team. He has also taught law at Princeton, Cornell, and Duke. Professor Gerhardt received his bachelor's degree from Yale, a master's from the London School of Economics, and a law degree from the University of Chicago.

We welcome you all. And as I mentioned a while ago, your full testimony will be made a part of the record. It is a tradition with the full Committee and with the Subcommittee that we swear in witnesses, so I would like to ask you all to stand and take the oath. If you will raise your right hand, please.

[witnesses sworn.]

Mr. SMITH. Thank you. Please take your seats.
Professor Gerhardt, we are going to begin with you.

STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW,
WILLIAM & MARY LAW SCHOOL

Mr. GERHARDT. Thank you very much, Mr. Chairman; and also thank you to Congressman Berman and the whole Subcommittee for the great privilege of being able to appear today.

You have my written statement, and I won't try your patience by going through it in any detail here. But it does amplify some of the points that I hope to make briefly right now.

As I have suggested, one of the things that struck me when I first read the Constitution Restoration Act of 2004 was a quote from Justice Antonin Scalia. In his prescient dissent in Morrison versus Olsen, Justice Scalia described the Independent Counsel Act as a wolf that comes as a wolf. And my concern with this statute is that this statute comes as a wolf before this Committee. It is very clear what the purpose of this statute is, and at least to me I think it is very clear the constitutional problems with it.

Very briefly, the first is that it attempts to dilute several constitutional precedents of article III courts. As we all know, there are only two ways in which to overturn or to eradicate article III courts' decisions that we don't like. One is by constitutional amendment, and the other is by asking the courts that rendered them to overturn them. In a case of an inferior court and a superior court, the superior court might reverse the lower court. But this statute, of course, doesn't satisfy those conditions. This statute, by its very name, I think, is attempting to do something that is only permissible through those means I just described. If there are any problems with the particular precedents of article III courts, they cannot be, as I said, diluted or diminished by statutory means.

And by requiring that or by allowing every State court the judge not to be bound by precedents that might touch upon the substance of this Act, I think this Act essentially allows State courts to have final word on the application of the United States Supreme Court precedent. And I don't think that's consistent with the United States Constitution.

Secondly, I think the Act does intrude upon the core functioning of article III judges. That core functioning does include the power to say what the law is, and the power to say what the law is includes within it the power to determine appropriate sources on which to rely. Reference to, for example, a foreign law, might well arise or might well be appropriate in the course of constitution adjudication. We have seen that reliance, for example, in Bowers

versus Hardwick, we have seen it in very few other cases. One of the few other cases in which we do see it is Lawrence v. Texas.

But as Congressman Berman just pointed out, the application of this statute would allow for, I think, a use of impeachment that goes far beyond anything the Framers of the Constitution permit. I don't think that it is appropriate for people to be impeached and removed from office because of something they have written or declared in the course of rendering a judicial opinion. That exercise of power, that act lies well within the core functioning of an article III judge, and the judiciary is constitutionally independent from political interference.

Moreover, this Act, I think, does raise some problems under the fifth amendment due process clause. That clause, at the very least, would require a neutral justification for this Act, and I am at a loss to know what that neutral justification is. As far as I can tell, the objective or the animating force behind this Act is distrust of the Federal judiciary, and I don't think that's an appropriate objective for Congress to pursue through statutory means.

There are other difficulties with this statute, but, of course, I have limited time, and I am happy to amplify those later. Thank you.

Mr. SMITH. Thank you, Professor Gerhardt.

[The prepared statement of Mr. Gerhardt follows:]

PREPARED STATEMENT OF MICHAEL J. GERHARDT

I appreciate greatly the honor and privilege of being allowed to participate in today's hearing on "The Constitution Restoration Act of 2004" (hereafter "the Act”). I understand the purpose of today's hearing is to examine the constitutionality of Congress' power to limit all federal jurisdiction with respect to "any matter to the extent relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official capacity), by reason of that element's or officer's acknowledgment of G-d as the sovereign source of law, liberty, or government." As I pondered the constitutionality of this proposed bill, I could not help but think of Justice Antonin Scalia's prescient defense in Morrison v. Olsen.1 There, in a memorable turn of phrase, he denounced the now-defunct Independent Counsel Act as "a wolf that comes as a wolf." 2 With all due respect, I think that the same could be said of the "Constitution Restoration Act of 2004." It is a wolf that comes before this Subcommittee as wolf. The name of the Act alone admit to an unconstitutional objective; Congress has no constitutional authority to overturn, or dilute, the constitutional opinions of Article III courts through any of its legislative powers. This bill is a transparent attempt to diminish if not eliminate the status of certain constitutional decisions of Article III courts as constitutional law, to weaken the independence of the federal judiciary, and to subject certain constitutional claims and claimants to disparate treatment. In my opinion, there is nothing magical about Congress' power to regulate federal jurisdiction. It is tempting to construe this power as unlimited; it has never been clear whether Article III sets any limits on this power. Scholars have long disagreed about whether Article III imposes any so-called "internal" constraints on the Congress' power to regulate federal jurisdiction. But it is a major mistake to read Article III as if the only constraints on it are those that may be set forth in Article III. It is a further mistake to read it as if it were not affected by subsequent constitutional amendments. Both the Fifth Amendment Due Process Clause and its equal protection component constrain how Congress may withdraw federal jurisdiction. There is no question, for instance, it may not force African-Americans, women, or Jews to litigate their constitutional claims in state courts, while leaving everyone else access to Article III courts for their constitutional claims.

It should go without saying that the Congress has no unlimited powers. Nor, for that matter, do any other constitutional actors have unlimited powers. Congress'

1487 U.S. 654 (1988).

2 Id. at 698 (Scalia, J., dissenting).

power to regulate federal jurisdiction is subject to the same constitutional limitations as every other plenary power, even those pertaining to war. If the invocation of the war powers were not a "blank check" to do as Congress or the President pleases (as Justice O'Connor declared at the end of last Term), this is no less true for every other power, including the power to regulate federal jurisdiction. Consequently, the latter is subject to separation of powers and federalism limitations and to the individual rights guarantees set forth in the Bill of Rights.

An especially troubling aspect of this bill is that it appears to lack a legitimate objective. At the very least, the Fifth Amendment requires that every congressional enactment must at least have a legitimate objective, but it is not possible to find one for the Act. It is motivated by distrust of the federal judiciary. Distrust of the federal judiciary is, however, not a legitimate objective. Nor is either disagreement with certain constitutional precedents of the courts or a desire to displace those decisions a legitimate objective. Under our Constitution, the federal judiciary is integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority.

For good reason, the Supreme Court has never upheld efforts to use the regulatory power over federal jurisdiction to regulate substantive constitutional law. With all due respect, I urge the Subcommittee to do as its illustrious predecessors have done in recognizing the benefits of our constitutional systems of separation of powers, federalism, and due process far outweigh whatever their costs. Below, I explain the principal grounds on which I believe this proposed bill is unconstitutional.

I.

GENERAL PRINCIPLES

A few general principles should guide our consideration of the constitutionality of the Constitution Restoration Act of 2004. I discuss each briefly before considering how the proposed bill threatens each of them.

A. The Constitution Restricts the Means by which Article III Courts' Constitutional Decisions May Be Overturned. The United States Constitution allows the decisions of Article III courts on constitutional issues to be overturned by two means and two means only. The first is by a constitutional amendment. Article V of the Constitution sets forth the requirements for amending the Constitution. In our history, constitutional amendments have overruled only a few constitutional decisions, including both the Eleventh and Fourteenth Amendments. Thus, it would not be constitutional for the Congress to enact a statute to overrule a court's decision on constitutional law. For instance, it would be unconstitutional for the Congress to seek to overrule even an inferior court's decision on the Second Amendment by means of a statute.

The second means for displacing an erroneous constitutional decision is by a superior court or by a court's overruling its own decisions. Since the Constitution places the Supreme Court at the apex of the federal judicial system, it has no superior; it is the only Article III court that may overturn its constitutional decisions. And it has done so expressly in more than a 150 of its constitutional decisions. On countless other occasions, the Court has modified, clarified, but not overruled its prior decisions on constitutional law. It is perfectly legitimate to ask the Supreme Court― or any other court, for that matter-to reconsider a constitutional decision.

It follows that the Congress may not, even through the exercise of its plenary power to regulate federal jurisdiction, to overrule a federal court's decision on constitutional law or to require inferior courts not to follow it. Nor, for that matter, may Congress direct the Court to ignore, or not to rely on or make reference to, some of its constitutional opinions. Indeed, the Supreme Court has long recognized that the Congress may not use its power to regulate jurisdiction-or, for that matter, any other of its powers-in an effort to override substantive judicial decisions. See, e.g., City of Boerne v. Flores,3 Dickerson v. United States, and Eichman v. United States. Efforts, taken in response to or retaliation against judicial decisions, to withdraw all federal jurisdiction are transparent attempts to influence, or displace, substantive judicial outcomes. For several decades, the Congress, for good reason, has refrained from enacting such laws. The closest the Congress has come to doing this has been in restricting judicial review with respect to certain war-time measures, but I am unaware of any jurisdiction-stripping proposals pending in the House designed to protect national security.

3521 U.S. 507 (1997).

4 530 U.S. 428 (2000).

5 496 U.S. 310 (1990).

Moreover, proposals that would limit the methods available to Article III courts to remedy constitutional injuries are constitutionally problematic. The problem with such restrictions is that, as the Task Force of the Courts Initiative of the Constitution Project found, "remedies are essential if rights are to have meaning and effect." Indeed, the bipartisan Task Force was unanimous "there are constitutional limits on the ability of legislatures to preclude remedies. At the federal level, where the Constitution is interpreted to vest individual rights, it is unconstitutional for Congress to preclude the courts from effectively remedying deprivations of those rights." While Congress clearly may use its power to regulate jurisdiction to provide for particular procedures and remedies in inferior federal courts, it may do so in order to increase the efficiency of Article III courts not to undermine those courts. The Congress needs a neutral reason for procedural or remedial reform. Indeed, the Fifth Amendment Due Process requires that the Congress must have a neutral justification, or legitimate objective, for every piece of legislation that it enacts. While national security and promoting the efficiency of the federal courts qualify plainly as neutral justifications, distrust of the federal judiciary does not.

B. Constitutional Precedents Have the Status of Constitutional Law. It is tempting to think that when the Supreme Court makes a mistake that its mistake is not entitled to inclusion as a part of constitutional law. The mistake is to yield to this temptation. The fact is that the major sources of constitutional meaning-text, original understanding, structure, and historical practice support treating all the Supreme Court's constitutional opinions as constitutional law, which only may be altered in by either a constitutional amendment or the Court's change of mind.

First, the Constitution extends "the judicial Power" of the United States over certain "cases" or "controversies." Judicially decided cases or controversies constitute precedents. Article V sets forth the requirements for the ratifications of amendments overturning erroneous precedents. The fact that amendments have been chronologically added to the Constitution, rather than integrated within the original text (with appropriate deletions), suggests that constitutional law remains static unless or until such time as amendments are ratified.

Second, "the judicial Power" set forth in Article III of the Constitution was understood historically to include a power to create precedents of some degree of binding force. In Federalist Number 78, Alexander Hamilton specifically referred to rules of precedent and their essential connection to the judicial power of the United States: To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents. Indeed, legal scholars have found that the doctrine of precedent either was established or becoming established in state courts by the time of the Constitutional Convention."6 The framers, in other words, were familiar with reliance on precedent as a source of constitutional decision.

Third, historical practices uniformly support treating precedents as constitutional law and thus unalterable except through extraordinary constitutional mechanisms. As one of my colleagues and a distinguished critic of the doctrine of stare decisis has acknowledged, "the idea that 'the judicial Power' establishes precedents as binding law, obligatory in future cases," traces at least to the early nineteenth century, "perhaps presaged by certain Marshall Court opinions.”7 Another commentator recently found that the framers rejected "the notion of a diminished standard of deference to constitutional precedent" as distinguished from common-law precedents." Justice Joseph Story agreed that the "conclusive effect of [constitutional adjudication] was in the full view of the Framers of the Constitution.”

Fourth, constitutional structure supports the status of constitutional precedents as constitutional law. As one of the nation's foremost authorities on constitutional law and federal jurisdiction, Richard Fallon of Harvard Law School, has observed, "Under the Constitution, the judiciary, like the executive branch, has certain core powers not subject to congressional regulation under the Necessary and Proper Clause. For example, it is settled that the judicial power to resolve cases encompasses a power to invest judgments with finality'; congressional legislation purporting to reopen final judgments therefore violate Article III. And there can be little doubt that the Constitution makes Supreme Court precedents binding on lower courts. If higher court precedents bind lower courts, there is no structural anomaly

6 See, e.g., Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 8-9 (1977). See also Thomas Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 659 (1999) (“legal historians generally agree that the doctrine of stare decisis [was] of relatively recent origin" at the time of the Founding and had begun to resemble its modern form only during the eighteenth century).

7 Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535,1578 n.115 (2000).

in the view that judicial precedents also enjoy limited constitutional authority in the courts that rendered them." 8

It follows that any attempt by the Congress to dilute the authority of Supreme Court opinions on constitutional law within the federal court system would be plainly unconstitutional. Congress could not, for instance, enact a statute directing the Court either to ignore its precedents on abortion rights as a source of decision altogether or to forego ever reconsidering certain 11th amendment precedents. Either enactment would be unconstitutional.

C. The Constitution Guarantees The Independence of Federal Judges from Political Reprisals. The Constitution vests Article III judges and justices with life tenure and undiminished compensation in order to ensure that they may decide cases or controversies without fear of political retaliation. The independence from political reprisals that federal judges enjoy includes the authority to prioritize sources of constitutional meaning. This authority is at the core of the judicial function. As Professor Fallon has argued, "The power to say what the Constitution_means or requires-recognized in Marbury v. Madison-implies a power to determine the sources on which constitutional rulings may properly rest. To recognize a congressional power to determine the weight to be accorded to [the Court's] precedent-no less than to recognize congressional authority to prescribe the significance that should attach to the original understanding—would infringe that core judicial function." "9

D. The Supreme Court is Essential for Ensuring the Uniformity and Finality of Constitutional Law. Referring to the Court's decision in Martin v. Hunter's Lessee, 10 Justice Oliver Wendell Holmes remarked, "I do not think that the United States would come to an end if we [judges] lost our power to declare an Act of Congress void. I do think that the Union would be imperiled if we could not make that declaration as to the laws of the several states." 11 Without the authority to review state court judgments on federal law recognized in Martin (and ever since), there would be no means by which to ensure uniformity and finality in the application of federal law across the United States. This would be particularly disastrous for constitutional law. Federal rights, for instance, would cease to mean the same thing in every state. States could dilute or refuse to recognize these rights without any fear of reversal; they would have no incentive to follow the same constitutional law. Indeed, many state court judges are subject to majoritarian pressure to rule against federal rights, particularly those whose enforcement would result in a diminishment in state sovereignty. The Fourteenth Amendment would amount to nothing if Congress were to leave to state courts alone the discretion to recognize and vindicate the rights guaranteed by the Fourteenth Amendment. Judicial review within the federal courts is indispensable to the uniform, resolute, final application of federal rights protected by the Fourteenth Amendment.

In effect, the Constitution Restoration Act of 2004 allows the highest courts in each of the fifty states to become the courts of last resort within the federal judicial system for interpreting, enforcing, or adjudicating certain claims under the Establishment and Free Exercise Clauses. This Act allows different state courts to reach different conclusions regarding the viability of various claims differently, without any possibility of review in a higher tribunal to resolve conflicts among the states. Thus, the Act precludes any finality and uniformity across the nation in the enforcement and interpretation of the affected rights.

An equally troubling aspect of the bill is its implications for the future of judicial review. The Constitution does not allow the Congress to vest jurisdiction in courts to enforce a law but prohibit it from considering the constitutionality of the law that it is enforcing. The Task Force of the Courts Initiative of the Constitution Project unanimously concluded "that the Constitution's structure would be compromised if Congress could enact a law and immunize that law from constitutional judicial review." For instance, it would be unconstitutional for a legislature to assign the courts with enforcing a criminal statute but preclude them from deciding the constitutionality of this law. It would be equally unlawful to immunize any piece of federal legislation from constitutional judicial review. If Congress could immunize its laws from the Court's judicial review, then this power could be used to insulate every piece of federal legislation from Supreme Court review. For instance, it is telling that in response to a Supreme Court decision striking down a federal law criminalizing flag-burning, many members of the Congress proposed amending the Con

8 Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 579 (2001) (footnotes and citations omitted).

9 Id. at 592.

10 14 U.S. (1 Wheat.) 304 (1816).

11 Oliver Wendell Holmes, Collected Papers 295-96 (1920).