. Well, I think if the issue is we acknowledge 

keeping the motto ‘‘In God We Trust,’’ I think we should keep that 

motto. 

Mr. SCHIFF. I think we should keep that motto, too, and I think 

we should keep ‘‘under God’’ in the Pledge of Allegiance. But my 

question is: Should we remove jurisdiction from the Federal courts 

in case they might decide otherwise? 

Mr. DANNEMEYER. Well, yes, I do. I think Congress has the authority. 

Mr. SCHIFF. I am not asking whether we have the authority, I 

am asking whether you think we should do this; assuming we have 

the authority, should we remove the Federal court jurisdiction over 

abortion? 

Mr. DANNEMEYER. I think that article III, section 2 presents a 

good opportunity for reaching that very issue. In fact Roe v. Wade

of 1973 was based on a premise that was created out of thin air 

for justification of the Constitution. 

Mr. SCHIFF. I ask unanimous consent for an additional minute. 

Mr. CHABOT. Without objection. 

82

Mr. SCHIFF. Thank you, Mr. Chairman. 

Mr. Dannemeyer, would you propose, then, since many of these 

issues that we have talked about, the Pledge, ‘‘In God We Trust’’ on legal tender, are issues regarding separation of church and 

State, shall we remove the Federal court jurisdiction over the first 

amendment of the Bill of Rights that provides, ‘‘Congress shall 

make no law respecting an establishment of religion or prohibiting 

the free exercise thereof,’’ and in my view, that amendment does 

not preclude having ‘‘under God’’ in the Pledge, which I support, 

but just in case some court may find otherwise, shall we remove 

the jurisdiction of the Federal courts over the first amendment just 

to be safe? 

Mr. DANNEMEYER. No, I don’t think that we should give a broad 

reach of that nature. I think in this instance we are dealing with 

correcting. For example, we should make clear that people have the 

ability to express faith in public, which is what voluntary prayer 

in public schools is all about. We should be able to post the Ten 

Commandments on the walls of public buildings, and on that issue 

it is just as important as having the Ten Commandments on walls 

of public buildings. 

Mr. CHABOT. The gentleman’s time has expired. Does the gentleman wish an additional 30 seconds? 

Mr. SCHIFF. Yes, thank you. 

So rather than completely removing the jurisdiction of Federal 

courts over the first amendment, you would merely enumerate all 

of the first amendment issues involving the Pledge of Allegiance or 

abortion or—well, that involves a different amendment, I suppose—really, any separation of church and State issues within the 

first amendment, you simply enumerate those and remove those 

from the Federal Government? 

Mr. DANNEMEYER. I would say to the gentleman from California 

that H.R. 3799 by Congressman Aderholt from Alabama is now 

pending before this Committee and should be adopted. It speaks to 

the specific issues that you described. It would allow retaining God 

in the Pledge of Allegiance, God in the national motto. It would 

allow expressions of faith, voluntary prayer in school, it would 

allow displaying the Ten Commandments on the walls of public 

buildings, and I hope you would support it. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. 

Professor Gerhardt, as I understand it your position is that Congress, having the article I and article III power to create lower 

courts, we do not necessarily have the automatic plenary authority, 

as Professor Redish suggests, to abolish those Federal courts; is 

that right? 

Mr. GERHARDT. It depends on the circumstances. With respect to 

abolition, I think it depends on whether or not the court itself is 

vacant. If it is not vacant, I think there is a constitutional problem. 

Mr. FEENEY. Would you agree that in Lockerty v. Phillips and 

Sheldon v. Sill, the U.S. Supreme Court has, on several occasions, 

suggested that having created the lower courts, that Congress has 

the implied power to repeal or abolish those courts? 

83

Mr. GERHARDT. I would respectfully read those decisions differently, but the bottom line for me is if you are talking—I think 

the withdrawal of the jurisdiction is itself subject to various constitutional limitations. 

Mr. FEENEY. My question is about abolishing what we have created. You are basically saying there may be restraints on abolishing things that we had the power to create under certain circumstances? 

Mr. GERHARDT. We created a lower court. 

Mr. FEENEY. But we do not necessarily have the automatic right 

to repeal or abolish that court, is what your position is. And would 

that be true with respect to creating an executive agency? If we 

created a Cabinet officer, the nanny State baby-sitter Cabinet officer, if we decided that did not work out, would we be limited in 

our ability to abolish what we created in the legislative branch just 

like in the judicial branch? 

Mr. GERHARDT. I think in that particular circumstance it is likely 

to be different. I think you could have something like the Department of Homeland Security where you reorganize things. 

Mr. FEENEY. Having created an executive agency, would we potentially be limited if we decided to abolish what we created? 

Mr. GERHARDT. I am not sure you would be limited in doing that. 

Mr. FEENEY. So when we create a Federal or an executive agency 

to repeal what we have done we are not limited, but with respect 

to the judicial branch they may be depending on the circumstances? 

Mr. GERHARDT. I assume you have a neutral justification with regard to the executive agency. But if you have a neutral justification, you can reorganize jurisdiction. But if you do not have a neutral jurisdiction, in my opinion—— Mr. FEENEY. I would ask you in writing to tell us where in the 

text of the Constitution our powers are limited with respect to abolishing a judicial agency or entity we created, whereas it is different 

from the article II power, agencies that we have created. 

Look, the fundamental issue is here, who creates constitutional 

rights. Some of us believe deeply when the 13 States ratified the 

Constitution, the people of those States spoke through their republican forms of Government. That is how constitutional rights were 

established and guaranteed to the people of the country. When new 

States adopted the Constitution as they became part of our Constitution, when constitutional amendments pursuant to article V 

were adopted pursuant to the provisions of the Constitution, that 

is how constitutional rights are created. 

But I would like the professors to follow with me, because the 

problem here is when the Massachusetts Supreme Court, out of 

thin air, after 250 years of interpretation and history and tradition, 

its own constitution decides there is suddenly some new inherent 

right to marriage—I want to ask the professors to follow with me 

because I think this hypothetical gets to the text. This gets to the 

fundamental issue here: How are these rights created, and what do 

we do about run-away courts? 

Supposing sometime in the future, five or more justices on the 

United States Supreme Court—maybe they decide to import foreign laws, as the Lawrence case did; maybe they cite a European 

84

human rights decision; supposing they decided the 14th amendment Equal Protection Clause guarantees pedophiles the right to 

have relations with minor children at all times in all places, that 

they are constitutionally protected in this behavior and it is a fundamental right. Notwithstanding the fact that 50 States may have 

antipedophilia laws, the Constitution may have antipedophilia law, 

what is the remedy, Professor Gerhardt, and then Professor 

Redish, what is the remedy of the people? And I would ask you to 

cite in light of article IV, section 4, the Constitution, guaranteeing 

that we live under a republican form of Government—meaning we 

get to select the people that make and establish our laws—what 

would be the remedy if five justices decided to create a new right 

to pedophilia-type behavior tomorrow? 

Mr. GERHARDT. Frankly, I think it would not be unlike Dred 

Scott. The remedy there was the 14th amendment. That is how 

Dred Scott got overruled. That is one of the ways prescribed under 

the Constitution. 

A second way is you try, once people leave the Court, you might 

try to appoint people with different views. 

A third way is you go back to the Court itself and try to convince 

them they are wrong. That is some of the ways that the Constitution allows. 

Mr. CHABOT. The gentleman’s time has expired. 

Mr. FEENEY. Mr. Speaker, I ask unanimous consent for 30 seconds for Professor Redish to answer. 

Mr. CHABOT. Without objection. 

Mr. REDISH. I believe the Dred Scott case is one illustration. The 

other illustration is a case called Chisolm v. Georgia, where the 

very early Supreme Court construed article III to revoke State sovereign immunity; and very rapidly an amendment, the 11th 

amendment, was adopted overruling Chisolm v. Georgia. And I am 

sure in the example you give, there would be outrage throughout 

the Nation when we are dealing with a decision of that kind of 

unpopularity, a constitutional amendment would follow at least as 

rapidly as the 11th amendment did. 

Mr. CHABOT. The gentleman’s time has expired. The gentlewoman from Wisconsin is recognized for 5 minutes. 

Ms. BALDWIN. Thank you, Mr. Chairman. 

Before turning to questions, I wanted to ask, Mr. Chairman, 

unanimous consent to submit for the record a report received earlier this week addressed to you from the Congressional Budget Office entitled the ‘‘Potential Budgetary Impact of Recognizing Same 

Sex Marriages.’’ Mr. CHABOT. Without objection. 

Ms. BALDWIN. Thank you. I offer that for the record, based in 

part on two of our prior hearings. I know there was a lot of questioning back and forth about the potential cost to the Federal Government, were the States and the Federal Government to someday 

recognize same-sex marriages. This report goes through some estimating and looks at effects on Federal revenues, income tax revenues, estate tax revenues. It further looks at effects on outlays and 

concludes, while the numbers are very negligible, a slight boon to 

the U.S. economy or the Federal Government were those relationships to be recognized sometime in the future. I am glad to have 

85

their thinking on the topic added to the record of this Committee 

as we look at the issue. 

Turning to today’s topic, I had occasion to review the Congressional Research Service report on court stripping, and one of the 

things that they note is that there are all sorts of legislative proposals that could be characterized as court stripping: abolishing 

courts, limiting remedies in certain cases. But here today we are 

looking at a particular type of what is known as court stripping: 

proposals that have been made to limit the jurisdiction of Federal 

courts to hear cases in particular areas of constitutional law. Oftentimes the proposals that are brought forward in Congress, or most 

of the times they are brought forward in response to what can be 

characterized as a controversial court ruling. Issues that have resulted in court stripping proposals in Congress include rulings on 

busing, abortion, prayer in school and, recently, the reciting of the 

Pledge of Allegiance, and clearly the issue that brings us here 

today. 

Because most of these proposals historically have not passed 

through Congress and been signed into law, an analysis of the constitutionality of these really relies predominantly on very, very old 

case law, a textual analysis of the Constitution and sort of scholarly discussion about what might happen given the lack of clear 

and recent precedent. 

I wanted to direct my questions to our two law professors, and 

sort of expanding on Congressman Nadler’s questions about the 

equal protection limits to this court stripping practice. I know our 

two professors draw that line in a different place. 

Professor Redish, I was pleased to hear your commentary about 

whether this is constitutional or not, a lot of these court stripping 

bills would be unwise because they would have an impact on the 

legitimacy and public confidence in the Congress and the Federal 

courts. But your analysis in your testimony clearly says that the 

constitutional directive of equal protection restricts congressional 

power to employ its power to reject or restrict jurisdiction in an unconstitutionally discriminatory manner. And later on you elaborate 

that you could not, for example, exclude Federal judicial power in 

cases brought by African Americans, Jews or women. 

I am wondering how much further, since there is a corollary—

and you had that question a little bit before, of combining or revoking Federal jurisdiction in substantive matters which disproportionately affect those same protected classes. And I would also like 

to hear Professor Gerhardt’s comments on where that line is in his 

analysis. 

Mr. REDISH. My understanding of the equal protection law is 

that outside the area of race, the disproportionate impact for 

facially neutral aspects of the law do not render it a violation of 

equal protection. That was the Goodridge case I referred to earlier, 

where the Supreme Court said a law not including pregnancy in 

certain health benefits, although obviously it could only have an 

impact on women, was not a violation of equal protection. 

So I believe under existing constitutional doctrine as I read it, 

that a law that said women or African Americans or Jews would 

not have access to the Federal courts would be unconstitutional. A 

law that restricted jurisdiction over a particular issue that hapVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00089 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
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pened to indirectly impact only women or Jews, African Americans, 

I believe is a different issue, I would say would not violate equal 

protection. 

Mr. CHABOT. The gentlewoman’s time has expired. 

Ms. BALDWIN. If Professor Gerhardt could also be allowed to respond? 

Mr. CHABOT. Without objection. 

Mr. GERHARDT. I think if the law were directed plainly at 

women, then it gets heightened scrutiny in Federal court and it is 

only going to be upheld if it has substantial justification. 

Even if the law does not mention plainly that it is directed 

against women, the court has held in other context, for example, 

a race-specific provision—and this is out of Washington, Washington v. Seattle, the court subjected that law to strict scrutiny because it could only have been African Americans who would have 

been disadvantaged by that law. If you have a law that is directed 

at burdening gays and lesbians and it is inevitable that they would 

be the plaintiffs in challenging DOMAs, then it is the natural inference that is what the law is directed against. The court would have 

to at least subject that to a rational-basis test, and in Evans v. 

Romer, for example, has struck it down for lacking a legitimate or 

neutral justification. 

Mr. CHABOT. The gentlewoman’s time has expired. The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes. 

Mr. FORBES. Mr. Chairman, I thank the panel for their comments today. Mr. Nadler and Mr. Schiff have suggested that we 

have spent too much time on dealing with the marriage issue. In 

all due respect, there are some of us on this Subcommittee who believe, rightly or wrongly, that this is a major issue impacting families as we know them in America. Likewise, there are some of us 

on this Committee who feel that the American family unit is so 

crucial to the success of America, and America so crucial to the 

concept of freedom throughout the world, that it merits a significant amount of time to be spent on it. 

I know none of my colleagues would make recommendations that 

they did not believe in, so if we need to have five more hearings, 

let us have five more hearings on this issue until we flesh it out 

and make sure that we make the right decisions. 

I have heard many of you on the panel today being asked all 

kinds of questions other than the questions that you came prepared 

to answer. I could probably ask you about how you feel about the 

New York Yankees or the Washington Redskins, but we are here 

to look at the issue of marriage in this particular legislation. It 

may be simple, but it comes down to two basic issues: Can we as 

Congress limit this jurisdiction? And the second question is, should 

we? 

Mrs. Schlafly, you have indicated that you feel, one, we can; and 

two, we should; is that a fair statement? 

Mrs. SCHLAFLY. That is absolutely correct. I think it is clear from 

this panel and the historical record that you can do it. The issue 

is you have a wonderful law. DOMA is a well written, elegantly 

written law, that says what the American people want. We are 

faced with the possibility, through various litigation, that some acVerDate 0ct 09 2002 09:34 Aug 02, 2004 Jkt 089266 PO 00000 Frm 00090 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062404\94458.000 HJUD1 PsN: 94458
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tivist judges may throw it out, and you have had predictions that 

judges will do that. 

I would suggest that it is up to Congress to prevent that from 

happening by using the power that we know you have. We do believe that these major decisions should be made by elected representatives, and the whole idea of unelected, lifetime judges to be 

able to overrule the fine law that Congress passed, and similar 

laws in all of the other States, is simply not tolerable in a democratic system of self-government. 

Mr. FORBES. Mr. Gerhardt, thank you for your thoughts today. 

If you can help me today or submit your answer later in writing, 

my question is the concept that Mr. Feeney was talking about a little bit, that even though Congress has no mandate to create courts 

or jurisdiction or give them jurisdiction, that somehow once we 

have done that, whether in this area or the bankruptcy court or 

whatever, that we cannot withdraw that jurisdiction subsequently, 

if we decide to do that, without a motive or basis that the court 

approves. I am just wondering if you can at some point in time tell 

me not other court cases but just the constitutional principle upon 

which you base that statement? 

Mr. GERHARDT. Well, I think it is, for example, the fifth amendment, and that amendment would require, among other things, 

that if you undertake a legislative action, it has to comply with the 

equal protection standard. That would then lead us down a particular path, depending on what the classification is, that this withdrawal of jurisdiction seeks to effectuate. So I think that is one limitation. I think every congressional power is subject to some limitation, just like Presidential powers are, and even judicial powers are 

subject to limitations. 

I think it would be incorrect, at least in my judgment, to believe 

that there is such a thing as an unlimited congressional power. 

Mr. FORBES. Mr. Redish, as I understand your comments today, 

you believe that we have the authority to do what is in this legislation, but that we should not exercise that authority in this way at 

this time? 

Mr. REDISH. Yes. And I should emphasize once again, that has 

nothing to do with my views on the substantive merits of this particular law. It is my belief, just as a matter of the American political and judicial process, this is a very powerful authority this Congress has with some very negative consequences that can flow from 

its exercise, and great caution should be used before it is employed 

in any substantive area of law. 

Mr. FORBES. Mr. Dannemeyer, you believe that we have the authority and that we should exercise the authority; is that a fair 

summation? I am out of time. 

Mr. DANNEMEYER. Yes. Yes, I do. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

I would ask unanimous consent that the Ranking Member be 

granted the time to ask one final question. 

Without objection. 

Mr. NADLER. Thank you, Mr. Chairman. 

This is a factual question for Professor Redish, I suppose. Have 

we ever adopted a constitutional amendment or has Congress ever 

88

proposed to the States a constitutional amendment to overturn an 

anticipated court decision that had not yet occurred? 

Mr. REDISH. Nothing occurs to me off the top of my head. That 

has not yet occurred? 

Mr. NADLER. Has not at the time it was proposed. 

Mr. HOSTETTLER. Would the gentleman yield? Such as the Bill of 

Rights? 

Mr. REDISH. Well, I am not sure that was designed to fend off 

a particular court decision. It was a broad-based, categorical, normative directive as to what the rights should be; but I don’t think 

it was grounded in any concern that otherwise courts would decide 

something that Congress did not like. 

Mr. NADLER. I thank the gentleman. 

Mr. CHABOT. I think that is a very good response. Without objection, Members will have 5 days to include additional responses. 

I want to thank the panel. I thought this was excellent testimony 

on behalf of all four of the witnesses. I want to thank the Members 

for being here in such high numbers. 

If there is no further business to come before the Committee, we 

are adjourned. Thank you. 

[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.] 

(89)

1 108th Cong., 1st Sess.; Section 1738c, of Title 28, is the Defense of Marriage Act; Section 

7 of Title 1, of the Constitution is the Full Faith and Credit Clause. 2See Hart and Wechaler, The Federal Courts and the Federal System ()1953), 727–33. 3 303 U.S. 323, 330 (1938). 

4 411 U.S. 389, 400–402 (1973).

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF CHARLES E. RICE

The subject of this hearing is the power of Congress over the jurisdiction of lower 

federal courts and its power over the appellate jurisdiction of the Supreme Court. 

This issue arises in the context of H.R. 3313, which provides:

‘No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any 

question pertaining to the interpretation of section 1738c of this title or of this 

section. Neither the Supreme Court nor any court created by Act of Congress 

shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of Title 1.’ 1

This statement, however, offers a general analysis of the power of Congress to remove classes of cases from federal court jurisdiction rather than a specific and detailed analysis of H.R. 3313. 

THE POWER OF CONGRESS OVER THE JURISDICTION OF LOWER FEDERAL COURTS

The Constitution [Art III, Sec. 1) provides, ‘‘The juridical power of the United 

States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.’’ The Constitution itself did not 

create the lower federal courts. Instead it left to Congress the decision whether to 

create such courts and, if Congress chose to create them, how much of the jurisdiction encompassed within the federal judicial power it ought to confer upon them. 

Congress need not have created such lower courts at all. Having created them, it 

need not vest in them jurisdiction to decide the full range of cases within the federal 

judicial power. For instance, until 1875, the lower federal courts had no general jurisdiction in cases arising under the Constitution or laws of the United States. 2

Today, the jurisdiction of the lower federal courts is limited in some respects by the 

requirement of jurisdictional amount and in other respects as to the classes of cases 

in which they are empowered to exercise jurisdiction. The Norris La Guardia Act, 

for example, withdrew from the lower federal courts jurisdiction to issue injunctions 

in labor disputes. The constitutionality of the Norris La Guardia Act was sustained 

by the Supreme Court in Lauf v. E. G. Shinner and Co. 3

In an extensive dictum in Palmore v. U.S. 4 the Supreme Court summarized the 

status of the lower federal courts under Article III: 

Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the 

power is vested ‘‘in such interior Courts as the Congress may from time to time 

ordain and establish.’’ The decision with respect to inferior federal courts, as 

well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III 

courts to hear and decide cases within the juridical power of the United States, 

including those criminal cases arising under the laws of the United States. Nor, 

if inferior federal courts were created, was it required to invest them with all 

the jurisdiction it was authorized to bestow under Art III. ‘‘[T]he juridical power 

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5The Federalist, No. 80. Emphasis in original. 6 Emphasis in original. 

sively to this court) dependent for its distribution and organization, and for the 

modes of its exercise, entirely upon the action of Congress, who possess the sole 

power of creating the tribunals (inferior to the Supreme Court) . . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of 

withholding jurisdiction from them in the exact degrees and character which to 

Congress may seem proper for the public good.’’ Cary v. Curtis, 3 How 236, 245, 

11 L.Ed. 576 (1845). [9] Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federalquestion jurisdiction. Until that time, the state courts provided the only forum 

for vindicating many important federal claims. Even then, with exceptions, the 

state courts remained the sole forum for the trial of federal cases not involving 

the required jurisdictional amount, and for the most part retained concurrent 

jurisdiction of federal claims properly within the jurisdiction of the lower federal 

courts.

9. This was the view of the Court prior to Martin v. Hunter’s Lessee, 1 

Wheat 304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall 

8, 1 L.Ed.718, (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed.259 

(1812). And the contrary statements in Hunter’s Lessee, supra, at 327–

339, 4 L.Ed. 97, did not survive later cases. See for example, in addition 

to Cary v. Curtis, 3 How 236, 11 L.Ed. 576 (1845), quoted in the text, 

Rhode Island v. Massachusetts, 12 Pet 657, 721–722, 9 L.Ed. 1233 

(1838); Sheldon v. Sill, 8 How 441, 12 L.Ed. 1147 (1850); Case of the 

Sewing Machine Companies, 18 Wall 553, 577–578, 21 L.Ed. 914 (1874); 

Kline v. Burke Construction Co., 260 U.S. 226, 233–234, 67 L.Ed. 226, 

43 S.Ct. 79, 24 ALR 1077 (1922).

While various theories have been advanced to argue for restrictions on Congress’

power over the jurisdiction of the lower federal courts, none of them is supported 

by the Supreme Court. Not only does the greater discretion to create, or not, the 

federal courts themselves include the lesser power to define their jurisdiction, the 

evident intent of the framers was to vest in the Congress the capacity to make the 

prudential judgment as to which courts, state or federal, should decide constitutional cases on the lower and intermediate levels. 

A statute withdrawing a particular class of cases from the lower federal courts 

or forbidding those courts to issue specified types of order, would clearly be within 

the constitutional power of Congress to enact. 

THE POWER OF CONGRESS OVER THE APPELLATE JURISDICTION OF THE SUPREME COURT

The Exceptions Clause of Article III, Section 2, provides that ‘‘the Supreme Court 

shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, 

and under such Regulations as the Congress shall make.’’ This was intended, according to Alexander Hamilton, to give ‘‘the national legislature . . . ample authority to make such exceptions, and to prescribe such regulations as will be calculated 

to obviate or remove’’ the ‘‘inconveniences’’ which might arise from the powers given 

in the Constitution to the federal judiciary. 5 There was evidently concern in the 

Constitutional Convention and in some of the ratifying conventions that the Supreme Court would exercise appellate power to reverse jury verdicts on issues of 

fact. Nevertheless, the language of Article III, Section 2, explicitly give the Supreme 

Court ‘‘appellate Jurisdiction, both as to Law and Fact.’’ And it is evident that the 

power of Congress to make exceptions to that appellate jurisdiction extends to the 

Court’s power to review questions of law as well as questions of fact. As Hamilton 

observed in The Federalist, no. 81, ‘‘the Supreme Court will possess an appellate 

jurisdiction both as to law and fact, in all cases referred to [the subordinate tribunals], both subject to any exceptions and regulations which may be thought advisable.’’ 6

This power of Congress was so broadly interpreted that a specific authorization 

by Congress of appellate jurisdiction was construed by the Supreme Court to imply 

that such jurisdiction was excluded in all other cases. This ‘‘negative pregnant’’ doctrine was enunciated by Chief Justice John Marshall in U.S. v. More, in which the 

Court held that it had no criminal appellate jurisdiction because none had been expressly stated by Congress. Marshall, speaking for the Court, said:

91

7 7 U.S. (3 Cranch) 159, 172 (1805).

8 U.S. v. Sanges, 144 U.S. 310, 319 (1892); see also U.S. v. Cross, 145 U.S. 571 (1892); Ex 

parte Bigelow, 113 U.S. 328, 329 (1885). 9 10 U.S. (6 Cranch) 307, 314 (1810). 

10 46 U.S. (5 How.) 103, 119 (1847). 11 Ex parte McCurdle, 74 U.S. (7 Wall.) 506, 513–14 (1868). 12 75 U.S. (8 Wall.) 85 (1868). 13 80 U.S. (13 Wall.) 128, 145–46 (1872).

. . . an affirmative description of its powers must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those 

described. 7

It is interesting to note that no criminal cases were appealable to the Supreme 

Court until 1891, simply because until then Congress had not specified that they 

could be so appealed. The only way a criminal case could be brought to the Supreme 

Court was ‘‘by certificate of division of opinion’’ in the Circuit Court ‘‘upon specific 

questions of law.’’ 8

In 1810, in Durousseau v. U.S., 9 Chief Justice Marshall emphasized that the 

Court is bound even by implied exceptions to its appellate jurisdiction, so that, in 

effect, it can exercise it only where expressly granted by Congress.’’ The ‘‘first legislature of the union,’’ he said, ‘‘have not declared, that the appellate power of the 

court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative 

in the exercise of such appellate power as is not comprehended within it.’’ When 

Chief Justice Taney spoke to the issue in Barry v. Mercein, he said, ‘‘By the constitution of the United States, the Supreme Court possesses no appellate power in 

any case, unless conferred upon it by act of Congress; nor can it, when conferred 

be exercised in any other form, or by any other mode of proceeding than that which 

the law prescribes.’’ 10

Prior to 1868, the Supreme Court never had to decide the validity of an act of 

Congress making a specific exception to its appellate jurisdiction. But when William 

H. McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities on account of statements he had made, he sought a writ of habeas corpus

from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under a 

statute specifically permitting such appeals. After the Supreme Court heard arguments on the case and while the Court was deliberating, Congress enacted a statute 

repealing that part of the prior statute which had given the Supreme Court jurisdiction to hear such appeals from the circuit court. The Court, in confronting for the 

first time the issue of the positive congressional exception to the appellate jurisdiction, dismissed the petition for what of jurisdiction, even though the case had already been argued and was before the Court. ‘‘We are not at liberty to inquire into 

the motives of the legislature,’’ said the Court. ‘‘We can only examine into its power 

under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words . . . without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when 

it ceases to exist, the only function remaining to the court is that of announcing the 

fact and dismissing the case. And this is not less clear upon authority than upon 

principle.’’ 11

It is true that the statute upheld in McCardle did not bar the Supreme Court 

from reviewing all habeas corpus cases. Rather, it only barred review sought under 

the 1867 statute which had provided an avenue of review of such cases from the 

circuit court. The Supreme Court retained the habeas corpus review power which 

had been given it by the Judiciary Act of 1789 and which Congress had chosen not 

to withdraw. Later in 1868, the Court applied this distinction in Ex parte Yerger, 12

where the Court held that the 1868 statute left untouched the Supreme Court’s 

power to issue its own writ of habeas corpus to a lower court as provided in the 

Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication 

whatever that the Court would not have upheld an act withdrawing appellate jurisdiction in all habeas corpus cases from the Court. 

Four years later, in U.S. v. Klein, 13 the Court had occasion to spell out one important limitation of the Exceptions Clause. Klein is the only Supreme Court decision 

ever to strike down a statute enacted under the Exceptions Clause. The claimant 

in Klein, who had been a Confederate, sued in the Court of Claims to recover the 

proceeds from the sale of his property seized and sold by the Union forces. He had 

received a full presidential pardon for his Confederate activities, and the Court of 

Claims ruled in his favor for that reason. If he had not received a pardon, the governing statute would have prevented his recovery. While the appeal of his case was 

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14 Emphasis added. 15 105 U.S. 381, 386 (1881). 16 105 U.S. at 385 (emphasis added). 17 337 U.S. 582, 655 (1949). 18See also the opinion of Justice Harlan in Glidden v. Zdanok, 370 U.S. 567–68 (1962); and 

see the concurring opinion of Justice Douglas in Flast v. Cohen, 392 U.S. 83, 109 (1968), stating 

that ‘‘As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires 

by reason of the express provisions of Section 2, Art. III. See Ex parte McCardle, 7 Wall. 506.’’

pending before the Supreme Court, a state was enacted which provided that, whenever it appears that a judgment of the Court of Claims has been founded on such 

presidential pardons, without other proof of loyalty, the Supreme Court shall have 

no further jurisdiction of the case. The statute further declared that every pardon 

granted to a suitor in the Court of Claims which recited that he has been guilty 

of any act of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or 

disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court expressly reiterated that Congress does have the power 

to deny appellate jurisdiction ‘‘in a particular class of cases’’: 

Undoubtedly the legislature has complete control over the organization and existence of that court and may confer or withhold the right to appeal from its 

decisions. And if this act did nothing more, it would be our duty to give it effect. 

If it simply denied the right of appeal in a particular class of cases, there could 

be no doubt that it must be regarded as an exercise of the power of Congress 

to make ‘‘such exceptions from the appellate jurisdiction’’ as should seem to it 

expedient. 14

The statute in Klein attempted to dictate to the Court how and by what processes 

it should decide the outcome of a particular class of cases under the guise of limiting 

it jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment 

was founded on a particular type of evidence, that is, a pardon. And the statute further prescribed that the effect of the pardon would be such that the recitals in the 

pardon of acts of rebellion and disloyalty would be conclusive proof of those acts. 

‘‘What is this,’’ said the Court, ‘‘but to prescribe a rule for the decision of a cause 

in a particular way?’’ It is difficult to imagine a more flagrant intrusion upon the 

judicial process than this effort to dictate the rules to be used in deciding cases. 

Moreover, the statute in Klein intruded upon the President’s pardoning power by 

attempting ‘‘to deny to pardons granted by the President the effect which this court 

had adjudged them to have.’’ In these major respects the statute involved in Klein

was wholly different from a statute simply withdrawing appellate jurisdiction over 

a certain class of cases. 

Since the Klein case, the Supreme Court has not had occasion to define further 

any limits to the Exceptions Clause. In The ‘‘Francis Wright,’’ 15 the Court said that 

what the ‘‘appellate powers’’ of the Supreme Court ‘‘shall be, and to what extent 

they shall be exercised, are, and always have been, proper subjects of legislative 

control. Authority to limit the jurisdiction necessarily carries with it authority to 

limit the use of the jurisdiction. Not only may whole classes of cases be kept out 

of the jurisdiction altogether, but particular classes of questions may be subjected 

to re-examination and review, while others are not.’’ Chief Justice Waite, in his 

opinion for the Court in The ‘‘Francis Wright’’ referred to ‘‘the rule, which has always been acted on since, that while the appellate power of this court under the 

Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees 

fit to prescribe.’’ 16 Several statements of individual justices in the intervening years 

reinforce this conclusion. Thus Justice Frankfurter, in his dissenting opinion in National Insurance Co. v. Tidewater Co. 17 Noted that ‘‘Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; Congress need not give this Court any appellate power; 

it may withdraw appellate jurisdiction once conferred and it may do so even while 

a case is sub judice. Ex parte McCardle, 7 Wall. 506.’’ 18

In summary, the holdings of the Supreme Court and the statements of various 

individual justices compel the conclusion that Congress clearly has power under the 

Exceptions Clause to withdraw appellate jurisdiction from the Supreme Court in 

particular classes of cases. Indeed, this power is so strong that an exception will be 

implied in cases where Congress has not specifically ‘‘granted’’ appellate jurisdiction 

to the Court. 

It will be useful here to mention some arguments that have been advanced 

against the use of the exception power by Congress. It has been urged, as Professor 

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19 Henry Hart, ‘‘The Power of Congress to Limit the Jurisdiction of the Federal Courts: An 

Exercise in Dialectic,’’ 66 Harv. L. Rev. 1362, 1365 (1953). 

Henry Hart put it, that the exceptions ‘‘must not be such as to destroy the essential 

role of the Supreme Court in the constitutional plan.’’ 19 In addition to the difficulty 

of determining what is the Supreme Court’s ‘‘essential role,’’ that test would make 

the Court itself the final arbiter as to the extent of its powers. Despite the clear 

grant of power to Congress in the Exceptions Clause, no statute could deprive the 

Court if its ‘‘essential role;’’ but that role would be whatever the court said it was. 

It is hardly in keeping with the spirit of checks and balances to read such a virtually unlimited power into the Constitution. If the Framers intended so to permit 

the Supreme Court to define its own jurisdiction even against the will of Congress, 

it is fair to say that they would have made that intention explicit. 

Furthermore, the ‘‘essential role’’ test was advanced by Professor Hart in response 

to the suggestion that Congress could satisfy the Exceptions Clause by removing all 

but a ‘‘residuum of jurisdiction,’’ for example, by withdrawing appellate jurisdiction 

in ‘‘everything but patent cases.’’ Whatever the cogency of Professor Hart’s ‘‘essen- tial role’’ test would be to a wholesale withdrawal of jurisdiction, if it were ever attempted by Congress, his test cannot properly be applied to narrowly drawn withdrawals of jurisdiction over particular types of cases. It could hardly be argued that 

the ‘‘essential role’’ of the Supreme Court depends on its exercising appellate jurisdiction in every type of case involving constitutional rights. Such a contention would 

be contrary to the clear language of the Exceptions Clause and to the consistent indications given by the Supreme Court itself. 

A related but more substantial argument against the exercise of Congress’ Exceptions Clause power is that Supreme Court review of cases involving important constitutional rights is necessary to ensure uniformity of interpretation and the supremacy of federal statutes over state laws. 

The argument that fundamental rights should not be allowed to vary from state 

to state begs the question of whether there is a fundamental right to uniformity of 

interpretation by the Supreme Court on every issue involving fundamental rights. 

The argument overlooks the fact that the Exceptions Clause is itself part of the Constitution. As Alexander Hamilton wrote in No. 80 of the Federalist, the Exceptions 

Clause is a salutary means ‘‘to obviate and remove’’ the ‘‘inconveniences’’ resulting 

from the exercise of the federal judicial power. Judging from what the Supreme 

Court has said about it over the years, it is not only an important element of the 

system of checks and balances, but one which grants a wide discretion to Congress 

in its exercise. There is, in short, a fundamental right to have the system of checks 

and balances maintained in working order. Without that system, the more dramatic 

personal rights, such as speech, privacy, free exercise of religion, would quickly be 

reduced to nullities. This right to preservation of the system of checks and balances 

is itself one of our most important constitutional rights. 

If it be contended that the Exceptions Clause cannot be used to deprive the Supreme Court of appellate jurisdiction in cases involving fundamental constitutional 

rights, it must be replied that such a limitation can be found neither in the language of the clause nor in its explications by the Supreme Court. Indeed, the Supreme Court’s conclusion, prior to 1891, that there was no general right of appeal 

to that Court in criminal cases surely involved the denial of the right to appeal in 

cases involving constitutional rights. For what constitutional right is more fundamental than the Fifth Amendment right not to be deprived of life or liberty without 

due process of law? 

A withdrawal of Supreme Court appellate jurisdiction and lower federal court jurisdiction over a subject such as same-sex marriage, school prayer or whatever, 

would not reverse any rulings the Supreme Court had already made on the subject. 

Some state courts might apply previous Supreme Court decisions but others might 

not. The constitutional commitment of complete discretion to Congress as to whether even to create lower federal courts, the resulting discretion of Congress to limit 

that jurisdiction, and the explicitly conferred control of Congress over the appellate 

jurisdiction, all combine to compel the conclusion that there is no constitutional 

right to uniformity of interpretation among the states as to constitutional rights. 

There would therefore be no constitutional obstacle to the effect of H.R. 3313 in permitting each state to make its own decision on the definition and legal incidents of 

marriage. 

In his First Inaugural Address, President Abraham Lincoln warned that ‘‘the candid citizen must confess that if the policy of the Government upon vital questions 

affecting the whole people is to be irrevocably fixed by decisions of the Supreme 

Court, the instant they are made, in ordinary litigation between parties in personal 

actions the people will have ceased to be their own rulers, having to that extent 

94

practically resigned the government into the hands of that eminent tribunal.’’ Supreme Court decisions in several areas are distortions of the constitutional intent 

in matters of substantial importance. It is within the power—and it is the duty—

of Congress, to remedy this wrong. The withdrawal of jurisdiction would be a measured and appropriate response. It would be preferable to a constitutional amendment in that it would have no permanent impact on the Constitution. If experience 

showed it to be unwise, it could be readily repealed by a statute. But it would restore the balance of governmental powers and help to undo some of the unfortunate 

consequences of judicial excess.

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PREPARED STATEMENT OF THE HONORABLE SPENCER BACHUS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ALABAMA

Thank you Chairman Cabot for holding this very important hearing today on 

‘‘Limiting Federal Court Jurisdiction to Protect Marriage for the States.’’ I would 

also like to thank the witnesses for giving their time to be here today. You should 

know that this is an issue that is personally important to me, as well as many of 

my constituents. 

The circumstances that we find ourselves in are occasioned by an increasingly intrusive and tyrannical judiciary, who through recent court decisions are redefining 

for all Americans the institution of marriage. These decisions demonstrate a judiciary out of touch with the intent of the Framers as well as the moral norms of society. 

I believe that marriage is a sacred commitment between a man and a woman and 

that it is this commitment that is the foundation of all families. Children deserve 

to be raised and nurtured by parents who are spiritually devoted to one another. 

Recognizing that past government studies indicate that giving same-sex couples the 

same benefits as married heterosexual couples could cost the federal Treasury billions of dollars, it is important that we remember that the consequences of legally 

recognizing same-sex marriage extend beyond healthcare, insurance, pensions, and 

taxes. These consequences include: discouraging the rearing of children in two-parent biological families, the creation of fatherless or motherless families by design 

and the further erosion of an institution that has proved to be a crucial social stabilizer. The fact that these consequences may fall upon some of the most vulnerable 

members of society—our children—makes it incumbent upon us to act to preserve 

the institution of marriage which is dedicated to protecting them. 

Congress, as an elected body of the people, has a duty to defend marriage against 

assaults by the judiciary. I will continue to work with my colleagues to prevent activist judges from standing our Constitution on its head. 

PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IOWA

Thank you, Mr. Chairman, for holding this hearing today. It has become increasingly clear in recent times that our federal judiciary no longer sees a line between 

itself and the legislature. From the Supreme Court’s decision in Lawrence v. Texas

to the Partial Birth Abortion Ban decision in San Francisco, the courts are proving 

to us that they are sitting as super-legislatures, and challenging us to do something 

about it. 

Our Founders created a system of checks and balances, in which each branch 

would keep the others in line and, in turn, be kept in line by the others. Thomas 

Jefferson discussed these checks and balances as they relate to the judiciary. In essence, he stated that, if the judiciary is always given the final say on constitutional 

issues, there is no one to check that power. This is why it is so important for the 

535 Members of Congress, elected by the people, to reassert our power and perform 

our constitutional duties. 

Whenever jurisdiction limitation is discussed, the argument that the judiciary is 

the final arbiter of the Constitution is sure to arise. It is time for this Congress to 

ask who gave the courts this right? The answer is the Supreme Court itself, in 

Marbury v. Madison. Over the last 200 years, however, the judiciary has continued 

to seize legislative powers, and the legislature has done little to stop that confiscation. I think the words of Thomas Jefferson sum this up best: ‘‘Our judges are as 

honest as other men and not more so. . . . [T]heir power [is] the more dangerous 

as they are in office for life and not responsible, as the other functionaries are, to 

the elective control.’’ In other words, there is no reason to believe that the judiciary 

can be trusted more to ensure that our laws reflect our Constitution than the legislature. It is very likely that the status of the federal judiciary as unelected officials 

might allow judges to interject more of their personal beliefs into their decisions. 

The role of the Supreme Court is to determine whether laws are consistent with 

the Constitution of the United States. Legislators and the people who elect them 

get to decide if laws are unwise or unpopular, not judges and justices. It is our duty, 

on behalf of the American people, to rein in the federal judiciary and prevent them 

from usurping the role of elected legislatures. Thank you, Mr. Chairman.

137

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

I should thank my Republican colleagues for one thing; for the first time, I truly 

understand the phrase ‘‘beating a dead horse.’’ This is the fourth of five hearings 

on whether we should pass an amendment enshrining discrimination into the Constitution. All we have heard in this tedium is that right-wing conservatives really, 

really want a discriminatory amendment in the Constitution. 

The fact is, though, that such an amendment does not have the two-thirds support 

it needs to pass in Congress. That begs the question of why we are even discussing 

it. To most Americans, the answer is clear: the Republican leadership wants to score 

political points with its right-wing base in an election year. 

The point of this particular hearing is for Republicans to reiterate their opinion 

that federal judges do not share the values of mainstream Americans and thus 

should not hear cases involving same sex marriage. I think the word ‘‘reiterate’’ is 

important because whenever a federal court issues a ruling that conflicts with their 

conservative leanings, the Republicans try to strip federal courts from hearing similar cases. They did not like the Ten Commandments or Pledge of Allegiance decisions, so they introduced numerous bills to prevent federal courts from hearing 

cases on those two declarations. They also severely limited the ability of federal 

courts to issue writs of habeas corpus for state convictions. 

What is confusing is that Republicans strongly favor federal court jurisdiction in 

other instances. Last year, they made it a federal offense for a doctor to comply with 

a woman’s right to choose. In the 1980’s, the Republicans clogged up federal courts 

with new drug prosecutions that were normally handled at the state level. For at 

least a decade, they have been trying to move all tort cases from state to federal 

courts. 

Finally, but for the highest federal court in the land overruling a state court and 

the will of the people, George W. Bush would not be the current occupant of the 

White House. I do not hear my conservative colleagues complaining about that instance of federal court overreaching. 

My careful analysis of this matter shows that Republicans favor federal court jurisdiction when state courts and juries issue rulings that conservatives do not like. 

These areas generally include crime, torts, and presidential elections in which the 

Democratic candidate has won.

138

THREE LETTERS SUBMITTED BY THE THE HONORABLE JOHN N. HOSTETTLER, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA


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LETTER FROM WITNESS PROFESSOR MICHAEL GERHARDT TO THE HONORABLE TOM

FEENEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA


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CBO REPORT SUBMITTED BY THE HONORABLE TAMMY BALDWIN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WISCONSIN


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Æ


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