gia legislature tried to keep him out by saying, "Since you took that oath, you really couldn't have meant it since you didn't support Selective Service." And the Supreme Court said the Georgia legislature didn't have that authority. Well, that's by way of saying that the Supreme Court has not ruled on this, and if they ruled it wouldn't be convincing or final-excuse me, it would be final, but it wouldn't necessarily be convincing to me because I also have to interpret the Constitution. That's my whole point.

And the last point is dicta, which is in Marbury v. Madison— with this I'll conclude. Justice Marshall, who, as a contemporary helped in the constitutional debates, interpreted the oath requirement in Marbury-and this is a point seldom picked up but in Marbury 5 U.S. 178, he says, "Why does a judge swear to discharge his duties, agreeably to the Constitution of the United States?

"The particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void and that courts, as well as other departments, are bound by that instrument."-end quote. The very text of Marbury v. Madison establishing Supreme Court review, the very phrase, the very sentence, the very words, referred immediately, then, to the other branches doing it, too! And that's been forgotten. So, my great plea to my colleagues is if anybody, particularly you gentlemen who serve on this such important committee, if any person ever says to you, "You know, just let the constitutional issues go to the Supreme Court," tell them that would violate your oath of office, because it would. Thank you.

Mr. CANADY. Thank you. We want to thank the members of this panel for being with us. We appreciate your contribution to today's hearing. Now, if there are members who are wishing to ask questions-we typically don't ask questions of Members.

Mr. FRANK. Thank you.

Mr. LEWIS. Thank you.

Mr. CAMPBELL. Thank you.

Mr. CANADY. The members of the second panel can come forward and take your seats.

I want to express our gratitude to all the members of the second panel for being with us. We've put you in this large panel because we thought it would be helpful to kind of have everybody together and then the questions could kind of go back and forth. Hopefully, this will work.

First to testify on our second panel this morning will be Louis Fisher. Mr. Fisher comes to us from the Congressional Research Service, where he is a senior specialist in Separation of Powers. Next we will hear from Professor David P. Currie. Professor Currie, the author of "The Constitution in Congress: The Federalist Period, 1789-1801," is the Edward H. Levi Distinguished Professor at the University of Chicago Law School.

Third will be Professor Neal Devins. Professor Devins, who teaches constitutional law at the College of William and Mary School of Law, is the author of "Shaping Constitutional Values: Elected Government, the Supreme Court and the Abortion Debate." Next will be Professor Neil Kinkopf. Professor Kinkopf is Visiting

Assistant Professor of Law at Case Western Reserve University Law School in Cleveland, Ohio.

Nadine Strossen will be next. Ms. Strossen is president of the American Civil Liberties Union. Then we will hear from Professor Matthew J. Franck. Professor Franck, author of "Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People," is chairman of the political science department at Radford University in Virginia.

Our final witness this morning will be Professor Robert Lowery Clinton. Professor Clinton, an associate professor of political science at Southern Illinois University, is a widely-published authority on the relationship between Congress and the Court.

Again, I thank you all for being here. Without objection, your testimony will be made a permanent part of the record. I would ask that you do your best to summarize your testimony in 5 minutes as guided by the light here, although unless there is objection, we won't strictly enforce the 5-minute rule. We'll begin with Mr. Fisher.

STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE

Mr. FISHER. Mr. Chairman, I want to thank you for holding these hearings. I'm not aware of another time where a congressional panel has held a hearing on a broad topic of what the role of Congress is in constitutional interpretation and how that role fits with the President and with the courts.

As you mentioned in your opening statement, people today seem to think that the Court has a monopoly on constitutional interpretation. That certainly could not be true for the early decades. Professor David Currie has written about this, as have others, to show that the prominent constitutional decider in those early years was Congress, with the President. The courts played very little role. There were few decisions at that time from the courts to guide Congress, so it was up to the two branches, executive and legislative, to decide.

In recent decades, probably the last 40 to 50 years, there has been this tendency, both in the Supreme Court and with professors, to read Court decisions as the ultimate and final word, with the Court having some exclusive role on the meaning of the Constitution.

The Supreme Court frequently today cites language from Marbury that it is emphatically the province and duty of the courts to say what the law is; that is true. It's also emphatically the province and duty of Congress to say what the law is. It's emphatically the province and duty of the President to say what the law is through his veto power and through the President's responsibility to enforce the law.

So that part of Marbury doesn't get you very far, and anyone who looks at Marbury in 1803 would know that Chief Justice John Marshall never made the claim that he had some exclusive roll in interpreting the Constitution. He knew politically at that time, after the election in 1800, that the Court was not in a position to dictate to the other branches.

And in my testimony I have the letter that he sent to Justice Chase saying that if Members of Congress disagree with a Court decision, it's not necessary to roll out impeachment; rather, you work through your regular legislative process, and we have a dialogue between the branches on shaping the meaning. The Marbury decision is always taken out of context to say something that Marshall never meant.

Last year in the Harvard Law Review there was an article by Professors Alexander and Schauer arguing that the Court should be the exclusive interpreter of the Constitution, and that that would produce political stability. Neal Devins and I talked about that article as to when in American history you could ever say that the Court helped settle issues, transcendent or otherwise. Certainly on slavery, on child labor-you can go down the list-where Court decisions did not settle these issues, that it was left to the larger political process.

Neal Devins and I did an article that will be in the Virginia Law Review next month to say that all three branches participate in the meaning of the Constitution; the States, as well and the general public, as well, and that this larger dialogue is what creates political stability, not an exclusive role for the Court.

My statement talks about the role of Congress in three senses: before the Court ever decides, when it decides that something in constitutional, and when it decides that something is not constitutional. Before the Court decides, Members of Congress have a huge role on many matters that either never get to the Court, or if they get to the Court the Court ducks it on various grounds, various thresholds. These are important matters. Many of the issues are the veto power, the pocket veto, covert spending, foreign affairs, war powers, and so forth, that are basically left to Members of Congress-the commerce power, spending power.

Now when the Court does take a case and decides that something is constitutional, that's not the last word because it is simply stated by the Court that if the other branches want to do this it's okay by the Constitution, an example being McCulloch with the U.S. Bank. The Court said it was constitutional. That did not prohibit President Jackson later, when a bill came to reauthorize the bank, to say, "According to me, it's unconstitutional. I'm going to veto it on that ground."

A contemporary issue is the independent counsel. Although that was upheld by the Court in Morrison, if Members of Congress wanted to say at the next reauthorization of the independent counsel that you have serious constitutional doubts, you don't have to reauthorize; or if you do, and it gets to the President, the President could veto it by saying that even though the Court says it doesn't encroach that much on executive power, I think it does and I'm going to veto it on constitutional grounds.

Another recent example: In 1986 the Supreme Court upheld the Air Force regulation that prohibited members of the military from wearing a yarmulke indoors while on duty, and Congress the next year overturned that by statute, and that's the meaning of the Constitution on how you balance military duties versus religious freedom.

Even when the Court finds unconstitutionality, Congress is a participant. I talk about the Boerne case, which I don't think is persuasive; I think it's internally inconsistent. I think there is plenty of room for Congress to revisit the issue with new legislation. And I conclude by saying that at certain times in our history there is a basis for finality by the Supreme Court, the examples being the Little Rock crisis, the Watergate tapes case. But by and large, American history, I think, is very convincing that the reading of the Constitution is better left to the flow of considerations by all three branches, by the States, and by the general public. Thank you very much.

[The prepared statement of Mr. Fisher follows:]

PREPARED STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE

Mr. Chairman, I appreciate the opportunity to testify on the role of Congress in interpreting the Constitution. To my knowledge, this is the first time that congressional hearings have been used for the purpose of understanding the contributions made by legislators in shaping and protecting constitutional values. Too often, especially in recent years, it is assumed that the judiciary has a monopoly on constitutional interpretation and that Congress must defer to the courts.

The framers expected Congress to play a pivotal role in debating and legislating on constitutional issues. Most of the important constitutional issues in the early decades were decided almost exclusively by Congress and the President. There were few decisions by federal courts to guide the elected branches. The record of this early period has been ably covered by David Currie in a number of law review articles, brought together in his book The Constitution in Congress (1997). As he explains in the concluding chapter, it was "in the legislative and executive branches, not in the courts, that the original understanding of the Constitution was forged." Particularly in the twentieth century, scholars, judges, and sometimes Members of Congress claim that the U.S. Supreme Court has the "last word" on the meaning of the Constitution. Under this theory, if Congress disagrees with a Court ruling the only alternative is to pass a constitutional amendment to overturn the Court. This belief in judicial supremacy overlooks much of the flexibility and political considerations that characterize the relationship between the judiciary and other elements of the political system: Congress, the President, the states, and the general public. What About Marbury?

In recent decades, much has been made of the statement by Chief Justice John Marshall, in Marbury v. Madison (1803), that it is "emphatically the province and duty of the judicial department to say what the law is." Does that mean that the Court alone delivers the "final word" on the meaning of the Constitution? According to a unanimous ruling by the Court in the Little Rock crisis, Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution." Cooper v. Aaron, 358 U.S. 1(1958). That principle was reasserted by the Court in the reapportionment case of Baker v. Carr (1962): "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and a responsibility of this Court as ultimate interpreter of the Constitution." Seven years later, in the exclusion case of Adam Clayton Powell, the Court again referred to itself as the “ultimate interpreter" of the Constitution. Powell v. McCormack, 395 U.S. 486, 549 (1969).

These statements distort what Chief Justice Marshall decided in Marbury. While it is "emphatically the province and duty of the judicial department to say what the law is," certainly the same can be said of Congress and the President. All three branches say what the law is. The Court states what the law is on the day a decision comes down; the law may change later by actions taken by the elected branches. I will give a number of prominent examples of this institutional interplay. In 1803, Marshall did not think he was powerful enough to give orders to Congress and the President. After the elections of 1800, with the Jeffersonians in control of Congress and the Presidency, the Federalist Court was in no position to dictate to the other branches. Marshall realized that he could not uphold the constitutionality of Section 13 of the Judiciary Act of 1789 and direct Secretary of State

James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshall believed that the Court was supreme on matters of constitutional interpretation.

This conclusion is borne out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it turned its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.

The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he played a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judiciary functioned as a yea-saying, not a negative, branch.

The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it "a nuisance." Congress responded with legislation that declared the bridges at issue to be "lawful structures," and the Court then ruled that the bridges were no longer unlawful obstructions.1 In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: "whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval." "2

Settling Constitutional Issues

In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability.

Neal Devins and I talked about this article. We tried to recall a time when the Court ever "settled" a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompanied by revised procedures, was constitutional.

1 Pennsylvania v. Wheeling &c. Bridge Co., 13 How. (54 U.S.) 518 (1852); 10 Stat. 112, §6 (1852); Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. (59 U.S.) 421 (1856).

2 Prudential Ins. Co. v. Benjamin, 326 U.S. 408, 425 (1946). In 1985, the Court said that when Congress "so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause." Northeast Bancorp v. Board of Governors, FRS, 472 U.S. 159, 174 (1985). In a concurrence in 1995, Justices Kennedy and O'Connor noted: "if we invalidate a state law, Congress can in effect overturn our judgment." United States v. Lopez, 514 U.S. 549, 580 (1995).