sumption appears to have been that were Congress to have chosen not to create the lower federal courts, the state courts-who are explicitly bound to enforce federal law under the Constitution's Supremacy Clause, Article VI, cl. 2—would be available to serve as the trial forums for the adjudication of claims arising under federal law. See generally Martin H. Redish, 15 Moore's Federal Practice sec. 100.20 (3d ed. 1997). The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to "abolish" them as to only certain cases by limiting their jurisdiction.

Scholars have on occasion raised questions about the validity of the assumption that the power to create the lower courts logically dictates a corresponding power to abolish them. See, e.g., Ronald Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 Geo. L.J. 839, 842-43 (1976). Nevertheless, since the constitutional text provides Congress with the power "from time to time" to ordain and establish the lower courts, I believe it is reasonable to infer from this language the power periodically to alter what Congress has already created. And if one accepts congressional power to abolish the lower courts, the power to leave them in existence but simultaneously restrict their jurisdiction seems to flow inexorably. If Congress possesses such authority, it is difficult to see how Article III itself implicitly imposes any restrictions on how that authority is to be employed. Thus, Article III would seem to provide no constitutional bar to the congressional exclusion of substantively based categories of cases from the jurisdiction of the lower federal courts.

Early in the nation's history, Justice Joseph Story argued that the words, “shall be vested" in Article III dictate that the lower federal courts must exist to exercise judicial power in those cases constitutionally excluded from both the highly limited original jurisdiction of the Supreme Court and the jurisdiction of the state courts. Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case-either a lower court or the Supreme Court-would be violated. However, even if Story were correct in his assumption that the words, "shall be vested" are to be construed to be a command-by no means an obviously correct construction-he ignored the fact that, given the nature of the Madisonian Compromise that led to the drafting of Article III, there are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. Thus, the entire logic of Story's theory breaks down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7-9 (Matthew Bender 1998).

CONGRESSIONAL POWER TO CONTROL THE APPELLATE JURISDICTION
OF THE SUPREME COURT

Article III, section 2 of the Constitution extends extremely limited original jurisdiction to the United States Supreme Court. In all other cases to which the federal judicial power is extended, the Court is given appellate jurisdiction, "both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." On its face, this provision provides seemingly unrestrained congressional authority to exclude categories of cases from the Supreme Court's appellate jurisdiction. In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the post-Civil War Supreme Court appeared to recognize the unlimited authority explicitly authorized in the text. See Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 25-27 (2d ed. 1990). However, in a subsequent decision the same year, the Court construed McCardle narrowly, leaving open the possibility that the Exceptions Clause is not to be extended as far as its text suggests. Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868). See also Felker v. Turpin, 518 U.S. 651 (1996). Nevertheless, the Supreme Court has to this day not resolved the outer reaches of the Exceptions Clause, and I fail to comprehend how a textually unlimited power to make exceptions to the Supreme Court's appellate jurisdiction can be construed to be limited in any way. While it is at least conceivable that other constitutional provisions might confine this congressional power, at least the text of the Exceptions Clause itself does not do so.

SUGGESTED SCHOLARLY LIMITATIONS ON CONGRESSIONAL POWER

TO CONTROL FEDERAL JURISDICTION

As I have already indicated, I believe that the textual directives of Article III make clear, on their face, that Congress possesses broad constitutional authority_to control the jurisdiction of both the lower federal courts and the United States Supreme Court. Nevertheless, several respected scholars have questioned the text's seemingly clear directives. However, none of these scholarly theories can withstand careful critical analysis. Ultimately, all of them amount to what I have described as a form of "constitutional wishful thinking." Redish, Tensions, supra at 28. My prior work has provided detailed critiques of each of these theories (see the previously cited sources). Here I will briefly describe those theories and the fundamental problems with each.

Henry Hart's "Essential Functions" Thesis

Many years ago, Henry Hart cryptically suggested that the Exceptions Clause is somehow restrained by a textually nonexistent limitation that prevents Congress from interfering with the "essential functions" of the Supreme Court. Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953). Though Hart never explained either what those supposedly essential functions actually are or from where in the Constitution he derived them, it appears from subsequent work by his supporters that the concept is intended to include the unifying function of federal law interpretation and the policing of state court interpretations of federal law. See Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157, 201-02 (1960). As I have previously argued, however, the historical evidence relied upon to support the "essential functions" thesis is "[alt best speculative and at worst simply useless." Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 908 (1982). In any event, as already noted, the text provides absolutely no suggestion of such a limitation, regardless of what the history demonstrates.

Akhil Amar's Theory

Professor Akhil Amar has suggested an alternative theory that provides that for certain categories of cases to which the federal judicial power is extended in Article III, section 2, Congress may not revoke all federal judicial jurisdiction. Unlike Professor Hart (who confined his constitutional restriction on congressional power to the Supreme Court's appellate jurisdiction), Professor Amar asserts that at least one level the lower federal courts or the Supreme Court (but not necessarily both) must remain open to adjudicate any category of cases delineated in Article III, section 2 preceded by the word, "all." He reasons that the selective use of that word, combined with the mandatory "shall be vested" language at the start of section 1, provides a textual basis for his conclusion. See generally Akhil Amar, The TwoTiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1569 (1990).

If Professor Amar's theory were accepted (and I am unaware of any support for it in the modern case law), it would severely restrict congressional power to remove simultaneously from both the lower federal courts and the Supreme Court cases that arise under federal law, since that is one of the categories preceded by the "all" qualifier. However, it is difficult to imagine that the drafters of Article III would have attempted to reach the result Professor Amar advocates simply by the cryptic and selective use of the word, "all." This is especially true, when at the very same time they explicitly provided Congress with unlimited discretion not to create the lower federal courts in the first place and to make exceptions to the Supreme Court's appellate jurisdiction.

In any event, purely as a matter of textual construction, Amar's theory makes no sense: If the words, "shall be vested" are, in fact, intended to be mandatory, all of the categories of cases enumerated in Article III, section 2, are modified by it. This is so, whether or not those categories are preceded by the word, "all." Thus, if we are to take seriously Amar's out-of-context focus on the words, "shall be vested," his textual argument must logically lead to the conclusion that every category of cases enumerated in Article III, section 2 must be heard by some Article III court, regardless of whether or not it is preceded by the word, "all." For my detailed critique of Professor Amar's theory, see Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990). See also John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997) (criticizing Amar's theory). For a defense of Amar's theory, however, see Robert Pushaw, Congressional Power Over

Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. Rev. 847.

Professor Sager's Theory

Professor Lawrence Sager has argued that Congress may not use its authority to revoke jurisdiction from both the Supreme Court and the lower federal courts in a substantively selective manner. Lawrence Sager, The Supreme Court 1980 Term, Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Lower Federal Courts, 95 Harv. L. Rev. 17 (1981). However, for the most part Professor Sager's focus appears to be on jurisdictional exclusions for state behavior when constitutional rights are at stake. See id. at 69. Thus, were Congress to exclude the jurisdiction of all Article III federal courts in cases involving questions of purely sub-constitutional law not involving state action, Sager's theory is at best of diluted force. In any event, I have argued that Sager's theory ignores the clear textual directives of Article III. See Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982). For further criticism of Sager's theory, see Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 915 (1984).

RELEVANCE OF OTHER CONSTITUTIONAL PROTECTIONS

Due Process

While the outer reaches of the right remain somewhat unclear, it is established that the Due Process Clause requires adjudication by a neutral, independent forum before government may revoke protected liberty or property interests. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927). See generally Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455 (1986). Thus, where constitutional rights are at stake, Congress may not revoke all forms of access to an independent judicial forum. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). But even the exclusion of both lower federal court and Supreme Court jurisdiction would not bring about such a result, as long as the state courts remain a viable alternative. I have long expressed concern about exactly how viable the state court remedy is (see Redish, 77 Nw. U. L. Rev. 143; Redish & Marshall, supra), but the case law is quite clear that the state courts are deemed to satisfy the due process requirement of a neutral judicial forum. Thus, as long as state courts remain open, congressional exclusion of federal jurisdiction raises no issue of due process.

Separation of Powers

The separation-of-powers limitations on congressional power to control federal jurisdiction are somewhat more complex than the due process limitation. Derived from both the text and structure of Article III, the separation-of-powers doctrine imposes significant restrictions on congressional authority. Before exploring those restrictions, however, it is important to note that as long as Congress completely excludes federal court jurisdiction over a particular category of cases, including the enforcement power, generally separation-of-powers problems are unlikely to arise. The only concern would be were Congress to exclude federal court jurisdiction and itself attempt to adjudicate individual cases, a clearly unconstitutional usurpation of the judicial power by the legislative branch.

Most of the difficulties occur, however, primarily when Congress vests jurisdiction in the federal courts (lower courts or Supreme Court) while simultaneously imposing restriction on federal judicial ability to interpret the law being enforced or to review its constitutionality. See generally United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). For a more detailed description of the case and its implications, See Redish, Tensions, supra at 48-49. This limitation flows from the theory of the "quid pro quo:" the notion that where Congress wishes to invoke the unique legitimacy that the independent federal judiciary possesses, it must allow the judiciary full authority to interpret and review the law that it is asked to enforce. In addition, the Supreme Court has made clear that while Congress may alter the general substantive sub-constitutional law to be applied by the federal courts, it may not reverse specific judgments already entered by the federal courts. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

Equal Protection

The equal protection directive, deemed to be implicit in the Due Process Clause of the Fifth Amendment, can conceivably also play a role in limiting congressional power to control federal jurisdiction. Despite its seemingly unlimited authority under Article III, Congress quite clearly may not revoke or confine federal jurisdic

tion in a discriminatory manner. For example, Congress could not successfully argue that its greater constitutional power to exclude federal judicial power completely logically subsumes the lesser power of excluding federal judicial power, for example, in cases brought by African Americans, Jews, or Women.

POLITICAL PROCESS CONSIDERATIONS

It is clear to me that Article III of the Constitution vests broad power in Congress to exclude the jurisdiction of both the Supreme Court and the lower federal courts. While externally derived constitutional doctrines impose distinct limits on that power, I can see absolutely no textual or structural basis for denying Congress power completely to exclude substantive categories of cases from the jurisdiction of the federal courts. This is true, even in cases in which constitutional rights are at stake, as long as an alternative adequate judicial forum has been made available. It does not follow, however, that Congress should choose to exercise this power. To the contrary, I firmly believe that Congress should choose to exercise this power virtually never. There has long existed a delicate balance between the authority of the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, therefore, that whatever the scope of its constitutional power, Congress should be extremely reluctant to exercise that power.

Mr. CHABOT. And, Congressman Dannemeyer, you're recognized for 5 minutes.

TESTIMONY OF THE HONORABLE WILLIAM E. DANNEMEYER, FORMER U.S. REPRESENTATIVE

Mr. DANNEMEYER. Thank you, Mr. Chairman.

I think it's appropriate to put this whole issue in the perspective of why we are here this morning in that there is an intense cultural war waging in this Nation over values, and the issue for the political leadership of this country is whether you, the elected Members of Congress, will have the courage to affirm that God exists. That's the issue. This issue over how we define marriage is an important aspect of that cultural war.

Another issue that deserves attention by this Congress deals with whether or not we will affirm in the Pledge of Allegiance and the national motto that God exists.

There's no question that the homosexual political movement is a powerful force in this culture not because of its numbers, but because of the people controlling the media of this country who look upon that movement as an idea and a civil right whose time has come. We need to recognize this.

And so, what exists in the system to correct this effort for political power? This political movement of homosexuals has chosen the judiciary of America as the means of achieving their goals. Why? Because they know they can't get their agenda through the elected representatives in the State legislatures and in the Congress of the United States, and so they've chosen a judiciary in the State of Massachusetts as a happy hunting ground for their goal. And then they rely upon provision of Full Faith and Credit Clause of the U.S. Constitution which says that anybody that goes to Massachusetts and gets a marriage and is married must be recognized in every other State of the Union.

And then DOMA comes along and says a State has a right to not do that, and then we recognize the reality that the U.S. Supreme Court may pass upon the constitutionality of DOMA, and they may turn it down. We don't know. That's where this place, the Congress of the United States, under the Constitution, can come forward and

affirm the values that God created for mankind that have controlled civilizations from the beginning of time. Marriage exists of a man and a woman who form a family, and that's how we provide for the next generation.

In addition, our laws should provide that we will teach in the public schools of this Nation that God exists who created rules for man to live by. This body, Congress, can use article III, section 2 of the Constitution to acxcept these areas of the jurisdiction of the Federal court system. I would urge it to do so.

The other alternative, of course, that the professor has talked about is that this would leave judicial inquiry to State legislatureState judicial courts. I acknowledge that. Well, the answer to that is a constitutional amendment. But do we have two-thirds of the votes in the House and in the Senate to get a constitutional amendment? I don't think so.

So the move at this time, at this-in this Congress is to use article III, section 2, and then if the Supreme Court turns that down, what other recourse do we then have to achieve the goal of affirming that marriage exists and we'll have God in the Pledge of Allegiance is a constitutional amendment? I hope it doesn't come to that. But I think Congress at this time should take that step.

For example, I just-if I have time left here, Members, the use of article III, section 2 by Congress is not something with which they are unfamiliar. In the last Congress it was used 12 times, and I submit that if it was used 12 times in the last Congress, it can be used 1 time in this current Congress. There have been a number of articles that have been written by distinguished scholars on the use of article III, section 2, and I would hope that the Members of this Subcommittee and the full Subcommittee will give due consideration to them.

Thank you.

Mr. CHABOT. Thank you very much, Congressman.
[The prepared statement of Mr. Dannemeyer follows:]

PREPARED STATEMENT OF THE HONORABLE WILLIAM E. DANNEMEYER

Mr. Chairman and members of the Subcommittee:

Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal system of three branches, Executive, Legislative and Judicial.

On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear that, of the three branches of government which were created, the one he feared the most was the federal judiciary in these words:

"The federal judiciary is working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one (i.e., federalization)."

Decisions of the federal judiciary over the last half century have resulted in the theft of our Judeo-Christian heritage, a brief sampling is as follows:

• Enacting “a wall of separation between church and state"

• Banning nondenominational prayer from public schools

• Removing the Ten Commandments from public school walls

• Removing God from the Pledge of Allegiance

Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading "Jurisdiction of Supreme and Appellate Courts," the clause says: