Professor Wechsler has shown the limits of this line of thinking. It is true that one does not undermine the Court's judgment-and therefore its power to definitively resolve the case-by refusing to follow its reasoning in enacting future laws. But if one believes (as I do, and as Hamilton and Marshall argued) that judicial review is an essential part of our system of checks and balances, this cannot be a complete answer. For that system cannot function if every school district in the United States insists on continuing to segregate its schools by race until the Supreme Court tells it not to. So long as (and as soon as) there is reason to think the Court might overrule its decision, a legislator or administrator who was not a party to the case may be justified in doing what the Court has ordered others not to do, for otherwise the Court could never correct its mistakes. Unlike res judicata, stare decisis is not an inflexible command. But once it is clear that the Court will not change its mind, I think Professor Wechsler is right that the Court's view must be accepted; for otherwise it cannot effectively perform its crucial task of helping to keep other branches of government within their legitimate authority.11 This brings me to the current controversy over the Smith decision, 12 the Religious Freedom Restoration Act (RFRA),13 and the Supreme Court's response in City of Boerne v Flores.14 Highly respected colleagues have written to criticize the Flores decision; 15 I have written to praise it. 16 Let me explain my position. The Court's acceptance in Smith of Professor Kurland's view 17 that the free exercise clause did not require that religious individuals be exempted from generally applicable laws was highly controversial. Though certainly not without support in earlier cases, it was (despite contrary arguments in the Court's opinion) squarely opposed to the Court's most recent pronouncement on the subject, in Wisconsin v Yoder 18 Congress disagreed with the Court's new interpretation, and said so in RFRA: Henceforth the adverse impact of even a facially neutral law on religious exercise could be justified only by a compelling interest. 19 That was a plausible interpretation of the Constitution, and Congress was entitled to make it. Congress was not a party to the Smith litigation, and it made no effort to set aside the judgment itself. It merely declared a rule to govern future cases. Moreover, one could not confidently say that the Court had said its last word on the subject. The decision was rendered by a bare majority; it effectively overruled recent precedent; it had been roundly though far from unanimously criticized ever since; it had been rendered without the benefit of Congress's views as to the meaning of the constitutional provision. In short, Congress was entitled to believe there was a reasonable chance the Court might reconsider its position in light of a well considered, reasonable, and nearly unanimous contrary legislative interpretation. But of course the Court was no more bound by Congress's interpretation than Congress was by that of the Court in Smith. The same argument that proves that Congress is entitled to construe the Constitution for itself applies equally to the Court. And that was what the Court said in effect in Flores: Congress has authority to enforce the fourteenth amendment but not to amend it, and the Court is not bound by Congress's interpretation of its provisions. Insofar as RFRA represented a self-denying interpretation of Congress's own power to enact laws impinging on religious freedom, it was squarely supported by Jefferson's and Jackson's actions in reading their own powers more narrowly than the courts had understood them. Whatever the Court says, Congress may not enact laws it believes to be unconstitutional. Nothing in the Flores opinion casts doubt on the legitimacy of RFRA as the exercise of a congressional check on congressional action. But it was something else again to expect the Court to accept Congress's interpretation of the free exercise clause in passing upon the validity of state law. Should the Court in Flores be criticized for having rejected the congressional reading of religious freedom without reexamining the issue on the merits? Should it, in such a reexamination, have afforded some degree of deference to the views of a coordinate branch on which the framers of the fourteenth amendment expressly conferred the principal role in enforcing its provisions? One would not expect the Court to invalidate the clauses of the War Powers Resolution that purport to define the division between presidential and congressional authority simply because Congress's 11 Herbert Wechsler, The Courts and the Constitution, 65 Colum L Rev 1001, 1008 (1965). 12 Employment Division v Smith, 494 US 872 (1990). 13 107 Stat 1488 (1993), 42 USC §§ 2000bb et seq. 14 117 SCt 2157 (1997). 15 E.g., Michael McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv L Rev 153 (1997). 16 David P. Currie, RFRA (forthcoming in Wm & Mary L Rev (1998)). 17 Philip B. Kurland, Religion and the Law (Chicago, 1978). 18 406 US 205 (1972). 1942 USC §2000bb-1. 58-804 99-3 interpretation does not bind the Court; one would expect Congress's understanding to be taken seriously in the Court's resolution of the dispute. That the Court did not do this in Flores may have something to do with the way the issue was presented. The Court was not asked to overrule Smith; it was asked to accept the fact that Congress had already done so. Even Justice O'Connor, who wanted to use the case as a vehicle for reexamining Smith, urged only that that issue be briefed by the parties.20 Congress and its defenders seemed to be arguing for something more than that the legislative interpretation should be considered; the case seemed to turn on whether the special authorization to enforce the amendment gave Congress rather than the Court the final say when the question arose in a judicial proceeding. The Court seems to me clearly right that it did not.21 If the issue is plainly phrased in some future case, I would expect the Court to take Congress's interpretation into account in determining whether or not to adhere to its Smith decision. If it does, it will have to address the question of what degree of deference to give to Congress's position. And that, it seems to me, boils down to the familiar dispute over judicial restraint that has raged since the Constitution was adopted, and which is best exemplified by the long duel between Justices Frankfurter and Black.22 Frankfurter, as illustrated by his famous dissent in the second flag-salute case,23 argued that to avoid excessive judicial interference the courts should generally defer to reasonable interpretations of the Constitution by other branches of government. The Court took this position in the fourteenth amendment context in an alternative holding in Katzenbach v Morgan, deferring to Congress's "reasonable" conclusion that requiring Puerto Rican voters to be literate in English offended the equal protection clause.24 Justice Black's position, in contrast, was that true judicial restraint consisted in refusing to invent limitations on government that could not fairly be traced to the Constitution itself; what the Constitution required should be strictly enforced.25 At least in the area of first amendment freedoms, Justice Frankfurter's approach has not stood the test of time; no Justice on the present Court takes such a restricted view of the Court's authority in such cases. Justice Black's position, I believe, is also more consistent with the purposes of judicial review. Congress's views are entitled to consideration and respect when the Court is called upon to construe the Constitution. Arguments made in Congress must be taken seriously on their merits, and the fact that Congress has accepted a given interpretation is additional evidence in its favor. But the Court must ultimately decide for itself what the Constitution requires, not accept someone else's view just because it is "reasonable." For only by exercising independent judgment in constitutional interpretation can the courts effectively help to ensure, as the Constitution contemplates, that other branches of government not exceed the limits of their authority. And that seems to have been the position taken in Flores. For the Court made clear that it thought there was no occasion to afford the congressional interpretation of the first amendment the degree of deference suggested by the alternative basis of decision in Morgan.26 The Court in Flores similarly insisted on the right to make its own determination with regard to the unrelated question whether RFRA could be justified as a prophylactic measure to prevent undetectable evasions of the free exercise clause as the Court had construed it in Smith, by analogy to the flat ban on literacy tests for voters upheld in Oregon v Mitchell.27 The Court found no such problem of evasion in Flores and so rejected this argument as well.28 In construing Congress's authority to enforce the fourteenth amendment by "appropriate legislation" to require "a congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end," 29 the Court gave notice once again that it took its responsibility for judicial review seriously in the field of federalism as well as in that of individual rights, as the theory of the Marbury case seems to require.30 20 117 SCt at 2176 (O'Connor, J, dissenting). 21 Contrast US Const, Art I, §8, cl 10, which gives Congress authority to "define" as well as to punish piracies and felonies on the high seas and offenses against the law of nations. 22 See David P. Currie, The New Deal Court in the 1940's: Its Constitutional Legacy, 1997 J Sup Ct Hist 87. 23 West Virginia Bd of Educ v Barnette, 319 US 624, 648-49 (1943). 24 384 US 641, 656 (1966). 27 400 US 112 (1970). See also South Carolina v Katzenbach, 383 US 301 (1966). 28 117 SCt at 2169. 29 Id at 2164. See also id at 2169, 2170, 2171. 30 Cf. United States v Lopez, 514 US 549 (1995); Printz v United States, 117 SCt 2365 (1997). In short, in my view the Constitution contemplates multiple checks to prevent anyone exercising public authority from infringing its provisions. Executive officers and Members of Congress have an independent obligation to obey the Constitution itself; they are not bound by a judicial conclusion that a particular action is within their authority. For the same reason, the courts are not bound by either executive or legislative interpretation of provisions whose construction is not committed to ultimate determination by the political branches.31 For the courts too were meant to serve as an indispensable element in our system of checks and balances. Respect for judicial authority requires not only that other governmental actors comply with judgments in cases to which they are parties. It also requires that, when it is clear that the Supreme Court will not recede from its position, other branches acquiesce in judicial opinions limiting their powers. Finally, the central importance of judicial review as a check on other branches requires that the courts exercise independent judgment in determining the constitutionality of legislative and executive action, giving respectful consideration but not undue deference to the views of the interested branch. Mr. CANADY. Thank you, Professor. Professor Devins. STATEMENT OF NEAL DEVINS, GOODRICH PROFESSOR OF LAW, COLLEGE OF WILLIAM AND MARY Mr. DEVINS. Thank you, Mr. Chairman, and I would like to thank the committee for inviting me to testify this morning. My statement makes two points. One is that Congress has a long, proud history of countermanding the Supreme Court when it disagrees with the Court. That history has been alluded to by several of the witnesses. It includes Congress' rejection of Dred Scott, its rejection of Hammer v. Dagenhardt, which was a case saying that Congress was without authority under the Commerce Clause to regulate child labor. It applies to the 1964 Civil Rights Act's public accommodation provision, which was legislation enacted after the Supreme Court had said almost a century before in a civil rights case that Congress could not enact a public accommodation provision. And it continues today with busing, abortion, religious freedom, flag burning, voting rights, legislative veto, and Federalism. These are all instances where Congress has been willing to tell the Court that it thinks its interpretation of the Constitution is wrong, and I don't really think there's anything in City of Boerne v. Flores to fundamentally challenge Congress' power to disagree with the Court. Flores is a very important case, of course, but it doesn't call into question Congress's power to use its spending authority, to condition the spending of Federal dollars. It doesn't speak to Congress's authority under the Commerce Clause. It doesn't speak to Congress's power over Federal programs-something that Professor Currie alluded to before. Even with respect to section 5 of the Fourteenth Amendment vis-a-vis the States, Flores doesn't challenge Congress's ability to remedy actions by the States that it considers unconstitutional. An example of this would be voting rights legislation passed in 1982 in response to City of Mobile v. Bolden. So I don't really think there's much doubt that Congress has the power to disagree with the Court, and there's no doubt that the history of congressional action is one in which Congress often does disagree with the Court. 31 Contrast the Court's discussion of the impeachment provisions in Nixon v United States, 506 US 224 (1993). What I'd like to focus in on in my testimony this morning is why it is that the Constitution is improved by Congress's disagreeing with the Court. Constitutional decisionmaking, in my view, is improved when all branches of Government engage in a dialogue which, of course, includes disagreements among the branches. And to start with, I'd like to quote from the confirmation hearings of Justice Kennedy, the author of Boerne, and Justice Ginsburg. At his confirmation hearing, Justice Kennedy testified that lawmakers, quote, "would be fulfilling their duty by limiting the effects of Supreme Court decisions they consider wrong."-very interesting coming from the author of Boerne v. Flores. Justice Ginsburg, at her confirmation hearings, states that "courts do not guard constitutional rights alone. Courts share that responsibility with Congress, the President, the States, and the people." I think Justices Kennedy and Ginsburg were aware of what I consider to be a fairly obvious truth, and that is that by challenging the Court, Congress often improves the quality of constitutional decisionmaking. By challenging the Court, Congress makes the Constitution more durable, more vital. Let me explain why I say this. Much of it has to do with how courts are different from policymakers, structurally different from policymakers. First off, courts are reactive. Courts don't look for cases. Occasionally people accuse them of doing so, but courts have to have a case presented to them, and, as a result, if the Court makes a mistake in an earlier case, the only chance it can reconsider its decision is for there to be a new set of facts which calls into question the decision in the first case. So for the Court to conclude that it made a mistake when saying that Congress was without authority under the Commerce Clause to prohibit child labor, Congress again needed to pass new child labor legislation, and that's precisely what happened. In Hammer v. Dagenhardt, the Court said it's unconstitutional for Congress to regulate child labor, but Congress again passed a child labor statute and eventually, in United States v. Darby, the Court concluded that Congress had that power. Another example, a more controversial example, is abortion. In 1992, the Casey court overturned the trimester test in Roe v. Wade. The only way in which the Court could have that opportunity was for elected Government to express its disapproval of Roe. If everyone simply followed Roe, there would never be a chance for the Court to say, "Hold on, the trimester test is unsound, medically unsound," politically unsound, and so on and so forth. So, a court is reactive. Another structural deficiency which limits what the Court can do is that the Court relies on presentations to it by specific parties at a specific moment in time. The Court can not hold a hearing bringing in all interested individuals. No, the Court is stuck, if you will, with the people who bring the case before it, and they don't necessarily present the Court with complete information. Also, the Court makes a decision at a particular moment in time; facts change, circumstances change. A decision that makes sense in 1988, say Morrison v. Olson and the independent counsel statute, may not make decision in 1998. And because of these changed circumstances, it's important for elected Government again to express its disapproval of what the Court has done. It gives the Court the opportunity not just to reconsider what it has done, it also gives the Court additional information, information unavailable to it when it made its original decision. I see my time is up. If I can just summarize, please? Mr. DEVINS. Okay; thank you, sir. Well, one last substantive point before my conclusion and that is that when Congress disagrees with the Court, we tend to focus in on instances where, ultimately, the Court may overturn itself, rewrite its doctrine. In other words, as Professor Currie suggested, the RFRA was an attempt to get the Court to reconsider employment Division v. Smith. Likewise child labor legislation in the 1930's was an attempt to get the Court to reconsider Hammer v. Dagenhardt. But it's often the case that when Congress disagrees with the Court, it's on an issue that the Court will not revisit again, and it's particularly important for Congress to challenge Court decisionmaking in instances where the issue will not be revisited by the Court. So, for example, it may be that the Court will not revisit Morrison v. Olson, the independent counsel decision, and it may be ultimately only for Congress to conclude that that decision was wrong by refusing to reauthorize the independent counsel. And it's very important that Congress perform that function, because if it does not, those bad decisions will remain on the books. So, for all these reasons, I am very much convinced that the Constitution is more durable, more vital, more important to the Nation when Congress disagrees with it. It gives the Court a chance to update its thinking. It also gives Congress a chance to enact laws when the Court will not revisit the issue. Thank you for the opportunity to testify. [The prepared statement of Mr. Devins follows:] PREPARED STATEMENT OF NEAL DEVINS, GOODRICH PROFESSOR OF LAW, COLLEGE OF WILLIAM AND MARY Mr. Chairman, thank you for the opportunity to discuss Congress's role in interpreting the Constitution. My remarks will both call attention to the ways in which Congress can express its disapproval of Supreme Court interpretations of the Constitution and argue that such expressions of disagreement are necessary to "protect and defend" the Constitution. The text and design of the Constitution as well as the historical record underscore the pervasive role that elected officials play in shaping constitutional values. Nevertheless, nearly two hundred years after Marbury v. Madison, the question of whether Supreme Court rulings bind elected officials remains controversial. In a Washington Post survey, for example, six out of ten respondents thought the Supreme Court the ultimate constitutional interpreter. In reporting this survey, the Post simply noted that those respondents were "correct." This view, that constitutional truth derives solely from nine individuals (or a majority of them) sitting on the Supreme Court, has, on occasion, been embraced by the Court itself. Witness City of Boerne v. Flores, a 1997 decision which considered Congress's power to "overrule" a Supreme Court decision. Citing Marbury, the Boerne Court declared that "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary." Similarly, in its 1992 decision reaffirming abortion rights-Planned Parenthood v. Casey-the Court claimed authority to resolve the abortion dispute, calling on "the contending sides of a national controversy |