CONGRESS, THE COURT, AND THE CONSTITUTION HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ONTHEJUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTH CONGRESS SECOND SESSION JANUARY 29, 1998 Serial No. 124 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 58-804 WASHINGTON : 1999 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office. Washington. DC 20402 ISBN 0-16-059740-4 COMMITTEE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman F. JAMES SENSENBRENNER, JR. , JOHN CONYERS, JR., Michigan Wisconsin BARNEY FRANK, Massachusetts BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California HOWARD COBLE, North Carolina RICK BOUCHER, Virginia LAMAR SMITH, Texas JERROLD NADLER, New York STEVEN SCHIFF, New Mexico ROBERT C. SCOTT, Virginia ELTON GALLEGLY, California MELVIN L. WATT, North Carolina CHARLES T. CANADY, Florida ZOE LOFGREN, California BOB INGLIS, South Carolina SHEILA JACKSON LEE, Texas BOB GOOLATTE, Virginia MAXINE WATERS, California STEPHEN E. BUYER, Indiana MARTIN T. MEEHAN, Massachusetts ED BRYANT, Tennessee WILLIAM D. DELAHUNT, Massachusetts STEVE CHABOT, Ohio ROBERT WEXLER, Florida BOB BARR, Georgia STEVEN R. ROTHMAN, New Jersey WILLIAM L. JENKINS, Tennessee ASA HUTCHINSON, Arkansas EDWARD A. PEASE, Indiana CHRIS CANNON, Utah THOMAS E. MOONEY, Chief of Staff-General Counsel JULIAN EPSTEIN, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION CHARLES T. CANADY, Florida, Chairman HENRY J. HYDE, Illinois ROBERT C. SCOTT, Virginia BOB INGLIS, South Carolina MAXINE WATERS, California ED BRYANT, Tennessee JOHN CONYERS, JR., Michigan WILLIAM L. JENKINS, Tennessee JERROLD NADLER, New York BOB GOODLATTE, Virginia MELVIN L. WATT, North Carolina BOB BARR, Georgia ASA HUTCHINSON, Arkansas KERI FOLMAR, Chief Counsel JOHN H. LADD, Counsel ROBERT J. CORRY, Counsel CATHLEEN CLEAVER, Counsel (II) CONTENTS HEARING DATE Page January 29, 1998 1 OPENING STATEMENT Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution 1 WITNESSES Campbell, Hon. Tom, a Representative in Congress from the State of Califor­ nia 13 Clinton, Robert L., Associate Professor of Political Science, Southern Illinois University 94 Currie, David P., Edward H. Levi Distinguished Service Professor, University of Chicago School of Law 57 Devins, Neal, Goodrich Professor of Law, College of William and Mary 63 Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Re- search Service 17 Franck, Matthew J., Chairman and Associate Professor of Political Science, Radford University 85 Frank, Hon. Barney, a Representative in Congress from the State of Massa­ chusetts .... 11 Hostettler, Hon. John N., a Representative in Congress from the State of Indiana 7 Kinkopf, Neil, Visiting Assistant Professor of Law, Case Western Reserve University Law School 70 Lewis, Hon. Ron, a Representative in Congress from the State of Kentucky .... 3 Strossen, Nadine, President, American Civil Liberties Union 79 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Clinton, Robert L., Associate Professor of Political Science, Southern Illinois University: Prepared statement 96 Currie, David P., Edward H. Levi Distinguished Service Professor, University of Chicago School of Law: Prepared statement 59 Devins, Neal, Goodrich Professor of Law, College of William and Mary: Pre- pared statement 65 Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Re- search Service: Prepared statement 19 Franck, Matthew J., Chairman and Associate Professor of Political Science, Radford University: Prepared statement 87 Hostettler, Hon. John N., a Representative in Congress from the State of Indiana: Prepared statement 9 Kinkopf, Neil, Visiting Assistant Professor of Law, Case Western Reserve University Law School: Prepared statement 72 Lewis, Hon. Ron, a Representative in Congress from the State of Kentucky: Prepared statement 5 Strossen, Nadine, President, American Civil Liberties Union: Prepared state­ ment 81 APPENDIX Material submitted for the record 125 (III) CONGRESS, THE COURT, AND THE CONSTITUTION THURSDAY, JANUARY 29, 1998 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 9:32 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chair- man of the subcommittee] presiding. Present: Representatives Charles T. Canady, Henry J. Hyde, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutch­ inson, Robert C. Scott, Maxine Waters, and Melvin L. Watt. Staff present: John Ladd, Counsel; Keri Folmar, Chief Counsel; Brett Shogren, Research Assistant; Michael Connally, Staff Assist- ant; Brian Woolfolk, Minority Staff; Julian Epstein, Minority Staff Director, and Robert Carry, Counsel. OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY [presiding]. The subcommittee will be in order. The subcommittee is holding this hearing today to examine the respective roles of the Congress and the Supreme Court in inter­ preting the Constitution. With the help of our witnesses today, we will consider whether one branch of our Federal Government has a monopoly on Constitutional interpretation. I believe the framers of our Constitution expected the Congress to play an important role in debating and legislating our constitu­ tional issues. It is important to the Congress to ask itself if def­ erence to the Supreme Court is always the order of the day. We have a responsibility to consider the circumstances under which the Congress should or should not defer to the Supreme Court in making Constitutional interpretations. And we have the duty to en- sure that the requirements of the Constitution are consistently rec­ ognized and honored in the legislative process. While the exclusive focus of today's hearing is not the Court's Boerne v. Flores decision of last term, that case does represent the most recent expression of tension in an ongoing relationship be- tween the Congress and the Court. Despite the Court's holding in Boerne, Justice Kennedy stated to the Court that, and I quote, "When the Congress acts within its sphere of power and respon­ sibility, it has not just the right but the duty to make its own in- formed judgment of the meaning and force of the Constitution." In light of the result in Boerne, it is incumbent on Members of Congress to reflect on the scope of our sphere of power and respon­ (1) 2 sibilities so that we can exercise our duty, as Justice Kennedy put it, "to make our own informed judgment on the meaning and force of the Constitution." I look forward to hearing from our witnesses today, and I now recognize Mr. Scott for 5 minutes. Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate the op­ portunity we're taking to examine the relationship between Con­ gress, the Court, and the Constitution. Constitutional tension be- tween Congress and the judiciary is nothing new. The drafters of the Constitution established three branches of Government, all with equal responsibilities, to protect and uphold the Constitution. The strength of our system of Government is based on the inter- dependence of three separate but equal branches of Government. The fact that from time-to-time the branches disagree is a tribute to our democracy and in no way threatens the sovereignty of its people. We should take pride in knowing that our vigorous system of checks and balances not only protects us from external threats at home and abroad, but also protects us from the greatest threat ever imagined by our Founding Fathers, and that threat is our- selves. I understand that there have been a number of proposals in- tended to minimize the healthy tension now existing between Con­ gress and the courts. I am particularly concerned by the suggestion by some that we should more frequently exercise our impeachment powers to rid ourselves of the actions of activist judges who thwart the will of the people, and we should investigate these judges, Mr. Chairman. I understand that in the 1996-97 term of the Supreme Court, four of the seven acts of Congress reviewed were invalidated. Only two justices voted to invalidate all seven of the acts of Congress considered in the most recent term, taking every opportunity they had to thwart the will of the people. There was another judge that voted six out of seven times to thwart the will of the people, and we should investigate and expose these justices for thwarting the will of the people. And Mr. Chairman, we need to do some research to find out who these justices are. Mr. CANADY. Wait Mr. SCOTT. Wait a minute, Mr. Chairman. My staff has already supplied me with that information—seven out of seven; Justice Scalia and Justice Thomas—six out of seven; Chief Justice Rehnquist. I look forward to the testimony of the witnesses, Mr. Chairman, to see whether or not we would have been better off without these activist judges on our Court. [Laughter.] So I look forward to the testimony of the witnesses, Mr. Chair- man, and thank you for calling the hearing. I am particularly look­ ing forward to hearing from Professor Devins, who is a professor at William and Mary Marshall School of Law, which, depending on the actions of the General Assembly tomorrow and the next day, may be in or out of my district. [Laughter.] Thank you, Mr. Chairman. Mr. CANADY. Thank you, Mr. Scott. With the General Assembly meeting on a such a matter today, I'm very pleased that you were able to be here. [Laughter.] 3 Mr. SCOTT. I'm well-represented today in Richmond, you can be sure. Mr. CANADY. I'm sure you are. We're very pleased to have a distinguished panel of Members to start off the hearing today. We have four Members on this panel. The first to testify will be the Honorable Ron Lewis. Congressman Lewis represents the 2nd District of Kentucky and serves on both the Agriculture and National Security Committees in the U.S.