The Badger Herald: Opinion: Pledge protection undermines court

Opinion

Pledge protection undermines court

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Also by Rob Hunter:

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Thursday, September 30, 2004 12:00 a.m.

7 Vote 0 Votes

Last week, the House of Representatives passed bill H.R. 2028, also known as the “Pledge Protection Act.” Section 1632 of the Act denies jurisdiction for federal courts (including the Supreme Court) to hear cases where the constitutionality of the Congressionally mandated inclusion of the words “under God” in the federal Pledge of Allegiance is challenged. Constitutional challenges to the word “God” in the Pledge will only be heard in state courts, not federal courts or the Supreme Court.

Supporters of the bill were concerned that recent judicial developments threatened the status of the Pledge. Republican Todd Arkin said the Act would ensure that “school kids are going to say the Pledge of Allegiance the way we have said it for the last 50 years.” Wisconsin’s Jim Sensenbrenner, the Republican chair of the House Judiciary Committee, alluded to fears of “activist” judges by stating that the act guarantees that “federal judge[s] sitting hundreds of miles away … will not be able to rewrite your state’s pledge policy.”

In a recent federal case, Elk Grove Unified School District v. Newdow, Michael Newdow objected to his daughter’s saying the phrase “under God” when reciting the Pledge. The Ninth Circuit Court of Appeals decided that the phrase violated the establishment clause of the First Amendment, which forbids the federal government to endorse a particular religion. On appeal, the Supreme Court overturned the Ninth Circuit Court’s decision because Newdow lacked custody of his daughter and therefore had no standing to bring suit. The constitutionality of the Pledge was not addressed.

The Pledge Protection Act was motivated by the representatives’ belief that it was too dangerous to allow federal courts to decide the constitutionality of the Pledge, since the Ninth Circuit Court had declared it unconstitutional, and the Supreme Court may have done the same. The proponents of the Act intend for state courts to have the final say, apparently under the assumption that most state courts will be likely to uphold the phrase’s constitutionality.

The primary purpose of this bill is simply for its supporters to score points with constituents. The Senate is unlikely to consider the bill this year. As Democrat Nancy Pelosi put it, the Act is “in search of a solution for a problem that does not exist,” as the Supreme Court demonstrated its reluctance to address the constitutional issues in the Pledge when it overturned the Ninth Circuit decision.

The Pledge Protection Act would do little to protect the Pledge. By denying the Supreme Court the appellate jurisdiction to hear cases concerning the constitutionality of the Pledge, the Act would fragment the judicial consensus over the Pledge, leaving the issue unresolved.

Article III of the Constitution grants Congress limited powers to restrict the Supreme Court’s appellate jurisdiction. The Supreme Court’s jurisdiction has, in fact, been restricted at times — for example, Congress has prohibited the Court from hearing cases in which citizens of different states sue each other. But while it may be appropriate for Congress to limit the Court’s jurisdiction with regard to cases that do not involve federal law, it cuts against the grain of the Constitution to limit the Court’s jurisdiction on questions of federal law (such as the constitutionality of the Pledge).

The famous Supreme Court Justice Oliver Wendell Holmes, Jr. once said “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.” In other words, if the Supreme Court were unable to make final and authoritative decisions regarding the status of federal laws, the result would be judicial chaos. State courts would be free to issue competing opinions and consensus would be impossible.

Preventing the Supreme Court from taking Pledge cases will do nothing to resolve the constitutional ambiguity of the Pledge. The Supreme Court’s special role as the final interpreter of the Constitution serves to resolve tensions in constitutional interpretation that would only be exacerbated in its absence. If the Court is stripped of that ability, then the Pledge Protection Act will leave increased uncertainty over the constitutionality of the Pledge, rather than “protecting” it.

Rob Hunter (jrhunter@gmail.com) is a senior majoring in political science and philosophy.

7 Comments | Leave a comment

Anonymous | September 30, 2004 9:20 AM | Reply

"State courts would be free to issue competing opinions and consensus would be impossible."

Rob, this is not judicial chaos, but a victory for the sovereignty of the several states.

Democrats have used court stripping numerous times in the past on issues of even less importance than this - I didn't hear you whimpering then.

Anonymous | September 30, 2004 9:33 AM | Reply

Never mind that the words "under God" in the US Constitution are a violation of the First Amendment; regardless of what you may think, the words were inserted as an intentional nod to religion and against "godless communism." Never mind that this is obviously a cravenly cynical partisan attempt by Republicans to force Democrats to take an unpopular stand that will likely hurt them at the ballot box in six weeks. The law violates the US Constitution in a fundamental way.

The Founders instituted a system of checks and balances to ensure that no branch of the government ever became too powerful. This law violates the concept of the independent judiciary. The only legitimate way for the legislative branch to ban the judiciary from reviewing a case is by passing an amendment to the Constitution. This law is not an amendment, and so is a blatantly illegal attack on the judiciary.

The end result, of course, will be that someone will sue for the right to challenge the Pledge. The courts will be forced to rule that this latest violation of American rights to come out of the House is illegal, and mindless Republicans will foam at the mouth again about how "activist" judges are ruining the country.

It's too bad we can't just drop some of these Republicans in the middle of Iran with no way back to the US. They'd be sure to get a taste of their own medicine.

Anonymous | September 30, 2004 9:34 AM | Reply

Um...I think the second commenter meant "in the Pledge of Allegience," not "in the Constitution."

Anonymous | September 30, 2004 9:35 AM | Reply

Whoops!

Sorry about that! Thanks for the correction!

Anonymous | September 30, 2004 11:29 AM | Reply

Anonymous writes:

"The Founders instituted a system of checks and balances to ensure that no branch of the government ever became too powerful. . . . The only legitimate way for the legislative branch to ban the judiciary from reviewing a case is by passing an amendment to the Constitution."

The legislation is perfectly consistent with the Founders intent--try looking at the Constitution before opining that amendments to it are necessary to strip jurisdiction:

Art. III, Sect. 2, Cl. 2: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [e.g., "Cases . . . arising under the Constitution," see Art. II Sect. 2, Cl. 1] the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Put another way, unless there is originaljureisdiction, Congress may make exceptions to the Court's jurisdiction.

And for years they did. For example, from the original passage of the Judiciary Act in 1789 through 1914, the Supreme Court lacked jurisdiction to consider any case in which the state court affirmed the application of a federal law.

I'm not saying this legislation is prudent. But it appears constitutional, just as the Framers intended when they wrote Article III and when many of them sat in the 1st Congress. . . .

Rob Hunter | September 30, 2004 1:18 PM | Reply

This a great discussion, and I hope it doesn't dry up yet. I've thrown together some of my reactions on the Afterthoughts Blog:

http://badgerherald.com/weblogs/afterthoughts/archives/2004/09/pledge_protection_co.php

Fire away!

-RH

Anonymous | September 30, 2004 5:18 PM | Reply

It's hilarious watching opponents of the pledge attempting to argue the constitutionality of this move.

Look at the language, look at the decisions. If it helps, read reports from the Constitutional Convention. The jurisdiction of the lower federal courts is completely under the control of Congress, end of story.

Do you really think the founding fathers intended to place an absolute check on the power of the people in the hands of a few lifetime appointees?