representative governments." Where Professor Currie and I emphatically agree is that the home plate umpire is the people. Mr. CANADY. Mr. Fisher? Mr. FISHER. I want to comment on something that Neil Kinkopf said about the Take-care Clause. Maybe he can explain it again because, to me, if Congress passes legislation, the President is to see that the laws are faithfully executed. He doesn't have authority to pick and choose, and say, I'm not going to enforce this. There was a case in the Reagan years where the Justice Department decided that it wasn't going to implement all of the Competition in Contracting Act, and the Circuit Court, the Appellate Court, said that the President doesn't have such authority; that would be like a line-item veto. Well, we have one, live with one now, but at that time, that was considered a forbidden act. You enforce all the laws; you don't pick and choose. Mr. KINKOPF. Right, I agree with you, Professor Fisher, and I appreciate the opportunity perhaps to clarify what I said. I agree that that is not for the President to do, and my concern would be that if we were to adopt the position that each branch is the ultimate arbiter of its own authority we would end up very quickly in a very significant constitutional crisis. And I think the Court's approach which accommodates and is greatly deferential to each branch's view of its own power, but which is not finally deferential allows us to avoid those constitutional conflicts and I think properly enforces the Constitution's structure. Mr. CANADY. Professor Clinton? Mr. CLINTON. Well, I'd first like to ask Professor Currie; something he said confused me. I agree with you that Congress does not have the last word on all constitutional questions, but are you saying that the Court does? Mr. CURRIE. No. As I tried to say a few moments ago, I think each branch has a negative. Each branch, if it says something is unconstitutional, can prohibit it from going into effect. I think that's what the Framers intended and I think that gives us maximum protection for constitutional rights. Mr. CLINTON. Well, I'm unclear as to why you think I disagree with that. Mr. CURRIE. Well, if you don't disagree with it, fine. Mr. CLINTON. I think all I really said was that it seems to me, according to the original understanding, that each branch of government was to be the final judge of its own powers. I think that's way the constitutional history of the country went for at least a 100 years and then things started changing in the late 19th century. Mr. CURRIE. What I took you to say-Mr. Chairman, if I may— I took you to be taking a narrow view of Marbury v. Madison, saying that it only upholds the power of the Court to strike down. those acts of Congress which interfere with its own functions, and I'm saying I do not agree with that. Gibbons v. Ogden was just cited as an example of a narrow view of judicial review, but actually what the Court did there was to review the constitutionality of a substantive act of Congress. Mr. CLINTON. Well, isn't it true that a Court's holding is generally confined to the situation of the case. Mr. CURRIE. I hope so. Mr. CLINTON. It seems like if you interpret Marbury that way, that's all that could be drawn out of the case in terms of judicial review. Mr. CURRIE. Marbury doesn't stand alone. We have 200 years of other decisions of the Supreme Court, reviewing the validity of substantive decisions of Congress, and I that history supports that authority. Mr. CLINTON. But it seems to me that history doesn't really start until about the 1890's and that's where the historical problem comes in. Sure, if the Court had decided other cases right away and continued to do that throughout the 1800's, and the 1820's, 1830's, and the 1840's, and on, at an increasing rate, that would be one thing; but the fact seems to me to be that the Court did not do that. It waited, in effect, almost 100 years before it ever invalidated an act of Congress, other than the Dred Scott case-we have to admit that was an exception. But that was the only exception until 1895, it seems to me, where the Court actually invalidated a Federal law on grounds other than those stated in Marbury. Mr. CURRIE. The Court had practiced substantive judicial review ever since of Hylton v. United States in 1796 in which it was asked to invalidate an act of Congress imposing a tax on the ground it violated the direct tax apportionment provisions of Article I. The Court recognizes and exercises the power of judicial review not only when it in fact strikes down a statute, but whenever it asks the question, as it asked innumerable times throughout the 19th century, is this act constitutional. The historical record supports the Supreme Court's power to do that, and I don't think today anybody is going to cause us to retreat from judicial review of acts of Congress on substantive grounds that do not affect the jurisdiction of the Court. That's a very established and very essential part of our checks and balances. Ms. STROSSEN. I'd just like to echo that and to say I think it would be very dangerous if we inferred from the fact that it took the Supreme Court a long time to exercise its power of constitutional review with respect to particular acts of Congress that, therefore, that means the Supreme Court doesn't have that power. Take the area where I have continued to voice concern, in the acts of Congress that violate the First Amendment. We've had them for a long time; earlier on in today's session, somebody mentioned the Alien and Sedition Acts. The Supreme Court did not have occasion to find those unconstitutional. Interestingly enough, it was Congress that stepped into the breach by failing to re-enact the law. But it was not until 1965 that the Supreme Court for the first time struck down an act of Congress as violating the Free Speech guarantee in the First Amendment, and I would be loathe to infer from that historical record that, therefore, the Supreme Court does not have the power to strike down acts of Congress that do violate the First Amendment. Mr. CANADY. Mr. Fisher? Mr. FISHER. The point that David Currie just made about the affirmative role of the Supreme Court I think should be underscored. That gives you the creative, constructive power. You're the ones who are deciding what national legislation should be, and, on the whole, the Supreme Court comes along and says, you're right, you're right, you're right, and occasionally they say, you're wrong, and you're back on the dialog again. But the affirmative part of judicial review just emphasizes how large a role the Congress plays and the Court is generally instrumental in supporting you. Mr. CANADY. Well, thank you for your comments. All of you have made a very important contribution to our hearing today and I want to extend my gratitude to you. I want to thank the members of the subcommittee-we actually had pretty good attendance today for a day that Congress is not in session, and I'm grateful to the members who were able to be here. I wish we could continue, but time is racing on. I do thank you, and this is a discussion that will go on, and I think the issues that we've raised today are important issues, not just for the subcommittee, but for all Members of Congress to reflect on and hopefully some of the things that have been discussed today will be discussed more widely in the Congress as we go about our constitutional responsibilities. Thank you very much. The subcommittee is adjourned. [Whereupon, at 12:08 p.m., the subcommittee adjourned subject to the call of the Chair.] APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD ESSAY JUDICIAL EXCLUSIVITY AND POLITICAL Neal Devins' and Louis Fisher** JUD UDICIAL supremacy is down but hardly out. Notwithstanding calls by interest groups that Congress "is now the court of last resort," the myth of judicial exclusivity nonetheless persists. The popular press treats Court rulings as definitive,' law school casebooks typically identify constitutional law as the work of the Supreme Court,' and when a government official, make that Reagan Administration Attorney General Edwin Meese, argues that Supreme Court decisions are not “binding on all persons and parts of government," editorialists and representatives of the Washington Post, New York Times, and American Bar Association are sent into a state of apoplexy. Among legal academics, however, it is • Ernest W. Goodrich professor of law and a lecturer in government at the College of William and Mary. Alan Meese, John McGinnis, Suzanna Sherry, Emily Sherwin. and Bill Treanor provided valuable commentary on an earlier version of this essay. **Louis Fisher is Senior Specialist in Separation of Powers at the Congressional Research Service of the Library of Congress. 'W. John Moore, In Whose Court?, 23 Nat'l J. 2396, 2400 (1991). : In a 1987 survey conducted by the Hearst Corporation and reported in the Washington Post, six out of ten respondents identified the Supreme Court as the "final authority on constitutional change." For the Post, those six were "correct[]." Ruth Marcus, Constitution Confuses Most Americans: Public Ill-Informed on U.S. Blueprint, Wash. Post. Feb. 15. 1987, at A13. See also Joan Biskupic, The Shrinking Docket. Wash. Post, Mar. 18, 1996, at A15 (discussing the Supreme Court's shrinking docket and noting: “The importance of the Court, of course, is not in its numbers. It is in the Court having the last word. The justices are the final arbiter of what is in the Constitution.") 'See Neal E. Devins. Correspondence: The Stuff of Constitutional Law, 77 Iowa L. Rev. 1795 (1992). *Edwin Meese III. The Law of the Constitution, 61 Tul. L. Rev. 979, 983 (1987). 'Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19: Anthony Lewis, Law or Power?, N.Y. Times. Oct. 27, 1986, at A23; Stuart Taylor Jr., Liberties Union Denounces Meese, N.Y. Times. Oct. 24, 1986, at A17 (quoting then-ABA 58-804 99-5 |