The ‘Pledge Protection Act’

June 15, 2006

For decades, the [tag]Pledge of Allegiance [/tag]was purely secular. It used to end, “one nation, indivisible, with liberty and justice for all.” In 1954, Congress changed the language and inserted “[tag]under God[/tag]” as part of the response to the Cold War. (If the enemies were godless communists, we did the opposite. Now that our enemies are deeply religious, should we go back to embracing secularism?)

A controversial lawsuit was filed a few years ago challenging the constitutionality of [tag]Congress[/tag] making the Pledge more religious, and ever since, Republicans in Congress and the religious right have been anxious to exploit the issue for political gain. It’s culminated in a little something called the “[tag]Pledge Protection Act[/tag].”

At a Capitol Hill news conference, Rep. Todd [tag]Akin[/tag], R-Mo., and Sens. John [tag]Kyl[/tag], R-Ariz., and Sam [tag]Brownback[/tag], R-Kan., said the country needs the Pledge Protection Act to safeguard our freedom.

“We’re very concerned that the Supreme Court might possibly say that the words, ‘one nation under God’ would be unconstitutional,” Akin told CitizenLink. “I think that would be a tragedy and a travesty if it happens.”

The bill would keep the federal courts from taking cases challenging with the Pledge. “If somebody complains to a federal judge that it’s unconstitutional for school children to say the Pledge of Allegiance,” Akin said, “then that federal judge would have to say, ‘I’m sorry, I don’t have jurisdiction to hear this case.’ “

That’s actually a pretty accurate description of the legislation. Right now, if someone wanted to file a federal lawsuit challenging the constitutionality of the 1954 law that added “under God” to the [tag]Pledge[/tag], a person could do that. He or she would probably lose, and there’s a real question over who has the standing needed to file such a challenge, but a federal suit could be filed.

Under Akin’s bill, a federal court couldn’t hear the case, even if it wanted to. This practice, sometimes called “[tag]court stripping[/tag]” or “[tag]jurisdiction stripping[/tag],” is one of the far-right’s nuttier approaches to the law.

For about two centuries, the federal courts have had the authority to strike down unconstitutional laws passed by Congress. It’s part of the system of checks and balances inherent in the federal government. According to these conservative lawmakers and their religious right allies, Congress can reshuffle the deck a little and tell courts that they can no longer hear specific types of cases anymore. It’s like the congressional version of “legislating from the bench” — these guys want to adjudicate from the legislature.

The idea has been floating around for years, but cooler heads always prevailed before lawmakers do any real damage. On multiple occasions in the 1980s, Sen. Jesse Helms (R-N.C.) tried repeatedly to remove the ability of the federal courts to hear school prayer cases. In the 1990s, Rep. Bob Aderholt (R-Ala.) kept introducing legislation to remove the federal courts’ jurisdiction on cases challenging government-sponsored Ten Commandments displays. Far-right groups would get a couple fundraising letters out of it, but these efforts always fizzled.

But Congress is a quite a bit nuttier than it was 10 years ago, and they have a Republican president who’ll sign anything.

Put aside the question of whether Congress was right to add religious language to the Pledge 50 years ago, because that’s actually secondary. The principle is far more important: can Congress take away the courts’ ability to hear a case simply because lawmakers may not like the way the courts may eventually rule?

And if Congress can, what’s to stop lawmakers from simply attaching a measure to every single piece of legislation they pass that says, “Oh, and by the way, the courts aren’t allowed to consider the constitutionality of this legislation”?

This bizarre stunt is still a long way from reaching Bush’s desk, but the bill is scheduled to be approved by the House Judiciary Committee next week and should get a vote on the House floor before the July 4th recess.

June 15, 2006 at 10:24 am

I’m really kind of curious where they think they are going to find a judge who will actually pay any attention to such a law, or just ignore it as being unconstitutional.

Is the Supreme Court, which imposed itself on the Florida recount, for God’s sake, going to exclude itself from questions directly relating to Congress infringing on individuals’ rights?

And why do these idiot Senators think that would be a good precedent? When the Democrats take back Congress will they get to pass laws on gun control saying federal courts don’t have jusridiction to review them?

Well, Congress can put whatever they want into a bill. Just because it is in there will not necessarily mean that the Court cannot hear certain challenges, particularly constitutional issue challenges. Congress woould likely need to seek a constitutional amendment to actually remove the Cout’s ability to hear constitutional issue cases.

When traditional marriage, the American flag and now the Pledge of Allegiance is finally protected from the God-less liberals and ferners, I guess Congress can take a well-deserved rest. Oh wait that’s right they’ve still got to bust the unions, eliminate the minimum wage, disband the Education Department, implement “intelligent design” in the schools, eliminate science altogether, blow up the State Department and possibly the UN and … can we ship them to Antarctica?

This is the kind of literal (funny, are liberals strict constructionists?) reading of the Constitution that loses elections for the Democrats. Yeah, separation of Church and State is a good thing. But, trying to kill off the reference to “one nation under God” is the kind of micro-management that has zero upside for liberals. They Republicans love it when you guys go after things like this. They kill you on these issues. Why do you support drilling down so hard on things like this?

Lance,

Congress does have the authority under the Constitution to set the jurisdictional boundaries for the federal courts– it would be difficult to argue that this statute would be unconstitutional.

CB, why do you say that someone challenging the jurisdiction would probably lose? The Ninth Circuit ruled en banc in favor of Newdow when he challenged the phrase “under God” a few years ago, and the Supreme Court reversed only on the ground that he lacked standing to bring the case; it did not rule that the language is constitutional (of course, Alito might be more inclined than O’Connor to hold that it is). Also, I don’t think it would be that hard to establish standing– Newdow’s problem was that he didn’t have custody of his daughter, on whose behalf he filed the lawsuit. Presumably any parent or guardian who does have custody of a child who attends a school in which the pledge is recited would have standing to bring an action challenging its constitutionality.

But, trying to kill off the reference to “one nation under God” is the kind of micro-management that has zero upside for liberals. – mark

I disagree that anyone is trying to “kill” the clause per se, but as the Carpetbagger’s post details, this is about much more than the two offending words in the Pledge; it’s about checks and balances and excessive Congressional power.

Try to look past the surface and see the greater issue at hand.

Why do you support drilling down so hard on things like this?

Because someone has to protect your rights.

Actually, sad to say, it appears to have backing in the Constitution. I direct you to the second paragraph of Article 3 Section 2 which discusses the judical power:

“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, 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.

In other words, Congress has the power to regulate the jurisdiction of the Supreme Court (and all other Federal Courts, which are empowered to Congress to set up via Article 3 Section 1). If Congress wants to make “exceptions” and “regulations” denying the Federal Courts and the Supreme Court jurisdiction of a particular subject area, it appears to have Constitutional permission to do so.

I see the greater issue. My point is that the sheep don’t and the battle is won or lost at their level. You can intellectualize all you wish about checks and balances, but your basic Christian only sees that you are coming down on God. Right or wrong, that is the way the see it.

Being an idealogue will push you further and further towards the fringe. You can feel good about being completely pure and honest about your convictions, but you will lose election after election. You have to pick your spots. In the meantime, Bush is still President.

I’m a Conservative and a Christian. Bush is not a Conservative. I also believe that Christianity has thrived BECAUSE OF the separation of church and state, not in spite of it.

Ignore my advice at your own peril.

Now that our enemies are deeply religious, should we go back to embracing secularism?

Good one. I suggest a more specific rewording for the pledge: “one nation, with Jesus in our hearts, indivisible. . .”

The president issues signing statements on 750 pieces of legislation – meaning he intends to violate the law in those cases. Why shouldn’t the legislature tell the court that it can no longer judge constitutionality? Why don’t all three branches just declare anarchy and let it go at that?

RE Article III, Section II arguments: Please review: http://en.wikipedia.org/wiki/Marbury_v._Madison#U.S._Const._art._III.2C_.C2.A7_2_Clause_2

As always, the republicans have the pulse of the American public:

1. Gay marriage amendment
2. Flag burning amendment
3. Pledge of Allegiance Protection Act

Just what we all are talking about, eh? If Anne Coulter thinks liberals are Godless, then why are we all on our knees praying that they are voted out of office in Nov.?

Bubba, nice link. I knew that Andy was forgetting something and that the case that decided the jurisdiction of the Supreme Court had happened very early in our great country’s history. However, I just couldn’t come up witth the reference.

Andy? Oh Annnnnndyyyy? We’re waiting for your response to bubba’s salient comment.

Andy, that is the section that these PPA type bills lean on, but as bubba’s link points out, and many, many others too numerous to cite, it’s not at all clear what that actually means. Can Congress effectively override the Bill of Rights, for example? This is a real can of legal worms as far as I can tell. Personally, I think it’s a logical flaw in the Constitution. In the end, I think PPAs will be found unconstitutional, if they ever pass. But I’m no lawyer, or legal scholar.

Mark’s argument seems to be of the tyranny of the majority kind, that we should knuckle under. I don’t agree. That’s why we have a Bill of Rights, because the majority would never give them to us, or limit the powers of government otherwise. Check any poll and you’ll find Americans are either ignorant of or against many of the rights or limitations in the first ten amendments. We have to go to the mat to protect them. The best way is to educate Americans, not pander to the religious fanaticism of a group. The Democrats are afraid to do that, though, and that’s why they lose. The Republicans win because they know how to fight. The Democrats lose because they are afraid to fight.

Andy? Oh Annnnnndyyyy? We’re waiting for your response to bubba’s salient comment.

I really don’t see how Marbury applies or how the discussion that Bubba links to is germane to this issue. Nothing that is being proposed is “repugnant” to what the Constitution says – the Constitution clearly states that the Congress has the power to make “exceptions” or “regulations” as to the appelate jurisdiction. If you’ll notice in the write-up that Bubba refers to – one of the main points that Marbury was decided upon was the Congress’s tampering with the original jurisdiction of the Supreme Court – something that has no bearing here.

If I may quote from a different section of Wikpedia dealing with Article Three of the United States Constitution:

“Marbury established that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is subject to such regulation and exceptions “as the Congress shall make.” This power of Congress has rarely been exercised except for the purpose of refining the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to grant the court maximum discretion in deciding whether to accept or reject a case.”

Oh – and Edo – cut the personal taunting crap. Grow up.

I think people are mis-interpreting how Marbury and the “judicial review” concept apply to this issue. Marbury makes the precedent that where a Congressional law disagrees with the Constitution, that Federal Courts have the power to declare said laws Unconstitutional. So, of course, if Congress passed a law overriding the Bill of Rights Marbury would apply and Federal Courts could step in and block the law. As a result, for example, since flag-burning has been protected by the courts as a First Amendment right, any attempts to prohibit flag burning must take the form as a Constitutional amendment (and thus appear in the Constitution) rather than just be a Congressionally passed law. The key to Marbury lies in the concept of courts stiking down what is “repugnant” to the Constitution. In this particular situation, all that Congress is doing is something that is allowed in the Constitution – setting “exceptions” and “regulations” as to what may be heard via the appellate jurisdiction of the Federal Courts. On it’s face (and don’t forget that the concept of the supremecy of “judicial review” does not appear at all in the Constitution)
there is absolutely nothing “repugnant” to the Constitution in the PPA law – the Constiutution explicitly allows it. I agree with you that it does appear to be a logical flaw in the Constitution – but I think if it (the PPA) came to a court challenge that there is a very reasonable Constitutional argument in it’s favor as repugnant as what the PPA seeks to accomplish sounds to our progressive ears.

Hark,

“The best way is to educate Americans, not pander to the religious fanaticism of a group.”

That’s just it; you are equating people who enjoy the pledge as is, as religious fanatics. You are over-reacting and are going to offend people with this type of far left characterization.

My point was that you are going to lose elections not because you don’t fight, but because you fight the wrong things.

That’s just it; you are equating people who enjoy the pledge as is, as religious fanatics. You are over-reacting and are going to offend people with this type of far left characterization.

But there is nothing that specifically says that one must worship or acknowledge God to be an American – so there is a legitimate argument to be made that the power of the state is being used to force such an acknowledgement – and many Americans ARE offended about religious fanactics shoving it down their throats. The proper place for the acknowledgement of God is in a church, and not in civic occasions enforced by civil authories – that IS why we have the 1st Amendment after all. Don’t you see the hyprocisy in arguing that some Americans relgious beliefs don’t count and should be forfeited so as not to “offend” the beliefs of other people? Why is it that only those Americans who believe (and who, co-incidentally, are putting their religious beliefs ABOVE Constitutinal guarantees) are the ones who everyone else shouldn’t offend? Ideally, in keeping with the First Amendment, courts *should* strike down that section of the Pledge – and that is a Constitutional issue and your threats as to elections and voting are precisely why we have a Constiution and why “rights” aren’t subject to the whims of the electorate. I myself am personally offended by anyone who seeks to define my rights as an American in terms of putting their religious beliefs first. That’s about as unAmerican as one can get – and why should I cater to those people and that viewpoint? And you are characterizing that as a “wrong thing” to fight?? I think not.

Andy, you ignore the issue that the underlying law, not the exception that Congress is creating, may violate the Constitution. Congress may be able to set such limits with laws that do not raise a constitutional issue. But to try and cover a law that very well may touch upon contitutionally provided rights will no doubt allow the Court to follow the analysis in Marbury v. Madison. The challenge to the law would not be to the jursidictional restriction placed upon the Court by Congress. The challenge would be to the underlying issue, and from that Marbury would likely apply, rendering the jurisdictional restriction invalid or null.

“And you are characterizing that as a “wrong thing” to fight?? I think not.”

All well put. I am also offended by religious fanaticism. But, it is my belief that your argument won’t resonate with the masses.

My comments are practical advice on how to win elections and THEN hit on the more nuanced violations of the 1st Amendment.

There is a perception among Christians that they are being attacked. They see Gay Marriage and the pledge and the insistence on the use of the secular Season’s Greetings during Christmas time as an aggressive attack on the way things have been. Now, I understand that “under God” was only inserted in the past 50 years and I know, for instance, that Seasons Greetings was used back in the 1940’s because it is used in movies such as Holiday Inn and Miracle on 34th Street. For some reason, the emotions of the Christian Right precludes rational thought.

But, that’s just it – it precludes rational thought, they vote and you now have the BA working them up into a lather.

If you want to do it your way, then you will have to accept minority status for possibly a decade or more, until you get enough on the Left to finally out vote the right.

Andy, you ignore the issue that the underlying law, not the exception that Congress is creating, may violate the Constitution.

I think you are ignoring that the principle of judicial review ennunciated in Marbary is nowhere in the Constitution whereas the proposed Congressional action is explictly allowed in the Constitution. While it is possible, I can’t imagine that the Court would rule in favor of something not in the Constitution over a right explicitly granted to Congress in the Constitution and it seems likely that that is what the PPA proponents are counting on. I’m as liberal as the next guy – but what you are arguing is probably the most extreme example of an “activist court” – and do you really see any Federal Court as currently constituted willing to ignore an explicit Constitutional provision in favor of something not even in the Constitution? I’m not ignoring anything, but I just don’t see it happening – what IS in the Constitution takes precedence over Marbury.

Andy,

So you are saying that Marbury was only reinforcing the explicit language concerning original jurisdiction and not appellate review?

Andy and Edo:

You’re both right, IMO. Congress can strip the court of appellate jurisdiction to hear a type of case, and that isn’t repugnant to the Constitution (right now). The question is whether SCOTUS has original jurisdiction to hear a case challenging the pledge. I would argue that they do (for example, the suit could be by or against a state, since they are the rulers of education as of now).

Regardless, if SCOTUS had to reach this through appellate review, they could always argue that limiting SCOTUS from hearing a constitutional challenge goes against the philosophy of judicial review to begin with evinced in Marbury; i.e., Congress has the right to set jurisdiction, but not to set it in such a way that judicial review is stripped of all meaning.

FYI, just because SCOTUS is stripped of review doesn’t mean the Constitutional question disappears. To the contrary, any court can and should refuse to enforce an unconstitutional law. What would happen if a Federal District court (or a state supreme court) ruled on this and then SCOTUS was unable to hear it is an interesting question. . .

Maybe we need to propose a constitutional amendment giving SCOTUS the power to review all constitutional questions as part of their original jurisdiction.

P.S.: Mark is right that Dems need to turn this from religious vs. secular into unamerican vs. American. Frankly, the deepest offense is to religion being thrust into the sordid world of politics, not secularism attacking religion. Set the issue, win the debate.

Personally, I gave up caring about whether or not the phrase “under God” was in the Pledge a long time ago. I had classmates in elementary and junior high (did I just ‘date’ myself?) who were children of Russian emigres and they not only didn’t repeat the pledge, they were prohibited by their religion from standing during the ceremony. The pledging of their allegiance to anything other than God was not allowed.

After consideration, I decided I wasn’t too fond of pledging allegiance to a symbol and I stopped. Now, if someone would like to write a pledge directed at the Constitution, I would consider it.

So you are saying that Marbury was only reinforcing the explicit language concerning original jurisdiction and not appellate review?

Not really – because Marbury established a precedent of judicial review – since mostly acquiesced to by the other branches – that applies in most cases upon appellate review. The cases where the Supreme Court has original jurisdiction are few and specifically enumerated in the Constitution (and the reason why Marbury was ruled in the first place was because the law that it struck down, the Judiciary Act of 1789, attempted to apply in part the “exceptions” and “regulations” power that Congress has over appellate jurisdiction to a situation involving original jurisdiction) so most cases that do come before the Supreme Court are there because of appellate review. What is subject to appellate review is pretty broad, but, according to the Constitution, doesn’t necessarily have to be since what is subject to appellate review can be subjected to “exceptions” and “regulations”.

To address your question (and maybe I don’t quite understand what you’re driving at) Marbury reinforced the explict language of the Constitution regarding original jurisdiction by looking at the exact language of the Constitution, but established the principle of the supremecy of judicial review (which is ususally appellate) on our separation of powers system.

Maybe an example will help with my point:
A few years ago Congress passed a law extending for an additional 20 years the time period covered in the Patent and Copyright laws (the Sonny Bono Copyright Term Extension Act of 1998 ). The law was challenged and went to the Supreme Court (appellate jurisdiction). There were all kinds of arguments made that extending the time period was ultimately bad – all kinds of policy reasons why the law should be overturned. The Supreme Court ruled in ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003) that the law was Constitutional because in Article 1, Section 8 it states that “Congress shall have Power … [t]o promote the Progress of Science … by securing [to Authors] for limited Times … the exclusive Right to their … Writings.” and so the law was perfectly legal. The policy arguments barely registered with the Court – the over-riding deciding factor was limited to whether or not Congress is given the power in the Constitution and the Court really need not look any further. That pretty much says it for Marbury – it doesn’t necessarily review and refight the policy aspects of the law – it looks to see whether or not a particular Congressional action is allowed and if it is the review can pretty much end there. If the PPA passed and came before the Supreme Court, I would expect pretty much the same result.

“To address your question (and maybe I don’t quite understand what you’re driving at) Marbury reinforced the explict language of the Constitution regarding original jurisdiction by looking at the exact language of the Constitution, but established the principle of the supremecy of judicial review (which is ususally appellate) on our separation of powers system.”

What does supremacy of judicial reivew mean? Does that mean Congress no longer has the power to regulate the jurisdictional limits of SCOTUS?

What does supremacy of judicial reivew mean? Does that mean Congress no longer has the power to regulate the jurisdictional limits of SCOTUS?

I take it to mean that on original jurisdiction, that Congress has no say-so because original jurisdiction is specifically enurmerated in the Constitution. But as to appellate jurisdiction – and that is the question that I guess we’ll find out if the PPA moves forward – Congress does have power for “exceptions” and “regulations”. So far the appellate jurisdiction hasn’t been messed with by Congress too much in terms of limits, but maybe that will change as a result of this. It’s possible that one interprestation would be to make it limited – that the “exception” part may mean that the Supreme Court has at least appellate jurisdiction in all matters, but that Congress can confer original jurisdiction on certain matters as an “exception”. If I was going to argue the PPA issue, absent any case authority, that’s the interpretation that I would give it to get the PPA declared unconstitutional. My feeling is that they wouldn’t be pushing this type of legislation if the Constiutional principle had already been thought out and fought and well-settled previously as something that is prohibited. It’s certainly an arcane issue after all – but, on it’s face it does appear that the Constitution allows it and that’s my point in all this.

I agree with your original point. As written, it appears Congress can limit jurisdiction outside the specific original jurisdiction matters. I’m just not sure what Marbury really decided. The proposed law doesn’t seem to be a challenge to the Constitution; it seems to merely reflect the fact that Congress can limit the jurisdiction of SCOTUS.

As you may have said (I think you said it), the law will hang on whether prospective plaintiffs concerning the pledge language would be suing the state or not. Because, if the state is the current controlling legal authority concerning the pledge, then the law would be unconstitutional due to the original jurisdiction language.

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