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President Lincoln summed it up best in his first inauLoss, quote "I do not forget the position assumed by some tional questions are to be decided by the Supreme At the same time, the candid citizen must confess that of the Government upon vital questions affecting the

whole of the people is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers, having . ... resigned their Government into the hands of that eminent tribunal."-end quote.

No, Mr. Chairman, members of the subcommittee, we must never resign our Government-that Government of the people, by the people, and for the people-into the hands of the Supreme Court or any lower court, and I thank you very much.

[The prepared statement of Mr. Hostettler follows:]

PREPARED STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA

Thank you. It is interesting to me that there is today such awe-indeed almost reverence for the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine.

When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, some act as if if God himself has spoken. After considerable study of this issue, I have concluded that the present practice of the elected branches bowing to judicial supremacy in interpreting the Constitution squares neither with the Constitution nor with American history.

I will begin by stating that I do not find fault with Justice Marshall's 1803 decision in Marbury v. Madison. The Constitution clearly gives the Court the right to form an opinion on constitutionality. We call this judicial review.

Indeed, the Court makes a valuable contribution to the understanding of our nation's laws, and, of course, it is essential in the resolution of disputes between litigants.

But a mere opinion on constitutionality by one branch is not, and only recently has been, considered supreme and binding on the others.

In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on judicial supremacy:

-Take for example Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared, since it has a, quote, "total incapacity to support its usurpations by force." 1

-Or Chief Justice John Marshall, who, just two years after the famous Marbury decision, noted the desirability of the legislature to interpose a substantive check on the Court's interpretations.2

-Thomas Jefferson, in 1820 put his rejection of the doctrine of judicial supremacy very clearly: and I quote,

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The constitution has erected no such single tribunal." "3

I should add that after the Court took the time to interpret the Constitution in Marbury, President Jefferson simply ignored their reasoning and declined to seat Mr. Marbury in his judgeship.

President Jefferson is not alone.

-In 1832 President Jackson issued the following veto message regarding the creation of the Bank of the United States:

Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. .. The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.4

-Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years.

1 THE FEDERALIST NO. 81 (A. HAMILTON).

2 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL, Vol. III, p. 177 (Boston 1919).

3 THOMAS JEFFERSON, Letter to William Charles Jarvis, Sept. 28 1820, in WRITINGS OF THOMAS JEFFERSON, X. 160 (Ford ed. 1899).

Andrew Jackson, Veto Message, July 1832, in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, Vol. II, p. 582 (Richardson, ed.).

lowing concerning Congress in his famous Commentaries on the Constitution, and I quote:

"If the judicial department alone should attempt any usurpation of the Constitution, Congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. On the other hand, the worst that could happen from a wrong decision of the judicial department would be that it might require the interposition of Congress." And finally, "If the usurpation of the Constitution should be by the judiciary and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitive law would, in many cases, be a complete remedy."-and I end quote.

One of the most compelling rejections of judicial supremacy is evident in President Lincoln's response to the Supreme Court's Dred Scott v. Sanford decision of 1857. In Dred Scott, the Supreme Court had declared that the Constitution did not allow the prohibition of slavery by the Federal Government, clearly an atrocious interpretation by the Court.

Lincoln debated the binding nature of Dred Scott with Senator Douglas in 1858. The following excerpt from the debate is instructive today. Quote: "He," meaning Douglas, "would have the citizen conform his vote to that decision, Dred Scott; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the Government. I would not. ." end quote.

Five years later and true to his word, President Lincoln issued the Emancipation Proclamation in disregard of the Supreme Court-and we heard earlier from Mr. Lewis that in 1862 Congress disregarded the Supreme Court and passed a prohibition of a law declaring slavery unconstitutional and illegal in the free territories. As Lewis Fisher of CRS has noted, Congress has acted at other times in disregard for judicial supremacy. Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, and, most recently, the Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.

If judicial supremacy is without constitutional support, we must ask, Why does the doctrine persist? We all take oaths to uphold the Constitution. Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong. If it be by constitutional error by the Court, we must first do what we can to negate the impact.

Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the executive branch to carry out the Court's orders. In such cases, the people will ultimately decide the issue in the next election when they face the opposing views. This, my colleagues, is the paramount issue. Is it the people's Constitution? Is it the people's Government?

Perhaps President Lincoln summed it up best in his first inaugural address, quote: "I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the

whole of the people is to be irrevocably fixed by decisions of the Supreme Court. . . the people will have ceased to be their own rulers, having. resigned their Government into the hands of that eminent tribunal."-end quote.

No, Mr. Chairman, members of the subcommittee, we must never resign our Government-that Government of the people, by the people, and for the people-into the hands of the Supreme Court or any lower court, and I thank you very much.

[The prepared statement of Mr. Hostettler follows:]

PREPARED STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA

Thank you. It is interesting to me that there is today such awe-indeed almost reverence for the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine.

When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, some act as if if God himself has spoken. After considerable study of this issue, I have concluded that the present practice of the elected branches bowing to judicial supremacy in interpreting the Constitution squares neither with the Constitution nor with American history.

I will begin by stating that I do not find fault with Justice Marshall's 1803 decision in Marbury v. Madison. The Constitution clearly gives the Court the right to form an opinion on constitutionality. We call this judicial review.

Indeed, the Court makes a valuable contribution to the understanding of our nation's laws, and, of course, it is essential in the resolution of disputes between litigants.

But a mere opinion on constitutionality by one branch is not, and only recently has been, considered supreme and binding on the others.

In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on judicial supremacy:

-Take for example Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared, since it has a, quote, "total incapacity to support its usurpations by force."

-Or Chief Justice John Marshall, who, just two years after the famous Marbury decision, noted the desirability of the legislature to interpose a substantive check on the Court's interpretations.2

-Thomas Jefferson, in 1820 put his rejection of the doctrine of judicial supremacy very clearly: and I quote,

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The constitution has erected no such single tribunal." 3

I should add that after the Court took the time to interpret the Constitution in Marbury, President Jefferson simply ignored their reasoning and declined to seat Mr. Marbury in his judgeship.

President Jefferson is not alone.

-In 1832 President Jackson issued the following veto message regarding the creation of the Bank of the United States:

Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.4

-Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years.

1 THE FEDERALIST NO. 81 (A. HAMILTON).

2 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL, Vol. III, p. 177 (Boston 1919).

3 THOMAS JEFFERSON, Letter to William Charles Jarvis, Sept. 28 1820, in WRITINGS OF THOMAS JEFFERSON, X. 160 (Ford ed. 1899).

Andrew Jackson, Veto Message, July 1832, in A COMPILATION OF THE Messages AND PAPERS OF THE PRESIDENTS, 1789-1897, Vol. II, p. 582 (Richardson, ed.).

Justice Story-and I apologize for beating a dead horse here, but it is important— wrote the following concerning the power of Congress in his famous Commentaries on the Constitution, and I quote:

"If the judicial department alone should attempt any usurpation [of the Constitution], congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision.5

* again: ***

On the other hand, the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress. . .6

***. again ***

[I]f the usurpation [of the Constitution] should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy." 7

"7

-One of the most compelling rejections of Judicial Supremacy is evident in President Lincoln's response to the Supreme Court's Dred Scott v. Sanford decision of 1857.

In Dred Scott, the Supreme Court had declared that the Constitution did not allow for the prohibition of slavery by the federal government-Clearly an atrocious interpretation by the Court.

Lincoln debated the binding nature of Dred Scott with Senator Douglas in 1858. The following excerpt from the debate is instructive today:

He [Douglas] would have the citizen conform his vote to that decision [Dred Scott); the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not . . ̧8

Five years later, and true to his word, President Lincoln issued the Emancipation Proclamation in disregard of the Supreme Court.

It should be mentioned that in regard to the Dred Scott decision, Congress also rejected the supremacy of the Supreme Court when it passed an Act prohibiting the extension of slavery into the territories in 1862.9

As Louis Fisher of CRS has noted, Congress has acted at other times in disregard for judicial supremacy.10 Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, and-most recently the Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.

If judicial supremacy is without constitutional support, we must ask why does the doctrine persist?

I contend that judicial supremacy can be a convenient doctrine.

It can be politically expedient to place the great policy decisions of our times in the hands of an unelected elite rather than to be held accountable to the voters back home.

Nevertheless, it is time to put the doctrine of judicial supremacy to rest.

We all take oaths to uphold the Constitution.

Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong.

If it be a Constitutional error by the Court, we must first do what we can to negate the impact.

Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the Executive branch to carry out the Court's orders.

In such cases, the People will ultimately decide the issue in the next election when they face the opposing views.

5J. STORY, COMMENTARIES ON THE CONSTITUTION Book III, Ch. IV, Section 379, pp. 351-52 (Boston, Hilliard, Gray & Company, 1833).

6 Id. at Book III, Ch. IV, Section 384, p. 358.

7 Id. at Book III, Ch. IV, Section 394, p. 373.

8 ABRAHAM LINCOLN, Speech at Springfield, Illinois, July 17, 1858, in THE COLLECTED WORKS OF ABRAHAM LINCOLN, Vol II, 516 (Roy Basler, ed., 1953).

9 Acts of the Thirty-Seventh Congress, p. 432, Sess. II. Ch. 111 (June 19, 1862).

10 Louis Fisher, Congressional Checks on the Judiciary, Congressional Research Service Report for Congress, April 29, 1997; Louis Fisher, The Curious Belief in Judicial Supremacy, XXV Suffolk Univ. Law Review 85 (1991).