PRAYER IN PUBLIC SCHOOLS AND BUILDINGS-FEDERAL COURT JURISDICTION WEDNESDAY, JULY 30, 1980 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, Washington, D.C. The subcommittee met at 2 p.m. in room 2141 of the Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Gudger, Harris, Mazzoli, Danielson, Railsback, Moorhead, and McClory. Also present: Representative Glickman. Staff present: Timothy A. Boggs, professional staff member, and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. Come to order. The subcommittee is continuing hearings with respect to S. 450 and other legislation relating to school prayer. I am pleased to greet a number of witnesses today who will speak in behalf of S. 450 or other legislation relating to the subject. First, the Senator from North Carolina, Senator Helms, will not be here this afternoon. He was preempted by deliberations in the full committee in the earlier part of the day relating to the inquiry with respect to Billy Carter. We are now able to convene this subcommittee. We are sorry Senator Helms could not be here. However, the leading Member of the House of Representatives relating to the subject, the person who supported Senator Helms' position nationally, is our distinguished colleague from Illinois, the Honorable Philip Crane. He will lead off the witnesses today. Mr. McCLORY. Will my colleague yield, so I may welcome Mr. Crane here today? He's my colleague from an adjoining district in Illinois and a very articulate spokesman, and I am delighted he's here today- Mr. KASTENMEIER. I thank my colleague from Illinois, Mr. McClory. My colleague from Illinois, Mr. Railsback? Mr. RAILSBACK. I don't want to get carried away, but I want to welcome my colleague from Illinois, too. TESTIMONY OF HON. PHILIP M. CRANE, REPRESENTATIVE IN CONGRESS FROM THE 12TH DISTRICT OF THE STATE OF ILLINOIS, ACCOMPANIED BY WILLIAM J. MURRAY Mr. CRANE. Mr. Chairman, judging from the presence of Illinois on the committee and in the capacity of a witness, we have almost a quorum of Illinoisans. But I deeply appreciate this opportunity to appear before the committee, and I would like to introduce the gentleman sitting at my right, Mr. William J. Murray, the daughter of-excuse me, the son of Madalyn Murray O'Hare. So that after I have presented my testimony, if any member of the committee has questions that they might like to direct at Mr. Murray, I feel confident that he speaks from a particular perspective that the committee can surely appreciate. In addition to my prepared testimony, I would like to make a uniform-consent request that the committee include in their printed record a statement by Mr. Murray, as well as a Backgrounder from the Heritage Foundation and a Republican Study Committee fact sheet. Mr. KASTENMEIER. We will be pleased to receive those materials for the record. In the case of your own statement, did you wish to deliver it in full or submit that, too, for the record. Mr. CRANE. I would like to submit the entire statement, Mr. Chairman, and just abbreviate it in my statement. Mr. KASTENMEIER. Without objection, your entire statement will be received and made part of the record. [The complete prepared statement follows:] TESTIMONY OF CONGRESSMAN PHILIP M. CRANE (R-IL) Mr. Chairman. I would like to thank the committee for inviting me to testify on S.450. As the committee is aware, the Senate passed S.450 on April 9, 1979, by a margin of 61-30. The bill, intoduced by Senator DeConcini (D-NM), was designed to give the Supreme Court more discretion to manage its caseload. On the Senate floor, S.450 was amended to include a provision authored by Senator Jesse Helms (R-NC) removing federal court jurisdiction over state laws dealing with voluntary prayers in public schools and buildings. This Helms provision was originally approved by a 47-37 vote as an amendment to the Department of Education bill. However, the Senate preferred to have the Helms language accompany S.450 which deals with other matters of court jurisdiction. In October of 1979, I began to fear that S.450 would not receive the attention that the Senate anticipated when it was sent to the House. Accoridagly, i filed discharge petition number 7 to ensure that S.450, which had received the approval of two-thirds of the Senators voting on April 9th, was at least considered by the Ilouse of Representatives. "OTHER" PROVISIONS OF S.450 Sections 1 through 10 of S.450 would remove all obligatory appellate jurisdiction and leave such jurisdiction entirely to the discretion of the Supreme Court. In other words, no litigant, not even a State, would have a right to obtain a decision from the nation's highest Court without the Court's permission. These 10 sections of S.450 were approved by the Justice Department in its June 19, 1980, letter to Chairman Rodino setting forth the views of the Department of Justice on S.450. By approving sections 1 through 10, the Justice Department apparently select which cases it will or will not hear, the Justice Department has ARTICLE III, SECTION 2 In removing the federal court jurisdiction over this carefully circumscribed class of cases, Congress would simply be exercising its constitutional province. Article III of the Constitution gives Congress authority over the appellate jurisdiction of federal courts. Section 2 of that article first lists the original jurisdiction of the Supreme Court and then proceeds to say: "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." (Emphasis added.) Congress, therefore, is fully empowered by the Constitution to both "make exceptions" in and "regulate" Supreme Court appellate jurisdiction in "all" cases beyond the Court's original jurisdiction. Carving out a single narrowly defined exception, cases involving voluntary prayer in public buildings, to regulate the Court's appellate jurisdiction could only be construed as unconstitutional by looking somewhere beyond the clear meaning of the language of the Constitution. We need not rely solely on the plain meaning of the language, however, to learn that the Framer of the Constitution intended to give Congress this power to check the Supreme Court. Alexander Hamilton gave a review of federal judicial powers in Number 80 of the Federalist Papers to impress the reasonableness of the system upon those who feared its reach: "From this review of the particular powers of the it ought to be recollected that the national legis- " Acting within the letter and spirit of the Constitution and Hamilton's explanation of the congressional check on the federal judiciary's appellate power, Congress passed the monumental Juciciary Act of 1789. This Act created the lower federal courts and simultaneously created and limited the appellate jurisdiction of all federal courts, including the Supreme Court. Pursuant to the "exceptions and regulations" clause of Article III, Congress specified that the Supreme Court could only accept appeals in civil cases if more than $2,000 was involved. Moreover, Congress denied the Supreme Court any authority to hear appeals in criminal cases an exception to Supreme Court appellate jurisdiction not changed by Congress until 1889. The overall intent of the Judiciary Act of 1789 was that most cases and controversies would be decided in the state courts. The Supreme Court itself has shown a clear understanding of its complete reliance on Congress for appellate jurisdiction. For instance, Chief Justice Oliver Ellsworth, a member of the Constitutional Convention Committee on Detail and later an author of the Judiciary Act of 1789, |