stitution. This was an appropriate response allowed by the Constitution, but enacting the same bill but restricting federal jurisdiction over it would be unconstitutional.

In addition, courts must have the authority to enjoin ongoing violations of constitutional law. For example, the Congress may not preclude courts from enjoining laws that violate the First Amendment's guarantee of freedom of speech. If an article III court concludes that a federal law violates constitutional law, it would shirk its duty if it failed to declare the inconsistency between the law and the Constitution and proceed accordingly.

Proposals to exclude all federal jurisdiction would, if enacted, open the door to another, equally disastrous constitutional result-allowing the Congress to command the federal courts on how they should resolve constitutional results. In Ex Parte Klein, 80 U.S. at 146-47, the Supreme Court declared that it

seems to us that it is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power... What is this but to prescribe a rule for the decision of a cause in a particular way? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department or the government in cases pending before it? We think not. We must think that Congress has inadvertently passed the limit which separates the legislature from the judicial power.

The law at issue in Ex Parte Klein attempted to foreclose the intended effect of both a presidential pardon and an earlier Supreme Court decision recognizing that effect. The Court struck the law down. In all likelihood, the same outcome would arise with respect to any other law excluding all federal jurisdiction, for such a law is no different than a law commanding the courts to uphold the law in question, a command no doubt Article III courts would strike down even if they thought the law in question was constitutional. There is no constitutionally meaningful difference between these laws, because the result of a law excluding all federal jurisdiction over a federal law and a command for the courts to uphold the law are precisely the same-preserving the constitutionality of the law in question.

II.

THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES SEPARATION OF POWERS

With the aforementioned principles in mind, I believe that the Constitution Restoration Act violates separation of powers in several ways. First, it attempts to dilute several constitutional precedents of the Supreme Court, the Eleventh Circuit (on the Ten Commandments), and the Ninth Circuit (on the Pledge of Allegiance). Part III, Section 301 of the Act, provides that “Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any state court." The Supreme Court no doubt qualifies as one of the federal courts covered by this provision. In previous cases, the Supreme Court has held that posting the Ten Commandments in public school classrooms violates the First Amendment, 12 that mandatory school prayer is unconstitutional,13 and that students may not be required to recite the Pledge of Allegiance. 14 The Constitution Restoration Act allows state courts to ignore each of these precedents. Indeed, this is the purpose of the Act. Moreover, it invites state courts to overturn these precedents. State courts could, for instance, choose simply to post the Ten Commandments and allow mandatory school prayer or mandatory recitation of the Pledge of Allegiance, without any fear the Court might order them to comply with its precedents. The precedents will lose their constitutional significance.

Second, Title II, section 201 of the Act, provides that in constitutional adjudication "a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law." This provision is almost certainly unconstitutional, because it interferes with the core function of federal judges to decide for themselves on how much weight to attach to particular sources of constitutional meaning. In almost every instance in which Supreme Court justices have referenced foreign law in their constitutional opinions, the justices' reliance on foreign law has been de minimis. In those few instances, they took great pains to explain that they

12 See Stone v. Graham, 449 U.S. 39 (1980).

13 See, e.g., Engel v. Vitale, 370 U.S. 421 (1962).

14 See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

have attached no, or little, weight to the foreign law referenced in their opinions. Moreover, some foreign law is arguably pertinent to constitutional interpretation; for instance, the bill mentions "English common law" as being relevant to constitutional interpretation but does not mention some precedents from classical antiquity on which some Framers relied in fashioning certain parts of the Constitution, such as separation of powers. 15

Third, Section 302 of Title III of the Act declares that "any activity" by a federal judge "that exceeds the jurisdiction of the court of that judge or justice, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act," is "deemed to constitute the commission of" an impeachable offense. This provision is constitutionally problematic for many reasons. To begin with, “any activity" might include striking down the Act as unconstitutional. If, for instance, the Supreme Court struck the law down, then the House will have to determine whether it must then impeach the offending majority, perhaps the entire Court itself. I do not believe that such a result is at all consistent with our constitutional traditions, historical practices, and structure, including our cherished notion of judicial independence.

Nor does the Act qualify how much reliance on foreign law is unacceptable. It seems outlandish to treat minimal reliance on foreign law as constituting the grounds for a judge's removal from office.

Though the Act allows judges and justices to rely on "constitutional law" in interpreting the Constitution, the Act does not define the terms. While some members of Congress might reach different conclusions than some justices about both the appropriate sources of constitutional meaning and how much weight to attach to them, the opposite holds true as well: Justices are not, nor may they be required, to comply with the directives of Congress on which constitutional conclusions they may reach, which sources they may consult, or how much weight they ought to attach to these sources.

Moreover, it is difficult, if not impossible, to make a judge's bad decision grounds for his or her impeachment. 16 Judicial independence requires relatively wide latitude of discretion in determining how to prioritize sources of decision. Indeed, this independence is an important feature within the appellate system, which is designed in part to correct judicial errors. Bad decisions may be appealed, and they may be overturned on appeal. They may also be overturned by constitutional amendment. So, it is not clear why impeachment is required to check these mistakes. I assume that some think it necessary to correct mistakes that cannot be corrected by these other means. But if the decisions are made by a group of judges or justices, then the entire group would have to be removed. I know of no source of constitutional meaning that would support such an outlandish outcome. The fact that the Congress has never impeached and removed a group of judges for a collective decision is telling. If, however, dissenting justices have made the bad decisions, then it seems silly to impeach them, because their decisions carry remarkable little weight in constitutional law. The same would be true for many, if not most, sole

concurrences.

Applying this Act to real cases produces disturbing results. For instance, if the Act were strictly interpreted, then the majority in Bowers v. Hardwick 17 should have all been subject to impeachment for relying on the Judeo-Christian tradition and the history of Western civilization in reaching their conclusion. The reference to the Judeo-Christian tradition and Western civilization was made to rebut the argument that there was a tradition of not criminalizing homosexual sodomy, and it is this reference that prompted Justice Kennedy in Lawrence v. Texas 18 to reference European law. Thus, a strict reading of the Act would allow not only the impeachment and removal of the majority in Bowers but also the justices who joined Justice Kennedy's opinion in Lawrence.

I believe the justices in both those cases acted in good faith. An impeachable offense requires both mens reus (a criminal intent) and actus reus (a bad act); and it is impossible to prove that the justices in both Bowers and Lawrence not only acted in bad fath but had the requisite malicious intent to deviate from the Constitution.

15 The leading expert on this question is David Bederman of Emory Law School. He has just completed a manuscript of a forthcoming book on the influence of ancient precedents in the drafting and ratification of the Constitution.

16 A few years ago I had the opportunity explore in depth the question about whether Article III judges may be impeached and removed for their decisions. See Michael J. Gerhardt, Chancellor Kent and the Search for the Elements of Impeachable Offenses, 74 Chi.-Kent L. Rev. 91 (1998).

17 478 U.S. 186 (1986).

18 539 U.S. 558 (2003).

III.

THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES EQUAL PROTECTION

I have no doubt that the Constitution Restoration Act of 2004 violates the equal protection component of the Fifth Amendment Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (recognizing, inter alia, that congruence requires the federal government to follow the same constitutional standard as the Fourteenth Amendment Equal Protection Clause requires states to follow). The Court will subject to strict scrutiny any classifications that explicitly burden a suspect class or fundamental right. The Constitution Restoration Act of 2004 does both.

First, the Constitution Restoration Act of 2004 may be based on a suspect classification. The natural plaintiffs to challenge this law may be people who belong to particular religious faiths which do not believe in paying homage to idols, such as Jehovah's Witnesses and Seventh Day Adventists; people who do not want the state to tell them how and when to pray (and may adhere to particular religious faiths); or people, such as atheists, who do not believe in G-d. Each group has a claim to being a suspect class, because each is defined by virtue of its exercise of a fundamental right. Government needs a compelling justification to burden a suspect class, but mistrust of "unelected judges" is not a compelling justification.

Even if there were no suspect class burdened by the Act and only the rational basis test had to be satisfied, a court might conclude that the Act does not even satisfy that standard. The bill lacks a neutral justification. Distrust of federal judges is inconsistent with the very structure of our Constitution. While the Act also purports to be promoting federalism, federalism is the term we use to refer to the complex relationship between the federal and state governments. This term encompasses not just states rights but also the power of the federal judiciary to review state action. Federalism limits what the Congress may do, even with respect to regulating federal jurisdiction. It limits what Congress may do to enhance state sovereignty at the expense of the federal judiciary.

IV.

THE CONSTITUTION RESTORATION ACT OF 2004 VIOLATES THE FIFTH AMENDMENT DUE PROCESS CLAUSE

In all likelihood, the Constitution Restoration Act of 2004 violates the Fifth Amendment Due Process clause. The Congress' power to regulate jurisdiction may withdraw jurisdiction in Article III courts for neutral reasons, such as promoting their efficiency, national security, or improving the administration of justice. Neither mistrust of the federal judiciary nor hostility to particular substantive judicial decisions (or to particular rights) qualifies as a neutral justification that could uphold a congressional regulation of federal jurisdiction. It is hard to imagine why an Article III court, even the Supreme Court, would treat such distrust as satisfying the rational basis test required for most legislation. By design, Article III judges have special attributes-life tenure and guarantee of undiminished compensationthat are supposed to insulate them from majoritarian retaliation. They are also supposed to be expert in dealing with federal law and more sympathetic to federal claims than their state counterparts. 19

Excluding all federal jurisdiction with respect to particular federal claims forces people seeking to vindicate those rights in state courts, which are often thought to be hostile or unsympathetic to such claims. To the extent that the federal law burdens federal constitutional rights, it is problematic both for the burdens it imposes and for violating due process. Basic due process requires independent judicial determinations of federal constitutional rights (including the "life, liberty, and property" interests protected explicitly by the Fifth Amendment). Because state courts are possibly hostile to federal interests and rights and under some circumstances are not open to claims based on those rights, due process requires an Article III forum. In addition, a proposal excluding all federal jurisdiction may violate the Fifth Amendment's Due Process Clause's guarantee of procedural fairness. Over a century ago, the Court declared that due process "is a restraint on the legislative as well as the executive and judicial powers of the government, and cannot be construed to leave congress free to make any due process of law,' by its mere will." The Court has further explained "that the Due Process Clause protects civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs seeking to redress grievances." A proposal excluding all federal jurisdiction effectively denies a federal forum to plaintiffs whose constitutional interests have been impeded by the law, even though Article III courts, including the Supreme

19 See Martin v. Hunters' Lessee, 14 U.S. 304 (1816).

Court, have been designed to provide a special forum for the vindication of federal interests.

Congress has shown admirable restraint in the past when it has not approved legislation aimed at placing certain substantive restrictions on the inferior federal courts. Over the years, there have been numerous proposals restricting jurisdiction in the inferior courts in retaliation against judicial decisions, but the Congress has not enacted them. The Congress has further refused since 1869 not to expand or contract the size of the Court in order to benefit one party rather than another. These refusals, just like those against withdrawing all federal jurisdiction in a particular class of constitutional claims, constitute a significant historical practice even a tradition-that argues against, rather than for, withdrawing all jurisdiction over particular classes of constitutional claims.

V.

CONSTITUTIONAL STRUCTURE FURTHER BARS CONGRESS FROM ELIMINATING FEDERAL JURISDICTION OVER CLAIMS AGAINST FEDERAL OFFICIALS

Another aspect of federalism, to which I have alluded, is that it is not just concerned with protecting the states from federal encroachments. It also protects the federal government and officials from state encroachments. In a classic decision in Tarble's Case,20 the Supreme Court held that the Constitution precluded state judges from adjudicating federal officials' compliance with state habeas laws. The prospect of state judges exercising authority over federal officials is not consistent with the structure of the Constitution. They could then direct, or impede, the exercise of federal power. The Act allows, however, state courts to do this. By stripping all federal jurisdiction over certain claims against federal officials, the Act leaves only state courts with jurisdiction over claims brought against those officials. The popular will might lead state judges to be disposed to be hostile to federal claims or federal officials. Hostility to the federal claims poses problems with the Fifth Amendment, while hostility to federal officials poses serious federalism difficulties.

Beyond the constitutional defects with the Constitution Restoration Act of 2004, it may not be good policy. It may send the wrong signals to the American people and to people around the world. It expresses hostility to our Article III courts, in spite of their special function in upholding constitutional rights and enforcing and interpreting federal law. If a branch of our government demonstrates a lack of respect for federal courts, our citizens and citizens in other countries may have a hard time figuring out why they should do otherwise. Rejecting proposals to exclude all federal jurisdiction or inferior court jurisdiction for some constitutional claims extends an admirable tradition within the Congress and reminds the world of our hard-won, justifiable confidence in the special role performed by Article III courts throughout our history in vindicating the rule of law.

Mr. SMITH. Professor Hellman.

STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW

Mr. HELLMAN. Thank you, Mr. Chairman.

Any citizen who cares deeply about public affairs and particularly about the role of Government in the life of the nation is going to experience frustration from time to time with decisions handed down by the Federal courts. The sponsors of H.R. 3799 plainly feel a great deal of frustration with certain decisions interpreting the establishment clause as well as decisions in which courts have relied on foreign law. And Members of this Subcommittee may share those views. But however much you might disagree with those court decisions, this bill is not an appropriate response. Most of its provisions-not all of them, but most of them are unconstitutional.

And the bill as a whole is bad public policy because it seeks to impair the independence of the judiciary, an independence that has

20 80 U.S. (13 Wall.) 197 (1871).

been forged through 200 years of history and also a set of traditions that have served this Nation well.

I will begin with what is the most radical provision of the bill, section 302. That is the impeachment provision that Mr. Berman and Professor Gerhardt have referred to. It seems to me that this is something the Constitution just doesn't allow Congress to do. Now, the Constitution doesn't say that in so many words, but it does say that Congress cannot dock the pay of judges because they don't like their decisions, not even 1 percent. And the reason the Framers put that in the Constitution is that they thought it was essential to have an independent judiciary. And what they meant by that was a judiciary not beholden to Congress.

Well, if you can't reduce their salary by even 1 percent for decisions that you disagree with, how could it be constitutional to impeach and remove them from office?

In addition to the text, we have guidance from tradition, and the authoritative expositor of that tradition is Chief Justice Rehnquist in his book Grand Inquests, and I have included some extracts from that in my statement.

The second mechanism for enforcement is the section 301, which says that decisions made by Federal courts contrary to this bill, before or after it, are not binding precedents. And it seems to me that that's plainly unconstitutional under the decision just 4 years ago in Dickerson, a decision written by the Chief Justice saying that Congress does not have the power to legislatively supersede the Supreme Court's decisions interpreting and applying the Constitution. But that is just what this provision attempts to do.

I think that Dickerson also dictates the unconstitutionality of the provision on foreign law, although I don't think you need Dickerson for that. I think all you have to do is to read Marbury v. Madison, the foundational decision of American constitutional law, and the familiar statement that it is emphatically the province and duty of the judicial department to say what the law is.

Now, that brings me to the two jurisdictional provisions of the bill. I believe that those two jurisdictional provisions raise very different issues. The provision on the Supreme Court appellate jurisdiction I think is a very closely balanced constitutional question, and perhaps we can get to that during the questions.

On the other side, I think that the bill-the provisions of the bill on district court jurisdiction are constitutional; that the Congress is not required to have Federal courts, and Congress has very wide discretion in deciding which kinds of matters to vest in the jurisdiction of the Federal courts. But to say that a provision, or perhaps two of them are constitutional is not to say that they are good policy, and they are not.

There have been many bills like this over the past 50 years. None have been enacted. And I think that that history has established a tradition almost as strong as the one that Chief Justice Rehnquist discussed with respect to impeachment.

There is more that could be said about the particular provisions, but I will close with these thoughts: Ours is a pluralistic nation. We are closely divided on many issues.

What that means is that depending on the time and the circumstances, anyone can be part of a minority. And the availability