This, my colleagues, is the paramount issue. Is it the People's Constitution? Is it the People's government?

Perhaps President Lincoln summed it up best in his first inaugural address: quote,

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court... At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court.. the people will have ceased to be their own rulers, having . . . resigned their Government into the hands of that eminent tribunal." 11

No Mr. Chairman, we must never resign our government-that government of the People, by the People and for the People-in the hands of the Supreme Court or any lower court.

Mr. CANADY. Thank you. Mr. Frank.

STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS

Mr. FRANK. Thank you, Mr. Chairman. I think there's a misunderstanding of what the doctrine of judicial review means in practice. Obviously, Members of Congress and the President and members of the executive branch are obligated to obey the Constitution, and the doctrine of judicial review doesn't mean they do not.

In fact, what we have with this doctrine is an obligation on everybody to follow the Constitution, and, indeed, I agree that Members of Congress have an obligation to decide what's constitutional. And frankly, I think, historically, elected officials have too often dodged that. Too often it is the notion, "Oh, well, we'll vote for this because it's popular; we'll let the Court do it." And I think it would be very healthy if we stopped hiding behind the Court. I think a lot of that is the problem.

But that does not mean that the Court loses—as I understand it-their power to say no. In effect, what we have is a triple screen, that any affirmative action—and I don't mean that in the race context-but any action that is taken by the Government has to be found constitutional by all three branches.

That is, if the majority of Members of Congress find something to be desirable, but unconstitutional, they ought not to vote for it. If they vote for it and the President decides it's unconstitutional, he ought to veto it. And if two-thirds of Congress overrode the presidential veto, then the Supreme Court ought to throw it out. This is not a case of one branch being supreme over the other; it is a case where you have got to pass everybody's notion of what is constitutional. And I think that's very important.

The alternative, if it is being suggested that the Supreme Court should lose its power to declare acts unconstitutional, which seems to me to be very unfortunate-yes, you can quote people from the 1790's; they passed the Sedition Act. I would hope nobody today would think that the Sedition Act, which said you couldn't say that John Adams was an unpleasant person-truth then not being a defense you could go to jail.

So, yes, I do well, let's face it; we're not talking now about whether only the Supreme Court decides constitutionality. We have

11 Abraham Lincoln, Inaugural Address, March 4, 1861, in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897 Vol. VI, p. 9, James D. Richardson, ed., 1891).

an obligation, we here in Congress too infrequently exercised-to take constitutionality into effect. The question is whether the Supreme Court should lose its power to say no, I gather, and I would find that disastrous.

Indeed, I would like to make the point that there is no crisis of judicial activism. Judicial activism is like State's rights, a stick that politicians use to beat things with that they don't like, but something they use to protect things when they like them. For instance, this subcommittee and this committee has voted out legislation to require a higher degree of judicial scrutiny because a threejudge court bears a referendum.

Well, I'd like to quote from what I think is a very compelling argument to the contrary: "Voters cannot validly enact a law which conflicts, for instance, with parties' rules governing the nominations of candidates and infringes their First Amendment rights any more than a legislature. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature."

And this very thoughtful document goes on to quote approvingly the following case on U.S. term limits. It says-well, no-they're quoting Carver v. Nixon, a Federal case, and this document quotes approvingly and says, quote, "There are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative." In other words, this document says, if anything, you ought to give more deference if it went through the legislative process than by initiative. Now you may say, "Oh, well this comes from people who disregard the will of the people."

But I think that would be an unfair characterization of the Californian Republican Party, because I'm reading from the brief of the Californian Republican Party. The lead signer is Michael Schroeder, who, I believe, is counsel to our former colleague, Mr. Dornan, and this is the brief they filed because they didn't like the California Republican Party-a referendum initiated by some people which weakened party control in primaries; and the California Republican Party went to a single Federal judge and said, "Who do these people think they are? How dare the electorate tell the California Republican leadership how to nominate candidates? And we don't care that it was a referendum." If anything, as they say here, the fact that it was done by referendum ought to mean less than if it was done by a careful legislative enactment. Throw it out.

Well, the judge wouldn't listen. He was not one of these judicial activists. He said to the California Republican Party, "I'm sorry, I don't believe in this judicial activism. I'm not going to overturn the will of the people." And he turned it down. But maybe later on it will be overturned.

So, the notion of judicial activism, as I said, seems to me to be invoked as a matter of convenience. As the gentleman from Virginia has pointed out, Justices Scalia and Thomas voted to invalidate more statutes in the last full year of the Court than anyone else.

Final point. One of the doctrines we've had to try to restrict judicial activism-conservatives have been defenders of it, liberals have sometimes been critical; William O. Douglas thought it was a terrible thing is the whole notion of judicial restraint, that you don't

decide things prematurely, you don't decide political questions, you don't decide things unless there is a genuine case in controversy. We've had a strict requirement that there be a real standing, that there be a real injury in fact before you go into court, that you don't decide political questions, that you don't rush to decide before it was done prematurely.

Well, last year a bill passed this House which said, "Oh, those are silly things. Let's get the Court right into this early on." It was the Majority's bill on the census. What the Majority passed, mandating a Supreme Court decision on the census, said, "Oh, this stuff about standing and this stuff about premature decisions and this stuff about political questions; that's a nuisance. We want to get this one done right away." And the Majority passed the bill, that as I've said, I think contradicts all of those doctrines.

Now people have a right to take this position or that. They don't, I think, have a right, selectively, to invoke these things. So I think it becomes very clear when you look at the California Republican Party on referendums-and also the California Republican Party is a party to a lawsuit asking a single Federal judge to overturn the campaign finance restrictions as I understand it, as well. Their brief is not quite as graphic in its disregard to the people's will, but the substance is the same: We don't care if it's a referendumthrow it out. And I think that's appropriate.

So, I hope we will continue with a system in which all of the branches are obligated to uphold the Constitution, and not talk about taking away from the Supreme Court what I think has been a very important historical power in this country to protect minorities.

Mr CANADY. Professor Campbell.

STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. CAMPBELL. Thank you, Mr. Chairman. It's ironic that you put me right after Professor Frank. [Laughter.]

It may amuse the committee to know that I was indeed involved in the open primary in California and that the Democratic party of California also filed against it, and also thought it was appropriate to overturn the will of the people of California and that the good sense of the Federal District Judge, Judge Levy, in Sacramento, was for the people and against the two parties.

And now a point that doesn't matter at all, but it's just kind of interesting, when we were polling on the open primary and we told the voters that both parties opposed it, it increased its popularity. [Laughter.]

I'm also just going to make a quick comment on the standing issues points of my good friend and colleague from Massachusetts. Standing has both constitutional and jurisprudential elements, and it's entirely appropriate for Congress to wipe away the jurisprudential elements of standing and say, "We think this is important and the court ought to hear something right away,"-cannot take away the constitutional component of standing in the case of the controversy requirement.

But the Supreme Court in Powell v. McCormick said that there were two components to standing; one was good judgment, def

erence, time, let the thing ripen; make sure the person who is bringing it before you is the right person, who could most vigorously vindicate the argument. But that could be waived if the Congress wished, and the Court said so in a footnote in Powell v. McCormick. And I suspect, although certainly that is my interpretation of what we do, when we say to a court, whether in the census case or in the flag-burning case, we want you to take this case right away, we're saying the jurisprudential elements, the discretionary elements of standing that are in our power to waive, we wish to waive.

Well, now on my own time-it's all my time, I guess, that you've given me, Mr. Chairman-but I wanted to say, if not provoked by my colleague and friend

Mr. FRANK. I thought I was being very supportive.

Mr. CAMPBELL. You are, indeed. Neither of our parties are, but

you are.

I really want to second something that all three of my colleagues said, though I do want to give credit that it was Congressman Frank who made the point most strongly. We really shouldn't ever say-and I've heard it said "Well, why don't we just leave this one to the courts?" Here's how I've heard it said. I've heard it said, when I was a Congressman here before the first time-and we had the flag-burning statute, and a number of us thought the statute was unconstitutional, but supported an amendment to the Constitution. That's what I did. I thought, "Sorry, the Supreme Court got it right. The First Amendment does protect flag-burning. Wish it didn't; don't think it's really important that it does, so I would support a constitutional amendment just to take this expression away. But you can't do it by statute, guys." That was my position. And I heard from my colleagues, I've got to tell you. Maybe you did, too, those of us who served at that time: Don't bother your head about this, Campbell; you're just being a law professor again. Kick that one to the Court; it's not for us to make the constitutional decision." But, that's wrong. It is for us to make the constitutional decision. It is important that we be a screen, and then if it passes us and the President signs it and the Supreme Court upholds it, then it's constitutional. What's wrong is to say, "Well, it's not our position."

Here's another example, also from my experience in my first time here the NEA. One of my colleagues had an amendment to ban funding for the NEA for art that denigrated a major religion. That was the actual text of his amendment. And I pointed out to him that I also had trouble with the NEA funding art that denigrates major religion, but how, consistent with the First Amendment, could I make a cut based on whether art was denigrating religion, let alone determine what is a major religion without getting into absolutely impermissible, constitutionally impermissible distinctions?

And my colleague said to me, "You're just a law professor. We'll let the court decide." So those are real examples in my time in Congress, and I suspect each of us have faced other ones, too.

Now the President also does this, by the way. The biggest example is the legislative veto, the One-House veto that was eventually overturned in Chadha v. INS. President after president has signed

legislation and in the signature message has said, "You know, I think that One-House veto provision is unconstitutional, but I really need this-the arms sales provision, for example, or an agricultural subsidy"—and that's just as wrong, isn't it? The President also should be exercising his constitutional screen.

So I did some research. Three years ago I did a paper on this, and I'm going to spend the rest of my time quoting from this research some interesting facts. First of all-Mr. Chairman, would you be able to kindly give me a few extra minutes? I'm almost done the first recorded meetings of the Senate didn't take notes (you might wonder, it may be just as well if they practiced that today). [Laughter.]

But when they did take notes, the very first recorded debate in the Senate was on the constitutionality of a bill before them, not on the policy of the bill before them. There was a time when we used to debate constitutionality. Really, we just don't debate that any more.

The second point-the language of the oath requirement-is really important. Article 6, Clause 3-the oath requirement-comes right after the Supremacy clause, Article 6, Clause 2. So, the Supremacy clause that the States have to abide by the Federal Constitution was already in the Constitution. You didn't need the oath requirement, so the oath requirement was for something else. That's a pretty straightforward textual analysis. You already have that States must adhere to the Supreme Federal Constitution, and the Supremacy clause comes before the oath requirement.

Then you have this: The Senators and Representatives beforementioned, and the members of the several State legislatures and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution.

So I went into Max Ferand's records of the constitutional debates, and I found out that the original draft only made the State officers take an oath. Isn't that interesting? And Delegate Gerry, who gave us the gerrymander in a less noble moment-[Laughter]-but in a noble moment, it was Representative Gerry who moved to amend the draft to say, "No, let's make the Federal officers also take the oath of office." That passed unanimously. And then another Member of the Constitutional Convention-regrettably, not mentioned by name-moved to strike out the requirement as to the States, and that failed 4 votes to 7. But the key was that the whole focus moved to the Federal Congresspersons, both by Gerry's amendment that said it ought to apply to them, and then the effort at, "You can just take the States out."

"

So, clearly, there was an intent in Article 6, Clause 3 to say, "That oath means you, Senators, and you, Congresspersons. You've got to and you, President-you Federal officers."

And, lastly, there is dicta. And that's all there is because this issue has never been resolved by the Supreme Court. The oath requirement has been raised in three cases in the Supreme Court, but all of them peripheral and not to this particular point. The most recent dealt with Julian Bond, who was denied his seat in the Georgia legislature under the theory that he could not in good faith take an oath of office if he was against Selective Service. The Geor