The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution The Honorable Jerrold Nadler, a Representative in Congress From the State Page LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared Statement of the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the MATERIAL SUBMITTED FOR THE HEARING RECORD Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES THURSDAY, JUNE 24, 2004 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. The Subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding. Mr. CHABOT. The Committee will come to order. Good morning. This is the Subcommittee on the Constitution. This is the fourth hearing that we've had relative to the issue at hand. 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 that, quote, “State 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," unquote. 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," unquote. 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, quote, "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 (1) and establish." Regarding the Supreme Court, article III provides that, quote, "in 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 other cases the Supreme Court shall have appellate Jurisdiction with such Exceptions and under such Regulations as the Congress shall make,” unquote. 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; that is, cases involving ambassadors or in which one of the States is a party. 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, quote, "it ought to be recollected that the national legislature," us, the Congress, "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 the decisions of the Federal judiciary. That understanding prevails today. As a leading treatise on Federal court jurisdiction has pointed out, quote, "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 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, |