APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

Mr. Chairman,

I'm not sure whether the greater irony is that this bill is called the Constitution Restoration Act, when it does the opposite of restoring the Constitution's integrity, or that this hearing is taking place days before the Jewish High Holidays, a time in which Jews spend days reciting prayers replete with acknowledgements of God and His sovereignty.

America was founded by those attempting to escape religious persecution. The pilgrims set forth to a new continent in the hope of establishing what was at the time a radical idea, a society free from the tyranny of religious discrimination. This tradition led the framers of the First Amendment to our Constitution to insist on the principle of separation of church and state. They enshrined in our founding document the twin pillars of our country's policy toward religion: a commitment to allow freedom of religious expression, and a rejection of the state's establishment of religion. They entrusted our courts with the ability to differentiate between the two. H.R. 3799 is a reactionary piece of legislation. It is born out of an attempt to politicize recent decisions of the Supreme Court and lower federal courts. And the most egregious part: H.R. 3799 would seemingly make it an impeachable offense for a federal Judge to decide that H.R. 3799 violates the U.S. Constitution.

This bill attempts to circumvent the only available process for legislators to reverse the effects of judicial decisions concerning the Constitution. That process is called a constitutional amendment, and the framers deliberately made it difficult to achieve because they did not want legislators repeatedly tinkering with the founding document. Supporters of this bill have repeatedly promoted the concept of court stripping in an effort to give legislators the power to take decisions out of the hands of judges, an approach that is thoroughly at odds with what the framers of the Constitution intended.

I am surprised that, in an age when we are trying to eradicate the Taliban, a group that infused a fundamentalist interpretation of their religion into every aspect of public life, we are here, now, talking about removing federal judicial oversight in some religion cases. The Constitution created the most delicate balance between the branches of government. By giving Congress power to overturn the judiciary's core function of constitutional interpretation, this bill would fundamentally alter that constitutional balance.

This bill is not about freedom of expression, as some might proclaim. It is a mockery of what our founders considered to be an integral part of our system of government-the separation of powers and the system of checks and balances between the branches of government. Are we to chain the hands of the judicial branch of the federal government so that they merely serve as a rubber-stamp for the political mores of the moment?

Ironically, while supporters of H.R. 3799 seek to assert greater congressional control over review of the laws it passes, making state courts the primary avenue for challenges to federal legislation actually erodes Congress' control over judicial review. Unlike with the federal judiciary, Congress has no impeachment power over state judges or authority to regulate state courts, and the Senate has no power to advise and consent in their selection.

And speaking of our framers, are we now to question the influence foreign law played in the development of the Constitution? And what about the usage of foreign law in decisions that the sponsors presumably likes? As Professor Gerhardt states in his written testimony, If this bill were law in 1986, then the majority in the Bow(123)

ers v. Hardwick case presumably would have been subject to impeachment for their reliance on the traditions of Western civilization and the Judeo-Christian tradition. The attack on usage of foreign law is said to be a way to clamp down on unacceptable judicial activism. But the opposition to judicial activism is selective, limited to a specific type of decision with which the sponsor disagrees. The sponsors are content to allow other examples of judicial activism to pass unchallenged. For example, of relevance to this subcommittee, but not at all addressed in the bill, is the judicial activism evident in the Florida Prepaid cases. In those cases, the Supreme Court based its decisions not on the text of the Constitution, but rather on "fundamental postulates" that directly contradict the actual language of the 11th amendment. Apparently the sponsors of this bill are only opposed to judicial activism when it runs counter to their political ideology.

This legislation would give Congress the power that our founding fathers specifically intended to deny the political branches-namely, the power to ensure that judicial decisions are held hostage to prevailing political sentiment in the country. That is not the role the founding fathers intended for Congress or the independent federal judiciary. That Congress would threaten to impeach federal judges because of the substance of their constitutional decisions is itself an abuse of power and one which our system of government cannot tolerate.

I urge my colleagues to reject this bill in its entirety.

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY

This legislation is merely the latest Republican political assault on our independent federal judiciary. The bill is unconstitutional, undermines our system of government, is unnecessary, and is hypocritical. It is a Republican tactic to avoid debating issues of real importance during an election: the economy, jobs, domestic security, and health care.

Just a few months ago, we passed a bill stripping federal courts from reviewing challenges to the 1996 Defense of Marriage Act. In two days, we will vote on whether to strip courts from hearing challenges to the pledge of allegiance. Today, we are considering legislation that furthers alienates federal courts from issues that are important to right-wing conservatives: affirmations of God and foreign legal judgments. Like the other two bills, this has no chance of becoming law, so why are we here? Because the Republican leadership does not like to talk about its deficit-raising tax cuts or its intelligence failures or its backstabbing of American workers in a close election year. Also, it wants to coddle its right-wing, extremist base.

I could not be more certain of how unconstitutional this legislation is. Separation of powers prevents Congress from managing the deliberations of the judicial branch, yet this proposal would prevent the judiciary from enforcing the Constitution and ensuring separation of church and state.

The legislation also undermines the supremacy of federal law as governed by article VI of the Constitution. By preventing federal courts from reviewing certain cases, the bill serves to weaken and divide our Nation. If supporters of H.R. 3799 had their way, our schools would never have become integrated because the federal courts should not have "interfered" in state matters during the civil rights era. Ultimately, the bill would result in fifty different state court interpretations of constitutional law.

The legislation goes even further in this radical direction by being retroactive. State courts would not be bound to related federal court that may have been issued prior to enactment.

This is why anti-liberal thinkers such as former-Attorney General William French Smith and former Rep. Bob Barr have written in opposition to these extreme, antiAmerican initiatives.

It is also unheard of to state that a specific act is impeachable. Never before has Congress statutorily deemed certain acts to be impeachable. If we start down this road, it is only a matter of time before it will be a statutorily impeachable offense to mislead the American people into war and to use that war to line the pocketbooks of friends and political contributors. Decisions about impeachment should be made on a case-by-case basis by Congress, and hopefully only rarely.

I have to admit that all this back and forth on federalization has me a little confused. Last week, Republicans moved a bill that subjects lawyers in state lawsuits to federal sanctions. Every year, they move tort reform legislation that moves class action cases into federal court. Finally, they made it a federal offense for a doctor to comply with a woman's right to choose. Perhaps if my colleagues on the other side

could provide a list of which issues should be federal and which should be left to the states, I could follow along better in the future.

SUPPLEMENTAL PREPARED STATEMENT OF ROY S. MOORE

The Constitution Restoration Act of 2004 (H.R. 3799) (CRA) exempts from federal courts cases brought over a public official's or element's public “acknowledgment of God as the sovereign source of law, liberty or government." During the course of my testimony before this honorable subcommittee, I did not have an opportunity to answer a question asked by a subcommittee member who wanted to know whether "God" was defined in the CRA, or, as the subcommittee member put it, “Which God is this legislation referring to?"

The answer is so obvious it forces one to wonder about the real purpose for asking. There can be no doubt as to which God the legislation must be referring to when it discusses acknowledgments of God as "the sovereign source of law, liberty, and government" because a basic knowledge of America's history and of our Founders' innumerable acknowledgments of the same God reveals that the God America always acknowledges is the God of the Holy Scriptures.

The brave pioneers who in 1620 landed at Plymouth Rock bound themselves to a governing compact before departing from the Mayflower onto dry land "[h]aving undertaken for the Glory of God and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern Parts of Virginia. "1 The Fundamental Orders of Connecticut of 1639, the first permanent governing document of that colony, summarized its purpose stating that, "where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require. . . ." The Declaration of Independence expressly relies upon the "Laws of Nature and of Nature's God" 2 as self-evident proof for its claims, and after several references to God, appeals to the "Supreme Judge of the World for the Rectitude of our Intentions." The Continental Congress, on November 1, 1777, declared a day of national thanksgiving even in the midst of the war for independence because they believed "it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; to acknowledge with Gratitude their Obligation to him for benefits received, and to implore such further Blessings as they stand in Need of. . . ." Our sixth President of the United States, John Quincy Adams, on the anniversary of the Declaration of Independence in 1837, noted that "the Declaration of Independence first organized the social compact on the foundation of the Redeemer's mission upon earth [and] laid the corner stone of human government upon the first precepts of Christianity."3 In his Thanksgiving Day proclamation of October 3, 1863, President Abraham Lincoln noted the many blessings that had been bestowed upon this country even in the midst of the Civil War and acknowledged that "[t]hey are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy." In 1931, the United States Supreme Court observed that "[w]e are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God."4 I cited some other examples in my original written statement to this subcommittee and there are a myriad of others throughout the history of this country and in the present day. In short, there never has been a question as to "which God" the people of this country have recognized as the source of our law, liberty, and government. When Congress sang "God Bless America" on the steps of the Capitol Building on September 11, 2001, no member balked because they were concerned about "which God." When Congress recites the Pledge of Allegiance, there is no question raised as to "which God" our nation is under. Our official national motto, "In God We Trust," is not footnoted with a question about “which God." When presidents or

1Our Nation's Archive: The History of the United States in Documents 46 (Bruun & Crosby eds. 1999).

2 Sir William Blackstone in his Commentaries on the Law of England, the definitive legal commentary of the late Eighteenth Century and heavily relied upon by the Founders, described the "law of nature" as originating from God: "The doctrines thus delivered [by divine revelation] we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity." I Blackstone Commentaries 42 (Univ. of Chi. Facs. ed. 1765).

3 William J. Federer, America's God and Country 18 (1996).

4 United States v. Macintosh, 283 U.S. 605, 625 (1931) (citation omitted).

would-be presidents conclude their speeches or addresses with "God bless America," no one objects because they are concerned about “which God" is being invoked.

A person shrinks from the idea that there is one God who should be acknowledged above others when he or she does not want to acknowledge that there is any authority higher than himself or herself. In his Bill for Religious Freedom, Thomas Jefferson speaks of "fallible and uninspired men" who have "established and maintained false religions over the greatest part of the world, and through all time."5 The common characteristic among false religions is the installation of man as the ultimate determiner of right and wrong. Have we become like those "fallible and uninspired men"?

When we refuse to acknowledge the God Whom our forefathers recognized, the only God Who gives freedom of conscience to man, we reject the founding principle of the First Amendment and enshrine the message of totalitarian regimes throughout time: that man is god and will save us from ourselves. Indeed, this nation specifically placed the phrase "under God" in the Pledge of Allegiance to contrast us with the atheism of such regimes.6 The public acknowledgment of God has been a part of this country from its inception. We must preserve this right before the federal courts completely take it away.

5 Documents of American History 125 (Henry Steele Commager, ed., 6th ed. 1973).

6"At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual." H.R. 1693, 83rd Cong., 2nd Sess. (1954)