Campbell, Hon. Tom, a Representative in Congress from the State of Califor- Clinton, Robert L., Associate Professor of Political Science, Southern Illinois Currie, David P., Edward H. Levi Distinguished Service Professor, University Devins, Neal, Goodrich Professor of Law, College of William and Mary Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Re- Franck, Matthew J., Chairman and Associate Professor of Political Science, Frank, Hon. Barney, a Representative in Congress from the State of Massa- Kinkopf, Neil, Visiting Assistant Professor of Law, Case Western Reserve Lewis, Hon. Ron, a Representative in Congress from the State of Kentucky LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Clinton, Robert L., Associate Professor of Political Science, Southern Illinois University: Prepared statement Currie, David P., Edward H. Levi Distinguished Service Professor, University of Chicago School of Law: Prepared statement Devins, Neal, Goodrich Professor of Law, College of William and Mary: Pre- CONGRESS, THE COURT, AND THE CONSTITUTION THURSDAY, JANUARY 29, 1998 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 9:32 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding. Present: Representatives Charles T. Canady, Henry J. Hyde, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, and Melvin L. Watt. Staff present: John Ladd, Counsel; Keri Folmar, Chief Counsel; Brett Shogren, Research Assistant; Michael Connally, Staff Assistant; Brian Woolfolk, Minority Staff; Julian Epstein, Minority Staff Director, and Robert Carry, Čounsel. OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY [presiding]. The subcommittee will be in order. The subcommittee is holding this hearing today to examine the respective roles of the Congress and the Supreme Court in interpreting the Constitution. With the help of our witnesses today, we will consider whether one branch of our Federal Government has a monopoly on Constitutional interpretation. I believe the framers of our Constitution expected the Congress to play an important role in debating and legislating our constitutional issues. It is important to the Congress to ask itself if deference to the Supreme Court is always the order of the day. We have a responsibility to consider the circumstances under which the Congress should or should not defer to the Supreme Court in making Constitutional interpretations. And we have the duty to ensure that the requirements of the Constitution are consistently recognized and honored in the legislative process. While the exclusive focus of today's hearing is not the Court's Boerne v. Flores decision of last term, that case does represent the most recent expression of tension in an ongoing relationship between the Congress and the Court. Despite the Court's holding in Boerne, Justice Kennedy stated to the Court that, and I quote, "When the Congress acts within its sphere of power and responsibility, it has not just the right but the duty to make its own informed judgment of the meaning and force of the Constitution." In light of the result in Boerne, it is incumbent on Members of Congress to reflect on the scope of our sphere of power and respon (1) sibilities so that we can exercise our duty, as Justice Kennedy put it, "to make our own informed judgment on the meaning and force of the Constitution." I look forward to hearing from our witnesses today, and I now recognize Mr. Scott for 5 minutes. Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate the opportunity we're taking to examine the relationship between Congress, the Court, and the Constitution. Constitutional tension between Congress and the judiciary is nothing new. The drafters of the Constitution established three branches of Government, all with equal responsibilities, to protect and uphold the Constitution. The strength of our system of Government is based on the interdependence of three separate but equal branches of Government. The fact that from time-to-time the branches disagree is a tribute to our democracy and in no way threatens the sovereignty of its people. We should take pride in knowing that our vigorous system of checks and balances not only protects us from external threats at home and abroad, but also protects us from the greatest threat ever imagined by our Founding Fathers, and that threat is ourselves. I understand that there have been a number of proposals intended to minimize the healthy tension now existing between Congress and the courts. I am particularly concerned by the suggestion by some that we should more frequently exercise our impeachment powers to rid ourselves of the actions of activist judges who thwart the will of the people, and we should investigate these judges, Mr. Chairman. I understand that in the 1996-97 term of the Supreme Court, four of the seven acts of Congress reviewed were invalidated. Only two justices voted to invalidate all seven of the acts of Congress considered in the most recent term, taking every opportunity they had to thwart the will of the people. There was another judge that voted six out of seven times to thwart the will of the people, and we should investigate and expose these justices for thwarting the will of the people. And Mr. Chairman, we need to do some research to find out who these justices are. Mr. CANADY. Wait Mr. SCOTT. Wait a minute, Mr. Chairman. My staff has already supplied me with that information-seven out of seven; Justice Scalia and Justice Thomas-six out of seven; Chief Justice Rehnquist. I look forward to the testimony of the witnesses, Mr. Chairman, to see whether or not we would have been better off without these activist judges on our Court. [Laughter.] So I look forward to the testimony of the witnesses, Mr. Chairman, and thank you for calling the hearing. I am particularly looking forward to hearing from Professor Devins, who is a professor at William and Mary Marshall School of Law, which, depending on the actions of the General Assembly tomorrow and the next day, may be in or out of my district. [Laughter.] Thank you, Mr. Chairman. Mr. CANADY. Thank you, Mr. Scott. With the General Assembly meeting on a such a matter today, I'm very pleased that you were able to be here. [Laughter.] |