I am writing to supplement the written statement I submitted to your Subcommittee for its September 13 hearing on the proposed "Constitution Restoration Act of 2004." I regret I could not stay for the entire duration of the hearing, but hope that through this letter I can provide some useful comments on important questions posed by this bill. 1. Constitutional Precedents of Article III Courts Have the Status of Constitutional Law. More than once during your Subcommittee's hearing, the assertion was made that only the Constitution and not the United States Supreme Court's interpretations of it constitute constitutional law. With all due respect, I believe this comment misstates a basic fact about American constitutional law. The Constitution is not the only component of constitutional law. Of course, the Constitution is the fundamental ingredient of constitutional law, but it is not, nor has it ever been, the only ingredient. The Supreme Court's constitutional precedents are and ther important component of constitutional law. And this has been true from the inception of the Republic. A number of authoritative sources establish that the Court's constitutional precedents have the status of constitutional law. For instance, the Framers were quite familiar with the hierarchical relationship among courts. In both the British and early American judicial systems, inferior courts were bound by the precedents of superior courts. The Framers recognized further that in constitutional adjudication Supreme Court precedents are binding on inferior courts and the parties unless or until they have been formally overturned by constitutional amendment or by the Supreme Court itself. Moreover, as I stated repeatedly in our hearing, the structure of the Constitution plainly accords constitutional precedents the status of constitutional law. It is a plain (and widely Chartered 1693 accepted) inference from the constitutional design that there is no way to undo a constitutional precedent of the Supreme Court except through constitutionally permissible means. These include constitutional amendments and the Court's subsequent decisions. The Congress has no legislative power whatsoever to displace, or dilute, the constitutional precedents of Article III courts, including the United States Supreme Court. It is also clear from the constitutional structure that if the Supreme Court's opinions were not law, then the rule of law ceases to have any meaning in our society. In his opening statement, Congressman Smith spoke eloquently about the nation's commitment to the rule of law. The critical questions before the Subcommittee are what the rule of law entails and requires. From the outset of our Republic, the rule of law has included Supreme Court precedent, even precedents with which state and national political leaders disagree. If this were not the case, then we really would be left in circumstances not unlike 1776. 1776 was of course a critical time in our history, not the least of which was because we had no Constitution in 1776. By 1787, our forefathers whom we now call the Framers recognized the pressing need for a federal constitution. They further recognized that this Constitution needed to provide for "one Supreme Court." From personal experience, they determined that the absence of a Supreme Court under the Articles of Confederation precluded ensuring finality and uniformity in interpreting and enforcing federal law. The Framers also recognized that a defect in the Articles as well as the original Constitution was that they lacked a Bill of Rights. So, they added a Bill of Rights, and by the early 1790s we had a much different legal framework than the one that existed in 1776. Consequently, it is a mistake to read Article III against the background of 1776. We must read Article III (and understand the power of judicial review) against the backdrop of the circumstances that gave rise to the Constitution's initial drafting and ratification and to the subsequent ratifications of each of its amendments. Once we take this bigger picture into consideration, it is clear why Justice Oliver Wendell Holmes is surely correct when he observed that the Union might not have lasted without the Court's having the power to declare the laws of the several states unconstitutional. If Congress had the power to simply evade judicial review of the constitutionality of its laws by the power to regulate federal jurisdiction, judicial review cease to matter. Congress could simply remove all federal jurisdiction over every law it passed and thus could leave citizens without the protections of Article III courts, particularly the Supreme Court, and the need for those courts to ensure States' compliance with the federal Constitution. Moreover, the claim of unlimited congressional power to regulate federal jurisdiction would support undoing all Supreme Court precedents with which the majority party in the Congress disagrees. Today these might be Free Exercise and Establishment Clause decisions, but they could just as casily be laws removing all federal jurisdiction over challenges to state election laws or to state and local property laws. Historical practices further support the simple but profound fact that the Supreme Court's constitutional opinions may only be displaced through amendments or the Court's change of mind. From the outset of the Republic, political leaders have turned not to jurisdictional regulations but rather to the amendment process to undo judicial opinions with which they have disagreed. For instance, shortly after ratification the Supreme Court ruled in Chisholm v. Chartered 1693 Georgia that the states may be held liable for damages in a diversity case filed in Article III court. The opinion provoked considerable criticism. But no one opted for the easier method of merely removing all federal jurisdiction over claims against States. It was widely recognized that the decision could only be overturned by an amendment or convincing the Court of its error. Hence, the procedures for amendment set forth in Article V were followed, and today the 11th amendment remains the first of our amendments directly overturning an opinion of the Court. 2. The Danger of Restricting Judicial Discretion to Determine the Sources on Which to Rest its Rulings. Both Professor Hellman and I suggested that one of the problematic provisions of the Constitution Restoration Act of 2004 is its provision declaring a judge's reliance on foreign law in interpreting the Constitution as an impeachable offense. I will not reiterate here what I said in the hearing, but only wish to add three brief clarifications for the record. Fint, I have not argued that reliance on foreign law in interpreting the Constitution is absolutely appropriate. I suggested (again following a conventional line of reasoning) that a core function of Article III judges and justices is to say what the law is and that this function includes the discretion to determine the relevant sources or bases for their judgments. Second, references to foreign law in constitutional adjudication are nearly very few and far between. The few justices who made such references explained why they regarded it as pertinent, even though in doing so they acknowledged giving very little, if any, weight to it whatsoever. Their reliance was, as I said at the hearing, de minimis. Thus, in assessing the constitutionality of this Act, one has to wonder both whether and why de minimis -- or inconsequential - reliance on foreign law constitutes grounds for impeachment and remova. A plain reading of the pertinent language of the Act suggests that merely one instance of reliance, or reference, is enough to constitute an impeachable offense. Yet, I know of no source of constitutional meaning that would support removing a judge or justice for an inconsequential reference to foreign law just once, particularly when the judge or justice has acknowledged that the foreign law in question made little or no difference to the outcome of the case whatsoever. The Constitution Restoration Act apparently seeks to impose strict liability for a particular judicial statement (perhaps even in a footnote), even though, as far as I can tell, it has been rnade in the course of an Article III judge's discharge of his core function. Judicial independence means nothing if it does not allow for judges and justices to decide for themselves how to prioritize the sources on which they rely in deciding constitutional cases. Third, the burden in an impeachment proceeding is not on the accused to explain why he did what he did. The burden in impeachment proceedings is on the accusers to explain why and how the accused's conduct constitutes an impeachable offense. Consequently, the burden is on the Act's proponents to meet this burden. They need to explain, at the very least, why impeachment and removal of the majorities in Bowers and Lawrence is justified by their reference to the Judeo-Christian tradition and Western civilization. I would be very surprised if this burden could ever be met. Sources uniformly support judicial independence as a constitutional ideal. Judicial independence allows judges and justices the requisite freedom from political retaliation to determine (and to prioritize) the sources on which they may rest their constitutional judgments. Moreover, the Congress may not dictate to judges and justices how, or on what sources, they may base their decisions. Nor may Congress, for that matter, require the justices and judges to write opinions in every case. Consequently, one anomalous result of this Act would be not to force judges and justices to forego referring to certain sources but rather to forego acknowledging a line of reasoning or reference to a source of meaning whose authoritativeness has been questioned by some members of the Congress. This Act, in other words, would not keep judges and justices from ever relying on a source such as foreign law, even rarely, it would motivate judges and justices simply not to disclose it. Usually, judges and justices refrain from making such references for a very good reason - they are not likely to be persuasive. Until now, the need for justices to state persuasively the bases for their opinions has been one of the most significant checks on judicial abuse, for it keeps them within certain bounds - in particular, relying on sources and making arguments that are widely accepted in the legal community. 3. Frustration with the Supreme Court is Not a Legitimate Objective. In our September 13th hearing, a few Subcommittee members expressed frustration with the Supreme Court's free exercise and establishment jurisprudence. While I appreciate the frustration, it does not constitute a legitimate objective for a congressional enactment. The Fifth Amendment Due Process Clause requires every congressional enactment must have, at the very least, a legitimate objective. The problem with the Constitution Restoration Act of 2004 is that a primary objective is to deprive the Court of the means with which to preclude judicial and congressional non-compliance with its Free Exercise and Establishment Clause decisions. This objective is plainly unconstitutional. Members of Congress may try to get ratification for a constitutional amendment overturning these decisions, or they may go back to the Court to urge it to adopt their contrary view of the scope of the Free Exercise and Establishment Clauses. (They may also urge the President and senators to approve judges and justices with different attitudes toward the First Amendment). But there is no third alternative - they may not pass a law overturning these constitutional judgments. I trust these clarifications are helpful. I appreciate the privilege of appearing before you on September 13th. If I can ever be of any other service, please do not hesitate to contact me. Very truly yours, Michael J. Gerhardt Arthur B. Hanson Professor of Law, (804)370-9882 (phone) Chartered 1693 О |