not function as a society if some citizens are beyond the law's reach. We cannot pick and choose those laws we will obey.

Academics, legislators, and other interested parties are divided as to whether court-stripping bills are constitutionally sound. We look forward to our hearing because we have a balanced panel of experienced and learned witnesses, and I am confident that our discussion this afternoon will be both informative and constructive. That concludes my opening remarks. And the gentleman from California, Mr. Berman, is recognized for his.

Mr. BERMAN. Thank you very much, Mr. Chairman.

I am not sure whether the greater irony is that this bill is called the Constitutional 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 acknowledgment 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 borne 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 seemly make it an impeachable offense for a Federal judge to decide that H.R. 3799 or a specific portion of it 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. The Framers deliberately made it difficult to achieve because it 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'm surprised at it in an age where we are trying to eradicate the Taliban, a group that infused a fundamentalist interpretation of their religion in 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. We must protect the sanctity of the autonomous nature of our judiciary. By giving Congress power to overturn the judiciary's core function of constitutional interpretation, this bill would fundamentally alter that constitutional bal

ance.

The 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's 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.

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 sponsor presumably likes? As Professor Gerhardt states in his written testimony, if this bill were law in 1986, then the majority in the Bowers v. Hardwick case presumably would have been subject to impeachment for their reliance on the judiciums on Western civilization and the Judeo-Christian civilization.

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 asking the power that our Founding Fathers specifically intended to deny the political branches; namely, the power to ensure that judicial decisions aren't held postage 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. Other than that, I remain open-minded on this bill. Thank you, Mr. Chairman.

Mr. SMITH. Thank you, Mr. Berman. And your voice was running out concurrent with the 5 minutes, I think.

Let me say that we have been joined by a colleague of ours from Alabama, Representative Aderholt. And I am going to recognize him to introduce a former colleague of ours and a constituent of his, and then I will proceed to introduce the remaining witnesses. Representative Aderholt.

Ms. LOFGREN. Could I just very quickly-I don't have an opening statement, but I do have-I am hosting a briefing at the Science Committee at 5:00, and I wanted to apologize to the witnesses. I have read the testimony.

Mr. SMITH. I didn't see that the gentlewoman was seeking to be recognized. But she is. And are you-but you are not seeking to make an opening statement?

Ms. LOFGREN. No. I am just apologizing to the witnesses in advance, and letting them know I have read the written testimony, and I appreciate it and I can't get out of my 5:00 meeting.

Mr. SMITH. Okay. Thank you.

Representative Aderholt.

Mr. ADERHOLT. Good afternoon, Chairman Smith, Members of the Subcommittee, distinguished guests, and members of the public. I thank you for this opportunity to join in with you here in the Judiciary Committee to introduce the Former Chief Justice of the Alabama Supreme Court, Roy Moore.

Judge Moore has been at the heart of controversy surrounding the display of the Ten Commandments in the State of Alabama. Anyone who has followed the series of events regarding the public display of the Ten Commandments in Alabama knows Roy Moore. Many Government buildings across the Nation have displayed the Ten Commandments since this Nation was born as a reminder that the laws of this Nation acknowledge God as a sovereign source of law and liberty. Shortly after being appointed circuit judge, Roy Moore displayed a copy of the Ten Commandments in his assigned courtroom at the Etowah County Courthouse. He did this without fanfare or a desire for media attention.

The acknowledgment of God has been at the heart of the top Government that was set in place by our Founding Fathers going back to the 1700's. A brief reading of the writings of the Founders on the way they incorporated opening prayer for the United States House of Representatives and the United States Senate are clear examples that our laws were built on this type of acknowledgment. It is that acknowledgment that has set the United States of America apart from all other republics in the history of man kind.

I say acknowledgment of God because acknowledgment of God should not be confused with the establishment of religion. I think everyone here agrees that establishment of religion was not favored by the Founders just as it is not favored by those who will be testifying this afternoon.

The legislation that is at the focus today is the Constitutional Restoration Act, H.R. 3799. Since there has been hostility toward even the acknowledgment of God over the past several years by the Federal courts, this legislation would remove from the jurisdiction of the Federal court system any case involving acknowledgment of God by a public official. The acknowledgment of God as a sovereign source of law, liberty, and Government is contained within the Declaration of Independence which is cited as the organic law of our country by the United States Code Annotated.

Furthermore, the Constitution of every State in the union acknowledges God and his sovereignty as do the three branches of the Federal Government.

The Constitutional Restoration Act, which will be discussed by Judge Moore, would restore the balance of power among the various branches of Government and restore the fundamental precepts upon which our Constitution and Government is based. To prohibit a State official from acknowledging God is a violation of the tenth

amendment as well as the first amendment of the United States Constitution as completely contrary to the intent of our Founding Fathers. Because of the comprehensive nature of this legislation, it addresses several issues, such as the pledge, the Ten Commandments, our national motto, "In God We Trust." and other acknowledgments of God. The public recognition of God by State and Federal authorities exist today in oaths, mottos, documents, prayers, monuments, and various other medium.

Judge Moore is a native of Etowah County, Alabama. He graduated from Etowah High School in 1965 and obtained a bachelor of science degree in 1969 from the United States Military Academy at West Point. After military service, Judge Moore returned to Alabama where he completed his juris doctorate degree in 1977 from the University Alabama school of law. Judge Moore served our country as captain in the military police corps of the United States Army. During his professional career, he became the first full-time deputy district attorney in Etowah County and served in this position from 1977 until 1982.

In 1984, he undertook private practice in the city of Gadsden until his appointment to the circuit bench in 1992. Judge Moore served in this capacity until his election as chief justice of the Supreme Court of Alabama in November of 2000, where he served until 2000-November of 2003. Judge Moore currently travels throughout the United States speaking about America's history and our right to acknowledge God. He also serves as chairman of the Moral Law Foundation, an organization in Montgomery, Alabama dedicated to the defending of the public acknowledgment of God.

I think the Committee will find Judge Moore's testimony enlightening this afternoon, and see that this is an issue that Judge Moore believes in with all sincerity.

Mr. SMITH. Thank you, Mr. Aderholt. And let me say, you are welcome to stay and join us and listen to the hearing as well. Mr. ADERHOLT. Thank you.

Mr. SMITH. Our next witness is the Honorable William E. Dannemeyer, an alumnus of our Committee while a Member of Congress from 1979 to 1992. He also served on the Budget and Energy and Commerce Committees, and chaired the Republican Study Committee. Mr. Dannemeyer worked as a special agent in the Army counterintelligence corps during the Korean War. He has also practiced law and served as the deputy district attorney, a State judge, and a member of the California State assembly. Mr. Dannemeyer is a graduate of Valparaiso University and the Hastings college of law.

Our next witness is Professor Arthur D. Hellman of the Pittsburgh school of law. He possesses expertise in the areas of Federal courts and constitutional law, and is a familiar witness to Members of our Subcommittee. Professor Hellman received his bachelor's degree from Harvard with high honors and his law degree from Yale. Our last witness is Michael J. Gerhardt, professor of law at William and Mary, who is currently a visiting professor of law at the University of Minnesota. He is the author of several books, including The Federal Impeachment Process. Professor Gerhardt has served as a special consultant to the National Commission on Judicial Discipline and Removal, and the 1992 presidential transition

team. He has also taught law at Princeton, Cornell, and Duke. Professor Gerhardt received his bachelor's degree from Yale, a master's from the London School of Economics, and a law degree from the University of Chicago.

We welcome you all. And as I mentioned a while ago, your full testimony will be made a part of the record. It is a tradition with the full Committee and with the Subcommittee that we swear in witnesses, so I would like to ask you all to stand and take the oath. If you will raise your right hand, please.

[witnesses sworn.]

Mr. SMITH. Thank you. Please take your seats.

Professor Gerhardt, we are going to begin with you.

STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW, WILLIAM & MARY LAW SCHOOL

Mr. GERHARDT. Thank you very much, Mr. Chairman; and also thank you to Congressman Berman and the whole Subcommittee for the great privilege of being able to appear today.

You have my written statement, and I won't try your patience by going through it in any detail here. But it does amplify some of the points that I hope to make briefly right now.

As I have suggested, one of the things that struck me when I first read the Constitution Restoration Act of 2004 was a quote from Justice Antonin Scalia. In his prescient dissent in Morrison versus Olsen, Justice Scalia described the Independent Counsel Act as a wolf that comes as a wolf. And my concern with this statute is that this statute comes as a wolf before this Committee. It is very clear what the purpose of this statute is, and at least to me I think it is very clear the constitutional problems with it.

Very briefly, the first is that it attempts to dilute several constitutional precedents of article III courts. As we all know, there are only two ways in which to overturn or to eradicate article III courts' decisions that we don't like. One is by constitutional amendment, and the other is by asking the courts that rendered them to overturn them. In a case of an inferior court and a superior court, the superior court might reverse the lower court. But this statute, of course, doesn't satisfy those conditions. This statute, by its very name, I think, is attempting to do something that is only permissible through those means just described. If there are any problems with the particular precedents of article III courts, they cannot be, as I said, diluted or diminished by statutory means.

And by requiring that or by allowing every State court the judge not to be bound by precedents that might touch upon the substance of this Act, I think this Act essentially allows State courts to have final word on the application of the United States Supreme Court precedent. And I don't think that's consistent with the United States Constitution.

Secondly, I think the Act does intrude upon the core functioning of article III judges. That core functioning does include the power to say what the law is, and the power to say what the law is includes within it the power to determine appropriate sources on which to rely. Reference to, for example, a foreign law, might well arise or might well be appropriate in the course of constitution adjudication. We have seen that reliance, for example, in Bowers