[Congressional Record Volume 150, Number 116 (Thursday, September 23, 2004)]
[House]
[Pages H7451-H7478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PLEDGE PROTECTION ACT OF 2004
The SPEAKER pro tempore. Pursuant to House Resolution 781 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 2028.
{time} 1133
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 2028) to amend title 28, United States Code, with respect to the
jurisdiction of Federal courts inferior to the Supreme Court over
certain cases and controversies involving the Pledge of Allegiance,
with Mr. Shaw in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered as having
been read the first time.
Under the rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and
the gentleman from New York (Mr. Nadler) each will control 30 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the Pledge of Allegiance reads: ``I pledge allegiance
to the Flag of the United States of America, and to the Republic for
which it stand, one Nation, under God, indivisible, with liberty and
justice for all.''
Two words in the Pledge, ``under God,'' help define our national
heritage as beneficiaries of a Constitution sent to the States for
ratification, as the Constitution itself states, ``in the Year of our
Lord,'' 1787, by a founding generation that saw itself guided by a
providential God. Those two words, and their entirely proper presence
in the system of government defined by our Constitution, have been
repeatedly and overwhelmingly reaffirmed by the House of
Representatives, most recently twice in the 107th Congress, by votes of
416 to 3 and 401 to 5, and in this Congress by a vote of 400 to 7.
The first Congress not only acknowledged a proper role for religion
in public life, but it did so at the very time it drafted the
Establishment Clause of the first amendment. Just three days before
Congress sent the text of the first amendment to the States for
ratification, it authorized the appointment of legislative chaplains.
And on November 28, 1863, President Abraham Lincoln delivered the
Gettysburg Address and declared, in words now inscribed in one of our
most beloved national monuments, ``we here highly resolve that these
dead shall not have died in vain, that this Nation, under God, shall
have a new birth of freedom.''
Although the United States Supreme Court recently reversed and
remanded the Ninth Circuit's latest holding striking down the Pledge as
unconstitutional, the Supreme Court did so on the questionable grounds
that the plaintiff lacked the legal standing to bring the case. The
Supreme Court's decision not to reach the merits of the case is
apparently an effort to forestall a decision adverse to the Pledge
since the dissenting Justices concluded that the Court in its decision,
``erected a novel prudential standing principle in order to avoid
reaching the merits of the constitutional claim.'' That does not bode
well for the Pledge of Allegiance.
To protect the Pledge from Federal court decisions that would have
the effect of invalidating the Pledge across several States, or
nationwide, H.R. 2028 will preserve to State courts the authority to
decide whether the Pledge is valid within that State's boundaries. It
will place final authority or a State's pledge policy in the hands of
the States themselves.
H.R. 2028 as reported by the Committee on the Judiciary is identical
to H.R. 3313, the Marriage Protection Act, which the House passed just
prior to the August recess except that it addresses the Pledge rather
than the Defense of Marriage Act. If different States come to different
decisions regarding the constitutionality of the Pledge, the effects of
such decisions will be felt only within those States. A few Federal
judges sitting hundreds of miles away from your State will not be able
to rewrite your State's Pledge policy.
A remedy to abuses by Federal judges has long been understood to lie,
among other places, in Congress's authority to limit Federal court
jurisdiction. The Constitution clearly provides that the lower Federal
courts are entirely creatures of Congress as much as appellate
jurisdiction of the Supreme Court excluding its only very limited,
constitutional, original jurisdiction over cases involving ambassadors
and cases in which the States have legal claims against each other.
As a leading treatise on Federal court jurisdiction has pointed out,
``Beginning with the first Judiciary Act in 1789, Congress has never
vested the Federal courts with the entire `judicial Power' that would
be permitted under Article III'' of the Constitution.
Justice William Brennan, no conservative by record, writing for the
Supreme Court said, ``virtually all matters that might be heard in
Article III Federal courts could also be left by Congress to the State
courts.''
As the Dean of Stanford Law School wrote recently, ``The Constitution
leaves room for countless political responses to an overly assertive
Court: Congress can strip it of jurisdiction. The means are available
and they have been used to great effect when necessary, used we should
note, not by disreputable or failed leaders, but by some of the most
admired Presidents and Congresses in American history.''
Far from violating the separation of powers legislation that leaves
State courts with jurisdiction to decide certain classes of cases would
be an exercise of one of the very checks and balances provided in the
Constitution. Integral to the American constitutional system is each
branch of government's responsibility to use its powers to prevent
overreaching by the other two branches. H.R. 2028, which has 226 co-
sponsors, does just that, and I urge my colleagues to join me in
supporting it.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this is not simply about the Pledge of Allegiance. I
really
[[Page H7452]]
hate to be an I-told-you-so, but the last time we considered
legislation to strip the Federal courts of jurisdiction, in that case,
to hear cases challenging the Defense of Marriage Act, I warned there
would be no end to it.
Our former colleague, Bob Barr, whose legislation Congress was
purporting to protect on that occasion said, no thanks. He wrote,
``This bill will needlessly set a dangerous precedent for future
Congresses that might want to protect unconstitutional legislation from
judicial review. During my time in Congress I saw many bills introduced
that would violate the Takings Clause, the second amendment, the tenth
amendment and many other constitutional protections. The fundamental
protections afforded by the Constitution would be rendered meaningless
if others followed the path set by H.R. 3313.''
Bob Barr was right. And it would make the Constitution like the
Soviet Constitution which had plenty of guarantee of rights, but they
were not worth the paper they were written on because there was no
independent court system to enforce them.
Today it is the turn of the religious minorities. Once upon a time a
student could be expelled from school for refusing to recite the Pledge
of Allegiance. In 1943 in the middle of World War II, the Supreme Court
in the Barnette case held that the children had a first amendment right
not to be compelled to swear an oath against their beliefs.
Justice Jackson wrote, ``If there is any fixed star in our
constitutional constellation, is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion or
other matters of opinion, or force citizens to confess by word or act,
their faith therein.''
This obviously includes a pledge of faith in God.
The Jehovah Witnesses in the Barnette case felt that it was idolatry
to be forced to pledge that even they believe in God.
This legislation would of course strip those families of the right to
go to court to defend their religious liberty. Schools could once again
expel children for acting according to the dictates of their religious
faith, and Congress will have slammed the courthouse door in their
faces.
This bill is part of a more general attack on our system of
government. You learned about this in school. We have an independent
judiciary whose job it is to interpret the Constitution, even if their
decisions are really unpopular. And what this bill does, what these
bills do is to slam the courthouse door in the face of people who
believe that their Constitutional rights are violated so they cannot go
to court because we tell them they cannot.
As unfortunate as I find the current Supreme Court on so many issues,
I understand that we cannot maintain our system of government, we
cannot enforce our Bill of Rights if the independent judiciary cannot
enforce those rights even if the majority does not like it.
As to the complaints about unelected judges, remember your high
school civics. We have an independent judiciary precisely to rule
against the wishes of a trenchant majority, especially when it comes to
the rights of unpopular minorities. That is our system of government
and it is a good one.
As Alexander Hamilton said in Federalist 78, ``The complete
independence of the courts of justice is peculiarly essential in a
limited Constitution. By a limited Constitution, I understand one which
contains certain specified exceptions to the legislative authority.
Limitations of this kind can be preserved in practice no other way than
through the medium of courts of justice whose duty it must be to
declare all acts contrary to the manifest tenor of the Constitution
void. Without this, all reservations of particular rights or privileges
would amount to nothing.''
And here we are saying that when someone believes that an Act of
Congress violates their rights, they may not go to court to try to see
if those rights are supreme if the legislation is unconstitutional.
We are playing with fire here. We are playing with the national unity
of this country. The gentleman from Wisconsin (Mr. Sensenbrenner) says
the 50 State courts would reserve to themselves the right to declare
Federal law unconstitutional. So what would be constitutional in one
State would be unconstitutional in another. We would be back to the
Articles of Confederation. We would be undoing 200 years of American
history because we would have 50 different interpretations of the
Constitution and of our State laws.
The gentleman from Wisconsin (Mr. Sensenbrenner) says that the
Judiciary Act of 1789 restricted the jurisdiction of the courts. That
is true. But he fails to note that the Judiciary Act of 1789 predates
the Bill of Rights, the first ten amendments to the Constitution. The
fifth amendment says that no person may be deprived of life, liberty or
property without due process of law.
{time} 1145
All claims, all claims essentially come down to a claim that someone
is being deprived of life or liberty or property without due process of
law; and if you cannot go to a court to adjudicate that claim by
definition, you are being denied due process of law. So this is clearly
unconstitutional.
I ask my colleagues, is demagoging a case that they have won in court
so far really worth destroying the enforceability of the Bill of
Rights? I urge my conservative colleagues to shape up and act like
conservatives for once. We live in a free society that protects
unpopular minorities even if the majority hates that minority. Feel
free to hate if my colleagues must, but please leave our Constitution,
leave our liberties, leave our civil liberties that define this Nation
and makes it what it is, leave it alone.
Mr. Chairman, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield 4 minutes to the gentleman
from Indiana (Mr. Pence), a member of the Committee on the Judiciary.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Chairman, I rise in strong support of the Pledge
Protection Act with a particular sense of gratitude to the gentleman
from Wisconsin (Chairman Sensenbrenner), as well as the capable
gentleman from Missouri (Mr. Akin), who authored the legislation today.
The Pledge of Allegiance which we perform every day on the floor of
this Congress reads: ``I pledge allegiance to the flag of the United
States of America and to the Republic for which it stands, one Nation
under God.'' Two words in the pledge ``under God'' help in a very real
way, Mr. Chairman, to define our national heritage as the beneficiaries
of a Constitution that, as the gentleman from Wisconsin (Chairman
Sensenbrenner) said, was sent to the States for ratification ``in the
Year of our Lord'' 1787.
Our Nation was established by a generation that saw itself in so many
ways and by overwhelming numbers guided by a providential God who was
not indifferent to the establishment of a free Nation on this
continent, a Nation that would be, in John Winthrop's terms, a shining
city on a hill, a Nation that both went to war and continues to fire
the imagination of the world, as we heard today in the eloquent words
of Iraqi Prime Minister Allawi.
Even in our own Declaration of Independence there is clear reference
to the belief of our Founders that we are endowed by our creator with
certain unalienable rights.
In November of 1863, President Abraham Lincoln traveled not far from
here, delivering the Gettysburg Address, the dedication of a cemetery
at the site of that extraordinary battle, saying that ``we here highly
resolve that these dead shall not have died in vain, that this Nation,
under God, shall have a new birth of freedom.''
What Lincoln resolved that day under God, unfortunately, today, the
Federal courts have put in jeopardy in one case after another, most
notably the Newdow case. There have been Federal courts that have
either struck the term ``under God'' from our Pledge or, in the case of
the Supreme Court of the United States, simply deferred the decision
altogether.
This, despite the fact that the American people overwhelmingly, in
survey after survey, and more importantly, through votes here on the
floor of the House of Representatives, have expressed their will on
this matter in deafening terms.
The Congress itself, as the gentleman from Wisconsin (Chairman
Sensenbrenner) referred, has voted not once
[[Page H7453]]
but twice in recent days in overwhelming numbers, more than 400 of the
435 Members of Congress, reaffirming the inclusion of the words ``under
God'' in our Pledge of Allegiance.
Today, I expect in the course of this debate we will continue to hear
a great deal about constitutional theory, which as a member of the
Committee on the Judiciary, as a man trained in the law, I have great
and passionate interest in; but those who will come to this floor today
and suggest that the Congress does not in effect possess the ability to
limit the jurisdiction of the Federal courts do so in a way that
virtually ignores the express language of the Constitution itself,
which gives to the Congress the establishment of the jurisdiction of
the courts.
Even the dean of the Stanford Law School wrote recently, ``the
Constitution leaves room for countless political responses to an overly
assertive court. Congress can strip it of its jurisdiction. The means
are available, and they have been used to great effect when necessary,
used, we should note, not by disreputable or failed leaders, but by
some of the most admired Presidents and Congresses in American
history.''
Far from violating separation of powers, legislation that leaves
State courts the jurisdiction on issues of great and deep meaning to
the American people is in keeping with our best tradition.
Let us say the American people will be heard, not lifetime-appointed
judges, on the recognition that this is one Nation under God.
Mr. NADLER. Mr. Chairman, I am pleased to yield 3 minutes to the
gentleman from North Carolina (Mr. Watt).
Mr. WATT. Mr. Chairman, I appreciate the gentleman yielding me time.
If this debate were really about whether ``under God'' was going to
be in the Constitution, and that was all it was about, I would be right
there. I have been reciting the Pledge of Allegiance ever since, even
before I knew what it meant, and ``under God'' has been in it. I have
had no real objection to it, even when I did not understand what it
meant.
But this debate is about much, much more than that. It is really
about whether there is going to be a constitutional framework in which
we operate and who is going to decide ultimately what is
constitutional, the United States Supreme Court and the Federal courts
of our Nation or the arrogance of my colleagues here in this body.
There are actually some people here who believe that they should be the
ultimate arbiter of what is constitutional; and if they do not get the
result that they want in any given case, they want to take jurisdiction
away from whoever gave them a different result.
So that is what this is about, how do we protect a constitutional
framework which historically has had the legislative body doing its job
and the courts determining what is constitutional and ultimately the
United States Supreme Court determining what is constitutional.
Now, the fear that they might get a result that is different than the
one they want has these people here in our body saying to us that we
should give that ultimate authority not to the United States Supreme
Court but to State courts. So this really is not even about whether
``under God'' is going to be in the pledge or not, even at that level,
because if a State court determines that ``under God'' is
unconstitutional, then what are we going to do in that case?
In North Carolina, it might be constitutional. In California it may
be unconstitutional. We may have 50 different standards about when we
can recite ``under God'' in the Pledge of Allegiance under the
standards that this bill would allow us to set up.
This is not about whether we retain ``under God'' in the Pledge of
Allegiance. The court has already decided that. This is a great vehicle
for the majority to be able to come out here and tell us they believe
in God. I believe in God, too, but there are some citizens in this
country who do not necessarily believe in a god or who believe that
having to profess it publicly is idolatry. We have an obligation to
protect their rights, also. They are citizens, also, in this country.
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from Virginia (Mr. Forbes), a member of the Committee on the Judiciary.
Mr. FORBES. Mr. Chairman, right above the Chair's head today are four
words, ``In God We Trust''; and time after time in this country, we
have seen in times of storm or war or illness the American people have
embraced those words and believed in them very strongly.
That is why 2 years ago, shortly after the release of the Ninth
Circuit Court's decision that ``under God'' was to be struck from the
Pledge of Allegiance, Newsweek published a poll finding 87 percent of
Americans supported the inclusion of the phrase ``under God'' in the
pledge.
Nevertheless, the few, but articulate, supporters of the court,
waving U.S. flags and calling themselves one of the last groups in
America facing unrestrained bigotry, marched on the Mall to protest
what they said was increasing infringement of religion in government
affairs.
Staging their first Godless Americans March on Washington, the
demonstrators cheered and waved signs that expressed disapproval of
religion. Their signs read: ``God Is a Fairy Tale,'' ``Keep Your Gods
Out of Our Schools,'' and ``Al Qaeda is a Faith-Based Initiative.''
According to the New York Times, Dr. Michael Newdow touted that he
planned to ``ferret out all insidious uses of religion in daily life.
Why should I be made to feel like an outsider?'' he asked.
Mr. Chairman, Dr. Newdow and the two judges in California were right
on one thing: atheists are outsiders in America. But they are not
outsiders because, as they claim, the beliefs of others are being
forced upon them, but instead, because they, unlike the vast majority
of Americans, are attempting to create an environment where their
beliefs are paramount over the beliefs of others.
Like every other American, atheists have the right not to recite the
Pledge, not to attend church, and not to engage in any other practice
of which they disapprove. They do not, however, have the right to
impose their atheism on the vast majority of Americans whose beliefs
now and historically have defined America as a religious Nation.
Indeed, the concept of the separation of church and State was not born
to establish freedom from religion, but to establish freedom for
religion.
Repeatedly and overwhelmingly, our legislative bodies, our civic
leaders, our historical heritage and, most importantly, the people of
the United States of America have affirmed the two words ``under God''
and their entirely proper presence in our system of government. This
week, over 2 years after two judges in California imposed their will
upon a Nation, I urge my colleagues to reclaim this court's abuse of
power and, in passing the Pledge Protection Act, reaffirm that we are,
indeed, one Nation under God, indivisible, with liberty and justice for
all.
Mr. NADLER. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Massachusetts (Mr. Frank).
Mr. FRANK OF Massachusetts. Mr. Chairman, even by the standards that
have sadly governed this House recently, the bill before us is bizarre.
It makes a big hole in the Constitution for the first time in American
history, if it were to pass and become law, to counteract a decision
which has already been overruled. We should be very clear. There is no
pending case even at the Federal level that deals with this.
But what I have heard people say is, well, do not worry, because
there is an individual liberty here. The Supreme Court of the United
States, after all, did say in 1943 in the Barnette case that no child
could be forced to say the Pledge of Allegiance if it violated his own
family's religious views. The Jehovah's Witnesses said saying the
Pledge of Allegiance violated their views. The Supreme Court said they
did not have to say it.
I have heard people say, well, do not worry because children will be
protected if they find this objectionable by the Supreme Court
decision. Now the bizarre aspect is that this is a bill that would
prevent a Supreme Court decision, the very thing on which they are
relying to justify it, but it is also the case that under this bill, if
a State court should decide to disregard that Supreme Court opinion and
say that saying the pledge was mandatory, even for Jehovah's Witnesses
or others who
[[Page H7454]]
might have a principled religious objection to it, that that could be
overruled.
The other thing that ought to be noted is this. Once my colleagues
start down this road, this is the second time the majority has done
this, telling us that the Supreme Court cannot decide, they are going
to create a precedent, if this ever succeeds, that will be followed in
other issues.
The business community ought to follow this very closely because it
will now become demanded of Members of Congress that when they pass a
law they show that they really mean it by taking away Supreme Court
jurisdiction. So the important desire of the business community for
Federal uniformity, all of the efforts they have been making recently
to try and get national laws that govern commercial transactions, will
be at risk; and we will see laws in area after area, if this precedent
is followed, which will mean that there is no uniform national
interpretation of them.
{time} 1200
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman
from Ohio (Mr. Chabot), chairman of the Subcommittee on the
Constitution.
Mr. CHABOT. Mr. Chairman, I thank the gentleman for yielding me this
time, and I thank him for his leadership on this. I also want to thank
and recognize the leadership of the gentleman from Missouri (Mr. Akin)
for his determination in protecting the Pledge of Allegiance in this
country. I wish to also express my support, as chairman of the
Subcommittee on the Constitution, for H.R. 2028, the Pledge Protection
Act.
When the issue of limiting Federal Court jurisdiction was raised
during the discussions of the Marriage Protection Act, the Subcommittee
on the Constitution held a hearing examining Congress' authority to do
this. During the hearing, testimony was heard by a number of
constitutional experts. While there was mixed opinion on whether
Congress should exercise its authority, there was a consensus that
Congress did in fact have the authority under Article III of the
Constitution to determine what issues were heard by the Supreme Court
under its appellate jurisdiction and by the lower Federal courts.
This point was highlighted most recently by the Dean of Stanford Law
School who wrote, ``The Constitution leaves room for countless
political responses to an overly assertive court. Congress can strip it
of jurisdiction. The means are available, and they have been used to
great effect when necessary; used, we should note, not by disreputable
or failed leaders, but by some of the most admired presidents and
Congresses in American history.''
As we continue the debate today, I would urge each Member of Congress
to recite to himself or herself the Pledge of Allegiance that we are
talking about and ask yourself what it means to you. It deserves
protection. It defines not only our national heritage, but unites our
society each time it is recited. We cannot let rogue Federal judges
redefine our country's history and the basis from which our Founding
Fathers found guidance and strength when constructing our great
country.
Mr. Chairman, I urge my colleagues to support H.R. 2028.
Mr. NADLER. Mr. Chairman, I yield 5 minutes to the gentleman from
Virginia (Mr. Scott).
Mr. SCOTT of Virginia. Mr. Chairman, I thank the gentleman for
yielding me this time.
Mr. Chairman, I come from a State with a long tradition of supporting
religious freedom. The Virginia Statute For Religious Freedom, written
by Thomas Jefferson preceded the first amendment to the Constitution.
This bill does not protect religious freedom, and it also undermines
fundamental rights of American citizens.
Mr. Chairman, most experts believe that the bill is meaningless,
because whether or not the recitation of the Pledge is constitutional
or not constitutional is a matter for the courts to decide. And if it
is unconstitutional, that ruling cannot be changed by a statute enacted
by this body.
Now, I happen to believe that the present Pledge of Allegiance is
constitutional, and I agree with the dissent in the Newdow versus U.S.
Congress case, the recent Ninth Circuit case involving the Pledge of
Allegiance. In my judgment, the dissent accurately surmised, and I
quote ``Legal world abstractions and ruminations aside, when all is
said and done the danger that `under God' in our Pledge of Allegiance
will tend to bring about a theocracy or suppress someone's belief is so
minuscule as to be de minimis. The danger that phrase represents to our
first amendment's freedoms is picayune at best.''
Now, to the extent that ``under God'' is worthy of this excessive
attention, every hearing we have and every bill we pass on this issue
only serves to chip away at the de minimis argument and we have to deal
with the issue as it is explained in the Christian Century, a non-
denominational Protestant weekly, which stated, and I quote, ``To the
extent `under God' has real religious meaning, then it is
unconstitutional. The phrase is constitutional to the extent that it is
religiously innocuous. Given that choice, I side with the Ninth
Circuit, the government should not link religion and patriotism.'' Now,
that is an editorial position expressed by the Christian Century.
The simple fact is we need to protect the Constitution and the rights
of the court to decide whether the Pledge is constitutional or not, but
the majority will not do that. H.R. 2028 is a court-stripping bill,
plain and simple.
We had the same debate on the floor just 2 months ago when we debated
the Marriage Protection Act of 2003. Mr. Chairman, I ask that that
debate be incorporated by reference here just to save time. Because at
that time many of us expressed concern about the detrimental precedent
that we would be setting by passing a court-stripping bill. Today, our
concerns have been validated.
This bill would strip the courts of their ability to hear cases that
are clearly within Federal jurisdiction because they address
fundamental constitutional rights and individual liberties guaranteed
to us in the bill of rights. Furthermore, this bill is not limited to
cases addressing the words ``under God.'' The recitation of the Pledge
may, in some circumstances, implicate the right to free speech, the
right of free association, the right to the free exercise of religion,
and the establishment clause protections, all guaranteed under the
first amendment to the Constitution.
We need Federal courts to protect our rights, and this bill prohibits
the courts from doing just that. This bill violates over 200 years of
constitutional principle established in Marbury versus Madison that the
Supreme Court can rule on the constitutionality of legislative actions.
Now, if this kind of court-stripping legislation had been passed in
1954, Congress could have prohibited the Supreme Court from hearing
cases involving segregation in public schools and the courts could not
have ruled in Brown v. Board of Education. Or if it had passed such
language in the 1960s, we might not have had the decision issued by
what some are now calling rogue, unelected, lifetime-appointed,
activist judges when they ruled to overrule the will of the people of
Virginia and require Virginia to recognize marriages between blacks and
whites. That could not have happened unless those so-called rogue,
unelected, lifetime-appointed, activist judges made the decision they
made.
The truth is we rely on Federal courts to determine and enforce our
civil rights. In our system of democracy, which we are touting around
the world, courts are where citizens can vindicate their rights. Our
government works on a system of checks and balances. That is why many
organizations, legal associations, civil rights groups, and religious
organizations, have written to oppose us overturning 200 years of
judicial precedence.
In closing, Mr. Chairman, we should, instead, adhere to the wisdom of
the Supreme Court in the Barnette case, which said ``The very purpose
of the bill of rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach
of majorities and officials, and to establish them as legal principles
to be applied by the courts. One's right to life, liberty, and
property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to
[[Page H7455]]
vote; they depend on the outcome of no elections.''
Mr. Chairman, I submit for the Record letters from organizations in
opposition to this bill.
The Constitution Project,
Washington, DC, September 20, 2004.
House of Representatives, U.S. Capitol, Washington, DC.
Dear Members of House of Representatives: I write on behalf
of the Constitution Project to urge you to oppose H.R. 2028,
the ``Pledge Protection Act of 2003.''
The Constitution Project, based on Georgetown University's
Public Policy Institute, specializes in creating bipartisan
consensus on a variety of legal and governance issues, and
promoting that consensus to policymakers, opinion leaders,
the media, and the public. We have initiatives on the death
penalty, liberty and national security, war powers, and
judicial independence (our Courts Initiative), among others.
Each of our initiatives is directed by a bipartisan committee
of prominent and influential businesspeople, scholars, and
former public officials.
Our Courts Initiative works to promote public education on
the importance of our courts as protectors of Americans'
essential constitutional freedoms. Its co-chairs are the
Honorable Mickey Edwards, John Quincy Adams Lecturer at the
John F. Kennedy School of Government at Harvard University
and former chair of the House of Representatives Republican
Policy Committee (R-OK), and the Honorable Lloyd Cutler, a
prominent Washington lawyer and White House counsel to
Presidents Carter and Clinton.
In 2000, the Courts Initiative created a bipartisan Task
Force to examine and identify basic principles as to when the
legislature acts unconstitutionally in setting the powers and
jurisdiction of the judiciary. The Task Force was unanimous
in its conclusion that some legislative acts restricting
courts' powers and jurisdiction are unconstitutional. The
Task Force also concluded that some legislative actions, even
if constitutional, are undesirable. (The Task Force's
findings and recommendations are published in Uncertain
Justice: Politics and America's Courts 2000.)
Our Task Force arrived at seven bipartisan consensus
recommendations, including the following, which are relevant
to the legislation at hand:
1. Congress and state legislatures should heed
constitutional limits when considering proposals to restrict
the powers and jurisdiction of the courts.
2. Legislatures should refrain from restricting court
jurisdiction in an effort to control substantive judicial
decisions in a manner that violates separation of powers, due
process, or other constitutional principles.
3. Legislatures should not attempt to control substantive
judicial decisions by enacting legislation that restricts
court jurisdiction over particular types of cases.
4. Legislatures should refrain from restricting access to
the courts and should take necessary affirmative steps to
ensure adequate access to the courts for all Americans.
Specifically, our Task Force was unanimous in its view that
there are some constitutional limits on the authority the
legislature to restrict court jurisdiction in an effort to
control substantive judicial decisions. In particular,
separation of powers, due process, and other constitutional
provisions limit such authority. Task Force members had
differing views about the scope and source of the
constitutional limit on the legislature's power in this area.
For instance, some believed that restrictions on jurisdiction
become unconstitutional when they undermine the essential
role of the Supreme Court. Others relied on a reading of the
Vesting Clause of Article III, which places judicial power--
the power to decide cases--in the hands of the courts alone.
Nonetheless, all believed that constitutional limitations
exist.
Apart from the constitutionality of laws restricting
federal court jurisdiction, the Task Force was also unanimous
in its view that legislative acts stripping courts of
jurisdiction to hear particular types of cases in an effort
to control substantive judicial decisions are undesirable and
inappropriate in a democratic system with co-equal branches
of government. Legislative restriction of jurisdiction in
response to particular substantive decisions unduly
politicizes the judicial process, and attempts by
legislatures to affect substantive outcomes by curtailing
judicial jurisdiction are inappropriate, even if believed
constitutional. (Indeed, it was striking that members
reflecting a broad ideological range--from, for example,
Leonard Leo of the Federalist Society to Steven Shapiro of
the American Civil Liberties Union--agreed that restrictions
on jurisdiction to achieve substantive changes in the law are
unwise and undesirable policy.)
The Task Force was also unanimous that legislation that
restricts access to the courts and precludes individuals from
using a judicial forum to enforce rights is undesirable and
unconstitutional. Rights are meaningless without a forum in
which they can be vindicated. Therefore, access to the courts
at both the federal and state levels is essential in order
for rights to have effect. Legislatures have the duty to
ensure meaningful access to the courts and legislative
actions that preclude this are undesirable and
unconstitutional.
Our Task Force reached these conclusions and
recommendations rightly. From its beginning, our system of
constitutional democracy has depended on the independence of
the judiciary. Judges are able to protect citizens' basic
rights and decide cases fairly only if free to make decisions
according to the law, without regard to political or public
pressure. Similarly, the judiciary can maintain the checks
and balances essential to preserving a healthy separation of
powers only if able to resist overreaching by the political
branches. Indeed, the cornerstone of American liberty is the
power of the courts to protect individual rights from
momentary excesses of political and popular majorities.
In recent years, as part of the polarization and posturing
that increasingly characterize our national and state
politics, threats to judicial independence have become more
commonplace. Attacks on judges for unpopular decisions, even
those made in good faith, have become more rampant.
Politicians are responding to unpopular decisions and
litigants by attempting to restrict courts' powers in certain
kinds of cases. However, Americans have much to lose if we do
not exercise self-restraint and instead choose short-term
political gain at the expense of judicial independence.
The independence of our judiciary is, as Chief Justice
Rehnquist described, ``one of the crown jewels of our
system of government.''
In conclusion, while Article III of our Constitution gives
Congress the power to regulate federal court jurisdiction,
this power is not unlimited, and Congress should not--and in
some instances may not--use its power to restrict federal
court jurisdiction in ways that infringe upon separation of
powers, violate individual rights and equal protection, or
offend federalism. H.R. 2028 is poised to do all three by
stripping federal courts--including even the U.S. Supreme
Court--of the authority to hear cases involving the Pledge of
Allegiance, even when such cases involve First Amendment
issues of free speech and freedom of religion. It sets the
dangerous precedent of transferring questions of federal and
constitutional law exclusively to state courts and preventing
American citizens from seeking protection of fundamental
rights in federal court, and it threatens the critical and
unique role that the federal courts play in constitutional
balance of powers, interpreting and enforcing constitutional
law, and providing legal certainty.
For these reasons, as well as those detailed our Task
Force's findings and recommendations, the Constitution
Project urges you to oppose H.R. 2028. Thank you for your
consideration.
Sincerely,
Kathryn A. Monroe,
Director, Courts Initiative.
____
American Humanist Association,
September 20, 2004.
Oppose H.R. 2028, the ``Pledge Protection Act 2003''
Dear Representative, The American Humanist Association
(AHA) stands in opposition to H.R. 2080, the ``Pledge
Protection Act of 2003,'' which would prevent all federal
courts from hearing cases challenging or interpreting rights
granted by the First Amendment as they relate to Pledge of
Allegiance cases. We urge you to vote against this bill,
which would compromise long held American legal principles of
due process and separation of powers by shutting the federal
courthouse doors to large numbers of Americans.
If passed, the Pledge Protection Act would set a dangerous
precedent by stripping federal courts of judicial
independence and paving the way to preventing federal judges
from ruling on other controversial social issues from
abortion and gun control to school vouchers and school
prayer. As we warned with the Marriage Protection Act (H.R.
3313), attempts by Congress to strip the judiciary of their
power to review the legislation are inequitable and will open
the door to more of the same. If the Pledge Protection Act
passes it will fuel the fires for similar bills.
Denying access to the federal court system is unacceptable
to religious and Humanist minorities who have a due process
right to have their cases heard.
The Pledge Protection Act presents a serious separation of
powers concern. Federal courts are uniquely prepared to
interpret federal constitutional concerns and to serve as a
check on the constitutionality of actions of Congress and the
Executive branch. That's why constitutional concerns are
raised when an attempt is made to block the courts from
reviewing and interpreting the constitutionality of a single
act.
Congress should not disrupt the balance of power intended
by our Founding Fathers. Restricting the federal courts'
ability to protect First Amendment rights severely undermines
the American judicial system.
Humanists are particularly concerned about this bill
because it would violate judicial independence in order to
undermine American citizens, in this case those of a minority
faith or no religion, the right to access federal courts to
challenge a piece of legislation.
In the past Congress has rejected attempts to withdraw
controversial issues from the scope of federal courts and the
AHA encourages you to do so again at this important juncture.
We urge you to defend due process and separation of powers
and vote no on the Pledge Protection Act.
Sincerely,
Mel Lipman,
AHA President.
[[Page H7456]]
____
Unitarian Universalist Association of Congregations,
Washington Office for Advocacy, Washington, DC,
September 20, 2004.
Dear Representative: On behalf of more than 1,050
congregations that make up the Unitarian Universalist
Association, I urge you to oppose H.R. 2028, the ``Pledge
Protection Act of 2004.'' As a tradition with a deep
commitment to religious pluralism, we believe that this
legislation would seriously undermine the First Amendment
protections of the Constitution, and particularly the rights
of religious minorities, by stripping federal courts,
including the Supreme Court, of jurisdiction over cases
concerning the Pledge of Allegiance.
In resolutions dating back to 1961, the highest policy-
making body of the Unitarian Universalist Association has
repeatedly affirmed the right of all Americans to religious
freedom, including the right of religious minorities in
public schools to not recite the Pledge of Allegiance. The
Supreme Court has agreed in the case of West Virginia State
Board of Education v. Barnette, 319 U.S. 624 (1943) that the
Pledge cannot be mandatory for public school students.
Despite the Barnette ruling, we know from experience that
the practice of mandatory recitation continues. By
eliminating the mechanism for religious minorities to seek
relief from this practice through appeals to a federal court,
H.R. 2028 would have the practical effect of all but
eliminating the right itself. As a result, we believe that
this legislation will seriously harm religious minorities and
the constitutional free speech rights of countless parents
and children, many of whom are members of Unitarian
Universalist congregations and are involved in our religious
education programs.
By undermining the power of federal courts to protect
constitutional rights affirmed by the U.S. Supreme Court, we
believe that H.R. 2028 would weaken the separation of powers
in a way that we find deeply troubling.
The congregations of the Unitarian Universalist Association
collectively affirm and promote the right of conscience and
the use of the democratic process in society at large. We are
committed to the ideals of the founders of this nation,
including religious liberty and religious pluralism, as well
as the balance of powers that protects such rights.
I urge you to preserve the rights of religious minorities,
as well as the constitutional separation of powers, by
opposing the ``Pledge Protection Act of 2004.''
In Faith,
Robert C. Keithan,
Director.
____
September 20, 2004.
Protect Separation of Powers and Religious Minorities' Longstanding
Constitutional Rights; Oppose Final Passage of H.R. 2028
Dear Representative: We, the undersigned religious, civil
rights, and civil liberties organizations, urge you to oppose
H.R. 2028, the ``Pledge Protection Act,'' misguided
legislation that would strip all federal courts, including
the Supreme Court, from hearing First Amendment challenges to
the Pledge of Allegiance and from enforcing longstanding
constitutional rights in federal court.
The signatories to this letter include organizations that
supported the recent court challenge to the constitutionality
of including ``under God'' in the Pledge of Allegiance,
organizations that opposed that challenge, and organizations
that took no position on the matter. We are united, however,
in believing that H.R. 2028 threatens the separation of
powers that is a fundamental aspect of our constitutional
structure. Beyond this, while the legislation ostensibly
responds to the controversy surrounding ``under God'' in the
Pledge of Allegiance, this legislation sweeps far more
broadly, with potentially severe constitutional implications
for religious minorities who are adversely affected by
government-mandated recitation of the Pledge.
First and foremost, we are opposed to H.R. 2028 because
this legislation, by entirely stripping all federal courts,
including the Supreme Court, of jurisdiction over a
particular class of cases, threatens the separation of powers
established by the Constitution, and undermines the unique
function of the federal courts to interpret constitutional
law. This legislation deprives the federal courts of the
ability to hear cases involving religious and free speech
rights of students, parents, and other individuals. The
denial of a federal forum to plaintiffs to vindicate their
constitutional rights would force plaintiffs out of federal
courts, which are specifically suited for the vindication of
federal interests, and into state courts, which may be
hostile or unsympathetic to these federal claims, and which
may lack expertise and independent safeguards provided to
federal judges under Article III of the Constitution. It is
in apparent recognition of this concern that no federal bill
withdrawing federal jurisdiction in cases involving
fundamental constitutional rights has become law since the
Reconstruction period.
In addition, as drafted, the bill would deny access to the
federal courts in cases to enforce existing constitutional
rights for religious minorities. Over sixty years ago, the
Supreme Court decided the case of West Virginia State Board
of Education v. Barnette, 319 U.S. 624 (1943). In Barnette,
the Supreme Court struck down a West Virginia law that
mandated schoolchildren to recite the Pledge of Allegiance.
Under the West Virginia law, religious minorities faced
expulsion from school and could be subject to prosecution and
fined, if convicted of violating the statute's provisions. In
striking down that statute, the Court reasoned: ``To believe
that patriotism will not flourish if patriotic ceremonies
are voluntary and spontaneous instead of a compulsory
routine is to make an unflattering estimate of the appeal
of our institutions to free minds . . . If there is any
fixed star in our constitutional constellation, it is that
no official, high, or petty can prescribe what shall be
orthodox in politics, nationalism, religion, or other
matters of opinion.'' 319 U.S. at 639-40.
Moreover, just recently, a panel of the U.S. Court of
Appeals for the Third Circuit held that a Pennsylvania law
mandating recitation of the Pledge, even when it provided a
religious exception, violated the Constitution because it
violated the free speech of the students. Circle School v.
Pappert, No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert,
the court found that: ``It may be useful to note our belief
that most citizens of the United States willingly recite the
Pledge of Allegiance and proudly sing the national anthem.
But the rights embodied in the Constitution, particularly the
First Amendment, protect the minority--those persons who
march to their own drummers. It is they who need the
protection afforded by the Constitution and it is the
responsibility of federal judges to ensure that protection.''
Pappert, Slip Op. at 14.
H.R. 2028 would undermine the longstanding constitutional
rights of religious minorities to seek redress in the federal
courts in cases involving mandatory recitation of the Pledge.
As a result, this legislation will seriously harm religious
minorities and the constitutional free speech rights of
countless individuals.
H.R. 2028 also raises serious legal concerns about the
violation of the principles of separation of powers, equal
protection and due process. The bill undermines public
confidence in the federal courts by expressing outright
hostility toward them, threatens the legitimacy of future
congressional action by removing the federal courts as a
neutral arbiter, and rejects the unifying function of the
federal judiciary by denying federal courts the opportunity
to interpret the law. We strongly believe that this
legislation as drafted will have broad, negative implications
on the ability of individuals to seek enforcement of
previously constitutionally protected rights concerning
mandatory recitation of the Pledge. We therefore urge, in the
strongest terms, your rejection of this misguided and unwise
legislation.
Sincerely,
American Civil Liberties Union
American Federation of State, County and Municipal
Employees (AFL-CIO)
American Humanist Association
American Jewish Committee
Americans for Democratic Action
Americans for Religious Liberty
Americans United for Separation of Church and State
Anti-Defamation League
Baptist Joint Committee
Central Conference of American Rabbis
Committee for Judicial Independence
General Board of Church and Society of the United
Methodist Church
Human Rights Campaign
Jewish Reconstructionist Federation
Leadership Conference on Civil Rights
Legal Momentum (the new name of NOW Legal Defense and
Education Fund)
National Council of Jewish Women
National Senior Citizen Law Center
Northwest Religious Liberty Association
People for the American Way
Sikh Mediawatch and Resource Task Force (SMART)
The Interfaith Alliance
U.S. Action
Union for Reform Judaism
Unitarian Universalist Association of Congregations
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from Tennessee (Mr. Duncan).
Mr. DUNCAN. Mr. Chairman, I thank the very distinguished chairman of
the Committee on the Judiciary, the gentleman from Wisconsin (Mr.
Sensenbrenner), for yielding me this time, and for his work on this
legislation and his work on so many other important bills before this
body.
I also want to commend the gentleman from Missouri (Mr. Akin) for his
outstanding leadership on this issue.
Mr. Chairman, in a 1952 Supreme Court case, Zorach versus Clawson, in
an opinion written, I think, by Justice Douglas, it said, there is ``No
constitutional requirement which makes it necessary for government to
be hostile to religion and throw its weight against efforts to widen
the effective scope of religious influence.''
Similar to that, a few years ago the great columnist for the
Washington Post, William Raspberry, who I am sure most people would
describe as being fairly liberal on most issues, when he was writing
about an issue similar to this, he said ``Is it not just
[[Page H7457]]
possible that anti-religious bias, masquerading as religious
neutrality, has cost this Nation far more than we have been willing to
acknowledge?''
Mr. Chairman, I spent 7\1/2\ years as a circuit court judge or State
trial judge in the State of Tennessee. For years, I have heard and read
Federal judges complaining about how Congress is putting too much into
the Federal courts, expanding their jurisdiction too much, and how
overworked they are, and how there should be more limits on the
jurisdiction of these courts and that we should stop taking so many
cases away from State courts. This is a very minimal limitation on the
jurisdiction of the Federal courts. Very minimal. A very reasonable
limitation.
As the gentleman from Indiana (Mr. Pence) pointed out a few moments
ago, there is almost no question that it is within the scope of
congressional jurisdiction, or Congressional power to limit the
jurisdiction of the Federal courts.
Alexander Hamilton, writing many years ago in Federalist paper number
81 said, ``To avoid all inconveniences, it will be safest to declare
generally that the Supreme Court shall possess appellate jurisdiction
that shall be subject to such exceptions and regulations as the
national legislature may prescribe. This will enable the government to
modify it in such a manner as will best answer the ends of public
justice and security.''
And Thomas Jefferson, in a letter written in September of 1820, said
this, responding to the argument that Federal judges should be the
final interpreters of the Constitution. Thomas Jefferson wrote this:
``You seem to consider the Federal judges as the ultimate arbiters of
all constitutional questions, a very dangerous doctrine indeed and one
which would place us under the despotism of an oligarchy. Our judges
are as honest as other men and not more so. They have with others the
same passions for party, for power, and the privilege of their corps.
Their power is the more dangerous, as they are in office for life and
not responsible as the other functionaries are to the elective control.
The Constitution has erected no such single tribunal.''
Mr. Chairman, I am sorry my time has run out. I urge support for this
very reasonable, very minimal limitation on the Federal Courts'
jurisdiction.
Mr. NADLER. Mr. Chairman, I yield 3 minutes to the gentleman from
Michigan (Mr. Conyers), the very distinguished ranking member of the
Committee on the Judiciary.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding me this
time.
My colleagues, we have before us a measure that is unconstitutional,
that undermines the Federal Judiciary, and is totally unnecessary. The
bill, of course, violates Marbury versus Madison, which has stated and
been the law of the land since 1803. Never in these 201 years has any
Congress ever brought a measure like this to the floor of the House.
In Marbury, Justice Harlan said, ``it is emphatically the role of the
court to determine what the law is.'' And so we violate the very basic
fundamental part of the role of the Judiciary in the Constitution. It
violates the separation of powers principle because it denies the
Supreme Court its historical role of final authority on the
constitutionality of our laws.
Who wants 50 different decisions coming from the several courts of
the States? It violates freedom of speech and religion. And we have
Supreme Court cases, West Virginia State Board of Education versus
Barnett, and just this year the Third Circuit held in Pennsylvania that
the mandated recitation of the Pledge of Allegiance was
unconstitutional.
Now, I know what you are trying to accomplish by this gross
distortion of constitutional history, but ultimately someone has to
decide, and we have been deciding for 201 years. To make sure it is
constitutional, some minds reason, we should strip the jurisdiction of
the subject from the court. What is next: guns, freedom of choice,
terrorism?
We cannot proceed as a democratic nation without very emphatically
joining with Senator Barry Goldwater, and Robert Bork, and our former
Judiciary colleague, Bob Barr.
I rise in strong opposition to H.R. 2028, the so-called ``Pledge
Protection Act''. This bill is not only unconstitutional, it undermines
our federal judiciary and is totally unnecessary.
H.R. 2028 is Unconstitutional: This bill violates just about every
principle in our constitution and bill of rights. First, it violates
separation of powers principles because it denies the Supreme Court its
historical role as the final authority on the constitutionality of our
laws. This is a doctrine that was established more than 200 years ago
in the landmark Marbury v. Madison decision, and which has served as
the cornerstone of our system of checks and balances.
Second, it violates Freedom of Speech and Religion. This is because
it makes it far more difficult for persons who feel they are being
coerced into reciting the pledge to have access to the courts. These
cases are not hypothetical. Sixty years ago, the Supreme Court issued
the West Virginia State Board of Education v. Barnett decision, which
held that it was unlawful to expel religious minorities from school if
they refused to recite the pledge of allegiance. Just this year the
Third Circuit held a Pennsylvania law which mandated recitation of the
Pledge of Allegiance was unconstitutional.
Third, it violates the equal protection clause. This is because it
imposes an undue burden on a specific class of individuals--religious
minorities--without a rational basis, other than fear of independent
judges. Just read the 1996 Roemer decision, which held it unlawful to
pass a law excluding gay and lesbians from legal protections.
H.R 2028 Undermines the Federal Judiciary: If H.R. 2028 is enacted,
it would constitute the first and only time Congress has ever enacted
legislation totally eliminating any federal court from considering the
constitutionality of federal legislation--in this case, the Pledge of
Allegiance.
Adoption of the bill will result in the balkanization of our
judiciary and would eliminate any possibility of operating under a
single uniform Supreme Court. This is inconsistent with the very words
of the Pledge of Allegiance, namely that we are ``one Nation under God,
indivisible, with liberty and justice for all.'' Dividing our nation
into 50 different legal regimes, where the Pledge is permitted in some
jurisdictions and not in others, is the very antithesis of this sacred
principle.
It is no wonder that principled conservatives like former Senator
Barry Goldwater found court stripping legislation to be so repugnant.
When court stripping legislation was proposed in the 1970's concerning
school prayer, abortion, and busing, Senator Goldwater opposed them,
warning that the ``frontal assault on the independence of the Federal
courts is a dangerous blow to the foundations of a free society.''
Robert Bork, a former Yale Law professor and Reagan appointee for the
D.C. Circuit Court of Appeals, also is strongly opposed to court-
stripping measures, arguing, ``[y]ou'd have 50 different constitutions
running around out there, and I'm not sure even the conservatives would
like the results.''
Our former colleague Bob Barr has written, the principal problem with
court stripping bills is ``that it sets a harmful precedent for the
future. Our healthy democracy depends on having three separate and
independent branches of government . . . I am concerned about having a
Congress or President unchecked by the independent judiciary
established by the Constitution.''
If we allow H.R. 2028 to pass into law, it truly could be open season
on our precious rights and liberties. This was our prediction when the
Majority was contemplating the Marriage Protection Act, and here we are
again. Today I ask, where will this all end? Why in the world would we
exempt these laws from federal judicial review and not laws concerning
terrorism, or child pornography?
H.R. 2028 is unnecessary: What is most amazing to me is that we are
taking up this bill at a time when the Supreme Court--which is
dominated by Republican appointees--has not issued a single opinion in
any way undermining the Pledge of Allegiance.
Why do we have to take up this bill now when the death toll of our
men and women fighting for our right to be free from terror has reached
record limits and continues to rise every single day. A recent report
from the Center for American Progress shows an alarming number of
suicides this year among U.S. troops serving in Iraq. Yet, at a time
when our troops are working hard to answer the Nation's call, their own
needs remain unmet--put at the bottom of the list of priorities.
Conclusion: Just as I opposed the ill-considered Marriage Protection
Act two months ago, I must oppose this court stripping bill. These
efforts to deny our citizens access to the federal courts constitute
nothing less than a modern day version of ``court packing.'' Just as
President Roosevelt's efforts to control the
[[Page H7458]]
outcome of Supreme Court decisions by packing it with loyalists was
rejected by Congress in the 1930's, thereby preserving the independence
of the federal judiciary, so too must this modern day effort to show
the courts ``who is boss'' fail as well.
Mr. Chairman, I insert for the Record letters from organizations
opposing this bill:
September 20, 2004.
Oppose the ``Pledge Protection Act,'' H.R. 2028
U.S. House of Representatives,
Washington, DC.
Dear Representative: We, the undersigned organizations
dedicated to protecting women's reproductive health and
rights, write to urge you to oppose H.R. 2028, the so-called
``Pledge Protection Act.'' The implications of this bill go
far beyond the context of the Pledge of Allegiance. This bill
would set a dangerous precedent that would disrupt the
traditional separation of powers and undermine the
longstanding role of the federal judiciary in safeguarding
constitutional rights, including the right of reproductive
choice.
H.R. 2028 would deny all federal courts--including the U.S.
Supreme Court--the jurisdiction to hear any cases concerning
the interpretation or constitutionality of the Pledge of
Allegiance. The bill would irreparably alter the relationship
between the judicial branch and the two other branches of the
federal government by depriving the federal courts of their
traditional role as interpreters of the U.S. Constitution.
Even more disturbing, unlike other previous versions of
court-stripping legislation, H.R. 2028 deprives even the U.S.
Supreme Court of jurisdiction, divesting the Court of its
historical role as the final authority on the U.S.
Constitution.
We are deeply concerned about legislation like H.R. 2028
that strips federal courts of their important role in
safeguarding constitutional rights and freedoms. While the
target today is a controversial view of the Pledge of
Allegiance and the separation of church and state (a view
that the Supreme Court has not endorsed), there can be no
doubt that anti-choice lawmakers and their allies in Congress
intend to use this strategy to achieve other policy goals
that they are unable to accomplish without toppling the
delicate constitutional balance of powers that has served
this country for more than 200 years. Recently, House
Majority Leader Tom DeLay told reporters that he plans to use
``jurisdiction stripping'' measures to achieve other social
policy goals. While he claimed that the time is ``not quite
ripe'' to apply this legislative tactic to the issue of
abortion, in fact, anti-choice lawmakers have already made
the attempt--in 2002, when considering the Federal Abortion
Ban. Although that particular effort failed, passage of H.R.
2028 would set a dangerous precedent for future attempts to
strip federal courts of jurisdiction to hear cases regarding
reproductive choice. The federal courthouse doors should not
be closed to women seeking to vindicate their right to obtain
critical reproductive health services.
For these reasons, we urge you to oppose H.R. 2028.
Sincerely,
American Association of University Women
Center for Reproductive Rights
Choice USA
Feminist Majority
Legal Momentum (the new name of NOW Legal Defense and
Education Fund)
NARAL Pro-Choice America
National Abortion Federation
National Council of Jewish Organizations
National Council of Women's Organizations
National Family Planning and Reproductive Health
Association
Planned Parenthood Federation of America
Unitarian Universalist Association of Congregations.
____
Human Rights Campaign,
September 22, 2004.
Dear Representative: On behalf of the Human Rights
Campaign, the nation's largest lesbian, gay, bisexual and
transgender (LGBT) civil rights organization, and its 600,000
members nationwide, I write to express our opposition to H.R.
2028, the ``Pledge Protection Act.'' The Human Rights
Campaign (HRC) opposes this dangerous piece of legislation,
as well as any other piece of legislation that would
undermine the critical separation of powers that supports the
elegant system of government that the framers of the United
States Constitution envisioned.
H.R. 2028 would strip all federal courts, including the
Supreme Court, of jurisdiction over cases involving the
Pledge of Allegiance. This would preclude religious
minorities from being able to have their ``day in court'', if
their claims happen to involve the Pledge. This blocking of
access to the courts is offensive to principles of both equal
protection and due process. While HRC does not have an
official position on the Pledge, we do have a position
against hampering the ability of any branch of government to
protect the rights of political minorities. The framers of
the United States Constitution laid out a tripartite system
of government and involved co-equal branches and a delicate
system of checks and balances. This system necessarily
includes the ability of the federal courts to invalidate any
piece of congressional legislation that violates basic
constitutional protections. H.R. 2028 does violence to this
system of government and its associated guarantees of liberty
and justice. Disturbingly, H.R. 2028, when seen in
conjunction with H.R. 3313 (The Marriage Protection Act),
appears to be a part of a larger attack on the independence
of the Judiciary.
HRC urges you to vote ``NO'' on H.R. 2028 when it is
considered by the floor of the House of Representatives.
Quite simply, we believe that the very patriotism that
inspired the Pledge of Allegiance would demand a defense of
the ideals of equity and justice that inspired it. This
patriotism is incompatible with the Pledge Protection Act.
Thank you for the opportunity to comment and for your
consideration of our concerns. If you have any questions,
please do not hesitate to contact Praveen Fernandes, on my
staff, at 202.216.1559.
Sincerely,
Winnie Stachelberg,
Political Director.
____
Leadership Conference on
Civil Rights,
Washington, DC, September 21, 2004.
Oppose the ``Pledge Protection Act of 2003'' (H.R. 2028): It Threatens
Constitutional Protections and Civil Rights
Dear Representative: On behalf of the Leadership Conference
on Civil Rights (LCCR), the nation's oldest, largest, and
most diverse civil rights coalition representing people of
color, women, children, older Americans, persons with
disabilities, gays and lesbians, major religious
organizations, labor unions, and civil and human rights
groups, we urge you to vote against H.R. 2028, the ``Pledge
Protection Act of 2003.'' LCCR firmly believes that access to
the courts must not be slammed shut--especially by laws that
will block the federal courthouse doors. H.R. 2028, the so-
called ``Pledge Protection Act,'' will do exactly that--deny
Constitutional rights to religious minorities by stripping
the courts of jurisdiction.
LCCR strongly opposes any proposal that would eliminate
access to the federal judiciary for any group of Americans.
For over 50 years, the federal courts have played an
indispensable role in the interpretation and enforcement of
civil rights laws. When Congress has sought to prevent the
courts from exercising this role, such efforts ultimately
tend to do little more than enshrine discrimination in the
law. Fortunately, in most instances, cooler heads prevail. In
the 1970s, for example, some members of Congress
unsuccessfully sought to strip the courts of jurisdiction to
hear cases involving desegregation efforts such as busing--
legislation that would have done nothing but preserve racial
inequality. More recently, however, at the height of anti-
immigrant sentiment in 1996, Congress succeeded in enacting
immigration laws that stripped courts of the ability to hear
appeals by legal immigrants who were challenging harsh new
deportation laws--laws that were so extreme that the Supreme
Court ultimately had no choice but to step in and scale them
back.
The judicial branch has often been the sole protector of
the rights of minority groups against the will of the popular
majority. Any proposal to interfere with this role through
``court-stripping'' proposals would set a dangerous precedent
that would harm all Americans. Allowing the courthouse doors
to be closed to one minority group, as H.R. 2028 would do to
religious minorities, is not only unjustified in itself, but
will also set a dangerous precedent that will ultimately
weaken the rights of any other groups that may be forced to
turn to the courts for justice. Further, H.R. 2028 threatens
the separation of powers established by the Constitution, and
undermines the unique function of the federal courts to
interpret Constitutional law. This legislation deprives the
federal courts of the ability to hear cases involving
religious and free speech rights of students, parents, and
other individuals. The denial of a federal forum to
plaintiffs to vindicate their Constitutional rights would
force plaintiffs out of federal courts, which are
specifically suited for the vindication of federal
interests, and into state courts, which may be hostile or
unsympathetic to these federal claims, and which may lack
expertise and independent safeguards provided to federal
judges under Article III of the Constitution. It is in
apparent recognition of this concern that no federal bill
withdrawing federal jurisdiction in cases involving
fundamental Constitutional rights has become law since the
Reconstruction period.
H.R. 2028 would deny access to the federal courts in cases
to enforce existing constitutional rights for religious
minorities. Over sixty years ago, the Supreme Court decided
the case of West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943). In Barnette, the Supreme Court
struck down a West Virginia law that mandated schoolchildren
to recite the Pledge of Allegiance. Under the West Virginia
law, religious minorities faced expulsion from school, and
could be subject to prosecution and fined, if convicted of
violating the statute's provisions. In striking down that
statute, the Court reasoned: ``To believe that patriotism
will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to
free minds . . . If there is any fixed star in our
Constitutional constellation, it is that
[[Page H7459]]
no official, high, or petty can prescribe what shall be
orthodox in politics, nationalism, religion or other matters
of opinion.'' (319 U.S. at 639-40)
LCCR urges you to vote against H.R. 2028 because of the
dangers to Constitutional protections and civil rights laws
and enforcement posed by its enactment. If you have any
questions, please feel free to contact Rob Randhava, LCCR
policy analyst, at (202) 466-6058, or Nancy Zirkin, LCCR
deputy director, at (202) 263-2880. Thank you for your
consideration.
Sincerely,
Wade Henderson,
Executive Director,
Nancy Zirkin,
Deputy Director.
____
American Bar Association,
Chicago, IL, September 20, 2004.
Dear Representative: We understand that efforts are
underway to bring H.J. Res. 56, the Federal Marriage
Amendment, to the House floor for a vote during the next few
weeks. While we have taken no position either favoring or
opposing laws that would allow same-sex couples to enter into
civil marriages, the American Bar Association is staunchly
opposed to this proposed amendment. Regardless of your
personal views on same-sex marriage, we urge you to reject
this attempt to use the constitutional amendment process to
impose on the states a particular moral viewpoint about a
controversial issue and to vote against the proposed
amendment, which tramples on the traditional authority of
each state to establish its own laws governing civil
marriage.
The authority to regulate marriage and other family-related
matters has resided with the states since the founding of our
country and is rooted in principles of federalism. This has
enabled states to enact diverse marriage laws that respect
and reflect the unique needs and views of their residents.
Our federal system also gives states the authority to adopt
their own state constitutions and to interpret its provisions
to accord greater protection to individual rights than are
granted under similar provisions of the U.S. Constitution.
Over the years, we not only have successfully tolerated the
fact that state laws and judicial interpretations governing
marriage are not uniform, we have benefited from it. As the
late Justice Louis Brandeis famously explained many years
ago:
To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may
be fraught with serious consequences to the Nation. It is one
of the happy incidents of the federal system that a single
courageous State may . . . serve as a laboratory; and try
novel social experiments without risk to the rest of the
country.
Variations among the state laws governing same-sex unions
have provided the opportunity to examine the effect different
laws have on society, increased each state's exposure to new
ideas, and served as guidance to those states that seek to
modify their laws. Adoption of H.J. Res. 56 would deprive the
nation of these benefits.
While the proposed amendment is far too vague to ascertain
its full meaning with certainty, its adoption would have
sweeping consequences for the states that extend well beyond
invalidating or prohibiting same-sex civil marriages. For
instance, it would forever prohibit a state from adopting
its own constitutional amendment to establish civil unions
or extending to unmarried couples--heterosexual or gay--
legal protections, such as health insurance, that the
state provides to married spouses if the state
constitutions so require, as in Vermont. And, despite the
claims of the resolution's authors, it is unclear whether
a state would be prohibited from passing laws permitting
civil unions or domestic partnerships and providing state-
conferred benefits to the couples involved. There is
little doubt, however, that the joint resolution's lack of
clarity will result in extensive litigation and that its
passage and adoption will limit the future ability of
states to fashion their own responses to meet the changing
needs of their residents.
H.J. Res. 56 also should be opposed because a
constitutional amendment is neither a necessary nor
appropriate vehicle for changing our civil marriage laws. The
Constitution should not be amended absent urgent and
compelling circumstances, and it certainly should not be
amended to call a halt to democratic debate within the states
or to promote a particular ideology. As Bob Barr, former U.S.
Representative from Georgia, succinctly stated in testimony
before the Senate Judiciary Committee this past spring, ``We
meddle with the Constitution to our own peril. If we begin to
treat the Constitution as our personal sandbox, in which to
build and destroy castles as we please, we risk diluting the
grandeur of having a Constitution in the first place.''
It particularly does not make sense for the House to pursue
the Family Marriage Amendment during these busy, final weeks
of the 108th Congress since there is no urgent need for
immediate action and, clearly, no national consensus has
emerged over the legal ramifications of same-sex unions.
Indeed, Congress, through enactment of the Defense of
Marriage Act in 1996, has already denied same-sex couples the
more than 1,000 federal benefits that extend to heterosexual
married couples and relieved states of their obligation to
accord full faith and credit to same-sex marriages sanctioned
by other jurisdictions. Therefore, this proposed amendment
would only affect state laws governing marriage and same-sex
unions and attending judicial interpretations. During your
deliberations over the next week, we hope you will not loose
sight of the fact that, at present, 49 states grant civil
marriage licenses exclusively to heterosexual couples.
Clearly, this nation is not facing a crisis of constitutional
proportions that requires a drastic and immediate solution.
The ABA Section of Family Law recently released a white
paper titled An Analysis Of The Law Regarding Same-Sex
Marriage, Civil Unions And Domestic Partnership, which is
available on our website at: http://www.abanet.org/family/
whitepaper/fullreport.pdf. (Printed copies may be obtained by
emailing Denise Cardman, Senior Legislative Counsel in our
Governmental Affairs Office, at [email protected].)
This thorough compilation of activity within the 50 states
amply demonstrates that courts and legislatures already have
enacted or issued hundreds of statutes, local ordinances and
court opinions to address the myriad complex issues and
ramifications arising from this relatively new public policy
debate and are continuing to address the issues vigorously.
We hope that the report will help you in your review of this
proposed amendment.
Allowing the states to craft their own solutions in this
area requires both confidence and humility: confidence in the
wisdom of the people and their representatives, and humility
to understand, in the words of the late Judge Learned Hand,
that ``[t]he spirit of liberty is the spirit that is not too
sure that it is right.'' If the Constitution is to continue
to embody the spirit of liberty for future generations, we
must not seek to use it to enshrine still-evolving societal
views.
Despite the fact that more than 11,000 proposed
constitutional amendments have been introduced in Congress
since 1789, the Constitution has been amended only 27 times
in 215 years--a testament to its vitality and to
Congressional restraint. We urge you to exercise the same
restraint today and oppose H.J. Res. 56.
Sincerely,
Robert J. Grey, Jr.
____
People For the American Way,
Washington, DC, September 20, 2004.
House of Representatives,
Washington, DC.
Dear Member of Congress; On behalf of the more than 675,000
members and activists of People For the American Way, we
write to urge you to oppose H.R. 2028, the ``Pledge
Protection Act of 2003.'' This legislation would violate the
First Amendment, and would set a terrible precedent against
the separation of powers embodied in our Constitution that
protects the fundamental rights of all Americans.
As amended, H.R. 2028 would eliminate any role for the
federal courts, including the U.S. Supreme Court, in
challenges concerning the constitutionality of the Pledge of
Allegiance. This would have an immediate and dramatic impact
on the ability of individual Americans to be free from
government-coerced speech or religious expression. For
example, this legislation would bar the federal courts from
enforcing the U.S. Supreme Court's 1943 decision in West
Virginia State Board of Education v. Barnette which barred a
local school district from forcing children to recite the
Pledge of Allegiance over their religious objections.
Apart from being unwise as a matter of policy, H.R. 2028
appears to be an unconstitutional overreach of Congress'
power under article III regarding the federal judiciary,
particularly in light of the Fifth Amendment's due process
clause and the Fourteenth Amendment's equal protection
clause. Further, it would contradict common sense, and more
than 200 years of constitutional history, to allow Congress
to circumvent the words ``Congress shall make no law'' by
eliminating effective enforcement of the First Amendment by
the courts and the U.S. Supreme Court. We agree with U.S.
Senator Barry Goldwater who stated about a similar attempt to
strip federal courts of jurisdiction over fundamental rights
more than twenty two years ago: ``If there is on independent
tribunal to check legislative or executive action all the
written guarantees or rights in the world would amount to
nothing.''
Nor are state courts the appropriate sole and final venue
for enforcement of federal constitutional rights. Indeed,
H.R. 2028 raises the prospect of 50 different interpretations
of the First Amendment. Guarantees of such fundamental rights
as freedom of religion, freedom of speech and freedom from
governmental religious coercion should not and cannot
properly be relegated to such jurisprudential uncertainty. We
note that the Reagan Administration, hardly an opponent of
federalism, rejected historical and textual arguments for
removing jurisdiction over federal constitutional questions
to state courts:
``Nor does it seem likely that the [Constitutional]
Convention would have developed the Exceptions Clause as a
check on the Supreme Court in such a manner that an exercise
of power under the Clause to remove Supreme Court appellate
jurisdiction would . . . vest [the power] in the state
courts. Hamilton regarded even the possibility of multiple
courts of final jurisdiction as unacceptable.''
In addition, H.R. 2028 expressly sets the precedent for
future Congresses to completely bar U.S. citizens from
raising any judicial challenge to federal action. State
[[Page H7460]]
courts can only assert jurisdiction over the federal
government if it consents to be sued. Failing that consent,
individuals would be left without recourse to
unconstitutional actions of the Congress or the executive
branch. Unreviewable federal power to infringe on fundamental
individual rights of American citizens is alien to our
republic.
Finally, H.R. 2028 threatens to disrupt the framework of
checks and balances on governmental power embodied in the
U.S. Constitution through the separation of powers by setting
the precedent for Congress to remove legislation from
constitutional review by the judicial branch. For all
practical purposes, Congress could become the sole arbiter of
constitutionality on any subject within its powers--or indeed
outside its powers since it could legislate away any
challenge to congressional interpretation of its own
authority. Litigation over the meaning of article III, a
necessary part of the inevitable court challenge to H.R.
2028, could in of itself result in a constitutional crisis
deeply damaging to the separation of powers.
H.R. 2028 would set a terrible precedent for separation of
powers and protection of individual rights. We urge you to
reject the premise that Congress is above the Constitution
and vote no on this legislation.
Sincerely,
Ralph G. Neas,
President.
Marge Baker,
Director of Public Policy.
____
The American Jewish Committee,
Washington, DC, September 20, 2004.
Dear Representative: I write on behalf of the American
Jewish Committee, a national organization with more than
125,000 members and supporters represented by 33 chapters, to
urge you to oppose H.R. 2028, the ``Pledge Protection Act of
2003.''
This misguided legislation--which would strip all federal
courts, including the Supreme Court, of the jurisdiction to
hear First Amendment challenges to the Pledge of Allegiance--
threatens the separation of powers that is a fundamental
aspect of our constitutional structure. Further, while H.R.
2028 ostensibly responds to the controversy surrounding
inclusion of the phrase ``under God'' in the Pledge of
Allegiance, this legislation sweeps far more broadly, with
potentially severe constitutional implications for religious
minorities and others who are adversely affected when the
government impermissibly seeks to mandate recitation of the
Pledge.
It should be emphasized that the American Jewish Committee
did not take a position in the recent case in which a
challenge was brought to the constitutionally of including
``under God'' in the Pledge of Allegiance. Whatever the
merits of that case, however, we are strongly committee to
the principle that, in our constitutional system, the federal
courts must be available to hear cases in which individuals
challenge what they believe to be incursions on their
religious and free speech rights.
It would be a terrible--and virtually unprecedented--
distortion of that system for the U.S. Congress to deprive
students, parents, and other individuals of their access for
a specific class of cases to the branch of government crafted
to vindicate constitutional claims. Moreover, such an action
would undermine public confidence in the federal courts by
expressing outright hostility toward them, threaten the
legitimacy of future congressional action by removing the
federal courts as a neutral arbiter, and reject the unifying
function of the federal judiciary by denying federal courts
the opportunity to interpret the law.
In addition, as drafted, the bill would seem to deny access
to the federal courts--even the Supreme Court--for cases in
which individuals seek redress in cases involving mandatory
recitation of the Pledge. As a result, this legislation will
seriously undermine constitutional guarantees of freedom of
speech and religion. There is no question that coercing
students to say the Pledge of Allegiance--or any portion
thereof--is contrary to the very principles of freedom of
conscience that are at the core of our Constitution, and for
which the Pledge stands. See the U.S. Supreme court's
landmark decision in West Virginia State Board of Education
v. Barnett, 319 U.S. 624 (1943) (striking down a West
Virginia law that mandated schoolchildren to recite the
Pledge of Allegiance) and, more recently, the decision of a
federal appellate court in Circle School v. Pappert, No. 03-
3285 (3rd Cir. Aug. 19, 2004) (holding that a Pennsylvania
law mandating recitation of the Pledge, even when it provided
a religious exception, violated the Constitution because it
violated the free speech of the students). But,
astonishingly, H.R. 2028 appears to remove from the federal
courts the jurisdiction to hear these types of cases.
For all these reasons, the American Jewish Committee urges,
in the strongest terms, that you vote against this misguided
and unwise legislation.
Tbank you for your consideration of our views on this
important matter.
Respectfully,
Richard T. Foltin,
Legislative Director and Counsel.
____
Americans United for Separation
of Church and State,
Washington, DC, September 21, 2004.
Re Reject efforts to slam federal courthouse doors on
religious minorities and vote ``no'' on H.R. 2028.
Dear Representative: Americans United for Separation of
Church and State urges you to vote ``No'' on passage of H.R.
2028, the ``Pledge Protection Act,'' which is expected to
reach the floor of the House of Representatives later this
week. Americans United represents more than 70,000 individual
members throughout the fifty states and in the District of
Columbia, as well as cooperating houses of worship and other
religious bodies committed to the preservation of religious
liberty. H.R. 2028 is an extreme and unwise proposal that
will undermine the crucial separation of powers at the heart
of our government and deny religious minorities from seeking
enforcement of their longstanding constitutional rights in
the federal courts.
H.R. 2028 would deprive all federal courts--including the
U.S. Supreme Court--of their ability to hear cases involving
the Pledge of Allegiance and to enforce longstanding
constitutional rights against coerced recitation of the
Pledge. Americans United firmly believes that the text,
history and structure of the Constitution, together with
important policy considerations, should lead the House of
Representatives to soundly defeat this dangerous and
misguided bill, as well as any other court-stripping
proposal.
the pledge protection act is unconstitutional
Article III, Section 1 of the United States Constitution
creates the Supreme Court and provides the Congress with the
power to establish ``such inferior Courts as the Congress may
from time to time establish.'' Section 2 of Article III
delineates sets of cases that the Federal courts may hear,
provides for areas of original jurisdiction of the U.S.
Supreme Court, and also provides for the appellate
jurisdiction of the Supreme Court in other areas ``with such
Exceptions, and under such Regulations as the Congress shall
make.''
Under Section 2, Congress may have limited authority to
limit the types of cases over which the Supreme Court may
exercise its appellate jurisdiction. Although the extent of
this authority is in dispute and has been the subject of
academic commentary over the years, there are clear limits to
the authority of Congress to limit the jurisdiction of the
federal courts based on other applicable provisions of the
Constitution. The Pledge Protection Act would do just that,
in that it would entirely deprive every federal court from
hearing any constitutional challenge to government-mandated
recitation of the Pledge of Allegiance, in violation of due
process and separation of powers principles.
The Pledge Protection Act Would Violate Due Process Rights and
Undermine the Separation of Powers
Basic due process demands an independent judicial forum
capable of determining federal constitutional rights. This
legislation deprives the federal courts of the ability to
hear cases involving fundamental free exercise and free
speech rights of students, parents, and other individuals.
Congress' denial of a federal forum to plaintiffs in a
specified class of cases would force plaintiffs out of
federal courts, which are specially suited for the
vindication of federal interests, and into state courts,
which may be hostile or unsympathetic to federal claims, and
which may lack expertise and independent safeguards provided
to federal judges under Article III of the Constitution. It
is in apparent recognition of this concern that no federal
bill withdrawing federal jurisdiction over cases involving
fundamental constitutional rights with respect to a
particular substantive area has become law in decades.
Political frustration with controversial court decisions
during the second half of the twentieth century provoked
Congress to propose a number of court-stripping measures
designed to overturn court decisions touching on a wide
variety of issues, including: anti-subversive statutes,
apportionment in state legislatures, ``Miranda'' warnings,
busing, school prayer, abortion, racial integration, and
composition of the armed services. All of these measures
failed to pass Congress. In each instance, bipartisan
concerns over threats to the American system of government
and constitutional order gave way to a recognition of these
court-stripping measures for what they truly were: attempts
to circumvent the careful process required for amendments to
the U.S. Constitution. As Professor Michael J. Gerhardt
stated in his testimony regarding the ``Constitution
Restoration Act of 2004'' before the Subcommittee on Courts
on September 13, 2004: ``Efforts, taken in response to or
retaliation against judicial decisions, to withdraw all
federal jurisdiction or even jurisdiction of inferior federal
courts on questions of constitutional law are transparent
attempts to influence, or displace, substantive judicial
outcomes. For several decades, the Congress, for good reason,
has refrained from enacting such laws.'' Like so many failed
court-stripping measures that have come before it, the Pledge
Protection Act represents yet another illegitimate short cut
to amending the Constitution, is against the weight of
history, and must fail.
The Pledge Protection Act is Extreme, Unwise and Represents Misguided
Policy
As drafted, the bill would slam the courthouse doors to
religious minorities trying to gain protection for their
fundamental constitutional religious and free speech rights.
Over sixty years ago, the Supreme Court decided the case of
West Virginia State Board of Education v. Barnette, 319 U.S.
624 (1943). In Barnette, the Supreme Court struck down a West
Virginia law that mandated schoolchildren to recite the
Pledge of Allegiance.
[[Page H7461]]
Under the West Virginia law, religious minorities faced
expulsion from school and could be subject to prosecution and
fined, if convicted of violating the statute's provisions. In
striking down that statute, the Court reasoned: ``To believe
that patriotism will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a compulsory routine is
to make an unflattering estimate of the appeal of our
institutions to free minds . . . If there is any fixed star
in our constitutional constellation, it is that no official,
high, or petty can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of
opinion.'' 319 U.S. at 639-40.
Moreover, just recently, a panel of the U.S. Court of
Appeals for the Third Circuit held that a Pennsylvania law
mandating recitation of the Pledge, even when it provided a
religious exception, violated the Constitution because it
violated the free speech of the students. Circle School v.
Pappert, No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert,
the court found that: ``It may be useful to note our belief
that most citizens of the United States willingly recite the
Pledge of Allegiance and proudly sing the national anthem.
But the rights embodied in the Constitution, particularly the
First Amendment, protect the minority--those persons who
march to their own drummers. It is they who need the
protection afforded by the Constitution and it is the
responsibility of federal judges to ensure that protection.''
Pappert, Slip Op. at 14.
The Pledge Protection Act is an attack on our very system
of government. Americans United strongly urges you to leave
the independence of the federal judiciary in tact, protect
longstanding constitutional rights of religious minorities in
the federal courts, and respect free speech rights of
countless individuals by rejecting this misguided
legislation.
Sincerely,
Rev. Barry W. Lynn,
Executive Director.
____
American Civil Liberties Union,
Washington, DC, September 21, 2004.
Re Don't shut the federal courthouse doors to religious
minorities; oppose passage of H.R. 2028.
Dear Representative: The American Civil Liberties Union
strongly urges you to oppose H.R. 2028, ``the Pledge
Protection Act of 2004.'' H.R. 2028 is an extreme measure
that would remove jurisdiction from all federal courts,
including the Supreme Court, over any constitutional claim
involving the Pledge of Allegiance or its recitation. This
bill is expected to be on the House floor later this week.
H.R. 2028 was amended significantly in Committee and is now
the same as H.R. 3313, the Marriage Protection Act, except it
deals with jurisdiction over all constitutional claims
related to the pledge instead of the Defense of Marriage Act.
Prior to mark-up, H.R. 2028 limited the jurisdiction of lower
federal courts over First Amendment claims related to the
Pledge, but left intact the Supreme Court's jurisdiction.
H.R. 2028 would slam shut the federal court house doors to
religious minorities, parents, schoolchildren and others who
seek nothing more than to have their religious and free
speech claims heard before the courts most uniquely suited to
entertain such claims. Further, by entirely stripping all
federal courts of jurisdiction over a particular class of
cases, H.R. 2028 raises serious legal concerns, violating
principles of separation of powers, equal protection and due
process. The bill undermines public confidence in the federal
courts by expressing outright hostility toward them,
threatens the legitimacy of future congressional action by
removing the federal courts as a neutral arbiter, and rejects
the unifying function of the federal judiciary by denying
federal courts the opportunity to interpret the law. H.R.
2028 would deny the U.S. Supreme Court its historical role as
the final authority on resolving differing interpretations of
federal constitutional rights. As a result, each of the 50
state supreme courts would be a final authority on these
federal constitutional questions. This would potentially
create a situation where we could have as many as 50
different interpretations of any relevant federal
constitutional question.
It is in apparent recognition of many of these concerns
that no federal bill withdrawing federal jurisdiction in
cases involving fundamental constitutional rights has become
law since the Reconstruction period. Federal courts were
established to interpret federal law and to ensure that the
states and the government did not violate the protections in
the federal constitution. An effort to deny them jurisdiction
over the very sort of claim they were established to hear--
that government conduct violates a constitutional right--is
the most extreme attack possible on the role of federal
courts in our system of checks and balances. It strikes at
the very purpose of the Founders in creating federal courts
in the first place.
While the supporters of this bill see it as an appropriate
response to recent court decisions that they dislike
concerning the words ``under God'' in the Pledge, the impact
of H.R. 2028 would NOT be limited merely to that issue. This
bill would remove jurisdiction over ALL constitutional
claims, related to the pledge, from ALL federal courts. This
could potentially undermine decades of well-established
Supreme Court precedents by denying access to the federal
courts in cases brought to enforce existing constitutional
rights for religious minorities. For example, over sixty
years ago, the Supreme Court decided the case of West
Virginia State Board of Education v. Barnette, 319 U.S. 624
(1943). In Barnette, the Supreme Court struck down a West
Virginia law that mandated schoolchildren to recite the
Pledge of Allegiance. Under the West Virginia law, religious
minorities faced expulsion from school and could be subject
to prosecution and fined, if convicted of violating the
statute's provisions. In striking down that statute, the
Court reasoned: ``To believe that patriotism will not
flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to
free minds . . . If there is any fixed star in our
constitutional constellation, it is that no official, high,
or petty can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion.'' 319
U.S. at 639-40.
Just last month, a panel of the U.S. Court of Appeals for
the Third Circuit held that a Pennsylvania law mandating
recitation of the Pledge, even when it provided a religious
exception, violated the Constitution because it violated the
free speech rights of the students. Circle School v. Pappert,
No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert, the court
found that: ``It may be useful to note our belief that most
citizens of the United States willingly recite the Pledge of
Allegiance and proudly sing the national anthem. But the
rights embodied in the Constitution, particularly the First
Amendment, protect the minority--those persons who march to
their own drummers. It is they who need the protection
afforded by the Constitution and it is the responsibility of
federal judges to ensure that protection.'' Pappert, Slip Op.
at 14.
First comes marriage then comes the Pledge . . . Where will
it end? Passage of H.R. 2028 would set a dangerous precedent
for responses by Members of Congress to court decisions with
which they disagree. In this session alone, Congress is
considering court-stripping legislation related to the Pledge
of Allegiance, religious displays/Ten Commandments, marriage
and another dealing with all cases related to religion and
the acknowledgement of God.
Over the years, Congress has considered legislation
designed to strip court jurisdiction on the issues such as
public school busing, voluntary prayer and abortion.
Fortunately, none of those proposals was adopted by Congress
because legislators understood that setting a precedent for
stripping the courts of their jurisdiction over a particular
issue might, in the future, be used by some other group of
advocates, when in the majority, to establish its views as
the law of the land, safely out of the reach of the courts.
We urge members of this Congress to oppose passage of H.R.
2028 and not to abandon this tradition of thoughtfulness and
restraint.
Sincerely,
Laura W. Murphy,
Director.
Terri A. Schroeder,
Legislative Analyst.
____
The Constitution Project,
Washington, DC, September 15, 2004.
Dear Members of the Judiciary Committee: I write on behalf
of the Constitution Project to urge you to oppose committee
passage of H.R. 2028, the ``Pledge Protection Act of 2003.''
The Constitution Project, based at Georgetown University's
Public Policy Institute, specializes in creating bipartisan
consensus on a variety of legal and governance issues, and
promoting that consensus to policymakers, opinion leaders,
the media, and the public. We have initiatives on the death
penalty, liberty and national security, war powers, and
judicial independence (our Courts Initiative), among others.
Each of our initiatives is directed by a bipartisan committee
of prominent and influential businesspeople, scholars, and
former public officials.
Our Courts Initiative works to promote public education on
the importance of our courts as protectors of Americans'
essential constitutional freedoms. Its co-chairs are the
Honorable Mickey Edwards, John Quincy Adams Lecturer at the
John F. Kennedy School of Government at Harvard University
and former chair of the House of Representatives Republican
Policy Committee (R-OK), and the Honorable Lloyd Cutler, a
prominent Washington lawyer and White House counsel to
Presidents Carter and Clinton.
In 2000, the Courts Initiative created a bipartisan Task
Force to examine and identify basic principles as to when the
legislature acts unconstitutionally in setting the powers and
jurisdiction of the courts. The Task Force was unanimous in
its conclusion that some legislative acts restricting the
powers and jurisdiction of the courts are unconstitutional.
The Task Force also concluded that some legislative actions,
even if constitutional, are undesirable. (The Task Force's
findings and recommendations are published in Uncertain
Justice: Politics and America's Courts 2000.)
The work of our Task Force resulted in seven consensus
recommendations, including the following, which are relevant
to consideration of the legislation at hand:
1. Congress and state legislatures should heed
constitutional limits when considering proposals to restrict
the powers and jurisdiction of the courts.
2. Legislatures should refrain from restricting court
jurisdiction in an effort to control substantive judicial
decisions in a manner that violates separation of powers,
[[Page H7462]]
due process, or other constitutional principles.
3. Legislatures should not attempt to control substantive
judicial decisions by enacting legislation that restricts
court jurisdiction over particular types of cases.
4. Legislatures should refrain from restricting access to
the courts and should take necessary affirmative steps to
ensure adequate access to the courts for all Americans.
Specifically, our Task Force was unanimous in its view that
there are some constitutional limits on the authority of the
legislature to restrict court jurisdiction in an effort to
control substantive judicial decisions. In particular,
separation of powers, due process, and other constitutional
provisions limit such authority. Task Force members had
differing views about the scope and source of the
constitutional limit on the legislature's power in this area.
(For instance, some believed that restrictions on
jurisdiction become unconstitutional when they destroy the
essential role of the Supreme Court. Others relied on a
reading of the Vesting Clause of Article III, which places
judicial power--the power to decide cases--in the hands of
the courts alone.) Nonetheless, all believed that
constitutional limitations exists.
Apart from the constitutionality of laws restricting
federal court jurisdiction, the Task Force was also unanimous
in its view that legislative acts stripping courts of
jurisdiction to hear particular types of cases in an effort
to control substantive judicial decisions are undesirable and
inappropriate in a democratic system with co-equal branches
of government. Legislative restriction of jurisdiction in
response to particular substantive decisions unduly
politicizes the judicial process, and attempts by
legislatures to control substantive outcomes by curtailing
judicial jurisdiction are inappropriate, even if believed
constitutional. (Indeed, it was striking that members of
Citizens for Independent Courts reflecting a broad
ideological range--from, for example, Leonard Leo of the
Federalist Society to Steven Shapiro of the American Civil
Liberties Union--agreed that restrictions on jurisdiction to
achieve substantive changes in the law are unwise and
undesirable policy.)
The Task Force was also unanimous that legislation that
restricts access to the courts and precludes individuals from
using a judicial forum to vindicate rights is undesirable and
unconstitutional. Rights are meaningless without a forum in
which they can be vindicated. Therefore, access to the courts
at both the federal and state levels is essential in order
for rights to have effect. Legislatures have the duty to
ensure meaningful access to the courts and legislative
actions that preclude this are undesirable and
unconstitutional.
Our Task Force reached these conclusions and
recommendations rightly. From its beginning, our system of
constitutional democracy has depended on the independence of
the judiciary. Judges are able to protect citizens' basic
rights and decide cases fairly only if free to make decisions
according to the law, without regard to political or public
pressure. Similarly, the judiciary can maintain the checks
and balances essential to preserving a healthy separation of
powers only if able to resist overreaching by the political
branches. Indeed, the cornerstone of American liberty is the
power of the courts to protect individual rights from
momentary excesses of political and popular majorities.
In recent years, as part of the polarization and posturing
that increasingly characterize our national and state
politics, threats to judicial independence have become more
commonplace. Attacks on judges for unpopular decisions, even
those made in good faith, have become more rampant.
Politicians are responding to unpopular decisions and
litigants by attempting to restrict courts' powers in certain
kinds of cases. However, Americans have much to lose if we do
not exercise self-restraint and instead choose short-term
political gain at the expense of judicial independence. The
independence of our judiciary is, as Chief Justice Rehnquist
described, ``one of the crown jewels of our system of
government.''
In conclusion, while Article III of our Constitution gives
Congress the power to regulate federal court jurisdiction,
this power is not unlimited, and Congress should not--and in
some instances may not--use its power to restrict federal
court jurisdiction in ways that infringe upon separation of
powers, violate individual rights and equal protection, or
offend federalism. H.R. 2028 is poised to do all three by
stripping federal courts of the authority to hear cases
involving the Pledge of Allegiance, including when such cases
involve claims of free speech and religious freedom. Such
jurisdiction-stripping threatens the critical and unique role
that the federal courts play in constitutional balance of
powers, protecting individual rights, and interpreting
constitutional law.
For the reasons stated above, as well as those detailed our
Task Force's findings and recommendations, we at the
Constitution Project urge you to oppose H.R. 2028. Thank you
for your consideration.
Sincerely,
Kathryn A. Monroe,
Director, Courts Initiative.
____
Baptist Joint Committee,
Washington, DC, September 14, 2004.
Dear Representative: The Baptist Joint Committee (BJC)
urges you to vote No on H.R. 2028, the so-called ``Pledge
Protection Act.'' The BJC is a nearly 70-year-old
organization committed to the principle that religion must be
freely exerecised, neither advanced nor inhibited by
government. We oppose any legislation that seeks to strip the
federal courts of their fundamental role in protecting
individual liberties.
The existence of an independent judiciary, free from
political or public pressure, has been essential to our
nation's success in protecting religious liberty for all
Americans. Indeed, the role of the federal courts has long
been recognized as essential in the battle for full religious
liberty. As Justice Jackson stated in the case of West
Virginia State Board of Education v. Barnett: ``The very
purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. One's
right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the
outcome of no elections.'' 319 U.S. 624, 639 (1943).
Moreover, the result of any particular case does not
undermine the important role of the judiciary. The misnamed
``Pledge Protection Act'' represents a dangerous attack on
our tradition of religious freedom, on the constitutional
separation of powers and indeed our system of government. It
represents an unwarranted attempt to restrict the power of
the federal judicial system.
Whatever the motivation, there is insufficient basis to
depart from a long-standing congressional custom against
using jurisdiction-stripping to control the federal courts.
Federal judicial review has consistently supported the proper
separation of church and state so vital to all Americans, and
we must trust that the courts will continue to do so. We ask
you to reject H.R. 2028.
Sincerely,
J. Brent Walker,
Executive Director.
K. Hollyn Hollman,
General Counsel.
____
Bob Barr,
Atlanta, GA, July 19, 2004.
Re Upcoming vote on the Marriage Protection Act, H.R. 3313.
Dear Representative: I would like to take this opportunity
to express my concerns with the Marriage Protection Act, H.R.
3313, which I understand may be on the House floor as early
as this week. While I understand and appreciate the reason
that supporters of this bill are trying to pass this
legislation, I respectfully disagree on the need for the bill
and see the potential of a bad precedent for future
legislation. For these reasons, I urge that members vote
against H.R. 3313.
H.R. 3313 would preclude federal courts, including the
Supreme Court, from reviewing the constitutionality of the
cross-state recognition section of the Defense of Marriage
Act (``DOMA''). If H.R. 3313 is enacted, each of the 50 state
supreme courts would be a final authority on the
constitionality of DOMA, with no opportunity for either a
state (as a defendant) or a plaintiff to appeal a decision to
the Supreme Court.
As the principal author and lead sponsor of DOMA, I
completely share the views of the supporters of H.R. 3313 who
view DOMA as critical to our federalist system of government,
and as integral to the proper resolution of the difficult
questions raised by any state extending marriage rights to
same-sex couples. DOMA is an important law that will help
each state in the nation retain its own sovereignty over the
fundamental state issue of who is married under its laws.
However, where I differ with the supporters of H.R. 3313 is
in my confidence that the Supreme Court will not invalidate
DOMA. During the lengthy consideration of DOMA, the House of
Representatives heard detailed testimony on the
constitionality of DOMA. A parade of legal experts--including
the Justice Department--determined that DOMA is fully
constitutional. Although there were a few naysayers and
wishful thinkers who opined that DOMA is unconstitutional,
the overwhelming weight of authority was clear that DOMA is
constitutional. Based on the exhaustive review of these
opinions, Congress overwhelmingly passed DOMA and it was
signed into law by President Clinton.
DOMA remains good law. It has never been invalidated by any
court anywhere in the country. It is a sound and valid
exercise of congressional authority, pursuant to the Full
Faith and Credit Clause of the Constitution.
Some supporters of H.R. 3313 point to the Supreme Court's
opinion last year in Lawrence v. Texas, in which the Court
invalidated a state sodomy law, as reason for concern that
the Court could invalidate DOMA. However, I believe the
Supreme Court justifiably would see a world of difference
between a sodomy law that applied only to homosexual
relations, and a federal law allowing the enforcement of
nearly uniform state policies prohibiting cross-state
recognition of marriages of same-sex couples. Moreover, when
the Supreme Court correctly invalidated a racially
discriminatory marriage law in Loving v. Virginia, it applied
the highest level judicial scrutiny to the state's marriage
law. The Supreme Court always applies the highest level of
scrutiny to race claims, but minimal level to sexual
orientation claims. Serious legal scholars do not see that
changing.
[[Page H7463]]
Moreover, because H.R. 3313 does not strip state courts of
jurisdiction to hear challenges to the cross-state
recognition section of DOMA, the result will be that each of
the 50 state supreme courts will be the final authority on
the constitutionality of a federal law. The chaotic result
could be 50 different interpretations reached by state
supreme courts, with no possibility of the U.S. Supreme Court
reversing any incorrect interpretation of the federal DOMA.
The potential for mischief by these courts is obvious.
Ironically, I fear an increased likelihood of an adverse
decision on DOMA's constitutionality if H.R. 3313 becomes
law.
However, the principal problem with H.R. 3313 is not just
that it is protecting a wholly constitutional law that needs
no additional protection, but that it sets a harmful
precedent for the future. Our healthy democracy depends on
having three separate and independent branches of government.
I have long been concerned about a runaway judiciary, but I
am also concerned about having a Congress or President
unchecked by the independent judiciary established by the
Constitution.
H.R. 3313 will needlessly set a dangerous precedent for
future Congresses that might want to protect unconstitutional
legislation from judicial review. During my time in Congress,
I saw many bills introduced that would violate the Takings
Clause, the Second Amendment, the Tenth Amendment, and many
other constitutional protections. My main concern with H.R.
3313 is that it will lay the path for the sponsors of such
unconstitutional legislation to simply add the language from
H.R. 3313 to their bills. The fundamental protections
afforded by the Constitution would be rendered meaningless if
others follow the path set by H.R. 3313.
For these reasons, I urge you to vote against this well-
intentioned, but unnecessary legislation. The Congress should
keep in place the separation of powers outlined in the
Constitution, rather than act hastily in fear of an outcome
on DOMA that is unlikely in the first instance.
Thank you for your attention to this issue, and with warm
regards, I remain.
Very truly yours,
Bob Barr,
Member of Congress, 1995-2003.
____
July 13, 2004.
Hon. Jerrold Nadler,
House of Representatives,
Washington, DC.
Dear Congressman Nadler: I am happy to respond to your
inquiry of July 9, asking for elaboration of my testimony
before the Subcommittee on the Constitution of the Judiciary
Committee of the House of Representatives, concerning the
constitutionality of congressional power to control federal
court jurisdiction on the interpretation and review of the
Defense of Marriage Act.
I cannot emphasize strongly enough that while I believe
that Congress's power to regulate federal court jurisdiction
is broad, the Constitution places clear limits on that power
which must be observed. As I believe I made clear in both my
written and oral testimony, nothing in Article III provides
Congress with the power to exclude from all independent
judicial review the constitutionality of any governmental
action, state or federal. However, as long as the state
courts remain open and available for this purpose, due
process would not be violated by congressional exclusion of
the jurisdiction of either the lower federal courts or the
Supreme Court.
I see from your inquiry, however, that I may have failed to
anticipate in my testimony several other potential
permutations and combinations of jurisdictional restriction
related to the Defense of Marriage Act, and if so I sincerely
apologize. There are conceivably two other situations which
could give rise to possibly serious constitutional problems,
and I write this letter in order to provide you with my views
on those instances.
First, it is quite clear that Congress lacks constitutional
authority to vest the federal courts with jurisdiction to
apply or enforce the Defense of Marriage Act while
simultaneously restricting those courts' jurisdiction either
to interpret or to review the constitutionality of that
legislation. As famed jurisdiction scholar Henry Hart wrote
many years ago, ``the difficulty involved in asserting any
judicial control in the face of a total denial of
jurisdiction doesn't exist if Congress gives jurisdiction but
puts strings on it. . . . [I]f Congress directs an Article
III court to decide a case, I can easily read into Article
III a limitation on the power of Congress to tell the court
how to decide it.'' Henry Hart, The Power of Congress to
Limit the Jurisdiction of Federal Courts: An Exercise in
Dialectic, 66 Harv. L. Rev. 1362, 1372-1373 (1953) (emphasis
in original). For a detailed discussion of my views on this
issue, see Martin H. Redish, Federal Jurisdiction: Tensions
in the Allocation of Judicial Power 47-52 (2d ed. 1990).
Second, to the extent even the total exclusion of federal
court jurisdiction were imposed, there may be a
constitutional problem if, in order to enforce and protect
underlying constitutional rights, a reviewing court would
have to directly control the actions of a federal officer
through the writs of habeas corpus, mandamus or injunction.
For while it has long been understood that state courts
provide an adequate forum to protect and enforce federal
rights, it is also well established--in a line of cases
beginning in 1821--that state courts lack authority directly
to control the actions of federal officers. See McClung v.
Silliman, 19 U.S. (6 Wheat.) 598 (1821) (mandamus); Tarble's
Case, 80 U.S. (13 Wall.) 397 (1871) (habeas corpus). While
there exists no definitive Supreme Court decision denying
state courts power to issue injunctions to federal officers,
there does exist a strong line of cases in the lower federal
courts to this effect. See, e.g., Kennedy v. Bruce, 298 F.2d
860 (1962). Moreover, the logic which led the Supreme Court
to deny state courts the power to issue mandamus or habeas
relief to federal officers logically applies with the same
force to writs of injunction. Thus, if a federal right may
only be enforced through issuance of a directly controlling
order to a federal officer, exclusion of all federal court
jurisdiction could arguably give rise to a serious
constitutional problem, because the state courts would be
simultaneously closed to the issuance of such relief.
While there does exist some language in Supreme Court
doctrine (particularly in Tarble's Case) suggesting that
state courts inherently lack such power as a constitutional
matter, it is difficult to believe this conclusion would be
adhered to today. In light of the Madisonian Compromise's
inherent assumption that if Congress declined to exercise its
discretion under Article III, section 1 to create lower
federal courts state courts could perform the exact same
functions, it is highly unlikely that the framers intended to
impose such an absolute constitutional bar to state court
power to directly control the actions of federal officers. In
my scholarship, therefore, I have argued that the reasoning
of Tarble's Case can be reworked ``into simply an inference
of congressional intent to exclude state court power in the
face of congressional silence . . . because, were Congress
actually to consider the question, it likely would not want
state courts . . . to have the authority to impair the
operation of federal programs by directly controlling the
actions of federal officers.'' Martin H. Redish,
Constitutional Limitations on Congressional Power to Control
Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw.
U. L. Rev. 143, 158-159 (1982). Thus, under my reading of
this line of cases, if Congress so desired it could revoke
the limits on state court power imposed by the Tarble line of
cases, simply by explicitly vesting in the state courts the
power to control federal officers through the issuance of the
writs previously mentioned. Absent such explicit
congressional directive, however, the rule of Tarble, closing
the state courts for this limited purpose, would remain
intact.
The issue becomes more complicated where, as here, Congress
considers excluding all federal court power to review the
constitutionality of federal officer behavior. There are
respected scholars--particularly Professor Paul Bator and
other revisers of the Hart and Wechsler text--who believe
that were Congress to automatically exclude all federal court
jurisdiction to enforce constitutional rights and interests,
the state court bar imposed by the Tarble line of cases would
automatically be revoked. However, I do not agree. I believe
that unless Congress simultaneously and expressly revokes the
limit on state court authority to issue directly controlling
writs to federal officers, its exclusion of federal court
power to issue such writs inexorably leads to a violation of
due process. For in such a situation, neither the state
courts nor federal courts would be available to protect
constitutional rights, and the due process right to an
independent judicial forum for enforcement of constitutional
rights would therefore have been violated.
It is true, of course, that normally a reviewing court will
assume that Congress did not intend to violate constitutional
rights. Therefore one might reason that the closing off of
the federal courts should automatically be taken as an
opening of the state courts. However, I believe that before
Congress closes off all federal court authority to review the
constitutionality of a statute and to control federal office
actions in order to protect particular constitutional rights,
it must be aware of certain facts. First, Congress must
recognize that some adequate and independent judicial forum
must be available to control federal officers in order to
protect constitutional rights. Second, it must be aware that
once it has closed all federal courts for this purpose, the
only courts that will be available to control federal officer
action through issuance of appropriate writs will be the
state courts--without any opportunity for policing or
unifying review in any federal court, including the Supreme
Court. If Congress wishes to create such an unstable
situation, I believe it has power to do so (though once again
I should note that certain language in Tarble suggests that
the limit imposed on state court power derives from the
Constitution, rather than congressional will; if such
reasoning were to be adopted today, then the issue would be
taken from Congress's hands and the closing of the federal
courts to the issuance of such directly controlling writs
would necessarily violate due process). Absent express
revocation of the limits imposed on state court jurisdiction
imposed by the Tarble line of cases, I believe, Congress will
not have evinced the requisite consideration of these
important issues. In this sense, the rule of interpretation
that I have advocated in similar to the ``clear statement''
rule presently invoked by the Supreme Court for congressional
revocation of state sovereign immunity.
I must emphasize the uncertainty that surrounds the Tarble
line of cases. First, it is
[[Page H7464]]
unclear whether the Supreme Court there intended to erect a
constitutional barrier to state court issuance of directly
controlling writs to federal officers, and if so whether it
would still be adhered to today. Second, assuming the barrier
is not deemed to be of constitutional status, it is unclear
whether congressional exclusion of federal judicial power to
issue such writs would be taken automatically to revoke the
Tarble restriction on state court power over federal
officers. There simply is no case law on that issue.
Moreover, as already mentioned, my view that express
congressional revocation of the Tarble barrier is required to
render the congressional exclusion of federal court power to
issue the directly controlling writs of mandamus, habeas
corpus and injunction constitutional has been challenged by
other respected scholars. Nevertheless, the only way that
Congress could be certain, at this point, that its exclusion
of all federal court power directly to control federal
officer behavior when constitutional rights are at stake
would satisfy due process is at the same time to expressly
authorize state courts to issue these writs to federal
officers. Absent such an express congressional authorization,
the constitutionality of the restriction on federal court
review power would at the very least be in doubt, and, in my
opinion, unconstitutional.
I apologize for so complex an answer to your question, but
I am afraid I see no means of explaining the potential
pitfalls facing Congress in any simpler manner. In any event,
I hope you find this response helpful. If I can be of
assistance in any other way, please do not hesitate to
contact me.
Sincerely yours,
Martin H. Redish,
Northwestern University School of Law.
{time} 1215
Mr. SENSENBRENNER. Mr. Chairman, I yield 5 minutes to the gentleman
from Missouri (Mr. Akin), the author of the bill.
Mr. AKIN. Mr. Chairman, we have heard a lot of legalese this morning,
and perhaps trying to make a subject that is not very complicated a lot
more complicated. The simple question is whether or not school kids are
going to be able to say the Pledge of Allegiance the way we have done
it for the last 50 years.
Some may say that is not that important an issue, but I would ask
this question: If Members were asked, and perhaps it would be one of
these big old TV cameras, and somebody came up and said, you have lived
in America all these years, how would you, in the simplest form,
describe what is the glue that holds us all together as Americans? What
is the heart of America? If, like an onion, we peeled off the layers
and got to the very center, what is it that makes America such a unique
and special place? What is it that made people from all different
nationalities come here and call themselves Americans? What is it that
makes illegal immigrants try to come here? What is it that makes
America special?
I think the answer can be found in our birthday document, our
Declaration of Independence. It sets out essentially a three-part
formula. It says we hold these truths to be self-evident, that all men
are created equal and endowed by their creator with certain inalienable
rights, and among these is life, liberty and the pursuit of happiness.
And it goes on to say the job of government is to protect those rights.
The three-part formula is that there is a God; God grants all people
everywhere certain basic fundamental rights; and it is the job of
government to protect those rights.
Now, if we allow activist judges to start creating law and say it is
wrong to somehow allow school children to say ``under God'' in the
Pledge, we have emasculated the very heart of what America has always
been about.
This is quite simply a matter of judges turning the first amendment
upside down. The first amendment was supposed to be about free speech,
religious or political free speech, and now these judges are censoring
our very Pledge of Allegiance and telling school kids they cannot say
the Pledge. If we allow activist judges to go there, what is next?
Behind me, set in brass above the Speaker's desk, ``In God we
trust.'' Is this a sense of the co-equal power of the branches of
government that the court can next step in here and take ``In God we
trust'' off that? Are they going to tell us we cannot have chaplains?
Are they going to go to the Jefferson Monument that has in stone that
God that gave us life, gave us liberties, and can the liberties of the
people be secure if we remove the conviction that those liberties are
the gift of God? Is that going to be plastered over? Are we going to
get rid of the Gettysburg Address? How far will we let them go?
Yet my colleagues have been arguing that anything the court says; it
is unconstitutional to challenge the Supreme Court. In my State of
Missouri, the Dred Scott decision was brought, and the Supreme Court
said black people are not actually people. That was a dumb decision,
and we need to be able to tell the Supreme Court or any other court
that makes ridiculous decisions they are wrong. Yet we are hearing it
is off base to try to check their authority. It is the job of the other
two branches of government to draw up short the judiciary when they
exceed their constitutional authority. And legislating from the bench
and using the first amendment as a tool of censorship certainly
qualifies that we should weigh in.
Mr. Chairman, I would close by saying that I have heard a number of
assertions that there is absolutely no precedent to use article III
section 2. And yet, if Members were to simply check with the
congressional research people, as our office has done, they would tell
Members they cannot print them all out there are so many examples. In
the 107th Congress, most of us voted for the PATRIOT Act. The PATRIOT
Act has article III section 2 language in it, and we have it used in
all kinds and numbers of ways.
A certain prominent Senator from South Dakota made an amendment to a
bill that said we are going to clear the undergrowth from the forest of
the Black Hills. That, of course, is against environmental law, but the
problem is that all that undergrowth was fueling forest fires. This
particular gentleman made the comment and put it into law, regardless
of what any Federal court says, we are going to clear the undergrowth.
Another use of the limitation of the appellate jurisdiction of the
courts. There are numerous cases to that regard. Certainly, these
charges are completely and factually inaccurate.
Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentleman from
Maryland (Mr. Hoyer), the Democratic whip of the House.
Mr. HOYER. Mr. Chairman, 2 minutes is obviously not sufficient time
to respond to simplistic arguments. The previous speaker said he has
heard simple legal arguments. He talked about why people came to
America.
I chaired the Commission on Security and Cooperation in Europe, the
Helsinki Commission, and I went to numerous countries in which the
judiciary was not independent, where it was dictated to by the
legislature and the executive departments if the judiciary did not do
what the legislature and the executive wanted them to do. That is the
perverseness of this legislation. That is the demagoguery of this
legislation. This is the simplistic approach that this legislation
takes.
Let me say, I believe that ``under God'' in the Pledge of Allegiance
is absolutely appropriately there. It is constitutional, and it ought
to be there. And frankly, if the Supreme Court ruled it was
unconstitutional, I would vote for a constitutional amendment to ensure
its presence.
The gentleman is correct; Thomas Jefferson intoned those compelling
words that we get our rights not from the legislature, not from the
executive, not even from the majority. Those basic rights are within us
as children of God. That is the difference between this country. That
is what Marbury v. Madison meant. It meant a legislature, irrespective
of its animus, irrespective of the prejudice that it wanted to include,
not in this instance but in other instances, could be overseen by the
courts of this United States.
The gentleman mentioned the Dred Scott decision. It was not the
legislature that overturned that decision or the majority of Americans
that overturned that decision; it was the Supreme Court of the United
States ultimately that said that is wrong. The gentleman is absolutely
correct; the Supreme Court said separate is not equal. But had they
been precluded from having the jurisdiction over that case, we would
still have segregated schools. We would still have separate but equal,
but it was the courts that stepped in and made sure that the dream of
America was the reality of America.
[[Page H7465]]
Defeat this legislation. There is no case pending. It has been
dismissed by the Supreme Court.
No court in this Nation has precluded. Every child in America now
stands and proudly stands, as we do in this chamber, and pledges
allegiance to our flag and to this Nation under God, indivisible with
liberty and justice for all. But we have found through the centuries
that justice, justice, justice is protected by our independent
judiciary. Let us keep it that way for all Americans. Defeat this
legislation.
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman
from New Jersey (Mr. Garrett).
Mr. GARRETT of New Jersey. Mr. Chairman, I rise today in proud
support of H.R. 2028, the Pledge Protection Act, introduced by the
gentleman from Missouri (Mr. Akin). We are here today because, once
again, activist judges have taken it upon themselves to dictate law in
this country, believing they know better than all Americans, they know
better than the State legislatures or the Federal legislature, and they
know better than the Founding Fathers themselves, they think.
The Pledge Protection Act defends the constitutionality of reciting
the Pledge of Allegiance by simply restricting the jurisdictions of
some lower Federal courts. This body here is more than within our
bounds to limit the role of Federal court jurisdiction.
The power of Congress is granted in article III of the Constitution.
The clause states, ``The judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress
may from time to time ordain and establish.''
Accordingly, the Constitution provides that the lower courts are
entirely creatures of Congress, as is the jurisdiction of the Supreme
Court.
Just as this Congress is checked every so often by the power of the
Presidential veto, and we are checked every 2 years by re-elections, we
in turn have the ability to check or rein in abusive and out-of-line
courts.
The Pledge closely reflects the noblest intentions of our Founding
Fathers and the inspiration that has led to the creation of this great
Nation, and that is why I can confidently say that nothing in the
reciting of the Pledge discriminates against any religious minorities
or abuses any rights.
The phrase ``under God'' simply acknowledges that our Founding
Fathers, who were leaders in the fight for our independence and the
authors of our Nation's framework, did so with the inspiration and
their belief in a divine being.
We all know this House starts each morning with the Pledge as we
begin our business, and I believe that right should not be taken away
from the children of this country as well.
Mr. NADLER. Mr. Chairman, I yield for the purpose of a making a
unanimous consent request to the gentleman from Texas (Mr. Green).
(Mr. GREEN of Texas asked and was given permission to revise and
extend his remarks.)
Mr. GREEN of Texas. Mr. Chairman, I include my statement for the
Record supporting the Watt amendment, and also supporting the original
Protect the Pledge Act.
Mr. Chairman, I rise today in support of the Watt amendment to H.R.
2028, the Protect the Pledge Act. This amendment is plain and simple;
it would restore H.R. 2028 to its original language.
I strongly support the Pledge of Allegiance. In fact, in the last
Congress I introduced H.J. Res. 103, an amendment to the Constitution
that would affirm that the Pledge of Allegiance in no way violates the
First Amendment. Unfortunately, Congress did not pass the resolution
before it adjourned for the 107th Congress. As an original cosponsor of
H.R. 2028, I had hoped that it would protect the Pledge of Allegiance
from unnecessary court battles without infringing on the rights of the
people. However, with H.R. 2028 in its current form Congress has lost
its balance between our constitutional rights and the law.
The Pledge of Allegiance is an important symbol of the privileges and
rights that our founding fathers fought so desperately to preserve.
Although the major controversy surrounding the pledge rests on the
words ``under God,'' H.R. 2028 blatantly ignores the words ``with
liberty and justice for all.''
Every citizen has the right to due process under the law. By
stripping the Supreme Court of jurisdiction to hear cases pertaining to
the Pledge, we take away the basic right for everyone to have their
case heard before the highest court in the land. Article III of the
Constitution states that Congress has the power to define the
jurisdiction of the Federal district and appellate courts, but we do
not have the power to decide which cases the Supreme Court can and
cannot hear.
The Watt amendment restores the Protect the Pledge Act to its
original language. I urge my colleagues to support this amendment and
protect our constitutional rights.
Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Chairman, obviously, I stand here today
formerly a second-class citizen in America, and if it had not been for
the courts of the United States of America, article III courts and the
United States Supreme Court, I would still be in a place with nowhere
to be able to seek redress of my grievances.
Let me make it clear that I voted to retain the language ``under
God'' in the Pledge of Allegiance, and I did so because I believe it is
protected by the first amendment. That amendment allows us to exercise
our freedom of religion, but this is at best political chicanery. This
is a joke, and the reason is, I would ask my colleagues on the other
side of the aisle why they did not put this kind of legislation to
eliminate the right of the Federal courts and the Supreme Court to
engage in the oversight of election laws? The reason, because they got
the decision they wanted in 2000.
This is a bill that destroys the Constitution as we know it. Article
III of the U.S. Constitution vests the judicial power of the United
States in one Supreme Court. How can we eliminate the appellate
jurisdiction of the Article III courts and the Supreme Court that
leaves all of America a lack of opportunity to address their grievances
no matter who they are?
I pledge allegiance to the flag. I respect the language ``under
God,'' but it is the right of the American people to at least go into
the courts to address their grievances.
And what about religion? If one has a religion that gives them the
instruction to not recite that kind of language, that individual has
the right, as an expression of their right of religious freedom, to do
so or to seek redress of grievances in the courts. Again, this is
political opportunity, but I would join my colleagues in eliminating
the rights of the Federal courts and the Supreme Court to decide any
election case so we will not have the biased decision that was rendered
in the Bush v. Gore decision of 2000. If they join me on that, maybe we
will have a sense of fairness. Today, we do not.
I stand with the Constitution which says we have a right to be able
to address our grievances in the courts of the United States of
America. We have the right to freedom of religion. We should vote down
this bill as one that puts a stain on the Constitution of the United
States of America. Remember--our history--that of minorities in this
country--was only made better many times by the decisions of the
Federal courts.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, I beg to disagree with the gentlewoman from Texas (Ms.
Jackson-Lee). It was not the Supreme Court that gave her and her
ancestors their freedom; it was the 600,000 people who died during the
Civil War that did that and allowed the Congress to pass three
constitutional amendments which guaranteed freedom for former slaves
and their descendants.
Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr.
Stearns).
(Mr. STEARNS asked and was given permission to revise and extend his
remarks.)
{time} 1230
Mr. STEARNS. Mr. Chairman, I would say to the 30-second speech by the
chairman of the Committee on the Judiciary, Amen to what he just said.
Let me give a hypothetical example to the people on this side of the
aisle who are predominately against this amendment. Let us say that it
turned out that the Supreme Court wanted to take the words ``In God We
Trust'' off the marble slab that stands on top of the flag in the
Speaker's rostrum. At what point would you as a Member of
[[Page H7466]]
Congress get up and say enough is enough for the Supreme Court to do
this? I mean, at what point does your side have to be so upset to get
involved to really exercise what the Constitution allows?
It has been repeated many times under article III, section 2 of the
Constitution, we in this body have the right, and some would say we
have the duty, to limit the jurisdiction of Federal courts. I certainly
would hope if they tried to strip ``In God We Trust'' off the Speaker's
rostrum that they on that side of the aisle would stand up and say
enough is enough and agree that we would allow Congress to exercise its
prerogative under article III, section 2 of the Constitution.
Also, I brought this up before, all of those on this side of the
aisle know that Tom Daschle, the minority leader, inserted a provision
in legislation to prohibit the courts from hearing cases about brush
clearings in South Dakota.
Point Of Order
Ms. PELOSI. Mr. Chairman, I make a point of order.
Mr. Chairman, the gentleman was referencing activities as far as the
other body is concerned, naming a Senator by name. Is that not out of
order by this body?
Mr. SENSENBRENNER. Mr. Chairman, on the point of order, the gentleman
from Florida was referencing a provision in a conference report that
was adopted by this body as well as by the other body and became law.
The CHAIRMAN pro tempore. All Members should refrain from improper
references to Members of the other body.
Mr. STEARNS. Mr. Chairman, I did mention in my speech about a
provision in legislation that was inserted; so I thought that was
important.
In July we passed the Marriage Protection Act, removing the Federal
courts' jurisdiction from questions arising under the Defense of
Marriage Act. Frankly, is marriage not more important than the forests
that I mentioned previously that was inserted in legislation?
So I am honored to support this bill and to protect the Pledge of
Allegiance from further judicial interference.
I will include my entire statement in the Record.
Mr. Chairman, for decades, activist judges have been free to impose
their own beliefs on the American people with impunity.
We have had to endure egregious decisions about abortion, obscenity,
school prayer and homosexual ``marriage,'' to name but a few issues.
On each of these issues, the vast majority of the American people
took the exact opposite position as the federal court.
This was especially true when the 9th Circuit Court of Appeals
declared that the words ``under God'' in the Pledge of Allegiance are
unconstitutional.
But I am glad to note that Congress has recently been exercising its
constitutional prerogative to limit the federal courts.
Under Article III, Section 2 of the Constitution, we have the right--
some would say the duty--to limit the jurisdiction of the federal
courts.
It is not like it hasn't been done before.
In the 1868 landmark case of Ex parte McCardle, the U.S. Supreme
Court agreed that Congress had the constitutional right to remove
jurisdiction from the court in a pending case.
More recently, Senate Minority Leader Tom Daschle inserted a
provision in legislation to prohibit the courts from hearing cases
about brush clearing in South Dakota.
And in July, we passed the ``Marriage Protection Act,'' removing the
federal court's jurisdiction from questions arising under the Defense
of Marriage Act.
Frankly, isn't marriage and the Pledge more important than forests?
I am honored to support this bill and to protect the Pledge of
Allegiance from further judicial interference.
Mr. Chairman, for years the Federal Courts have been taking
jurisdiction away from Congress. It is only proper that we exercise our
constitutional right to limit their jurisdiction.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
The reference to Senator Daschle was not true. We rebutted it in the
debate last time. I will reference something for the Record so we do
not waste time on this untruth anymore now.
Brush Clearing Rider: Most notably, the Majority claims
that a rider to the 2002 Supplemental Appropriations Act
authored by the senior senator from South Dakota approving
logging and clearance measures by the Forest Service in the
Black Hills of South Dakota serves as a precedent for the
enactment of these types of court-stripping measures.
The problem with this argument is that, while the rider
restricted ``judicial review'' of ``any [logging or
clearance] action'' by the Forest Service, it did not
restrict federal judicial review of the rider itself or its
constitutionality. Indeed, the federal courts did review the
validity of the rider, and explicitly found that the
``challenged legislation's jurisdictional bar did not apply
to preclude Court of Appeals' review as to the legislation's
validity''
Mr Chairman, I yield 2 minutes to the distinguished gentlewoman from
California (Ms. Waters).
Ms. WATERS. Mr. Chairman, if anyone had told me that coming to the
Congress of the United States of America, representing my district, I
would have to be on the floor of Congress defending the constitutional
rights of the Supreme Court to make constitutional rulings, I would
have told them they are crazy. This is absolutely outrageous. The
gentleman just asked when do we get so angry that we agree to strip the
Court of its constitutional responsibility.
Mr. Chairman, I have disagreed with any number of decisions of the
Supreme Court. I disagree with the fact that the Dred Scott decision
said separate was all right, separate but equal. And in the last 2002
election, I disagreed with the fact that the Supreme Court gave the
Presidency to George W. Bush. But my colleagues did not see me and
others coming in here and talking about stripping them of their ability
to make constitutional decisions.
The court-stripping proposed in this bill would destroy the Supreme
Court's historical function as the interpreter and ultimate arbiter of
what the Constitution requires. This misguided legislation to strip the
Supreme Court of its appellate jurisdiction also would have seriously
damaging implications for the relationships among our three branches of
government. This bill and other court-stripping bills proposed by the
Republicans would be laughable if the results of enacting this bill
were not so tragic and not so threatening to the constitutional rights
of our people and the independence of the Federal judiciary.
If H.R. 2028 were passed into law, it would constitute the first and
only time Congress has enacted legislation totally eliminating any
Federal court from considering the constitutionality of Federal
legislation, in this case the Pledge of Allegiance.
Mr. SENSENBRENNER. Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Chairman, yes, we are one Nation under God, and we
are one Nation under the Constitution, until today.
I voted some time ago to keep the words ``under God'' in the Pledge,
and I will vote today to keep the Supreme Court in its constitutional
business of enforcing the Bill of Rights. The Republican Party today
intends to treat the Bill of Rights the way the Soviet Union operated
during their long tyranny. Because in the Soviet Union, one could go
next to Lenin's grave and see their beautiful bill of rights nicely
illuminated, looked fine. But the Soviet Union lacked one thing: they
stripped their courts of the ability to enforce their own bill of
rights. And today the Republican Party intends to do the same thing in
America.
In America we should not abandon what we learned as kids in school,
that checks and balances are necessary to our fundamental liberties.
And sometimes the Supreme Court gets it wrong, but heaven help the day
that one trusts liberty to Congress, where the day that Congress is in
session, their life and liberty is in danger. We have got to depend on
the U.S. Supreme Court.
Mr. NADLER. Mr. Chairman, I yield 1 minute to the gentlewoman from
California (Ms. Pelosi), Democratic leader.
Ms. PELOSI. Mr. Chairman, with our troops in harm's way and a
deteriorating situation in Iraq and with our country facing the clear
and present danger of terrorism, there are grave and great issues that
Congress must address.
But what are we doing here today? Are we debating the 9/11 Commission
[[Page H7467]]
recommendations to secure our Nation? Are we providing health insurance
to millions of Americans who have lost their insurance under this
President, providing jobs to the millions of unemployed Americans and
fully funding our schools?
No, Mr. Chairman. Instead, we are gathering here to once again debate
undermining the Constitution of the United States and dishonoring the
oath of office that we take to protect and defend the Constitution.
The bill before us claims to protect the Pledge of Allegiance. But
protect the Pledge from what? Our Supreme Court has not undermined the
constitutionality of the Pledge.
With the reversal of the Newdow case, there is only one major appeals
court decision that has addressed the constitutionality of the Pledge;
and that court, the seventh circuit, has upheld the Pledge.
This is a piece of legislation in search of a solution for a problem
that does not exist.
Millions of Americans daily and proudly pledge ``one Nation under
God, indivisible, with liberty and justice for all.'' Let me be clear.
I defer to no one in my defense of the voluntary recitation of the
Pledge. I strongly believe that the phrase ``under God'' and the Pledge
itself is an uplifting expression of support for the United States. I
love the Pledge.
The distinguished chairman of the Committee on the Judiciary
referenced the Civil War in response to a statement made by the
gentlewoman from Texas (Ms. Jackson-Lee) and said it was not the
Supreme Court that increased freedom in our country for all Americans;
it was the Civil War and the amendments that followed it. That
certainly was an important part of it. But absent the Brown v. The
Board of Education decision, we would not be enjoying the freedoms we
have for all Americans today.
But since the gentleman referenced the Civil War, I want to call to
our colleagues' attention a quote that is familiar to all of them. It
is from Lincoln's second inaugural address: ``With malice toward none,
with charity for all, with firmness in the right as God gives us to see
the right, let us strive to finish the work we are in, to bind up our
Nation's wounds.'' President Lincoln called upon God.
Another of my favorite inaugural addresses is that of President
Kennedy and his inaugural address. He said: ``With good conscience our
only reward, with history the final judge of our deeds, let us go forth
to lead the land we love, asking His blessing and His help and knowing
that here on Earth God's work must truly be our own.''
So evoking God's will and calling upon Him to guide us in our work is
something that is very important to all Members of Congress on both
sides of the aisle. I resent the comments made by some that there is
anything less than that commitment on both sides of the aisle.
This bill not only does not protect the Pledge; it violates the
spirit of the Pledge by professing a lack of faith in the
constitutional framework. It has been a settled principle since Chief
Justice John Marshall's opinion in 1803 in Marbury v. Madison that ``it
is emphatically the province and the duty of the judicial department to
say what the law is.'' The Federalist Papers, subsequent decisions of
the Court, and the judicial branch's role as a co-equal branch all
strongly suggest that Congress cannot prohibit courts from determining
constitutional questions.
There is no question that this bill does not pass constitutional
muster. But that does not deter the bill's proponents. The gentleman
from Indiana, the author of the last court-stripping bill and a key
advocate for this bill, has even outdone his statement 2 months ago
that 200 years of precedent in Marbury v. Madison establishing judicial
review was ``wrongly decided.'' The gentleman from Indiana (Mr.
Hostettler) amazingly asserted in the markup of the bill last week that
``the notion of an independent judiciary is a flawed notion . . . the
notion of an independent judiciary does not bear out actually in the
Constitution.''
The notion of an independent judiciary is not contained in our
Constitution? This is a principle that we as a power of example of our
country try to convey to emerging democracies that central to democracy
is an independent judiciary. And advocates for this legislation say
that that is not contained in our Constitution.
Is this what the leadership of this House and the chairman of the
Committee on the Judiciary really believe? I suggest that they read
James Madison and Alexander Hamilton's writings in the Federalist
Papers. This radical concept is completely counter to our history and
our values.
Two months ago, some assured us that the court-stripping efforts
would stop once they got their wanted Defense of Marriage Act. But as
the gentleman from Michigan (Mr. Dingell), distinguished dean of the
House, so eloquently warned us in July, ``We should expect to see this
dangerous approach repeated on a wide range of other legislation.''
{time} 1245
Today his prediction has come true, and there is no pretense that
this will end. What is next? Voting rights? Laws that prohibit racial
discrimination? Civil liberties? Our rights to privacy?
As we consider this bill, we must remember our history and protect
our Constitution to ensure our liberty. We must protect the ability of
the Federal judiciary to safeguard our freedoms and ensure access to
the courts by all.
This bill is an assault on our cherished Constitution and the
independent judiciary for its part for partisan purposes, and it is an
attempt to distract the American people from the Republicans' record of
failure.
Mr. Chairman, let us honor the pledge by keeping faith with its
spirit. Let us pledge to be one Nation under God, indivisible, with
liberty and justice for all.
This bill has been brought to the floor to embarrass some Members, so
I respect whatever decisions they have to make in light of the
motivation behind it. I just want the record to show why I so strongly
oppose this legislation.
Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, 1,800 years ago, Christians were persecuted because
they would not worship the Roman emperor as a god; 450 years ago St.
Thomas Moore lost his head because he would not swear an oath that king
and parliament commanded that violated his Catholic belief.
But the United States is different. Our Constitution prohibits test
oaths. Our Constitution protects the rights of Jehovah's Witnesses'
children to refuse to recite a pledge that we hold dear but that
violates the tenets of their faith.
Or at least the United States was different. This bill would leave to
the States, as the gentleman from Wisconsin (Mr. Sensenbrenner) says,
the decision whether that religious liberty would be protected or not.
The issue, Mr. Chairman, in this bill is not the Pledge of
Allegiance. The issue in this bill is whether we strip the courts of
the power to protect our liberties against perhaps transient majorities
and legislative bodies. The issue is whether we eliminate the only
final protection of our liberties, of our religious and other
liberties, that we have evolved. If we pass this bill and go in this
direction, the United States will be a very different and a much, much
less free country.
I urge the defeat of this bill.
Mr. Chairman, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of my
time.
The CHAIRMAN pro tempore (Mr. Latham). The gentleman is recognized
for 3 minutes.
Mr. SENSENBRENNER. Mr. Chairman, on September 17, 1937, President
Franklin D. Roosevelt gave a Constitution day address, and in that
speech President Roosevelt said in part, ``Lay rank and file can take
cheer from the historic fact that every effort to construe the
Constitution as a lawyer's contract rather than a layman's charter has
ultimately failed. Whenever legalistic interpretation has clashed with
contemporary sense on great questions of broad national policy,
ultimately the people and the Congress have had their way.''
This was a statement that was made by what is conceded on both sides
of the aisle as the greatest Democratic President in the history of
this country.
[[Page H7468]]
In the last Congress, both the House and the Senate passed and the
President signed public law 107-206. Section 706(j) of that law says,
``Any action authorized by this section shall not be subject to
judicial review by any court of the United States.''
Now, where were all of the Members who are complaining about this
bill when that legislation came up, because it took away the right of
the Federal courts to review legal issues relating to trees in South
Dakota. If Congress can deny all the Federal courts the authority to
hear a class of cases to protect trees, it certainly can do so to
protect the States' policy regarding the Pledge of Allegiance. That is
why this bill ought to be passed.
Mr. ALLEN. Mr. Chairman, I rise in strong opposition to H.R. 2028,
the so-called Pledge Protection Act.
I believe that the phrase ``under God'' should remain as part of the
Pledge of Allegiance, and I believe that the statute that fixed that
phrase as part of the Pledge is constitutional. But I cannot support
this misguided congressional power grab that would prevent the federal
courts from interpreting a law passed by Congress, or deciding its
constitutionality.
In the name of custom, our Republican colleagues disregard 200 years
of legal and constitutional customs and precedent just to score
political points in an election year.
Despite its name, this legislation does not protect the Pledge of
Allegiance. It does, however, undermine the very foundation of our
system of government.
We teach our children to respect the work of the Founders and the
Constitution's system of checks and balances. Judicial review is a
vital component of that system. Unfortunately, the so-called
conservative Republican majority shows no respect today for the
traditional role of our federal courts.
The bizarre effect of this bill would be to allow fifty different
state courts to interpret the United States Constitution in fifty
different ways. Never in our history has a state court had the final
say on interpreting the U.S. Constitution. That is the role and duty of
the federal judiciary by history, custom and law.
But for the Majority, there is no tradition, no custom, no practice,
no matter how broadly accepted, that is immune from Republican assault.
The Framers, our original revolutionaries, were wiser and more
tolerant. Reject this election year stunt.
Mr. BLUMENAUER. Mr. Chairman, this resolution represents the third
time in as many years that the House has brought needless legislation
to the floor to ``protect'' the Pledge of Allegiance. At a time when we
should be discussing issues of great consequence, like the genocide
occurring in Sudan, the implementation of the recommendations of the 9/
11 Commission, and the use of our federal surface transportation
dollars, the House leadership has again decided to bring up this stale
topic. This time, however, the legislation is not simply frivolous; it
is downright dangerous.
This bill, which will purportedly protect the Pledge of Allegiance,
is the continuation of a reckless and destructive pattern to strip
courts of their ability to determine the constitutionally of the Pledge
of Allegiance. This is an outrageous assault on our fundamental
constitutional framework. Personally, I do not think individual
liberties are threatened by the words ``under God'' in the Pledge of
Allegiance. Regardless, this remains a decision that should be made in
federal courts--not here in Congress. The very notion of this
legislation is unconstitutional. It should be fundamentally and
decisively rejected today.
Mr. DINGELL. Mr. Chairman, I rise in strong opposition to H.R. 2028.
Here we are again considering needless court-stripping legislation that
would destroy our constitutional system of checks and balances. This
time we wrap it in the flag and call it the Pledge Protection Act.
This is another extraordinary piece of arrogance on the part of the
House of Representatives to pass legislation which would strip American
citizens of their right to access the federal courthouse. Can you
imagine anything more shameful than telling an American citizen you
cannot go into court to have your concerns addressed regarding
Constitutional rights, or to have those rights heard by the courts of
your Nation?
I do not believe that we should strip the federal courts of
jurisdiction when it comes to issues related to the Equal Protection
Clause of the Constitution. It drastically interferes with the
separation of powers between the three branches of our government.
While I will always defend the autonomy and the power of the
legislative branch, the principle of judicial review that Chief Justice
John Marshall set out in the 1803 decision Marbury v. Madison is law.
This landmark case established that the Supreme Court has the right to
pass on the constitutionality of an act of Congress. To whittle away
one of the bedrock powers of the judicial branch is wrong for the Union
and wrong for our citizenry.
Tinkering with the foundation of our judicial branch could come back
to haunt us. You can be almost certain with the passage of this
legislation that there are interests out there deciding what other
rights can be stripped of American citizens because we disagree with
them. Maybe a future Congress will want to strip court challenges to
gun control legislation by gun owners or sportsmen.
Mr. Speaker, we live in one nation, under God, with liberty and
justice for all. If we pass this bill, we begin to hollow out the true
meaning of the pledge, the Constitution and what it means to live in
this great nation.
I strongly oppose this legislation and urge my colleagues to do the
same.
Mr. STARK. Mr. Chairman, I rise in opposition to H.R. 2028, the So-
Called ``Pledge Protection Act.'' This potentially unconstitutional
piece of legislation speaks volumes about the uncontrollable extremism
of the Republican Party and its desperation to look ``conservative'' in
the face of $400 billion deficits and nation-building in Iraq.
The fact that the Supreme Court already threw out the decision
striking ``Under God'' from the Pledge of Allegiance makes this bill
irrelevant with regard to the Pledge, and all the more frightening with
regard to the true intentions of the Republicans. In the interest of
politics, they would unravel our system of checks and balances and
close the courthouse doors to religious minorities. They would set a
new, disastrous precedent of letting 50 different state courts be the
final arbiters of our laws. They prefer that state judges, rather than
federal judges confirmed by the Senate, make Constitutional law.
If the right wing had been in control of the Republican Party in the
1960s, we wouldn't have desegregation or Miranda warnings, as there
were court-stripping proposals on those subjects, too.
Mr. Speaker, everyone here realizes that if Congress could just pass
whatever laws it wanted and throw in a line to keep them from being
held unconstitutional, our Constitution and Separation of Powers would
be rendered meaningless. So let's just admit what this is really about:
rallying the base and attacking defenseless Americans.
Shame on any Member of this body who will trample on our Constitution
just to score a few political points. If the Oath we all took to
``support and defend the Constitution of the United States'' means
anything to you, you will vote ``no'' on this election-year ploy.
Mr. HOLT. Mr. Chairman, I rise in opposition to H.R. 2028, which
would prevent federal courts and the Supreme Court from hearing any
claim that the recitation of the Pledge of Allegiance violates the
first amendment of the Constitution.
The Constitution--perhaps the greatest invention in history--has been
the source of our freedom in this great country for more than two
centuries. The framework of government it established has allowed our
diverse people to live together, to balance our various interests, and
to thrive. It has provided each citizen with broad, basic rights.
The judiciary was designed to be the one branch of the federal
government that is not influenced or guided by political forces. This
independent nature enables the judiciary to thoughtfully and
objectively review laws enacted by the legislative branch to ensure
that federal law is in line with the Constitution. Throughout the
development of our nation, this check has been vital to protecting the
rights of minorities.
Although the Constitution gives Congress the power to limit the
jurisdiction of the federal judiciary and the appellate jurisdiction of
the Supreme Court, I am certain that the founding fathers did not
intend for Congress to use this power to shape the jurisdiction of the
courts along ideological lines. This legislation will set a dangerous
precedent by allowing Congress to insulate itself from judicial review
so that it can pass legislation that it thinks may be unconstitutional.
This is a clear misuse of Congressional authority and it is a cynical
attempt to question the patriotism of Members of this institution.
Like every member of this body, I am proud to recite the Pledge of
Allegiance as a way to express my loyalty to this Nation and its
founding principles. I share the view of many Members that the current
text of the Pledge of Allegiance is constitutional including the phrase
``under God''. I expressed my support for the Pledge in its current
form when I joined many of my colleagues in voting for a resolution
that expressed the opinion of Congress that the Ninth Circuit's
decision in Newdow v. U.S. Congress was erroneous, This was an
appropriate forum for me, as a Member of Congress, to express my belief
in the constitutionality of the Pledge of Allegiance.
Unfortunately, those who support this legislation do seek to alter
our delicate system of checks and balances and make their own decisions
infallible. They are attempting to alter the intended framework of our
government, which has met the needs of a diverse population and allowed
us to remain indivisible in
[[Page H7469]]
times of crisis for more than 200 years. They ignore the fact that we
are a political institution guided by public opinion that is constantly
fluctuating and believe that this institution is better equipped than
the judiciary to evaluate what laws violate the Constitution.
It is unclear to me where the supporters of this legislation will end
in restricting an individual's ability to seek redress. In July, we
passed legislation that denied individuals the ability to question the
constitutionality of the Defense of Marriage Act. Today we are debating
legislation that limits an individual's ability to bring a claim
regarding the Pledge of Allegiance. What law will the Majority party
choose next to put above the process of judicial review? At what point
will the Majority party stop adding exceptions to the right to due
process?
A vote against this bill signifies a desire to make the words of the
Pledge of Allegiance a living reality and not a hollow promise. A vote
for this legislation is a vote against the values that are embedded in
our Constitution. I urge my colleagues to oppose this legislation.
Ms. LEE. Mr. Chairman, I rise in strong opposition to H.R. 2028, the
Pledge Protection Act.
I am outraged that my colleagues on the other side of the aisle would
give serious consideration to this legislation that infringes on the
First Amendment, and blurs the Separation of Powers.
This bill is just another misguided election year ploy designed to
score political points.
H.R. 2028 threatens a fundamental aspect of our constitutional
structure and would set a dangerous precedent by stripping federal
courts of judicial independence and pave the way to preventing federal
judges from ruling on other controversial social issues.
It is unacceptable and unconstitutional to propose stripping powers
from the judicial branch every time we disagree with a decision they
make.
Regardless of race or creed, we should all have the right to access
the federal courts to challenge a particular policy or piece of
legislation. By denying this right, this bill is both bigoted and
backwards.
By bringing this legislation to the Floor, the Republican Leadership
has demonstrated again that they are more concerned with making
political headlines than making headway on substantial legislation--
like the VA-HUD appropriations bill or the National Affordable Housing
Trust Fund.
My constituents who have serious needs--like housing, jobs,
education, and affordable heath care. How can I explain the
Republican's misplaced priorities?
And I must explain how the Leadership of this body decided to waste
another legislative day on political legislation like this bill.
We need to get back to the people's business and deal with some of
the real pressing issues that face our country.
I urge my colleagues to oppose this unnecessary legislation and vote
against H.R. 2028.
Mr. SULLIVAN. Mr. Chairman, I rise in strong support of H.R. 2028,
the Pledge Protection Act of 2004. H.R. 2028 is a commonsense piece of
legislation that reserves to the state courts the authority to decide
whether the Pledge of Allegiance is valid within each state's
boundaries. It will place final authority over a state's pledge policy
in the hands of the states themselves, where it belongs.
The role of Congress has always been clear on the limitation of
jurisdiction of the federal judiciary. Integral to our American
Constitutional system is each branch of government's responsibility to
use its powers to prevent overreaching by the other branches. Passage
of H.R. 2028, will send a strong signal to the federal judiciary that
the will of the people will prevail against judicial activism on the
Pledge of Allegiance.
In a Nation where the vast majority of Americans believe in a divine
power, it is un-American to place our pledge in the hands of the
Federal Judiciary. I believe that reciting the Pledge of Allegiance is
not only a right, but also a responsibility. While no one is forced to
recite it, neither should anyone be prohibited from pledging allegiance
to our great country.
It is wrong for any court to impose its will on whether the
overwhelming majority of Americans can publicly express a fundamental
belief. The people have spoken through their elected representatives on
both the federal and state levels on this issue.
I urge passage of this legislation to send a strong message of
judicial restraint, and of empowerment of the people in their own
government, to protect the Pledge of Allegiance for all Americans.
Mr. UDALL of Colorado. Mr. Chairman, this bill seeks to prevent any
federal court--including the Supreme Court--from considering ``any
question pertaining to the interpretation of, or the validity under the
Constitution of, the Pledge of Allegiance . . . or its recitation.''
As we all know, introduction of the bill was prompted by the 2002
decision of the Court of Appeals for the Ninth Circuit in what is known
as the ``Newdon'' case. That decision held that the 1954 legislation
adding ``under God'' to the pledge and a California school district's
policy of daily recitation of the pledge with those words were both
unconstitutional. (That court later modified the decision to apply only
to the school district's recitation policy.)
The school district and the United States both appealed to the
Supreme Court--and on June 14th the Supreme Court reversed the
decision, on the grounds that the plaintiff did not have legal standing
to challenge the school district's policy.
But the Republican leadership of the House evidently is afraid that
somebody else might bring a similar lawsuit--and that prospect that is
so alarming to them that they have brought forward this bill, which
would prevent any federal court from hearing a lawsuit like that.
I cannot support such legislation. It may or may not be
constitutional--on that I defer to those with more legal expertise than
I can claim. But I think it clearly is not just unnecessary but
misguided and destructive.
I have no objection to the current wording of the Pledge of
Allegiance. After the court of appeals announced its decision in the
Newdon case I voted for a resolution--approved by the House by a vote
of 416 to 3--affirming that ``the Pledge of Allegiance and similar
expressions are not unconstitutional expressions of religious belief''
and calling for the case to be reheard.
But this bill is a different matter.
The bill may be called the ``Pledge Protection Act,'' but that is not
accurate. In reality, it not only fails to protect the pledge but also
would undercut the very thing to which those who recite the pledge are
expressing allegiance.
The bill fails to protect the pledge because even if it becomes law
people who don't like the way the pledge is worded would still be able
to bring lawsuits in state courts--and the Supreme Court could not
review how state's courts ruled on those suits.
So, while Colorado's courts might uphold the current wording, the
courts of other states might reach a different conclusion--meaning
there would no longer be a single Pledge of Allegiance, but different
pledges for different states, and the First Amendment's meaning would
vary based on state lines.
And that would be directly contrary to the very idea of the United
States as ``one nation'' that should remain ``indivisible'' and whose
defining characteristics are devotion to ``liberty and justice for
all''--that is, to the very Republic (symbolized by the American flag)
to which we pledge allegiance when we recite the pledge this bill
pretends to ``protect.''
How ironic--and how pathetic. As national legislators, as Untied
States Representatives, we can and should do better. We should reject
this bill.
Mr. OSE. Mr. Chairman, I rise today to reluctantly voice my
opposition to H.R. 2028, the Pledge Protection Act.
As a cosponsor of the original legislation, I am disheartened to see
changes that have removed necessary civil rights protections. In the
course of a Committee mark up, the original Pledge Protection Act was
stripped and rewritten to exclude the Supreme Court from jurisdiction
from hearing cases surrounding the Pledge of Allegiance.
I strongly believe that if a citizen of the United States has a
grievance of a federal nature, that individual deserves his or her day
in federal court. By removing the Supreme Court from jurisdiction to
hear Pledge cases, the Pledge Protection Act effectively removed a
citizen's day in federal court. As such, I can not support this
legislation in its current form.
Mr. POMEROY. Mr. Chairman, I rise in opposition to H.R. 2028, the
Pledge Protection Act.
I strongly believe that the Pledge of Allegiance, including the
phrase, ``under God'' is a constitutional expression of patriotism. I
recall reciting the Pledge of Allegiance in school as a child growing
up in Valley City, North Dakota, and I believe that it plays an
important role in unifying our country and celebrating our national
identity.
Like my colleagues, I was outraged by past court decisions that
erroneously declared the Pledge of Allegiance unconstitutional. That is
why on March 20, 2003, I voted in favor of H. Res. 132, which urged the
Supreme Court ``to correct the constitutionally infirm and incorrect
holding'' by the 9th Circuit Court of Appeals in its revised decision
on the Newdow v. U.S. Congress case. This resolution also expressed the
sense of the House of Representatives that the recitation of the Pledge
is a ``patriotic'' act rather than a religious one, that phrase ``One
Nation, under God'' should remain in the Pledge and that the practice
of voluntarily reciting the Pledge in public school classrooms should
be encouraged by the policies of Congress. Furthermore, on July 22,
2003, I voted in favor of the amendment offered by Rep. Hostettler to
H.R. 2799, the Commerce, Justice and State and Related Agencies
Appropriations bill, which barred the use of any of the funds
appropriated by the bill to ``enforce the judgment'' in the Newdow v.
U.S. Congress.
[[Page H7470]]
During the 107th Congress, I also voted in favor of H. Res. 459,
which expressed the view of the House of Representatives that the 9th
Circuit Court of Appeals' original decision in Newdow v. U.S. Congress
to strike the words ``under God'' from the Pledge of Allegiance was
incorrectly decided. Similarly, I strongly supported S. 2690,
legislation that reaffirms the language of the Pledge of Allegiance,
including the phrase ``one Nation under God.''
I am concerned that the passage of H.R. 2028 would deny the Supreme
Court its historical role as the final authority on the
constitutionality of federal laws and nullify the separation of powers
set forth in the United States Constitution. Furthermore, H.R. 2028
sets a dangerous precedent for future Congresses. By adding language
from H.R. 2028 to unconstitutional legislation, a future Congress could
enact laws that are clearly contrary to key tenets of the Constitution
while preventing the Supreme Court from ever considering their
validity. Given these considerable problems with H.R. 2028, I intend on
voting against this measure.
Mr. PAUL. Mr. Chairman, I am pleased to support, and cosponsor, the
Pledge Protection Act (H.R. 2028), which restricts federal court
jurisdiction over the question of whether the phrase ``under God''
should be included in the pledge of allegiance. Local schools should
determine for themselves whether or not students should say ``under
God'' in the pledge. The case finding it is a violation of the First
Amendment to include the words ``under God'' in the pledge is yet
another example of federal judges abusing their power by usurping state
and local governments' authority over matters such as education.
Congress has the constitutional authority to rein in the federal
court's jurisdiction and the duty to preserve the states' republican
forms of governments. Since government by the federal judiciary
undermines the states' republican governments, Congress has a duty to
rein in rogue federal judges. I am pleased to see Congress exercise its
authority to protect the states from an out-of-control judiciary.
Many of my colleagues base their votes on issues regarding federalism
on whether or not they agree with the particular state policy at issue.
However, under the federalist system as protected by the Tenth
Amendment to the United States Constitution, states have the authority
to legislate in ways that most members of Congress, and even the
majority of he citizens of other states, disapprove. Consistently
upholding state autonomy does not mean approving of all actions taken
by state governments; it simply means acknowledging that the
constitutional limits on federal power require Congress to respect the
wishes of the states even when the states act unwisely. I would remind
my colleagues that an unwise state law, by definition, only affects the
people of one state. Therefore, it does far less damage than a national
law that affects all Americans.
While I will support this bill even if the language removing the
United States Supreme Court's jurisdiction over cases regarding the
pledge is eliminated, I am troubled that some of my colleagues question
whether Congress has the authority to limit Supreme Court jurisdiction
in this case. Both the clear language of the United States Constitution
and a long line of legal precedents make it clear that Congress has the
authority to limit the Supreme Court's jurisdiction. The Framers
intended Congress to use the power to limit jurisdiction as a check on
all federal judges, including Supreme Court judges, who, after all,
have lifetime tenure and are thus unaccountable to the people.
Ironically, the author of the pledge of allegiance might disagree
with our commitment to preserving the prerogatives of state and local
governments. Francis Bellamy, the author of the pledge, was a self-
described socialist who wished to replace the Founders' constitutional
republic with a strong, centralized welfare state. Bellamy wrote the
pledge as part of his efforts to ensure that children put their
allegiance to the central government before their allegiance to their
families, local communities, state governments, and even their creator!
In fact, the atheist Bellamy did not include the words ``under God'' in
his original version of the pledge. That phrase was added to the pledge
in the 1950s.
Today, most Americans who support the pledge reject Bellamy's vision
and view the pledge as a reaffirmation of their loyalty to the Framers'
vision of a limited, federal republic that recognizes that rights come
from the creator, not from the state. In order to help preserve the
Framers' system of a limited federal government and checks and
balances, I am pleased to support H.R. 2028, the Pledge Protection Act.
I urge my colleague to do the same.
Mr. SHAYS. Mr. Chairman, I voted against H.R. 2028, the Pledge
Protection Act.
The phrase ``under God'' belongs in our Pledge of Allegiance to the
Flag of the United States of America and the words ``In God We Trust''
belong on our currency. The Ninth Circuit Court of Appeals made a
serious error in Newdow v. U.S. Congress when they declared our Pledge
unconstitutional.
When the phrase ``under God'' was added to the Pledge of Allegiance
in 1954, I was in elementary school and remember feeling the phrase
belonged there. It appropriately reflects the fact that a belief in God
motivated the founding and development of our great Nation.
The Declaration of Independence states, ``We hold these truths to be
self-evident, that all men are created equal, that they are endowed by
their Creator with certain inalienable rights . . .'' Our forefathers
understood it was not they, but He, who had bestowed upon all of us
those most cherished rights to life, liberty and the pursuit of
happiness upon which our model of government is based.
At Gettysburg, President Abraham Lincoln acknowledged we were a
Nation under God and, during his Second Inaugural Address, he mentioned
our Creator 13 times.
Those historic speeches, the Pledge of Allegiance, our currency and
the Declaration of Independence are not prayers or parts of a religious
service. They are a statement of our commitment as citizens to our
great Nation and the role God plays in it.
Our founders envisioned a government that would allow, not discourage
or punish, the free exercise of religion and we are living their dream.
I voted against the Pledge Protection Act because I have faith in our
Constitution and do not believe we should preclude judges from hearing
issues of social relevance, simply because we may disagree with their
ultimate decisions.
The tactic of restricting courts' jurisdiction is spiraling out of
control. In July, I voted against a bill that would block the courts
from hearing Constitutional challenges to the Defense of Marriage Act
and again today we considered legislation to tie the courts' hands.
What's next?
While the courts may, from time to time, produce a ruling we
question, the principle of judicial review is essential to maintaining
the integrity of our system of checks and balances and I fear the path
we appear to be on. We are a Nation under God, and in Him we trust.
Mr. WELDON of Florida. Mr. Chairman, I rise in strong support of the
Pledge Protection Act because it upholds the rights of the overwhelming
majority of American people who support the phrase ``under God'' in the
Pledge of Allegiance.
H.R. 2028, of which I am a cosponsor, removes from the jurisdiction
of the Federal courts questions regarding the constitutionality of the
Pledge of Allegiance. It does so utilizing the powers of Congress
clearly expressed in article III of the Constitution. Article III
reserves for the Congress the power to regulate or completely eliminate
the Supreme Court's appellate jurisdiction over a class of cases.
Chief Justice Rehnquist of the U.S. Supreme Court stated that the
court has already erected ``a novel prudential principle in order to
avoid reaching the merits of the constitutional claim'' that the phrase
``under God'' violates the Establishment Clause. It is clear from this
precedent that the U.S. Supreme Court is most likely to rule the phrase
``under God'' unconstitutional should a case reach the high court.
Liberal activist judges are consistently working to remove the
mention of ``God'' from the public realm. As a Nation that affirms in
its own Declaration of Independence that God is the source of our
rights, it is absolutely appropriate for Congress to act on this
important issue.
Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore. All time for general debate has expired.
Pursuant to the rule, the committee amendment in the nature of a
substitute printed in the bill shall be considered as an original bill
for the purpose of amendment under the 5-minute rule and shall be
considered read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 2028
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pledge Protection Act of
2004''.
SEC. 2. LIMITATION ON JURISDICTION.
(a) In General.--Chapter 99 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 1632. Limitation on jurisdiction
``No court created by Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no appellate
jurisdiction, to hear or decide any question pertaining to
the interpretation of, or the validity under the Constitution
of, the Pledge of Allegiance, as defined in section 4 of
title 4, or its recitation.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 99 of title 28, United States Code, is
amended by adding at the end the following new item:
``1632. Limitation on jurisdiction.''.
[[Page H7471]]
The CHAIRMAN pro tempore. No amendment to the committee amendment is
in order except those printed in House Report 108-693.
Each amendment may be offered only in the order printed in the
report, by a Member designated in the report, shall be considered read,
shall be debatable for the time specified in the report, equally
divided and controlled by the proponent and an opponent, shall not be
subject to amendment, and shall not be subject to a demand for division
of the question.
It is now in order to consider amendment No. 1 printed in House
Report 108-693.
Amendment No. 1 Offered by Mr. Sensenbrenner
Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Sensenbrenner:
In section 1632 of title 28, United States Code, as added
by section 2(a) of the bill, insert the following after ``or
its recitation.'': ``The limitation in this section shall not
apply to the Superior Court of the District of Columbia or
the District of Columbia Court of Appeals.''.
The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the
gentleman from Wisconsin (Mr. Sensenbrenner) and a Member opposed each
will control 5 minutes.
Mr. NADLER. Mr. Chairman, I ask unanimous consent to control the time
in opposition, though I do not oppose the amendment.
The CHAIRMAN pro tempore. Without objection, the gentleman from New
York (Mr. Nadler) will be recognized for 5 minutes.
There was no objection.
The CHAIRMAN pro tempore. The gentleman from Wisconsin (Mr.
Sensenbrenner) is recognized for 5 minutes.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, this amendment is simple. Currently the bill prevents
Federal courts, including courts created by an act of Congress, from
striking down ``under God'' in the Pledge, while reserving to the State
courts the authority to hear cases involving the Pledge.
The District of Columbia, however, due to its unique constitutional
position, does not have State courts. Instead, its courts that are the
equivalent of State courts are created by an act of Congress.
So, to preserve a judicial forum for District residents regarding
challenges to the Pledge, this amendment simply adds the following
section to the bill: ``The limitation in this section shall not apply
to the Superior Court of the District of Columbia or the District of
Columbia Court of Appeals.''
This sentence preserves the authority of the District's courts to
hear cases involving the Pledge. I urge its adoption.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, on this side of the aisle we do not oppose the
amendment.
Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr.
Scott).
Mr. SCOTT of Virginia. Mr. Chairman, I applaud the chairman of the
committee for offering the manager's amendment that grants to the D.C.
residents the same rights that apply to residents of the 50 States
under this bill, that is, the right to have some recourse in a local,
non-Federal court. However, the manager's amendment still does nothing
to address the same problem with respect to U.S. citizens who are
residents of the U.S. Virgin Islands, Northern Mariana Islands, and
Guam.
This amendment just goes to show that the majority was so busy
stripping the courts of jurisdiction that it inadvertently stripped
jurisdiction from all the courts, just as they did last week in a tort
reform bill allowing foreign corporations to escape all liability for
injuries to American citizens because the bill, in some cases, provided
no United States jurisdiction in which the case could be brought.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the reason that this amendment does not include the
local courts in Puerto Rico and the territories is that those courts
are not created by Act of Congress, so residents of Puerto Rico and the
territories will be able to file suits regarding the Pledge in the
courts that have been created by their respective legislatures pursuant
to the organic Act that Congress has previously passed.
Mr. SCOTT of Virginia. Mr. Chairman, will the gentleman yield?
Mr. SENSENBRENNER. I yield to the gentleman from Virginia.
Mr. SCOTT of Virginia. Mr. Chairman, I would say to the chairman, I
think I agree with him on Puerto Rico, but disagree with regard to the
Virgin Islands and others. If we could agree that the legislative
intent is to make sure there will be some recourse, we could have that
fixed in conference.
Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, I agree with the
comments made by the gentleman from Virginia (Mr. Scott).
Mr. Chairman, I yield back the balance of my time.
Mr. NADLER. Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman
from California (Ms. Lofgren).
Ms. LOFGREN. Mr. Chairman, the amendment is fine, but it does not fix
the problem with the bill. Marbury versus Madison, 1803, was when the
great decision was made that the judicial branch would interpret the
law. Since that time, we have had, like we all learned in 8th grade,
the three branches of government, and it served us pretty darn well for
the last 200 years. We have a free country that lives under law.
This bill actually would try to remove the judicial branch from its
job of interpreting the law, and, most importantly, making sure that
the laws that the Congress passes and the actions that the executive
takes meet up with the standards in the Constitution of the United
States.
Now, I have been listening to the debate of the proponents of this
bill with some concern. Some of the things that have been said, I
wonder, can they be that dumb, or are they being venal, or is it both?
Absolutely we know there is a difference between passing a statute and
having that statute interpreted to see whether the statute meets
constitutional muster.
Clearly, Congress has the ability to do all kinds of things with the
courts. We can set statutes of limitation, we can provide for direct
appeal to the Supreme Court. What we cannot do is say that the Federal
courts, that the Supreme Court, cannot review what we do to see whether
it meets the requirements of the Federal Constitution. That is what we
are trying to do today.
Now, if we succeed, if we pass this, we will either change
fundamentally the free country that we enjoy, or else we will promote a
constitutional crisis. Maybe we could get a Marbury-II.
But I think there is another reason for this bill today. I think we
are here today for political purposes. We are here so that certain
Members of this House who try and protect the Constitution will be
subject to 30-second political ads. I think that is a misuse of our
processes here. Either radicals have taken over the Congress, or
venality has hit a new low, and we would trash our system of government
for political purposes. I think either is a disgrace.
Mr. NADLER. Mr. Chairman, I yield the balance of my time to the
distinguished gentleman from New York (Mr. Weiner).
Mr. WEINER. Mr. Chairman, I thank the gentleman for yielding me time.
Mr. Chairman, first of all, I know the author of the bill came to the
floor a few moments ago, the gentleman from Missouri, and said we are
trying to confuse this issue with legality.
I am actually confused by a couple of things. One, those of us who
want ``God'' in the Pledge of Allegiance, we won. You would think from
this debate that this morning when we took the Pledge of Allegiance, we
did not say ``God.'' You would think that that crazy court in
California that came up with the wrong decision was not reversed. We
won that case.
The second thing I am curious about, what is it about bills and
issues that you do not strip review from that you like less than this?
How come when you say that there should be no abortions for women in
this country, that you do not strip the review of that? How come when
you do your budget,
[[Page H7472]]
you do not strip your review of that? How come when you do all of the
other bills around, do not you love them as much? Are they not equally
as important to you?
I am shocked there is any legislation you bring to this floor that
you do not strip the review of the courts, because, frankly, by your
interpretation of the Constitution, the court has no role there.
The final question I have, and I hate to vex my opponents on the
other side with talk of legality, but if not the courts are
interpreting the Constitution of the United States, who is going to do
it? What is your suggestion? Are we going to have like a reality show,
where maybe we let 12 people on an island come up with the decision?
And what if you do not have Federal courts doing it, you just have the
State courts?
Maybe I guess then the 14th Amendment is a bit troublesome. I guess
there are no uniform constitutional rights in this country, no uniform
right to bear arms, no uniform right to speech and to practice
religion.
If anyone can answer any of those three points, I will gladly vote
for this bill.
Mr. CONYERS. Mr. Chairman, while I commend Chairman Sensenbrenner for
heeding the advice of Representative Bobby Scott and offering an
amendment that will allow DC residents to have their day in court, I am
concerned that the amendment does not grant similar protections to
residents of U.S. territories.
This is because the local courts in the U.S. Virgin Islands (codified
at 48 U.S.C. Sec. 1611, population 110,000 residents); the Northern
Mariana Islands (codified at 48 U.S.C. Sec. 1821, population 78.000);
and Guam (codified at 48 U.S.C. Sec. 1424, population 160,000); were
all created by acts of Congress, not the local legislatures.
Since this bill provides that ``[n]o court created by an Act of
Congress'' shall have any jurisdiction to hear cases concerning the
constitutionality of the Pledge of Allegiance, the net result is that
under H.R. 2028, no judicial review would be available for Pledge of
Allegiance cases for the nearly 350,000 combined residents of these
territories.
As the majority's own witness, Martin Redish, concluded at the
Committee's hearing on court stripping legislation:
. . . as long as the state courts remain available and
adequate forums to adjudicate federal law and protect federal
rights, it is difficult to see how the Due Process Clause
would restrict congressional power to exclude federal
judicial authority to adjudicate a category of cases, even
one that is substantively based.
Unfortunately, under the Chairman's amendment, such a local court
review would not be possible in Guam, the Virgin Islands, and the
Northern Mariana Islands. As a result, the bill would continue to be
unconstitutional with regard to these territories.
The CHAIRMAN pro tempore.
The question is on the amendment offered by the gentleman from
Wisconsin (Mr. Sensenbrenner).
The amendment was agreed to.
{time} 1300
The CHAIRMAN pro tempore (Mr. Latham). It is now in order to consider
amendment No. 2 printed in House Report 108-693.
Amendment No. 2 Offered by Mr. Watt
Mr. WATT. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Mr. Watt:
In section 1632 of title 28, United States Code, as added
by section 2(a) of the bill, strike ``, and the Supreme Court
shall have no appellate jurisdiction,''.
The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the
gentleman from North Carolina (Mr. Watt) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentleman from North Carolina (Mr. Watt).
Mr. WATT. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, my amendment would restore the bill to its original
form. The original bill that was introduced, H.R. 2028, actually
stripped only the lower courts, not the Supreme Court, of jurisdiction
to hear these cases. My colleague, the gentlewoman from Illinois (Mrs.
Biggert), who was an original supporter and sponsor of the original
bill, both of us submitted amendments to the Committee on Rules asking
the Committee on Rules to restore the bill to its original intention,
and the Committee on Rules decided it would make my amendment in order,
I guess so that it would not send a signal to the Republicans that this
is a bipartisan amendment.
So I want to offer this amendment to restore the jurisdiction of the
United States Supreme Court to determine constitutionality.
Mr. AKIN. Mr. Chairman, I claim the time in opposition to the
amendment, and I yield myself such time as I may consume.
Mr. Chairman, the reason why we should vote against this amendment is
fairly basic and pretty simple mathematics, and that is, in the last
decision, when the Newdow case was thrown out on standing, that
decision made it clear that there are only three chief justices who
support the Pledge of Allegiance, and three is not enough to keep
``under God'' in the pledge.
Now, what this amendment is going to do is it is going to allow the
Supreme Court to hear additional or any future challenges to the Pledge
of Allegiance. And when the current court hears that challenge, we are
struck with that simple mathematics, that there are only three votes on
the Supreme Court that would keep ``under God'' in the Pledge.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Illinois (Mrs. Biggert).
Mrs. BIGGERT. Mr. Chairman, I thank the gentleman for yielding me
this time.
Mr. Chairman, I rise today in support of the Watt amendment which
would restore the Supreme Court's jurisdiction over questions relating
to the Pledge of Allegiance, changing the bill back to the way it read
when I and 224 other Members cosponsored it.
Congress clearly has the authority under article III of the
Constitution to define the jurisdiction of the Federal district and
appellate courts, and the original H.R. 2028 was perfectly supportable
on this point. But this new bill strips the Supreme Court jurisdiction,
and I cannot support that.
Mr. Chairman, in our more than 200-year history as a Nation, there is
no direct court precedent in which the Supreme Court is cut off
entirely from review of a constitutional issue. Congress wisely has
chosen not to test its power to deny Supreme Court review of laws
Congress has passed; that is until H.R. 3313 and this amended version
of H.R. 2028.
I know that the gentleman from Wisconsin (Chairman Sensenbrenner)
cited Ex Parte McCardle as authority under article III to make
exceptions to the appellate jurisdiction of the Supreme Court. But in
McCardle, the court recognized that other avenues and at least some
level of review were available on a constitutional challenge.
I would caution my colleagues to think twice before tampering with
authorities clearly granted in the Constitution. The issue today may be
the Pledge, but what if the issue tomorrow is second amendment rights,
civil rights, environmental protection or a host of other issues that
Members may hold dear. I would ask my colleagues, do we really need 50
different versions of the Pledge of Allegiance? I certainly do not
think so.
I believe that ``under God'' are two of the most important words in
the Pledge. I also believe that the Supreme Court should be the final
arbiter of all Federal questions. That is why I urge my colleagues to
support the Watt amendment to the Pledge Protection Act.
Mr. AKIN. Mr. Chairman, I yield 2 minutes to my good friend, the
gentleman from South Carolina (Mr. Barrett).
Mr. BARRETT of South Carolina. Mr. Chairman, I thank the gentleman
for yielding me this time.
Mr. Chairman, exactly what we are talking about is limiting the
appellate jurisdiction of the Supreme Court, and let me just read my
colleagues a couple of things. According to constitutional experts,
under article III of the Constitution, Congress clearly has the ability
to limit the appellate jurisdiction of the Supreme Court to review
certain cases. Now, this is satisfied by constitutional experts, and
who are these constitutional experts? Well, justices of the Supreme
Court.
In the decision Wiscart v. Dauchy, the Court ruled, ``If Congress has
provided no rule to regulate our proceedings, we cannot exercise
appellate
[[Page H7473]]
jurisdiction; and if the rule is provided, we cannot depart from it.''
Let me read another decision, Martin v. Hunters' Lessee. The Court
ruled, ``Congress is able to regulate and restrain appellate
jurisdiction of the U.S. Supreme Court as public necessity requires.''
And one last decision, United States v. Bitty. The Court ruled,
``Congress holds the wisdom and authority to establish exceptions and
regulations concerning the court's appellate jurisdiction.''
What we are doing here, I say to my colleagues, is letting our State
courts take a look at this and not Federal activist judges.
Let us leave these decisions up to our State courts and not our
Federal court system. Let us not gut the Sensenbrenner amendment, and I
urge Members to vote no against the Watt amendment.
Mr. WATT. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from
New Hampshire (Mr. Bass).
Mr. BASS. Mr. Chairman, I thank the gentleman for yielding me this
time. I thank my colleague, the gentlewoman from Illinois, for joining
him in offering what I consider to be a bipartisan amendment.
I would only point out that Newdow on its face was based on a
procedural issue of standing, and the math might be quite different if
the decision was based upon substance rather than standing.
I rise in support of this amendment offered by my friend, the
gentleman from North Carolina (Mr. Watt). I sponsored H.R. 2028, along
with 225 or so other Members of Congress, because I believe that we
should have ``under God'' in the Pledge of Allegiance, and I voted on
three other occasions in the same fashion.
There are two other issues involved here. The first is whether or not
we want to make sure that we have ``under God'' in the Pledge of
Allegiance, and the second issue is, do we want to take on a
fundamental issue that has been debated in this country for over 200
years? And that is whether or not the Supreme Court has standing in
appellate jurisdiction for issues that may be unconstitutional.
I come down on the side of the precedent that we have had in this
country for the last 200 years. I support the Watt amendment because I
support passage of the bill and the signing of the bill by the
President of the United States. I want ``under God'' in the Pledge of
Allegiance. I want to make policy. As a colleague of mine on the
Republican side said yesterday, let us make policy, not make
statements.
Vote for the Watt amendment and pass the bill.
Mr. AKIN. Mr. Chairman, I yield 4 minutes to my distinguished
colleague, the gentleman from Indiana (Mr. Hostettler).
(Mr. HOSTETTLER asked and was given permission to revise and extend
his remarks.)
Mr. HOSTETTLER. Mr. Chairman, I thank the gentleman for yielding me
this time.
I rise in opposition to the gentleman's amendment from North Carolina
and in support of the base bill that is being considered.
As I listen to the debate on this bill, I cannot help but remember
the note written in the margin of the pastor's sermon where he reminds
himself during a particularly questionable part of theology where he
says, ``pound pulpit hard here; argument weak.'' And that is what we
see here from the other side, a very weak argument, because the
suggestion that is being made by several of the folks on the other side
is something we are trying to do is unconstitutional.
In the markup of this bill in the Committee on the Judiciary, I was
intrigued by the attempt by the other side to continue to ask Americans
to leave the Constitution alone. A colleague of mine on the other side
of the aisle repeatedly said, leave the Constitution alone. What he
meant by that was, stop reading the Constitution. Because if you read
the Constitution, you will find that in article III section 2 of the
Constitution, you find the basis for the legislation, the policy that
the gentleman from Missouri seeks to put into law.
In article III section 2, after referring to all of the types of
cases that shall come under the jurisdiction of the Federal judiciary,
it says, ``In all cases affecting ambassadors, other public ministers
and consuls, and those in which a State shall be a party, the Supreme
Court shall have original jurisdiction. In all of the other cases
before mentioned,'' all the other cases before mentioned, ``the Supreme
Court shall have appellate jurisdiction both as to law, in fact, with
such expects and under such regulations as the Congress shall make.''
The notion of an independent judiciary, and it has been quoted by
several folks here, my statement in the markup, the notion of an
independent judiciary fails the Constitution test. The simple fact is,
the framers of the Constitution did not want an unelected,
unaccountable, life-tenured body, namely, the judiciary, to be able to,
by writ large, enact policy across the country when the people
themselves would not have an obligation or an ability to reverse it.
But they gave that authority in the Constitution to the people's
representatives in the Congress.
The gentlewoman from California, the minority leader, requested that
Members of the House of Representatives read the Federalist Papers, and
especially Hamilton, to understand the importance of the Congress' role
vis-a-vis the judiciary. And as she said that I was inspired to do just
that thing, and I pulled out from Alexander Hamilton, Federalist No.78,
``Whoever attentively considers the different departments of power must
perceive that in a government in which they are separated from each
other, the judiciary is beyond comparison the weakest of the three
departments of power. It has no influence over either the sword or the
purse, no direction either of the strength or of the wealth of the
society and can take no active resolution whatever. It may truly be
said to have neither force nor will but merely judgment and must
ultimately depend upon the aid of the executive arm, even for the
efficacy of its judgments. That is, from the natural feebleness of the
judiciary, it is in continual jeopardy of being overpowered, awed or
influenced by its coordinate branches.''
Now, does that sound like an independent judiciary? I am not sure how
radical, I have heard the word ``radical'' today, radical Alexander
Hamilton was. But we do know that what Hamilton, Madison, Jefferson,
Washington, all of the founders, all of the framers of the Constitution
wanted was to have these very important decisions, fundamental
decisions about inculcating in our children the values of our families
as being Americans, that they gave this opportunity, this ability to
the people through their elected representatives.
Mr. WATT. Mr. Chairman, I yield 3 minutes to the gentleman from New
York (Mr. Weiner).
Mr. WEINER. Mr. Chairman, the author of the base bill, the gentleman
from Missouri, is a friend of mine, but apparently there is a second
Congressman Akin around here somewhere. Perhaps he was the one who
wrote the bill.
The original version of the bill says, with respect to the
jurisdiction of Federal courts inferior to the Supreme Court, and says
that the Supreme Court shall be able to hear these cases. That was what
the author of the bill said.
Now, the reason the author originally included that language,
although he is now opposed to having it reinserted, the reason he put
it in is because we do need someone to be the final arbiter of the
interpretation of free speech, freedom of religion cases, of all cases,
among the different States.
Imagine if we had a United States of America envisioned by the
gentleman from Indiana, where every State court was free to kind of
come up with their own interpretation of the Constitution of the United
States. What incentive would there be on the parts of folks in
Missouri, for example, or the folks in New York to have consistent
constitutional values in this country?
Now, I have heard again and again, let us refer to the Constitution
of the United States. I will freely confess one thing. Nowhere is
judicial review in the Constitution. It was the creation of a great man
that all of us went on record paying tribute to just last month. When
John Marshall came up with this concept, it has been sacrosanct
throughout jurisprudence since then.
But I ask my colleagues again and again, if not judicial review, then
[[Page H7474]]
what? Who is it that guarantees me as a member of the minority, someone
who is one person who believes he has a right to stand up for gun
rights, let us say, who guarantees my constitutional right to speak if
not the court?
{time} 1315
This is the body where the majority has its say. We do it every day.
The courts are where the minority, even the tiniest of minorities, go
to have their day in court. For those of you who are concerned about
the Pledge of Allegiance, we won that case. We won.
We lost the case, by the way on my side, when the Supreme Court
overturned precedent and appointed a President. But if we were
Republicans what would we do? Strip the Supreme Court from any right to
decide and let all 50 States decide who the President is?
I would conclude with a question. That is, do you believe that
reproductive rights legislation should be protected from judicial
review? If so, include it in your bill. Do you believe that tax should
be subject to judicial review? If so, then strip the courts in those
cases.
I would say to the gentleman from Indiana (Mr. Hostettler) since he
is on his feet, does he believe that a woman's right to choose, or your
position, restricting abortion, is important of principle, that we in
this Congress should strip judicial review? Yes or no.
The CHAIRMAN pro tempore (Mr. Latham). The gentleman's time has
expired.
Mr. AKIN. Mr. Chairman, I reserve the balance of my time.
Mr. WATT. Mr. Chairman, who has the right to close?
The CHAIRMAN pro tempore. The gentleman from North Carolina (Mr.
Watt).
Mr. WATT. Mr. Chairman, I reserve the balance of my time.
Mr. AKIN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, it is interesting. I have heard a number of people here
professing that they think the words ``under God'' in the Pledge are a
good thing to have. I have even heard that developed even further in
references to Jefferson and to the second inaugural address of Lincoln
which made references to God. And there seems to be a pretty good
consensus that we want to leave the Pledge as it is.
But the interesting thing is that this amendment would clearly not
leave the Pledge as it is. But I guess my question is, and we are
getting to a very fundamental kind of question about what our job is as
legislators here, and the question is, is it our responsibility to be a
co-equal branch of government. If we really believe in the words
``under God'' in the Pledge, do we assert ourselves or do we roll over
if the court decides they want to take something out that has been
there for 50 years.
I guess it goes down to the very first day when we come down here to
serve in this body and we put our hands up and we take an oath that
says that we will uphold the Constitution. And that means that we are
one of three co-equal branches of government. And yet today, what I
hear people saying is with their lips, I like the words ``under God,''
but I will not lift a finger, in fact, I will vote for an amendment to
make sure that under God gets stripped out the next time this thing
takes a trip to the Supreme Court.
I guess my question is, how bad does it have to get before we assert
our authority? I mean, how far does some activist judge have to go? You
just use your imagination, is not there some point when we say enough
already? The fact is historically, the fact that we have a right to
recognize that is long recognized. There was a number of references to
Marbury versus Madison, of course that was coming out of Marshall's
court. It is just interesting to note that Chief Justice Marshall
recognized our constitutional right to limit the appellate jurisdiction
of the Supreme Court in Druso versus the U.S.
So this is clear-cut. It is something that has always been, but we do
not want to somehow do our job. We do not want to exercise the
authority the Constitution gives us.
There are repeated cases, others that have not been mentioned, Barry
versus Merson. This is one that says the Supreme Court ruled that its
appellate power was limited because Congress had neither expressly nor
implicitly given the appellate jurisdiction in a class of cases
involving the writ of habeas corpus in child custody. Then we have the
other one, Wiskert versus Douchey where it says, if Congress has
provided no rule to regulate our proceedings, we cannot exercise
appellate jurisdiction, and if the rule is provided we cannot depart
from it.
I had a couple of things I wanted to say in closing. That is, there
is a certain point where the courts go too far. We know where the votes
are on the Supreme Court. In the last decision when Newdow was struck
down, it is clear, the fact remains that there are only three votes
that are going to uphold ``under God'' in the Pledge of Allegiance. If
you support ``under God'' in the Pledge of Allegiance, you will have to
vote this amendment down because what this amendment does is it opens a
hole that the Supreme Court can take this case out of State courts.
The CHAIRMAN pro tempore. The gentleman's time has expired.
Mr. WATT. Mr. Chairman, I yield 1 minute to the gentleman from
Wisconsin (Mr. Kind).
Mr. KIND. Mr. Chairman, I am a strong supporter of the Pledge of
Allegiance. I believe ``under God'' should be in the Pledge of
Allegiance. But what I cannot support today is legislation that
basically tells the third branch of our government, go home, no thanks,
we do not need you any more.
Judicial review has been a part of our democracy in this
constitutional government for over 200 years. And now with the fancy
language embodied in this legislation and other pieces of legislation
that have been pending, they are trying to disrupt that delicate
balance of power, the checks and balances that exist that allows the
Federal courts from time to time to take a look at the work that we are
doing in this Congress to see whether or not we are complying with the
highest law of the land, the United States Constitution. That is what
judicial review is all about.
What is so ironic about today's debate is that the courts have
already weighed in and said that the Pledge is okay, ``under God'' is
okay. So what are we doing here when we have anemic economic job growth
in the country, rising health care costs and tuition that is placing
college out of the reach of students. We can do better by the American
people.
Mr. WATT. Mr. Chairman, how much time remains?
The CHAIRMAN pro tempore. The gentleman from North Carolina (Mr.
Watt) has 2 minutes remaining. The gentleman from Missouri's time has
expired.
Mr. WATT. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, when I was in law school, one of the first things I
learned is that if you win a debate, you sit down and quit arguing
about it.
The other side has asked us several times, well, how far does the
Supreme Court have to go, how far does the court have to go before we
step in?
You have won the lawsuit. Newdow has been reversed.
Get a grip. You have won and you are here asking me, how far the
Supreme Court has got to go?
Imagine this, no Supreme Court, no jurisdiction in the Supreme Court,
and the State of South Carolina or New York strips out ``under God.''
Who would have decided the case? Who would have decided the case?
Nobody would have been there to reverse Newdow. Fifty different States,
50 different rules under your bill.
What happened to the word ``indivisible'' under God? Indivisible.
Does indivisible not count anymore? Fifty different rules, is that
indivisibility?
What have we got to do? You won the case.
This bill is not about the Pledge of Allegiance. This is an assault
on the judiciary and on the right of the American people to a uniform
interpretation of what the law is. It is not the Pledge that is in need
of protection. It is our constitutionally established system of
government. As long as you are in control in asserting it, every time
you get a result that you do not like you will be back here.
Mr. CONYERS. Mr. Chairman, I rise in support of this amendment, which
would preserve Supreme Court review of appeals related to the
constitutionality of the Pledge of Allegiance.
As presently drafted the legislation precludes any federal judicial
review, either by a
[[Page H7475]]
lower federal court or the Supreme Court, of any constitutional
challenge to the Pledge of Allegiance.
Aside from the obvious constitutional flaws inherent in the bill, the
idea of Congress unilaterally cutting off constitutional review by the
Supreme Court constitutes both a poor and dangerous legal precedent. As
presently drafted, the legislation not only degrades the independence
of the federal judiciary and the Supreme Court, but eliminates any
possibility of developing a single uniform policy with regard to the
recitation of the Pledge from the 50 state supreme courts.
Since H.R. 2028 strips the Supreme Court of the ability to review
state court decisions, including those involving federal questions, a
lack of uniformity in the law is an imminent threat. One's federal
rights would depend on the vagaries of location. Ultimately, coercing
children to recite the Pledge may be permitted in one state and not in
another. This is why it is so important that we pass the Watt
amendment.
The complete, unprecedented, and unnecessary stripping of Supreme
Court jurisdiction inherent in the current bill would be totally at
odds with the policy of checks and balances envisioned by the Nation's
founders. As a matter of fact, the legislation would bring us far
closer to the balkanized scenario envisioned by the Articles of
Confederation, than the unified nation brought forth by the
Constitution.
It is ironic that in the very same year that Congress celebrated
Justice John Marshall by authorizing a commemorative coin in his honor,
the Judiciary Committee would disparage him by passing legislation such
as the bill that is totally inconsistent with Marshall's seminal legal
opinion, Marbury v. Madison.
We should not use the issue of the constitutionality of the Pledge of
Allegiance to permanently damage our courts, our constitution, and
Congress. At a time when it is more important that ever that our nation
stand out as a beacon of freedom, I cannot support a bill which
undermines the very protector of those freedoms--our independent
federal judiciary.
I urge my colleagues to vote ``yes'' on this important amendment.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from North Carolina (Mr. Watt).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. WATT. Mr. Chairman, I demand a recorded vote, and pending that, I
make the point of order that a quorum is not present.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentleman from North Carolina (Mr.
Watt) will be postponed.
The point of no quorum is considered withdrawn.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 3 printed in House Report 108-693.
Amendment No. 3 Offered by Ms. Jackson-Lee of Texas
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 3 offered by Ms. Jackson-Lee of Texas:
In section 1632 of title 28, United States Code, as added
by section 2(a) of the bill, insert after ``recitation'' the
following: ``, except in a case in which the claim involved
alleges coerced or mandatory recitation of the Pledge of
Allegiance, including coercion in violation of the protection
of the free exercise of religion, such as that held to be in
violation of the First Amendment in West Virginia State Board
of Education v. Barnett, 319 U.S. 624, 638 (1943) and Circle
School v. Pappert (No. 03-3285; 3rd Circuit, August 19,
2004)''.
The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the
gentlewoman from Texas (Ms. Jackson-Lee) and a Member opposed each will
control 5 minutes.
Mr. SENSENBRENNER. Mr. Chairman, I claim the time in opposition.
The CHAIRMAN pro tempore. The Chair recognizes the gentlewoman from
Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, my amendment is very simple, it leaves the door open to
acknowledge a very sacred and well-believed amendment of the
Constitution. My amendment seeks to protect that amendment and that is
the first amendment, that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.
Now, many of us have risen to this floor and wanted to make sure that
all who heard us knew that we stood with the Pledge of Allegiance as it
is now written. And we have recited it all of our lives and accepted
the language ``under God.''
That acceptance by me as an individual or my colleagues does not, in
any way, give comfort to those who because of their religious faith
have chosen to express.
Let me tell of a girl called Hazel who sat along side of me in my
elementary school classroom. As we rose every morning to pledge
allegiance to the United States of America, little Hazel sat in her
seat. She was not a terrorist. She was not a radical from the left. She
was not one trying to overthrow the United States of America. She was
practicing her faith as her mommy and her daddy asked her to do.
It was a lonely place. Most of us looked at Hazel long and hard every
day. But we were grateful that there was a teacher and a Constitution
that respected Hazel's right to freedom of religion.
This law as it is presently written now says to the American people,
you cannot practice your faith and you can not seek the cases by going
into the courthouse, the appellate courts and the Supreme Court of the
United States of America.
It is well known that the courts are given to us on the basis of
judicial review. It is also well-known that many times this body has
risen because they have decided that there is some kind of frivolous
idea or something that we disagree with, and there have been thoughts
about limiting the courts. Many times legislators have sometimes been
tempted to yank controversial matters from the court's jurisdiction, as
The Washington Post has indicated this morning, but cooler heads have
prevailed.
We would hope that cooler heads will prevail now. Whether the Pledge
violates the first amendment separation from church and State is a
legal question. Congress has no business obstructing the courts from
answering it. Is it not a shame that under Marbury versus Madison, we
now want to egregiously rip away the rights of petitioners in the
United States to go into the court.
Is it not an outrage that we would stand here as those listening to
the Interim Prime Minister of Iraq this morning who cried out for
justice and democracy and free courts and today, moments after he
spoke, we are now stripping away the courts of the United States.
Let me just say one other thing, Mr. Chairman. Let me correct one who
decides to offer my history to this body. For I live in my skin and I
cannot change it. And I came to this Nation as a slave. And it may have
been those who fought in the Civil War that opened the doors, but let
me tell you that Jim Crow rose his ugly legal head, and for 50 years or
more into the 20th century, Jim Crow's ugly laws kept me as a second
class citizen. I could not vote. I could not go into accommodations. I
could not go to schools that closed their doors.
Racism was here in this country and it was not until Brown versus
Topeka Board of Education that the Supreme Court allowed me the
opportunity to be free in this Nation.
I dare anyone to challenge that history. Slavery may have ended in
its name, but it did not end in its practice. And it was the courts of
the United States, the Federal courts that gave me this freedom.
Mr. Chairman, I rise to offer an amendment to the bill before us
today, H.R. 2028, the Pledge Protection Act of 2003. The operative
language of H.R. 2028 is contained in a single provision in section
2(a):
[n]o court created by an Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no appellate
jurisdiction, to hear or decide any question pertaining to
the interpretation of, or the validity under the Constitution
of, the Pledge of Allegiance, as defined in section 4 of
title 4, or its recitation.
The bill precludes any Federal judicial review of any constitutional
challenge to recitation of the Pledge of Allegiance--whether it be in
the lower Federal courts or in the highest court in the land, the U.S.
Supreme Court. Effectively, if passed, this extremely vague legislation
will relegate all claimants to State courts to review an challenges to
the pledge. This possibility will lead to different constitutional
constructions in each of the 50 States.
[[Page H7476]]
The Jackson-Lee amendment provides for an exception to the bill's
preclusion for that involves allegations of coerced or mandatory
recitation of the Pledge of Allegiance, including coercion in violation
of the first amendment.
Closing the doors of the Federal courthouse doors to claimants will
actually amount to a coercion of individuals to recite the pledge and
its ``under God'' reference in violation of West Virginia State Board
of Education v. Barnette.
In Barnette, the Supreme Court struck down a West Virginia law that
mandated schoolchildren to recite the Pledge of Allegiance. Under the
West Virginia law, religious minorities faced expulsion from school and
could be subject to prosecution and fined, if convicted of violating
the statute's provisions. In striking down that statute, Justice
Jackson wrote for the Court:
To believe in patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering estimate of the
appeal of our institutions to free minds . . . If there is
any fixed star in our constitutional constellation, it is
that no official, high, or petty can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their
faith therein.
This legislation would strip the parents of those children of the
right to go to court and defend their children's religious liberty. If
this legislation is passed schools could expel children for acting
according to the dictates of their faith and Congress will have slammed
the courthouse door shut in their faces. When I was a child, I always
wondered why when the rest of the class recited the Pledge of
Allegiance, she always sat quietly. Today, I understand that it was
because she was of the 7th Day Adventist faith and therefore reciting
the ``under God'' provision would force her to frustrate her religious
faith. If H.R. 2028 were law back then, the school administrators could
have forced her to say the pledge and she would have no recourse in the
Federal courts.
The Jackson-Lee amendment protects religious minorities, Mr. Speaker.
Recently, a panel of the U.S. Court of Appeals for the Third Circuit
held that a Pennsylvania law requiring recitation of the pledge, even
when it provided a religious exception, violated the Constitution
because it violated the free speech of the students.
In Circle School v. Pappert, the court found that:
It may be useful to note our belief that most citizens of
the United States willingly recite the Pledge of Allegiance
and proudly sing the national anthem. But the rights embodied
in the Constitution, particularly the first Amendment,
protect the minority--those persons who march to their own
drummers. It is they who need the protection afforded by the
Constitution and it is the responsibility of federal judges
to ensure that protection.
Again, under H.R. 2028, such a coercive speech case could never reach
the Federal courts.
Article III of the U.S. Constitution vests ``the Judicial Power of
the United States . . . in one supreme court.'' The laundry list of
areas which the Federal courts have the power to hear and decide under
section 2 of article III, establishes the doctrine of the ``separation
of powers.'' For over 50 years, the Federal courts have played a
central role in the interpretation and enforcement of civil rights
laws. Bills such as H.R. 2028 and H.R. 3313, the Marriage Protection
Act--bills to prevent the courts from exercising their article III
functions only mask discrimination. We cannot allow bad legislation
such as this to pass in the House. In the 1970s, some Members of
Congress unsuccessfully sought to strip the courts of jurisdiction to
hear desegregation efforts such as busing, which would have perpetuated
racial inequality.
H.R. 2028, as drafted, insulates the Pledge of Allegiance as set
forth in section 4 of title 4 of the United States Code from
constitutional challenge in the Federal court.
However, the statute and the pledge are subject to change by future
legislative bodies. This means that if some future Congress decides to
insert some religiously offensive or discriminatory language in the
pledge, the matter would be immune to constitutional challenge in the
Federal courts. I also support the Watt amendment to restore Supreme
Court Jurisdiction to this matter.
Mr. Speaker, I ask that my colleagues vote to protect the religious
minorities--vote to protect judicial review--vote to protect separation
of powers--vote to protect access to the Federal courts. I yield back.
Mr. Chairman, I reserve the balance of my time.
{time} 1330
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, this amendment was defeated in committee, and it should
be defeated here today because it guts the bill.
First, nothing in H.R. 2028 would allow State courts to deviate from
Supreme Court precedent prohibiting the coerced recitation of the
Pledge of Allegiance. Even when Federal courts are denied jurisdiction
to hear certain classes of cases, and those classes of cases are
thereby reserved to the State courts, the previously existing Supreme
Court precedents still govern State court determinations. This is
required by the Supremacy Clause of the Constitution; and in West
Virginia Board of Education v. Barnette, the Supreme Court held it is
unconstitutional to require individuals to salute the flag.
In that case, the Supreme Court held, ``If there is any fixed star in
our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by
word or act their faith therein.'' Under H.R. 2028 as written, that
decision will preclude State courts from allowing coerced recitations
of the Pledge.
State courts are not second-class courts, and they are equally
capable of deciding Federal constitutional questions. The Supreme Court
has clearly rejected claims that State courts are less competent to
decide Federal constitutional issues than Federal courts. Even Justice
William Brennan wrote in Northern Pipeline Construction Company v.
Marathon Pipe Line Company that ``virtually all matters that might be
heard in article III courts could also be left by Congress to State
courts.'' Justice Brennan was joined in that decision by Justices
Marshall, Blackmun, and Stevens.
Now what, then, could be the harm of adopting this amendment? Plenty.
If we carve out an exception for cases in which coercion, for example,
is involved, we will open the flood gates to expansive interpretations
by the Federal courts that will gut the purpose of the bill. Carving
out a coercion exemption will invite the Federal courts, including the
very liberal Ninth Circuit Court of Appeals, to hold that excessive
coercion exists to pressure a student to recite the Pledge simply when
a majority of school children choose to recite it, but one or a few
students do not want to. The inevitable claim will be that in the
school environment, there is no such thing as free will whenever the
majority of students are reciting the Pledge, because those that do not
want to recite it will feel pressured to recite it simply because other
students are reciting it. Yet again, the courts will strike a blow to
the concept of free will and the concept of personal responsibility if
we let them. The amendment should be defeated.
Mr. Chairman, I reserve the balance of my time.
Ms. JACKSON-LEE of Texas. Mr. Chairman, may I ask how much time is
remaining.
The CHAIRMAN pro tempore (Mr. Latham). The gentlewoman from Texas
(Ms. Jackson-Lee) has 30 seconds remaining.
Ms. JACKSON-LEE of Texas. Mr. Chairman, let me first say that this
amendment was made in order by the Committee on Rules, and I think that
is extremely important for this body to know.
Mr. Chairman, I yield 25 seconds to the distinguished gentleman from
New York (Mr. Weiner).
Mr. WEINER. Mr. Chairman, I thank the gentlewoman for the time.
I guess what it comes down to is a person's view of where an
individual who is in the minority on an issue, even an issue that is
protected in the Constitution, where does that person go to have their
rights protected? What if 435 of us believe one way about the
Constitution, where does that one lone individual go?
If we do not allow them access to the court, and one highest court,
to mediate disputes between the various States, we simply do not have
the system that we have today, and that should be the lesson of this
effort. Every school child in America who had forgotten what the courts
were supposed to be should be reminded of that by this amendment.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the
time.
Mr. Chairman, I will just repeat myself. The issue is settled law.
There cannot be a coerced or forced recitation of the Pledge. This bill
does not
[[Page H7477]]
change that. The amendment allows the courts to determine what coercion
shall be. That has far-reaching consequences. I think that the best
vote to prevent unintended consequences from occurring is ``no'' on
this amendment. I urge that it be defeated.
Mr. CONYERS. Mr. Chairman, the Jackson-Lee amendment is needed to
make sure that the bill does not prevent religious minorities who are
coerced into reciting the Pledge, in violation of their religious
beliefs from having access to the Federal courts.
As presently drafted, the bill would prevent not only persons who
believe that voluntary recitation of the Pledge is unconstitutional
from seeking relief in Federal courts, but also those persons who
assert that they are being forced into recitation of the Pledge in
violation of their religious beliefs.
Cases of this nature are not infrequent. For example, in the landmark
Supreme Court decision of West Virginia State Board of Education v.
Barnett; the Supreme Court struck down a West Virginia law that
mandated schoolchildren to recite the Pledge of Allegiance. Under the
West Virginia law, religious minorities faced expulsion from school and
could be subject to prosecution and fined, if convicted of violating
the statute's provisions. In striking down that statute, Justice
Jackson wrote for the Court:
If there is any fixed star in our constitutional
constellation, it is that no official, high, or petty can
prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to
confess by word or act their faith therein.
To argue that the State courts would still be bound by this precedent
as the Chairman asserts, misses the point. Unless the State courts know
the Supreme court can and will enforce its precedent, the State courts
are free to ignore it. And there will be no further appeal.
Moreover, just this year, in striking down a Pennsylvania law
mandating recitation of the Pledge as violating free speech the Third
circuit in Circle School v. Pappert court found:
The rights embodied in the Constitution, particularly the
First Amendment, protect the minority--those persons who
march to their own drummers. It is they who need the
protection afforded by the Constitution and it is the
responsibility of federal judges to ensure that protection.
As presently drafted, the bill would strip the parents of those
children of the right to go to court and defend their children's
religious liberty. If this legislation is passed, schools could expel
children for acting according to the dictates of their faith and
Congress will have slammed the courthouse door shut in their faces. We
need this amendment to make sure religious minorities continue to have
access to the Federal courts in cases of religious coercion.
For these reasons I urge my colleagues to vote ``yes'' on this
amendment.
Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentlewoman from Texas (Ms. Jackson-Lee).
The amendment was rejected.
Amendment No. 2 Offered by Mr. Watt
The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from North
Carolina (Mr. Watt) on which further proceedings were postponed and on
which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 202,
noes 217, not voting 14, as follows:
[Roll No. 466]
AYES--202
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Bass
Becerra
Bell
Berkley
Berman
Biggert
Bishop (NY)
Blumenauer
Boehlert
Bono
Boswell
Boucher
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carson (IN)
Case
Castle
Clay
Clyburn
Conyers
Cooper
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Dreier
Emanuel
Engel
English
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Foley
Ford
Fossella
Frank (MA)
Frost
Gephardt
Gilchrest
Gonzalez
Green (TX)
Greenwood
Grijalva
Gutierrez
Harman
Hastings (FL)
Hill
Hinchey
Hinojosa
Hoeffel
Holt
Honda
Hooley (OR)
Houghton
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (CT)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kirk
Kolbe
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Lynch
Majette
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Ose
Otter
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Pomeroy
Price (NC)
Pryce (OH)
Rangel
Reyes
Rodriguez
Rohrabacher
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Scott (GA)
Scott (VA)
Serrano
Shays
Sherman
Simmons
Simpson
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Thompson (CA)
Tierney
Towns
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOES--217
Aderholt
Akin
Alexander
Bachus
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Beauprez
Berry
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonilla
Boozman
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cantor
Capito
Carson (OK)
Carter
Chabot
Chandler
Chocola
Coble
Cole
Collins
Costello
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (TN)
Davis, Jo Ann
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Duncan
Dunn
Edwards
Ehlers
Emerson
Everett
Feeney
Ferguson
Flake
Forbes
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Granger
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kline
Knollenberg
LaHood
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (OK)
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McIntyre
McKeon
Mica
Miller (MI)
Miller, Gary
Mollohan
Moran (KS)
Murphy
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Porter
Portman
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Ros-Lehtinen
Ross
Royce
Ryan (WI)
Ryun (KS)
Sandlin
Saxton
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Turner (TX)
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--14
Bishop (GA)
Bonner
Cannon
Goss
Graves
Kleczka
Lucas (KY)
Miller (FL)
Nethercutt
Quinn
Smith (WA)
Tauzin
Thompson (MS)
Vitter
Announcement by the Chairman Pro Tempore
The CHAIRMAN pro tempore (Mr. Latham) (during the vote). There are 2
minutes remaining in this vote.
{time} 1401
Mr. HOLDEN and Mr. GERLACH changed their vote from ``aye'' to ``no.''
Ms. DeGETTE and Mr. ROHRABACHER changed their vote from ``no'' to
``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore. The question is on the committee amendment
in the nature of a substitute, as amended.
[[Page H7478]]
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN pro tempore. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Thornberry) having assumed the chair, Mr. Latham, Chairman pro tempore
of the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
2028) to amend title 28, United States Code, with respect to the
jurisdiction of Federal courts inferior to the Supreme Court over
certain cases and controversies regarding the Pledge of Allegiance,
pursuant to House Resolution 781, he reported the bill back to the
House with an amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on passage of H.R. 2028 will be followed by a 5-minute vote
on the motion to suspend the rules and pass H.R. 1057.
The vote was taken by electronic device, and there were--yeas 247,
nays 173, not voting 13, as follows:
[Roll No. 467]
YEAS--247
Aderholt
Akin
Alexander
Bachus
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Berry
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bono
Boozman
Boswell
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cantor
Capito
Carson (OK)
Carter
Castle
Chabot
Chandler
Chocola
Clyburn
Coble
Cole
Collins
Costello
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Etheridge
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Ford
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Granger
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
LaHood
Lampson
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (OK)
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McIntyre
McKeon
Mica
Miller (MI)
Miller, Gary
Mollohan
Moran (KS)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Otter
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Porter
Portman
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Ros-Lehtinen
Ross
Royce
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sandlin
Saxton
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Turner (TX)
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wynn
Young (AK)
Young (FL)
NAYS--173
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Becerra
Bell
Berkley
Berman
Biggert
Bishop (NY)
Blumenauer
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carson (IN)
Case
Clay
Conyers
Cooper
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Emanuel
Engel
Eshoo
Evans
Farr
Fattah
Filner
Frank (MA)
Frost
Gephardt
Gilchrest
Gonzalez
Green (TX)
Grijalva
Gutierrez
Harman
Hastings (FL)
Hill
Hinchey
Hinojosa
Hoeffel
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kolbe
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Lynch
Majette
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Ose
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Pomeroy
Price (NC)
Rangel
Reyes
Rodriguez
Rohrabacher
Rothman
Roybal-Allard
Ruppersberger
Rush
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Scott (GA)
Scott (VA)
Serrano
Shays
Sherman
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
NOT VOTING--13
Bishop (GA)
Bonner
Cannon
Goss
Graves
Kleczka
Lucas (KY)
Miller (FL)
Quinn
Smith (WA)
Tauzin
Thompson (MS)
Vitter
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members
are advised there are 2 minutes remaining in this vote.
{time} 1420
Messrs. REYES, BUTTERFIELD, CUMMINGS, ROHRABACHER, and GUTIERREZ
changed their vote from ``yea'' to ``nay.''
So the bill was passed.
The result of the vote was announced as above recorded.
The title of the bill was amended so as to read: ``A bill to amend
title 28, United States Code, with respect to the jurisdiction of
Federal courts over certain cases and controversies involving the
Pledge of Allegiance.''.
A motion to reconsider was laid on the table.
____________________