Limiting Federal Court Jurisdiction To Protect Marriage For The States

Testimony Of Martin H. Redish, Louis And Harriet Ancel Professor Of Law And Public Policy, Northwestern Law School

Professor Redish is a nationally renowned authority on the subject of Federal jurisdiction. He received his A.B. With honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, ''without a doubt the foremost scholar on issues of Federal court jurisdiction in this generation,'' unquote.

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.

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 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 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' assumption appears to have been that were Congress to have chosen not to create the lower federal courts, the state courts-who are explicitly bound to enforce federal law under the Constitution's Supremacy Clause, Article VI, cl. 2-would be available to serve as the trial forums for the adjudication of claims arising under federal law. See generally Martin H. Redish, 15 Moore's Federal Practice sec. 100.20 (3d ed. 1997). The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to ''abolish'' them as to only certain cases by limiting their jurisdiction.

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.

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 Two-Tiered 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 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 under Article III, Congress quite clearly may not revoke or confine federal jurisdiction in a discriminatory manner. For example, Congress could not successfully argue that its greater constitutional power to exclude federal judicial power completely logically subsumes the lesser power of excluding federal judicial power, for example, in cases brought by African Americans, Jews, or Women.

POLITICAL PROCESS CONSIDERATIONS

It is clear to me that Article III of the Constitution vests broad power in Congress to exclude the jurisdiction of both the Supreme Court and the lower federal courts. While externally derived constitutional doctrines impose distinct limits on that power, I can see absolutely no textual or structural basis for denying Congress power completely to exclude substantive categories of cases from the jurisdiction of the federal courts. This is true, even in cases in which constitutional rights are at stake, as long as an alternative adequate judicial forum has been made available.

It does not follow, however, that Congress should choose to exercise this power. To the contrary, I firmly believe that Congress should choose to exercise this power virtually never. There has long existed a delicate balance between the authority of the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, therefore, that whatever the scope of its constitutional power, Congress should be extremely reluctant to exercise that power.

H.R. 3313passed 233 - 194 7/22/2004 3:50pm: (Roll no. 410). Most everyone heard about the FMA while H.R. 3313 was and continues to be virtually ignored.

Article III, Section 2 - The Washington Times: Editorials/OP-ED 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.

The US Constitution v. rebellious federal judges and cowardly republicans ... As you can see, jurisdiction stripping is far more common and easier to accomplish than amendment or impeachment; and far more effective than hoping for a favorable decree from trained monkey, or his more liberal colleague - a federal judge.

The commentary for Article 3, Section 2, Clause 2 is found in Federalist No. 81

The Federalist #48: "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."

Professor Redish stated: "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."

It must be emphasized that Professor Redish "firmly believe[s] that Congress should choose to exercise this power virtually never."

Here you have "the foremost scholar on issues of Federal court jurisdiction in this generation,'' putting Constitutional Principal before strongly held personal preference. America needs more like him…in government…especially in the judicial branch which has a severe shortage of those whose force of character mandates principal before preference.

FreeRepublic's own CobaltBlue, a lady lawyer, posesses this same force of character:

CobaltBlue on Jurisdiction Stripping. (domestic cases)

The principled solution is to remove domestic relations from the Supreme Court's jurisdiction.

The SCOTUS has no business ruling on matters of contraception (Griswold v. Connecticut), abortion, homosexuality, or any other sexual matter.

Madison and Hamilton have been rolling in their graves for generations. Let them rest.

178 posted on 10/26/2004 8:12:40 PM PDT by CobaltBlue

Redish frequently uses textual arguments to refute the fairy tales spun by those seeking to 'interpret' the Constition, to mean ANYTHING BUT what the text plainly states! 'Anything but' scholars are a dime a dozen! They are either lacking in their profession or character and they have infiltrated the federal courts en mass, and the state Supreme Court in Massachusetts. ^{Article 8 Alliance}

Professor Amar advocates simply by the cryptic and selective use of the word, ''all.''

Well it all depends on what the meaning of 'all' is. These, 'anything BUT', contortionists are either forerunners or consumate imitators of Slick Willie's: "It depends on what the meaning of 'is' is."

"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.

Notice the number of times Redish references "the state courts," which is most consistent with the goals of Free Republic:

is dedicated to reversing the trend of unconstitutional government expansion and is advocating a complete restoration of our constitutional republic. Listed below are some of the issues we feel strongly about.

Basically, we believe that the Founders designed our system of government in the form of a constitutionally limited republic, with maximum freedom intended for the people and minimum government control or interference into our personal lives and business affairs.

The united states of America was intended to be a federation of sovereign states, each with its own constitution and state government. Governments at all levels -- federal, state and local -- were to be controlled by the people. Our Constitution explicitly restricts the power of our federal government; and our Bill of Rights guarantees that NO government may infringe upon our God given unalienable rights. This is to ensure that the real power remains close to home, with the states, the local governments and always in the hands of the people.

We the People have granted our federal government limited powers to oversee certain things, such as national defense, interstate commerce, the postal service, the coining of money, and the operation of a court system. Most other powers now in the hands of the federal government were illegally usurped from the states and from the people.

Somehow, over the years, our guiding principles of law, as set forth in the Constitution, have been eroded to the point that the federal government now has total control -- leaving the states impotent and the people as captive servants to the federal government. This must be reversed if we are to survive as a free Republic and a free people.

We at Free Republic are determined to return the Constitution to its rightful place as the Supreme Law of the land as the Founders intended.

It is not necessary for everyone to hold the same views to be members of Free Republic, however, many of us do share many of the following as common beliefs and goals:

The preservation and complete restoration of our Constitution and Bill of Rights with special emphasis on the first, second, fourth, fifth, sixth, ninth and tenth amendments and, of course, our right to life, liberty and pursuit of happiness -- free of government intervention.

The Implications for Pro-Life

In FT January 2003: Constitutional Persons, Robert H. Bork made the following comments about Roe v. Wade:

"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."

The federal courts, using an injudicious doctrine known as the 'Incorporation of the 14^th Amendment' (Gitlow v. New York (1925) [19] ) , have hyperinflated their jurisdiction beyond the confines of the U.S. Constitution to grotesque proportions. Rather than admit they have no jurisdiction, as Marshall did in Amendment V: Barron v. Baltimore and declare what the Constitution states with regard to a particular case over which they have jurisdicion - federal judges fabricate their own private interpretation from the hubris opined in novel dicta and deviant precedent, from which even greater deviation is justified in subsequent decisions.

For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) and Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997) The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970

STENBERG V. CARHART The method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

Impeach Judge Hamilton - The Washington Times: Editorials/OP-ED ... On Tuesday, U.S. District Judge Phyllis Hamilton of California declared unconstitutional the Partial-Birth Abortion Ban Act passed overwhelmingly by Congress and signed scant months ago by the president, while being supported by 75 percent of the public. Each member of the House should draw up articles of impeachment against Judge Hamilton or co-sponsor such a resolution. Those who do not should be prepared to explain why they are willing to let such an outrage against decency and the rule of law go unchallenged.

Life-Protecting Judicial Limitation Act of 2003 To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases.

Congress should excerise their Constitutional power to remove federal judicial jurisdiction on numerous other issues and leave those issues with the STATES!

AEI - Publications Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility. Federalist Outlook, The Term the Constitution Died, Michael S. Greve,Friday, July 25, 2003

The Case for Impeaching Rogue JudgesThe American people are asking themselves, why bother voting when the judiciary can knock down laws like so many bowling pins?

Judicial Dictatorship Everyone talks about the Supreme Court, but no one ever does anything about it.

It was judges, not legislators, who ruled that African slaves were not citizens protected by the U.S. Constitution but were the property of their slave masters. Dred Scott v. Sandford, 60 U.S. 393 (1856). ^{Lincoln on Judicial Supremacy}
It was judges, not legislators, who by an act of "raw judicial power" struck down the abortion laws of the states and created a constitutional "right" to abortion. Roe v. Wade, 410 U.S. 113 (1973). ^{When Do Human Beings Begin?}^,^{Personhood Begins At Conception}^{When Does a Human Become a Person?} ^{THE HUMAN LIFE REVIEW}^{Where to Go from Here}
It was judges, not legislators, who ruled that a school district policy permitting student-led, student-initiated prayer before school football games violates the Constitution. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). ^{Religion and the Founding of the American Republic (Library of Congress Exhibition)}^,^{Primary Source Documents} ^& ^{No Liberty for License: The Forgotten Logic of the First Amendment}
It was judges, not legislators, who ruled that burning the American flag is "expressive conduct" protected by the First Amendment. Texas v. Johnson, 491 U.S. 397 (1989). ^{Death in the Ia Drang Valley}^,^{Iwo Jima}^,^{US Flag Etiquette}^,^{Philadelphia Online | Blackhawk Down} ^{The Star-Spangled Banner at American History Museum}
It was judges, not legislators, who ordered a state to provide same-sex couples with all the benefits and protections afforded to married couples. Baker v. Vermont, 744 A.2d 864 (Vt. 1999). ^{Is Same-Sex Marriage Good for the Nation?}^,^{Judaism's Sexual Revolution: Why Judaism (and then Christianity) Rejected Homosexuality}
It was judges, not legislators, who ruled that the First Amendment protects "virtual" child pornography. Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002). ^{Amendment I (Speech and Press)}
It was judges, not legislators, who ruled that minor girls may obtain an abortion without parental consent. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). ^{The Moral Question of Abortion}^, ^{FT January 2003: Constitutional Persons}
It was judges, not legislators, who ruled that a state law requiring the posting of the Ten Commandments in public school classrooms is unconstitutional. Stone v. Graham, 449 U.S. 39 (1980^).^{God in the Temples of Government - Photo Essay}^& ^{Original Intent: The Courts, the Constitution, and Religion}
It was judges, not legislators, who ruled that sodomy is a constitutional right. Lawrence v. Texas, 123 S. Ct. 2472 (2003). ^{LAWRENCE et al. v. TEXAS - Scalia}^{BURGER, C.J., Concurring Opinion}^,^{Taking the Constitution Away from the Courts}^&^{Family Research Institute}^&^{CCCU : Resource Center | Article: An Evangelical Looks at ...}^&^{i IN THE Supreme Court of the United States _______ No. 02-102 ...}
It was judges, not legislators, who ruled that a university may use race as a factor in selecting students for admission. Grutter v. Bollinger, 123 S. Ct. 2325 (2003). ^{Vindicating the Founders} ^{GRUTTER V. BOLLINGER} ^{Issues & Views: On the frontline of dissent since 1985}

There is nothing in the Constitution about the Supreme Court being the supreme Law of the Land, or about anyone taking an oath to support their opinions. There is nothing in the US Constitution - Article V that allows the Supreme Court to amend ^{Evolution and the Law:} the document.

"[t]he government of the United States has been emphatically termed a government of laws and not of men." Chief Justice John Marshall - Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

"I've been predicting this for 20 years - that ultimately this theory of the living Constitution will destroy us, it will destroy the federal courts," Scalia said. ^{WorldNetDaily: Scalia: Supreme Court jester}

The Constitution is a written compact/contract between the most blessed people in history and what has become the most powerful government that ever existed. It is the oldest complete written national Constitution in the history of the world. Power was to check power, ambition against ambition, power was to be dispersed and diffused via a compound republic, and not concentrated in the hands of a judicial oligarchy.

Keep these 4 items foremost in your mind:

The Avalon Project : Federalist No 78 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.
The Avalon Project : Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

You may need to be a constitutional scholar, to fathom the penumbras, emanations, arbitrary tests, and twisted paper trails of deceit, decision and dissent - but when it comes time to vote, know your constitution and know if the one you are voting for, knows it as well and will comply with the oath of office, and not the democidal dictates of a demented federal court. The U.S. Constitution is full of principal and void of pork. You, the voter, not some pork lobby, will be the only constituency it has.

You will either control the federal judiciary via Congress & the President, or the judicial tyrants will increasingly control you & yours.

The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution

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

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 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, 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.

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. HOSTETTLER.

I thank the Chairman.

Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, ''constitutional,'' end quote.

But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, ''the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,'' end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866.

While we will hear today what is considered to be, quote, ''constitutional,'' end quote, according to the desires of the Federal judiciary, this is not the House Subcommittee on Constitutional Law. This is the House Subcommittee on the Constitution. Today we will hear a wide range of means by which we can deal with the situation of a judiciary that has time and time again worked outside of its boundaries, and that response can be everything from doing nothing to an amendment to the Constitution. And that amendment to the Constitution can be, in the most extreme case, repeal of article III of the Constitution itself.

Now, I am not suggesting that we go that far, but rather, we are to know that the Constitution grants Congress the authority, a wide range of authority, from impeachment of justices and judges to the limitation of funds for the enforcement of their decisions, to the limitation of jurisdiction, as well as constitutional amendments.

My bill, H.R. 3313, employs one of those checks on the judiciary, a constitutional check, a constitutional check that is found explicitly, not implicitly, but explicitly, in the Constitution itself, in article III, section 2 of the Constitution; for example, where it says, ''in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make,'' end quote.

The word ''all'' is very clear even to this nonlawyer, that, in fact, the Supreme Court's appellate jurisdiction can be limited in all other cases before mentioned, and those cases are mentioned in article III, section 2, subsection 1. Congress has the authority to limit the jurisdiction of the-the appellate jurisdiction of the United States Supreme Court in all the other cases that have been mentioned in article III, section 2, and because the lower courts are creations of the Congress, as a result of article I, section 8, and article III, section 1, it is obvious that Congress has the authority; if we have the authority to create these inferior Federal courts by statute, then we have also the constitutional authority by our lawmaking powers to eliminate these inferior Federal courts.

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.

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.

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 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.

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