5 1 (b) The section analysis at the beginning of chapter 81 2 of such title 28 is amended by adding at the end thereof the 3 following new item: 4 "1259. Appellate jurisdiction; limitations.". SEC. 12. (a) Chapter 85 of title 28, United States Code, 5 is amended by adding at the end thereof the following new 6 section: 7 "81364. Limitations on jurisdiction 8 "Notwithstanding any other provision of law, the dis 9 trict courts shall not have jurisdiction of any case or question 10 which the Supreme Court does not have jurisdiction to 11 review under section 1259 of this title.". 12 (b) The section analysis at the beginning of the chapter 13 85 of such title 28 is amended by adding at the end thereof 14 the following new item: 15 "1364. Limitations on jurisdiction.". SEC. 13. The amendments made by sections 11 and 12 16 of this Act shall take effect on the date of the enactment of 17 this Act, except that such amendments shall not apply with 18 respect to any case which, on such date of enactment, was 19 pending in any court of the United States. Passed the Senate April 9, 1979. Attest: J. S. KIMMITT, Secretary. Mr. RAILSBACK. I see. Thank you, Mr. Chairman. Mr. KASTENMEIER. I yield to the gentleman from Illinois, Mr. McClory. Mr. McCLORY. Thank you, Mr. Chairman. I appreciate the opportunity to participate in these hearings of the Subcommittee on Courts and I commend you, Mr. Chairman, on scheduling this hearing today. I am aware that the subcommittee scheduling is very busy and that it is not without some effort that these hearings are being worked into the schedule. The subcommittee will, no doubt, review this matter very carefully and make recommendations to the full committee. I favor voluntary prayer inside public schools. I favor voluntary prayer inside public buildings. I favor voluntary prayers be they denominational or nondenominational. The Supreme Court, contrary to what some would like you to believe, did not outlaw voluntary prayer in public schools. Individuals, if they wish, may now engage, singly or in groups, in prayer in public schools or other public buildings without violating the Constitution, subject only to a few limitations. The religious exercise, obviously, must not interfere with schools' secular activities. The activity must not be sponsored by the governing body and the activity must be truly voluntary. In 1962, the Supreme Court in Engel v. Vitale (370 U.S. 421) held that the establishment clause of the first amendment forbids a State "to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on a program of governmentally sponsored religious activity" in its public school system. The prayer at issue was composed by the New York State Board of Regents, and upon its recommendation, a local school board had directed that the prayer be recited aloud at the opening of every school day. One of the key questions this subcommittee is going to have to probe is what is, in fact, meant by "voluntary"? The questions that this subcommittee will have to try and answer are: Who should conduct the prayer exercise? A student? A teacher? A minister? What should be the age of the participants? Should such a prayer be conducted in a classroom? Should it be conducted during the regular class hours or otherwise? Should the "volunteers" be told that they could assemble or should they be told that they can leave? Should someone be there to observe whether the school authorities or the teachers express approval or disapproval of those participating in the prayer? Should the prayer exercises be offered as a part of the school routine or should it be left to student initiative during free time such as study period or recess? In Engel v. Vitale, the school board prescribed the text of a prayer to be recited in class. Under the Helms amendment, should school boards begin to prescribe prayers? And if so, would not it be a reversal of the Supreme Court decision in Engel v. Vitale, which is constitutionally based? Would the Supreme Court have jurisdiction, under the Helms amendment, to decide whether such prescribed prayers are in fact voluntary? Who is to prescribe these so-called voluntary prayers? Or are they to be prescribed? Can Government prescribe these voluntary prayers? The Helms amendment would clearly exclude the Supreme Court from making judgments in cases involving voluntary school prayer. Are we going to run into a situation in which 50 States could have 50 different interpretations of what the law of the land is? Whether Congress may wholly divest the Supreme Court of appellate jurisdiction over a constitutional claim is a very difficult question. I do not believe the Supreme Court itself has ever been faced with that question squarely. In the United States v. Klein, 13 (80 U.S.) 128 (1872) the Supreme Court held that Congress may not enact legislation to eliminate an area of jurisdiction in order to control the results in a particular case, and to manipulate jurisdiction to accomplish a result it could not reach by direct means. This is another question which the subcommittee is going to have to answer in the first instance. Is the Helms amendment attempting to achieve a result by statute that it could not receive short of amending the Constitution? Prayer in the public schools is said to be the desire of an overwhelming majority of the American people. I do not question that statistic. But we are not talking here about the rights of majorities. Rather we are talking about the rights of one person. That is what the first amendment is all about. That is what the Bill of Rights is all about. To protect an individual against the coercive power of Government, to protect the unpopular minority from the will of the majority. Mr. Chairman, I feel that the measure we have before us, insofar as curtailing jurisdiction or reducing the amendment, number of cases that the Supreme Court should be required to take, is an extremely important measure for this subcommittee to report on favorably. The question of the Helms amendment, it seems to me, is better left to another forum in another date and another time. Thank you. Mr. KASTENMEIER. The gentleman from Illinois? Mr. RAILSBACK. Mr. Chairman, I'm not going to try to give any kind of a prepared statement. I do want to express my belief that the Judiciary Committee and this subcommittee is wise in not ducking a very controversial issue. I know that there are other very, very controversial issues that are now pending before the Judiciary Committee and also some of the other subcommittees. I guess my own belief is that such issues as school prayer, right to live, prochoice, the abortion issue, and busing-I think that we perform a public service by meeting those issues head on; by holding hearings and then by an up or down vote. And I congratulate you, Mr. Chairman, for holding hearings on what is obviously a very controversial matter-even among, I might add, religious groups themselves. So I intend to listen carefully to the witness and then to try to make the best judgment I can, knowing full well that we automatically, by our vote, displease maybe half of our constituents. But in any event, we are not shirking our responsibility, we are meeting it. And I think that's exactly the way we should handle it. Mr. KASTENMEIER. Thank you, gentlemen. And now the Chair would like to call the first witness, the Honorable John Harmon, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice. Mr. Harmon represents the views of the Justice Department. Welcome. You may proceed, sir. You have a brief statement. I see no reason why you should not proceed from your statement. TESTIMONY OF JOHN HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE Mr. HARMON. Thank you, Mr. Chairman. Mr. Chairman and members of the subcommittee, I am pleased to appear this morning to discuss the question of Congress article III power to make exceptions to the appellate jurisdiction of the Supreme Court. As you are aware, sections 11-13 of S. 450, the bill which is the subject of these hearings, would divest the Supreme Court of its jurisdiction to review, by appeal, writ of certiorari, or otherwise, cases that raise the constitutionaltiy of State acts relating to voluntary prayer in public schools and buildings. On June 19, 1980, the Department of Justice formally provided to the Committee on the Judiciary our views on the wisdom and constitutionality of sections 11-13, referred to as the "school prayer amendment," in a letter from Assistant Attorney General Parker to Chairman Rodino. Appended to that June 19 letter was a legal opinion issued by the Office of Legal Counsel to Mr. Parker dealing with the constitutional issues raised by sections 11-13. With the subcommittee's approval, I would ask that these two documents be made part of the record of this hearing. Mr. KASTENMEIER. Without objection, those two documents will be received and made part of the record. [The following was supplied for the record:] U. S. Department of Justice Office of the Assistant Attorney General Washington, DC. 20530 JUN 19 1980 Honorable Peter W. Rodino, Jr. Dear Mr. Chairman: You have requested the views of the Department of Justice on S. 450, a bill "To improve the administration of justice by providing greater discretion to the Supreme Court in selecting the cases it will review, and for other purposes. Sections 1 through 10 of the bill would eliminate most of the obligatory appellate jurisdiction of the Supreme Court of the United States, and enjoy our strong support. Sections 11 through 13, however, commonly referred to as the "Helms amendment," are designed to eliminate the jurisdiction of the federal courts over cases relating to voluntary prayer in public schools and public buildings. In our view, enactment of $$11-13 would be extremely ill-advised as a matter of constitutional law and public policy. As the attached opinion from the Office of Legal Counsel makes clear, we believe that the "Helms amendment" is unconstitutional to the extent that it would purport to divest the Supreme Court of its jurisdiction to hear this class of controversies. Aside from the constitutional problems, enactment of the "Helms amendment" would be bad policy for at least three reasons? 1. It is undesirable to deal with highly specialized, 2. The proposal chills the ability of the federal courts |