that, quote, “virtually all matters that might be heard in article III courts could be also be left by Congress to State courts," unquote. Far from violating the "separation of powers," legislation that reserves to State courts jurisdiction to decide certain classes of cases would be an exercise of one of the very "checks and balances" provided for in the Constitution. No branch of the Federal Government can be entrusted with absolute power, and certainly not a handful of tenured judges appointed for life. The Constitution allows the Supreme Court to exercise "judicial power," but it does not grant the Supreme Court unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of Government's responsibility to use its powers to prevent overreaching by the other branches.

We look forward to hearing from all of the witnesses here this morning, and I'll now yield to the Ranking Member of the Committee, the gentleman from New York Mr. Nadler for his opening statement.

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

When the Supreme Court in Lawrence v. Texas struck down a state law criminalizing same-sex sodomy last year, Justice Scalia, in his dissent, pointed out thatquote "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution .. adultery, fornication, bestiality, and obscenity" are all "called into question" by the Court's decision. That is a very disturbing prospect, and it should concern legislators nationwide.

The threat posed to traditional marriage by federal judges whose decisions can have an impact across state boundaries has renewed concern over the abuse of power by federal judges. This concern has roots as old and venerable as our Nation's history.

Thomas Jefferson lamented that quote "the germ of dissolution of our federal government is in the constitution of the federal judiciary;... advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped . Jefferson wrote of federal judges-quote "their power [is] the more dangerous as they are in office for life and not responsible... to the elective control."

And Abraham Lincoln said in his first inaugural address in 1861-quote-"The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court. the people will have ceased to be their own rulers having, to that extent, practically resigned their government into the hands of that eminent tribunal.'

.

A remedy to abuses by federal judges has long been understood to lie, among other places, in Congress' authority to limit federal court jurisdiction, and that is the subject of our hearing today.

Regarding the federal courts below the Supreme Court, Article III of the Constitution provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Regarding the Supreme Court, Article III provides that "[i]n all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases... the supreme Court shall have appellate Jurisdiction. . . with such Exceptions, and under such Regulations as the Congress shall make.” Consequently, the Constitution provides that the lower federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction.

In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of Congress' authority to amend federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that "it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences" posed by decisions of the federal judiciary.

That understanding prevails today. As a leading treatise on federal court jurisdiction has pointed out, "Beginning with the first Judiciary Act in 1789, Congress has never vested the federal courts with the entire judicial Power' that would be permitted by Article III" of the Constitution. And as eminent federal jurisdiction scholar Herbert Wechsler (pronounced Wex-ler) has stated, "Congress has the power by enactment of a statute to strike at what it deems judicial excess by delimitations of the jurisdiction of the lower courts and of the Supreme Court's appellate jurisdiction

Limiting federal court jurisdiction to avoid abuses is not a partisan issue. Senate Minority Leader Daschle has supported provisions that would deny all federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That amendment provided that neither the lower federal courts nor the Supreme Court would have jurisdiction to review any case arising out of state laws relating to voluntary prayers in public schools and buildings. In this Congress, several similar bills limiting federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 would remove from federal court jurisdiction certain cases involving the federal Defense of Marriage Act.

Federal legislation that precludes federal court jurisdiction over certain constitutional claims to remedy perceived abuses, and to preserve for the states and their courts the authority to determine constitutional issues, rests comfortably within our constitutional system. The Supreme Court has clearly rejected claims that state courts are less competent to decide federal constitutional issues than federal courts. Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun, and Stevens, that-quote-"virtually all matters that might be heard in Article III courts could also be left by Congress to state courts."

Far from violating the "separation of powers," legislation that reserves to state courts jurisdiction to decide certain classes of cases would be an exercise of one of the very "checks and balances" provided for in the Constitution. No branch of the federal government can be entrusted with absolute power, and certainly not a handful of tenured judges appointed for life. The Constitution allows the Supreme Court to exercise "judicial power," but it does not grant the Supreme Court unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of government's responsibility to use its powers to prevent overreaching by the other branches.

I look forward to hearing from all our witnesses today.

Mr. NADLER. Thank you, Mr. Chairman.

Mr. Chairman, today we begin our fourth in a series of five hearings on the topic of same-sex marriage. We have already devoted more time in this Committee to this topic than to the means by which we might preserve our democratic form of Government if terrorists wipe out our Government. One would think that the possibility that somewhere a lesbian or gay couple might live out their years peacefully and happily were a greater threat to the United States than is al Qaeda.

Today, however, the topic is a very serious one. The hysteria over the marriage question has brought some to the point of suggesting that Congress should strip the Federal courts of the jurisdiction to hear cases involving alleged violations of an individual's rights protected under the Constitution. These proposals are neither good law nor good public policy. Past attempts to restrict court jurisdiction have followed many civil rights decisions, including the reapportionment cases. Fortunately, cooler heads in Congress prevailed at the time, and the decisions that gave rise to these outlandish proposals are now no longer controversial for the most part. Unless I am greatly mistaken, no one in this room would question the constitutional protection of one person, one vote. I trust that decades from now these debates will find their way into the textbooks next to the segregationist backlash, the Court-pack

ing plan of the 1930's and other attacks on our system of Government.

The disabilities that lesbian and gay families suffer are widely known. Today I will be introducing the Equal Access to Social Security Act, for example, that would allow same-sex couples to receive the same Social Security benefits as every other couple, that would allow the children of same-sex couples to receive survivors' benefits and disability benefits, benefits for which these people pay taxes just the same as everyone else. While this would address only a small portion of the more than 1,000 benefits denied to same-sex families, it would correct one terrible injustice.

In today's hearing, Mr. Chairman, it is our very system of Government and the constitutional system of checks and balances that are under attack. If the Congress by statute were to prevent the Federal courts from applying the Constitution to any subject matter it chooses, then the protections of an independent judiciary, the protections to our individual liberties afforded by the institution of the independent judiciary and by the existence of the Bill of Rights would be no more than a puff of smoke. The Bill of Rights, in other words, could be undone by a simple refusal by Congress to allow the courts jurisdiction to enforce any particular one of the Bill of Rights.

Imagine if we passed a bill stripping the courts of jurisdiction to hear alleged violations of the freedom of the press or freedom of religion. It would be unpopular minorities, of course, whether religious minorities, political minorities, lesbians or gays, or whoever is unpopular at the moment, who will lose their rights. After all, it is the unpopular whose rights must be protected from the majority by a Bill of Rights. The majority rarely needs its rights protected.

As Hamilton said in Federalist No. 78, the complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it should pass no bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.

Gay marriage does not threaten the future of this country. The evisceration of our Constitution and the Bill of Rights does threaten the future of the liberties of our citizens. We are playing with fire at this hearing, and that fire could destroy our liberties. I hope we don't use that fire.

Thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

It's my understanding that the gentleman from Indiana would like to make an opening statement. He's the principal sponsor of 3313.

Mr. HOSTETTLER. I thank the Chairman.

Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said

that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, “constitutional," end quote.

But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, "the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution," end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866.

While we will hear today what is considered to be, quote, "constitutional," end quote, according to the desires of the Federal judiciary, this is not the House Subcommittee on Constitutional Law. This is the House Subcommittee on the Constitution. Today we will hear a wide range of means by which we can deal with the situation of a judiciary that has time and time again worked outside of its boundaries, and that response can be everything from doing nothing to an amendment to the Constitution. And that amendment to the Constitution can be, in the most extreme case, repeal of article III of the Constitution itself.

Now, I am not suggesting that we go that far, but rather, we are to know that the Constitution grants Congress the authority, a wide range of authority, from impeachment of justices and judges to the limitation of funds for the enforcement of their decisions, to the limitation of jurisdiction, as well as constitutional amendments. My bill, H.R. 3313, employs one of those checks on the judiciary, a constitutional check, a constitutional check that is found explicitly, not implicitly, but explicitly, in the Constitution itself, in article III, section 2 of the Constitution; for example, where it says, "in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make," end quote.

The word "all" is very clear even to this nonlawyer, that, in fact, the Supreme Court's appellate jurisdiction can be limited in all other cases before mentioned, and those cases are mentioned in article III, section 2, subsection 1. Congress has the authority to limit the jurisdiction of the the appellate jurisdiction of the United States Supreme Court in all the other cases that have been mentioned in article III, section 2, and because the lower courts are creations of the Congress, as a result of article I, section 8, and article III, section 1, it is obvious that Congress has the authority; if we have the authority to create these inferior Federal courts by stat

ute, then we have also the constitutional authority by our lawmaking powers to eliminate these inferior Federal courts.

And so, from the spectrum of creating courts as well as eliminating courts, there can be assumed within that spectrum the idea of limiting the jurisdiction of the inferior Federal courts. And so if we can, according to the plain text of the Constitution, limit the Federal jurisdiction, limit the jurisdiction of inferior Federal courts, and we have by explicit wording of article III of the Constitution the power to limit the appellate jurisdiction of the Supreme Court, it is obvious that the Marriage Protection Act is something that Congress can do. The idea that it is something that Congress should do is going to be a matter of debate of this Subcommittee, the full Committee and this House, but it is my hope that after today's hearing we will conclude that it is definitely something that the Constitution grants Congress the power to do.

Yield back the balance of my time.

Mr. CHABOT. I thank the gentleman.

Without objection, all Members will have 5 days to submit written opening statements.

Also I'd ask unanimous consent that the gentlelady from Wisconsin, although she's not a Member of this Subcommittee, have the opportunity to question the witnesses like any other Member. Without objection, so ordered.

And we will now introduce our witnesses here this morning. Our first witness today is Phyllis Schlafly, the founder and president of the Eagle Forum, a national organization of volunteer citizens who participate in the public policymaking process. Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, and she received her master's in government from Harvard University. Mrs. Schlafly is the author or editor of 20 books on subjects as varied as family and feminism, history, education and child care, and her radio commentaries are heard daily on 460 stations. She was named one of the 100 most important women in the 20th century by Ladies Home Journal.

We welcome you here this morning, Mrs. Schlafly.

Our second witness is Michael Gerhardt, a Hanson Professor of Law at the William and Mary School of Law. I want to especially welcome Professor Gerhardt here since I'm a product of not William and Mary's law school, but an undergraduate; spent 4 of the best years of my life there and enjoyed it tremendously. It's a tremendous university. And we welcome you here this morning. We may not necessarily agree on all our views on everything, but I certainly think you picked a great school to teach law at.

Professor Gerhardt clerked for Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit, and he has practiced law at Miller, Cassidy, Larocca & Lewin in Washington, D.C. He has also served as dean of Case Western University School of Law, taught at Wake Forest University School of Law, and he has been a visiting professor at Cornell and Duke University law schools.

And we welcome you here this morning, Professor.

Our third witness is Martin Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. Professor Redish is a nationally renowned authority on the subject of Federal jurisdiction. He received his A.B. With