[Congressional Record Volume 152, Number 95 (Wednesday, July 19, 2006)]
[House]
[Pages H5397-H5419]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PLEDGE PROTECTION ACT OF 2005
The SPEAKER pro tempore. Pursuant to House Resolution 920 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. 2389.
{time} 1225
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. 2389) 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, with Mr. LaTourette in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Missouri (Mr. Blunt) and the gentleman from New
York (Mr. Nadler) each will control 30 minutes.
The Chair recognizes the gentleman from Missouri.
Mr. BLUNT. Mr. Chairman, I yield myself such time as I may consume.
As we approach this bill today, Mr. Chairman, I want to make the
point that clearly the Pledge of Allegiance is well understood by this
body and the Members of this body. It is repeated here every day. The
words of the Pledge are words that we have learned since our childhood:
``I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.''
When Congress passed the bill adding the words ``under God,''
Congress stated its belief that those words in no way run contrary to
the first amendment, but recognize ``only the guidance of God in our
national affairs.''
Two words, ``under God,'' in the Pledge helped define our national
heritage as the beneficiaries of a Constitution sent to the States for
ratification ``in the year of our Lord,'' as the ratification statement
said, 1787, by a founding generation that saw itself as guided by a
providential God. These two words were added to the Pledge in the
1950s, and at that time President Eisenhower made the point that in
those days of Cold War, those days after World War II, that it was
important that we realize that there was something bigger than
ourselves and that our country was guided by that.
For decades children have been reciting the Pledge of Allegiance in
classrooms across America. The Pledge of Allegiance is an important
civic ritual. It binds us together as Americans. But last year that
daily ritual was halted in the Ninth Circuit Court of Appeals. The
court actually told teachers and children in Alaska and Arizona, in
California and Hawaii, in Idaho and Montana, in Nevada, Oregon, and
Washington that they could not recite the Pledge of Allegiance as they
had for decades in their classrooms.
[[Page H5398]]
The Court's reasoning? The words ``under God'' constituted a
violation of the establishment clause of the first amendment. According
to the court, it was unconstitutional to lead students, even
voluntarily, in the Pledge of Allegiance because it included the phrase
``under God.''
Any of the phrases in the Pledge do not need to be subject to this
kind of court interpretation. The Pledge of Allegiance, an act of
Congress, modified by the Congress in 1950s, still continues to be the
Pledge of Allegiance said by school students and Members of this body
and others all over the country today. Judges should not be able to
rewrite the Pledge. Passing this bill will protect the Pledge from
Federal judges and will strike an important blow for self-government.
This legislation, Mr. Chairman, is in the spirit of the first
judiciary act, the Judiciary Act of 1789, drafted by individuals who
had drafted the Constitution, voted on by Members who had been at the
drafting of the Constitution, all willing to define the role of the
Federal courts and to narrow the role of the Federal courts, as this
bill proposes to do.
I look forward to the debate.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I really hate to be an ``I told you so,'' but when, in
2003, we considered legislation to strip the Federal courts of
jurisdiction, in that case to hear cases challenging the Defense of
Marriage Act, I warned that there would be no end to it.
In fact, when we first marked up this bill, I asked my friend, the
chairman of the Constitution Subcommittee, whether there would be other
court-stripping bills. He assured me that this and the marriage court-
stripping bill were the only ones ``so far.'' As we know, he was being,
as always, truthful.
Our former colleague Bob Barr, the author of the Defense of Marriage
Act, whose legislation Congress was purporting to protect in that case,
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 10th amendment, and many other constitutional
protections. The fundamental protections afforded by the Constitution
would be rendered meaningless if others followed the path set by this
bill.''
{time} 1230
Bob Barr was right. Today it is the turn of the religious minorities.
Once upon a time in this country a student could be expelled from
school for refusing to cite the Pledge because it was against his or
her religion. In 1943, the Supreme Court in West Virginia Board of
Education v. Barnette held that children, in that case Jehovah's
Witnesses, had a first amendment right not to be compelled to swear an
oath or recite a pledge in violation of their religious beliefs.
This legislation would, of course, strip those families of the right
to go to court and to defend their religious liberty. Schools would be
able to expel children for acting according to the dictates of their
religious faith, and Congress will have slammed the courthouse door in
their faces.
As dangerous as this legislation is, even for an election season, it
is part of a more general attack on our system of government which
includes an independent judiciary whose job it is to interpret the
Constitution even if those decisions are unpopular. It is their job to
protect individual rights, even if the exercise of those rights in
given instances are unpopular.
Sometimes we do not like what the court says. I don't like that the
Supreme Court struck down part of the Violence Against Women Act, or
that they struck down part of the Gun Free Safe Schools Zones Act, or
that they are misapplying, in my opinion, the commerce clause and the
11th amendment in order to gut some of our civil rights laws. I really
didn't like it that Republican-appointed justices traversed, perverted
justice in order to put someone in the White House who got more than
half a million votes less than the other candidate who really won the
election.
I don't hear my colleagues on the other side screaming about judicial
activism by unelected judges in these cases.
As wrong as I believe the current Supreme Court to be on many issues,
I understand that we cannot maintain our system of government and
especially our Bill of Rights if the independent judiciary cannot
enforce those rights, even if the majority doesn't like it.
Again, I will refer to the Soviet Stalinist Constitution of 1936,
which had many rights in it, freedom of speech, freedom of association,
freedom of the press, freedom of religious and antireligious
propaganda, as they quaintly put it. But, of course, it wasn't worth
the paper it was written on because they had no judicial enforcement of
it, and if you tried to bring a lawsuit to enforce your right, they
shot you before they brought you to court. Any constitutional right
without the ability to enforce it in court is no right.
This House appears infected with hostility toward the rule of law.
This bill is a perfect example. Even more egregious is the way it has
reached the floor. The Judiciary Committee twice voted against
reporting this bill to the House. The ``no'' vote was bipartisan. Now
the Republican majority is abusing its power to bring it to the floor
anyway.
Neither the Parliamentarian nor the Congressional Research Service
has been able to find any other case like this. They report, ``We found
one instance of a bill, a joint resolution, between the 100th Congress
and the current Congress, in which a committee specifically voted not
to report a measure that was later considered by the House.'' That
measure was a 1996 agriculture bill that was rejected in committee and
later folded into a reconciliation bill.
Now the Republican majority exceeds even that arrogance. We are asked
to vote on a bill that guts our system of government and guts the
protection of our individual rights when the committee tasked with the
consideration of this bill rejected it. It must be an election year.
To return to Justice Jackson and the flag salute case, he observed
that, and I quote because it is very apposite here, ``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 vote. They depend on the
outcome of no elections.''
But now some would strip the courts of any ability to protect these
individual rights against a temporarily intolerant majority.
As to the complaints about unelected judges, I would refer my
colleagues back to their high school civics textbooks. We have an
independent judiciary precisely to rule against the wishes of the
majority, especially when it comes to the rights of unpopular
minorities. That is our system of government and it is a good one and
we should protect it.
As Alexander Hamilton said in Federalist Number 78, ``The complete
independence of the court 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;
such, for instance, as that it shall pass no bills of attainder, no ex
post facto laws, and the like. 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.''
Where would this bill leave religious liberty? The Republicans tell
us State courts can protect those rights. What would this mean? It
would mean that your rights might be protected in one State, but not in
another. I thought the 14th amendment to our Constitution settled that
issue.
One of the reasons we have a Supreme Court is so that the Federal
[[Page H5399]]
Constitution means the same thing in New York as in California or
Mississippi or Minnesota. This country must be one country, not 50
separate countries.
We are really playing with fire here. Do you really hate unpopular
religious minorities so much that you are willing to destroy the first
amendment? I urge my conservative colleagues especially to shape up and
act like conservatives for once. We live in a free society that
protects unpopular minorities, even if the majority hates them or hates
the expression of their opinion.
If someone doesn't want to recite the Pledge of Allegiance or doesn't
feel conscientiously able to recite the words ``under God,'' that is
their privilege. Our Constitution protects it, our civil liberties
protect it, this country should protect it, and I urge the defeat of
this bill.
Mr. Chairman, I reserve the balance of my time.
Mr. BLUNT. Mr. Chairman, I yield 3 minutes to the principal sponsor
of the bill, my colleague from Missouri (Mr. Akin).
Mr. AKIN. Mr. Chairman, I rise to introduce the Pledge Protection Act
and just to give a quick and brief history as to why it is important.
We have heard some discussion that this is really not necessary, that
we can rest assured that the words of the Pledge of Allegiance will
just stand firm forever. Unfortunately, that is not what our recent
history shows.
First of all, three judges on the Ninth Circuit Court in California
ruled that the words ``under God'' are unconstitutional. They were
supported by the entire Ninth Circuit.
The case went to the Supreme Court, and I was there at the hearing at
the Supreme Court. The President's attorney there argued that the
Supreme Court should kick the case out because the person, Mr. Newdow,
bringing the case did not have standing. The response of one of the
Judges was, as a Supreme Court we never kick a case out based on
standing, because we assume the lower courts have already taken care of
that.
Why did the Supreme Court do this? They could easily have ruled that
the Pledge is just fine, that it is completely constitutional. Is that
their ruling? No. They kicked the case out based on standing.
So we believe that there are not five Judges on the Court, which is
what it would take to uphold the Pledge of Allegiance. Hence we use a
constitutional authority granted to us from the Founders that wrote the
Constitution to protect the Pledge of Allegiance. That constitutional
authority is known as Article III, section 2.
What we do is we create a very simple fence around the Federal court
system. We say just regarding the Pledge of Allegiance, that no Federal
Court has authority to hear a claim that the Pledge is
unconstitutional. So we put a fence around the Federal court system.
Well, what does that mean, if somebody really wants to make a claim
that the Pledge is unconstitutional? It means that they go to their
local State courts, with the ultimate decisions being made in 50
separate supreme courts and a court here in the District of Columbia.
So that is the reason for why we need to pass the Pledge Protection
Act.
It seems a bit ironic that some people will complain about the fact
that we have no respect for the Constitution and that we are eroding
the separation of powers, and yet it is the very Constitution that
gives Congress the authority and the responsibility to stand up to the
Court when they are misusing the Constitution. If you claim you respect
the Constitution, part of that is the first amendment, and the first
amendment to the Constitution is about free speech. It is not about
censorship.
To say that a child cannot say the Pledge of Allegiance is a form of
censorship. The Court has already ruled that no child has to say the
Pledge. But now the Court wants to go the other step and say no, we are
going to use the first amendment about free speech to say that you
cannot say the Pledge. We must step in.
Mr. NADLER. Mr. Chairman, I yield 7 minutes to the distinguished
gentleman from Virginia (Mr. Scott).
Mr. SCOTT of Virginia. Mr. Chairman, anytime we consider legislation
like this, one can be assured that veterans benefits have either just
been cut or are about to be cut. Instead of addressing the real issues
of patriotism, such as the adequacy of health care funding for veterans
or the fact that the number of veterans waiting for benefit
determinations has increased by approximately 80,000 since last year
alone, we are going to use this bill to divert attention from those
more pressing issues.
Mr. Chairman, this bill is aimed at the Ninth Circuit Court of
Appeals case, Newdow v. U.S. Congress, which held that the words
``under God'' in the Pledge are unconstitutional in the context of
public school recitations. I happen to disagree with that decision and
I agree with the dissent in that case which stated, ``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 miniscule as to be
de minimis. The danger that the phrase represents to our first
amendment's freedoms is picayune at best.''
I agree with that language, Mr. Chairman. So as we discuss the
constitutionality of ``under God'' in the Pledge, we must recognize
that every bill that is introduced, every hearing we have, every vote
that we take on the issue enhances the importance of this issue and
these actions serve to chip away at the de minimis argument and
actually increase the chance that the court will ultimately decide that
the Pledge is unconstitutional.
The simple fact is that we need to respect the Constitution and the
right of courts to decide whether the Pledge is constitutional or not.
But the majority will not do that. H.R. 2389 is a court-stripping bill
as the bill does not address the substance of the arguments pro and
con, it just prohibits Federal courts, including the Supreme Court,
from deciding the case.
This bill is a blatant attempt to prevent the judicial branch from
doing its job. The foundation of our democracy rests on the principle
of checks and balances of power among three coequal branches, and this
bill is a flagrant disregard of that principle. In addition, this bill
will result in unprecedented confusion as each State court will decide
how to interpret the Federal Constitution.
It also sets a poor precedent that at any time we are considering a
bill that might be found unconstitutional by the courts, we might just
prohibit the courts from saying so by taking away their right to hear
the case.
Mr. Chairman, this bill would strip Federal courts from their ability
to hear cases that are clearly within Federal jurisdiction because
those cases address Federal constitutional rights and individual
liberties guaranteed under the Bill of Rights, and many rights may be
involved because the bill is not limited to cases addressing the words
``under God.'' The recitation of the Pledge may in some situations
implicate the right of free speech, the right of freedom of
association, the right to free exercise of religion, the establishment
clause protections, all guaranteed under the first amendment of the
Constitution.
The passage of this bill will mean that there will be no Federal law
on a Federal constitutional question, not even a supreme law of the
land to guide other Federal or State courts on the matter or to
definitively state the law when there are inconsistent decisions in
different States. So a Federal constitutional right could be applied
inconsistently to American citizens simply because they live in
different parts of the country.
The need for a Federal review of many different rights that may be
involved is not speculative. For example, Mr. Chairman, even before the
words ``under God'' were in the Pledge, the Supreme Court in 1943 held
in West Virginia Board of Education v. Barnette that a compulsory flag
salute and accompanying Pledge were unconstitutional when required of a
public school student in violation of the student's religious beliefs.
In that case, the lawsuit was originally filed in Federal Court and
was never considered in State court. If this legislation passes, State
courts won't even have to follow prior Supreme Court precedents. The
reason that State courts are prohibited from ignoring Supreme Court
precedent is if they
[[Page H5400]]
do so, the Supreme Court is there, ready and willing and able to
reverse the State court's decision. But no more under this bill. We may
well end up with 50 interpretations and applications of a single
Federal constitutional right.
For over 200 years, since Marbury v. Madison in 1803, the Supreme
Court has been the final arbiter of what is constitutional and what is
not. So while Congress has the power to regulate jurisdiction of
Federal courts, the court-stripping language of H.R. 2389 grossly
exceeds that power in violation of the principles of separation of
powers.
{time} 1245
If this court-stripping idea had been around in 1954, Congress could
have prohibited the Supreme Court from hearing issues involving student
assignment to public schools. We never would have had the decision of
Brown v. Board of Education, or it could have passed in the 1960s, and
the decision in the Federal court in Loving v. Virginia, to overrule
the will of the people of Virginia and require Virginia to recognize
racially mixed marriages, might not have ever happened.
The judges in those decisions were described just as judges are
described today: liberal, rogue, unelected, life-time appointed
activist judges. But they made the right decisions in those cases. The
truth is that we rely on Federal courts to determine and enforce our
constitutional rights.
America is more politically and religiously diverse than it was in
1943, but instead of embracing that diversity, this bill would
jeopardize our fundamental rights. We should instead adhere to the
wisdom of the Supreme Court in the Barnette case which said, and I
quote, ``The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy and 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.''
Mr. Chairman, there are numerous legal, civil rights and religious
organizations opposed to this legislation, including the American Bar
Association, the ACLU, the American Jewish Committee, the Anti-
Defamation League, the Baptist Joint Committee, the Constitutional
Project, the Leadership Conference on Civil Rights, Legal Momentum, the
National Women's Law Center and People for the American Way.
Mr. Chairman, I will ask unanimous consent to insert those letters
into the Record at the appropriate time, and there are other
organizations, of course, that are opposed to the bill. I urge my
colleagues to vote ``no'' on this legislation.
June 14, 2006.
Protect Separation of Powers and Religious Minorities'
Longstanding Constitutional Rights; Oppose Final Passage
of H.R. 2389.
Dear Representative: We, the undersigned religious, civil
rights, and civil liberties organizations, urge you to oppose
H.R. 2389, 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 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. 2389 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. 2389 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.
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, a panel of the U.S. Court of Appeals for the
Third Circuit, holding unconstitutional two provisions of a
Pennsylvania law mandating recitation of the Pledge, said,
``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, most 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.'' Circle School v. Pappert, 381
F.3d 172, 183 (3d Cir. 2004).
H.R. 2389 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. 2389 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 Humanists Association.
American Jewish Committee.
Americans for Democratic Action.
Americans United for Separation of Church and State.
Anti-Defamation League.
Baptist Joint Committee.
Buddhist Peace Fellowship.
Central Conference of American Rabbis.
Disciples Justice Action Network (Disciples of Christ).
Equal Partners in Faith.
Federation of Jain Associations in North America (JAINA).
Friends Committee on National Legislation.
Human Rights Campaign.
Jewish Council For Public Affairs (JCPA).
Leadership Conference on Civil Rights.
Legal Momentum (formerly NOW Legal Defense and Education
Fund).
National Council of Jewish Women.
National Council of Negro Women, Inc.
National Family Planning and Reproductive Health
Association (NFPRHA).
National Gay and Lesbian Task Force.
People For the American Way.
Secular Coalition for America.
Sikh Coalition.
The Interfaith Alliance.
The Workmen's Circle/ Arbeter Ring.
Union for Reform Judaism.
Unitarian Universalist Association of Congregations.
Woodhull Freedom Federation.
____
June 9, 2006.
Oppose the ``Pledge Protection Act,'' H.R. 2389.
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. 2389, 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
[[Page H5401]]
judiciary in safeguarding constitutional rights, including
the right of reproductive choice.
H.R. 2389 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. 2389 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. 2389
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. In the past, Republican
leadership has discussed ``jurisdiction stripping'' measures
to achieve other social policy goals. While they have 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. 2389 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. 2389.
Sincerely,
Center for Reproductive Rights.
Choice USA.
Feminist Majority.
Legal Momentum.
NARAL Pro-Choice America.
National Abortion Federation.
National Council of Jewish Women.
National Family Planning and Reproductive Health
Association.
National Organization for Women.
National Partnership for Women & Families.
National Women's Law Center.
Planned Parenthood Federation of America.
Sexuality Information and Education Council of the U.S.
(SIECUS).
____
Leadership Conference
on Civil Rights,
Washington, DC, June 7, 2006.
Re Oppose the ``Pledge Protection Act of 2005'' (H.R. 2389):
It Threatens Constitutional Protections and Civil Rights.
Dear Judiciary Committee Member: On behalf of the
Leadership Conference on Civil Rights (LCCR), the nation's
oldest, largest, and most diverse civil rights coalition, we
urge you to vote against H.R. 2389, the ``Pledge Protection
Act of 2005.'' LCCR strongly opposes any proposal that would
eliminate access to the federal judiciary for any group of
Americans. H.R. 2389 would do just that: it would deny
constitutional rights to religious minorities by stripping
the courts of jurisdiction to hear some cases.
For decades, 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 ``courtstripping'' proposals would set a
dangerous precedent that would harm all Americans. Allowing
the courthouse doors to be closed to any minority group, as
H.R. 2389 would do to religious minorities, is not only
unnecessary in itself, but will also set a dangerous
precedent that will undermine the rights of other minority
groups that may need to turn to the courts for justice.
Further, H.R. 2389 threatens the separation of powers
established by the Constitution, and undermines the unique
function of the federal courts to interpret constitutional
law. It deprives 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 them out of federal courts, which are specifically
suited to hear such cases, and into state courts, which may
be hostile or unsympathetic to these federal claims and which
may lack the expertise and independent safeguards that
distinguish Article III courts.
In West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), the Supreme Court recognized the importance
of protecting the religious beliefs of all Americans, by
striking down a West Virginia law that required
schoolchildren to recite the Pledge of Allegiance. 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.'' H.R. 2389
would slam the federal courthouse doors to all religious
minorities trying to do nothing more than vindicate a
fundamental, existing constitutional right that they have had
for over 60 years.
LCCR urges you to vote against H.R. 2389 because of the
dangers it poses to constitutional protections and to the
enforcement of civil rights laws. If you have any questions,
please feel free to contact Rob Randhava, LCCR Counsel or
Nancy Zirkin, LCCR Deputy Director. Thank you for your
consideration.
Sincerely,
Wade Henderson,
Executive Director.
Nancy Zirkin,
Deputy Director.
____
Baptist Joint Committee
for Religious Liberty,
Washington, DC, June 6, 2006.
Dear Representative: The Baptist Joint Committee (BJC)
urges members of the Judiciary Committee to vote no on H.R.
2389, the so-called ``Pledge Protection Act,'' when
considered during markup tomorrow. The BJC is a 70-year-old
organization committed to the principle that religion must be
freely exercised, 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
the Judiciary Committee to reject H.R. 2389.
Sincerely,
J. Brent Walker,
Executive Director.
K. Hollyn Hollman,
General Counsel.
____
Unitarian Universalist
Association of Congregations,
Washington, DC, June 6, 2006.
Dear Representative: On behalf of more than 1,050
congregations that make up the Unitarian Universalist
Association, I urge you to oppose H.R. 2389, the ``Pledge
Protection Act''. 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. 2389 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. 2389 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.
[[Page H5402]]
I urge you to preserve the rights of religious minorities,
as well as the constitutional separation of powers, by
opposing the ``Pledge Protection Act.''
In Faith,
Robert C. Keithan,
Director.
____
Religious Action Center
of Reform Judaism,
Washington, DC, June 6, 2006.
Dear Representative: On behalf of the Union for Reform
Judaism, whose more than 900 congregations across North
America encompass 1.5 million Reform Jews, and the Central
Conference of American Rabbis (CCAR), whose membership
includes more than 1,800 Reform rabbis, I ask you to oppose
H.R. 2389, the Pledge Protection Act, when it is marked up by
the House Judiciary Committee tomorrow.
As you know, the bill would strip federal courts, including
the Supreme Court, of their authority to hear First Amendment
cases pertaining to the Pledge of Allegiance. By supporting
this legislation, you risk compromising the traditional--and
vital--system of checks and balances upon which our
government was founded. In addition, the bill threatens the
ability of members of religious minorities to seek the
protection of the federal courts in cases where they feel
coerced into reciting the Pledge.
What this legislation places at stake is nothing less than
the principle of the separation of powers that has allowed
our nation to flourish for more than two centuries. Americans
of all religious backgrounds, and of none, hold differing
views about the inclusion of the phrase ``under God'' in the
Pledge of Allegiance. The Movement I have the honor of
representing, for example, took no position when the Supreme
Court heard a case concerning the Pledge two years ago. Yet
H.R. 2389 is not about that contentious issue. By removing
cases involving the Pledge from the jurisdiction of the
federal courts, Congress would undermine the ability of those
courts to interpret constitutional law, the very core of the
courts' functions. Plaintiffs seeking to have their federal
rights upheld should not be forced to defend those rights in
state courts.
In addition, H.R. 2389 threatens the rights of members of
religious minorities, such as Mennonites, Buddhists, and
others who in the past have been adversely affected by being
forced to recite the Pledge in violation of Supreme Court
rulings. Were H.R. 2389 to become law, elementary school
students who are punished for declining to participate in the
recitation of the Pledge based on their religious teachings
would not be able to have their rights upheld in federal
court. Under H.R. 2389 as currently drafted, even the Supreme
Court would not be allowed to hear the case and uphold the
child's rights. As a people who have long known the dangers
inherent in limiting the protections afforded religious
minorities, we are particularly sensitive to this effort to
restrict courts from protecting such minorities.
The dangers of Congressional tampering with the
jurisdiction of the federal courts and restricting their
ability to uphold the rights of religious minorities could
not be graver. The very values upon which our nation was
founded--separation of powers and religious liberty--are
threatened by H.R. 2389. I strongly urge you to oppose this
perilous legislation.
Sincerely,
Mark J. Pelavin,
Associate Director.
____
National Council of Jewish Women,
New York, NY, June 6, 2006.
Hon. James Sensenbrenner,
Chairman, House Judiciary Committee,
Washington, DC.
Dear Chairman Sensenbrenner: I am writing on behalf of the
90,000 members and supporters of the National Council of
Jewish Women (NCJW) in opposition to the ``Pledge Protection
Act of 2005'' (H.R. 2389) which 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.
NCJW is a volunteer organization, inspired by Jewish
values, that works to improve the quality of life for women,
children, and families and to ensure individual rights and
freedoms for all. As such we must oppose the passage of any
legislation that threatens religious liberty and an
individual's access to the judicial process.
This bill threatens the separation of powers that is a
founding principle of our nation and a key source of our
liberties. In addition, it would impose religious and
ideological conformity regardless of individual conscience,
by preventing dissenting voices from appealing to the courts.
This attempt to restrict access to the courts is part of a
larger campaign to roll back political and religious freedom
by crippling the ability of the judicial branch of government
to defend civil and individual rights. If this bill moves
forward, it would undermine constitutional rights and the
judiciary.
As Jews, we know that the power of the majority can become
the tyranny of the majority if left unchecked. H.R. 2389
would undermine the longstanding constitutional rights of
religious minorities to seek redress in the federal courts in
cases involving mandatory recitation of the Pledge.
Sincerely,
Phyllis Snyder,
President.
____
The American Jewish Committee,
Washington, DC, June 7, 2006.
Re Pledge Protection Act of 2005 (H.R. 2389).
Dear Representative: On behalf of the American Jewish
Committee, the nation's oldest human relations organization
with over 150,000 members and supporters represented by 33
regional offices nationwide, I urge you to oppose the Pledge
Protection Act of 2005 (H.R. 2389).
While AJC has not taken a position on the constitutionality
of including ``under God'' in the Pledge of Allegiance, we
believe that the federal courts must be available to hear
cases in which individuals contend that their First Amendment
rights have been violated. H.R. 2389 would strip all federal
courts, including the Supreme Court, of the jurisdiction to
hear First Amendment challenges to the Pledge. This
legislation threatens the separation of powers that is a
fundamental aspect of our constitutional structure and has
potentially severe constitutional implications for religious
minorities and others who are adversely affected when the
government impermissibly seeks to mandate the recitation of
the Pledge.
Furthermore, this legislation would undermine public
confidence in the federal courts, 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.
Finally, as drafted, the bill would deny access to the
federal courts--even the Supreme Court--when 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. Coercing students to say the Pledge of Allegiance
is contradictory to the very principles of conscience which
both our Constitution and the Pledge of Allegiance itself
represent. Students' First Amendment rights were protected in
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, in the decision of a federal appellate court in
Circle School v. Pappert, 381 F.3d 172 (3d Cir. 2004)
(holding that a Pennsylvania law mandating the recitation of
the Pledge, even when it provided a religious exception,
violated the Constitution because it violated the free speech
of the students). H.R. 2389 contradicts these significant
decisions by removing from the federal courts the
jurisdiction to hear these types of cases.
For all of these reasons, the American Jewish Committee
urges you to vote against this misguided and unwise
legislation. Thank you for your consideration of our views on
this important matter.
Respectfully,
Richard T. Foltin,
Legislative Director and Counsel.
____
The Interfaith Alliance,
Washington, DC, June 9, 2006.
Dear Representative: As the president of the Interfaith
Alliance, I am writing to urge you vote ``No'' on passage of
the ``Pledge Protection Act'' (H.R. 2389). The Interfaith
Alliance is a nonpartisan, clergy-led organization that
represents over 150,000 members. We are committed to
promoting the positive and healing role of religion in public
life and challenging those who employ religion to promote
intolerance.
If passed, H.R. 2389 would strip all federal courts,
including the U.S. Supreme Court, from hearing any cases that
have to deal with the Pledge of Allegiance. The Interfaith
Alliance has not taken a position either for or against the
inclusion of the phrase ``under God'' in the Pledge of
Allegiance. We will advocate, however, for the right of any
person of faith or of no faith at all to receive a fair
hearing by the federal courts if they feel their
Constitutional rights have been violated by this or any other
imposition of sectarian religious references in public
places. No citizen's rights or opportunities should depend on
religious beliefs or practices.
This bill is not only an assault on the freedom of
conscience guaranteed by our Constitution; it also undermines
the federal courts' role of providing access to justice to
those who are in the religious minority and those in
religious majorities who believe that religious choices
should be couched in freedom and never imposed by law. If
passed, H.R. 2389 would slam the courthouse door and reduce
the phrase ``Equal Justice under Law'' to just a hollow
phrase above a courthouse that is off-limits to those who
fall outside of the Judeo-Christian tradition.
It is time for congress to stop trying to curtail the power
of the federal judiciary, a fundamental component of our
nation's system of checks and balances. The efforts to
prevent the courts from hearing cases on gay marriage and the
Pledge of Allegiance, among others, appear to be nothing more
than an attempt to pander to a political base.
Americans of all faiths--Buddhists, Hindus, Sikhs, Muslims,
Christians and Jews--and those who profess no faith--must
have the right to practice their religions and raise
challenges when they feel that there is a specific violation
of the clause in the First
[[Page H5403]]
Amendment which guarantees that ``Congress shall make no law
respecting an establishment of religion.'' How strange the
times when the democratic process founded to protect the
rights of minorities is being used to jeopardize or abolish
the rights of minorities in the name of religion.
Although this legislation most directly affects those who
do not adhere to the mainline religious traditions in our
nation, in truth it diminishes any of us who see religious
liberty as a non-negotiable part of our American democracy.
H.R. 2389 is bad for the Constitution. It is bad for
religion.
If there is anything that we at The Interfaith Alliance can
do to assist you in this important matter, please do not
hesitate to contact Preetmohan Singh, Senior Policy Analyst.
Sincerely,
Rev. Dr. C. Welton Gaddy,
President, The Interfaith Alliance, Pastor of Preaching and
Worship, North Minister Baptist Church (Monroe, LA).
____
The Constitution Project,
Washington, DC, September 21, 2004.
House of Representatives,
The Capitol,
Washington, DC.
Dear Members of the 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 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 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 Bar Association,
Washington, DC, July 18, 2006.
Re H.R. 2389, the Pledge Protection Act of 2005.
Dear Representative: We understand that the House is
scheduled to consider H.R. 2389 tomorrow. We are writing to
express our opposition to this legislation, which would strip
from all federal courts jurisdiction to hear constitutional
challenges to the interpretation of, or the validity of, the
Pledge of Allegiance.
Our views on H.R. 2389 are informed by our long-standing
opposition to legislative curtailment of the jurisdiction of
the Supreme Court of the United States and the inferior
federal courts for the purpose of effecting changes in
constitutional law. The ABA has taken no position on the
underlying issues regarding recitation of the Pledge of
Allegiance in public schools; instead, our strong opposition
to H.R. 2389 and other pending legislation that would strip
the federal courts of jurisdiction to hear selected types of
constitutional cases is based on our concern for the
integrity of our system of government.
This legislation would authorize Congress to use its
regulatory power over federal jurisdiction to advance a
particular legislative outcome by insulating it from
constitutional scrutiny by the federal judiciary. In addition
to being constitutionally suspect, this legislation would
establish a dangerous precedent if enacted. As a matter of
policy, Congress should not jettison our foundational
principles because of current dissatisfaction with a
controversial decision of the Supreme Court or lower federal
courts by permanently stripping the jurisdiction of the
federal courts to hear certain categories of cases. Rather
than strengthening its legislative role, Congress, by
pressing its own
[[Page H5404]]
checking power to the extreme, imperils the entire system of
separated powers.
If enacted, H.R. 2389 would restrict the role of the
federal courts in our system of checks and balances and
thereby limit the ability of the federal courts to protect
the constitutional rights of all Americans. Indeed, this
legislation would leave the state courts as the final
arbiters of federal constitutional law, creating the
possibility that some state judges might choose not to follow
Supreme Court precedents. Because the legislation would
nullify the Supremacy Clause in certain classes of cases, the
Constitution could mean something different from state to
state; and, contrary to the expressed intentions of the
Framers, our fundamental rights and the balance of power
among the branches would be subject to evanescent majority
opinion.
At a time when Congress is accusing the federal courts of
overstepping their constitutional role and calling for
judicial restraint, we urge you to likewise exercise
legislative restraint and demonstrate your continued
commitment to the doctrine of separation of powers and a
government composed of separate but coequal branches by
voting to defeat passage of H.R. 2389.
If you have any questions regarding our position, please
have your staff contact Denise Cardman, Deputy Director of
the Governmental Affairs Office.
Sincerely,
Robert D. Evans
____
American Civil Liberties Union,
Washington, DC, June 6, 2006.
Re Don't Shut the Federal Courthouse Doors to Religious
Minorities; Oppose H.R. 2389
Dear Representative: The American Civil Liberties Union
strongly urges you to oppose H.R. 2389, ``the Pledge
Protection Act of 2005.'' H.R. 2389 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.
H.R. 2389 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. 2389 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.
2389 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 the federal
courts, particularly the U.S. Supreme Court, of jurisdiction
over the very sort of claim they were established to
hear--governmental conduct that violates a constitutional
right--is an extreme attack on the role of federal courts
in our system of checks and balances. It strikes at the
very intent of the Founders.
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. 2389 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.
In 2004, 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, 381 F.3d
172 (3d Cir. 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, 381 F.3d at 183.
First comes marriage then comes the Pledge . . . Where will
it end? Passage of H.R. 2389 would set a dangerous precedent
for responses by Members of Congress to court decisions with
which they disagree. In the 109th Congress alone, Congress is
considering court-stripping legislation related to the Pledge
of Allegiance, marriage, governmental acknowledgement of God,
and impeachment of judges for considering certain religion
cases.
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 Committee to oppose passage of H.R.
2389 and not to abandon this tradition of thoughtfulness and
restraint.
Please do not hesitate to contact Terri Schroeder at (202)
675-2324 if you have any questions.
Sincerely,
Caroline Fredrickson,
Director.
Terri A. Schroeder,
Legislative Analyst.
____
Americans United for Separation of Church and State,
Washington, DC, June 7, 2006.
Reject Efforts to Slam Federal Courthouse Doors on Religious
Minorities and Vote ``No'' on H.R. 2389
Dear Representative: Americans United for Separation of
Church and State urges you to vote ``No'' on passage of H.R.
2389, the ``Pledge Protection Act,'' which is being marked up
by the House Judiciary Committee this week. Americans United
represents more than 75,000 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. 2389
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. 2389 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 Judiciary
Committee 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 I 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 some degree of authority
to limit the Supreme Court's appellate jurisdiction, as well
as the jurisdiction of lower federal courts. Although the
extent of this congressional authority is in dispute and has
been the subject of academic commentary over the years, there
are clear limits to this authority--and these limits are also
found in the Constitution. With the Pledge Protection Act,
Congress makes its limited--and disputed--power in Section 2
more important than the fundamental due process rights of
citizens and the fundamental notion of separation of powers
underlying our government.
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
[[Page H5405]]
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. 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, a panel of the U.S. Court of Appeals for the
Third Circuit, holding unconstitutional two provisions of a
Pennsylvania law mandating recitation of the Pledge, said,
``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, most 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.'' Circle School v. Pappert, 381
F.3d 172, 183 (3d Cir. 2004).
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.
If you have any questions regarding this legislation or
would like further information on any other issues of
importance to Americans United, please do not hesitate to
contact Aaron D. Schuham, Legislative Director, at (202) 466-
3234, extension 240.
Sincerely,
Rev. Barry W. Lynn,
Executive Director.
____
People for the American Way,
Washington, DC, June 7, 2006.
House of Representatives,
Washington, DC.
Dear Committee Member: On behalf of the more than 900,000
members and activists of People For the American Way, we
write to urge you to oppose H.R. 2389, the ``Pledge
Protection Act of 2005,'' when it comes before the Committee
today, June 7. 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.
H.R. 2389 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. 2389
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 four years ago: ``If there is no 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. 2389 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. 2389 expressly sets the precedent for
future Congresses to completely bar U.S. citizens from
raising any judicial challenge to federal action. State
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. 2389 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.
2389, could in of itself result in a constitutional crisis
deeply damaging to the separation of powers.
H.R. 2389 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.
Tanya Clay,
Director, Public Policy.
____
Secular Coalition for America,
Washington, DC, June 9, 2006.
Dear Representative: The Secular Coalition for America
urges you to oppose H.R. 2389, the so-called Pledge
Protection Act. Passage of this act would curtail the ability
of the judiciary to make Constitutional determinations. It
would interfere with the current protection of checks and
balances provided by having three independent branches of
government.
It is up to the U.S. Senate to approve or disapprove of
federal judges. Thus the elected legislative body has both
the right and the duty to ensure that our judiciary is of the
highest quality. Once they are seated, it is essential that
the judicial branch maintain its independence. By allowing
the judiciary to be free of political pressures and majority
rule, minorities in our nation gain the protections afforded
by the First Amendment freedom of religion. This protection
has allowed members of minority religions (such as Jehovah's
Witnesses) as well as non-religious Americans to be free of
government required religious exercises. Individuals have
been free to exercise their own decisions of conscience in
public schools and governmental bodies.
Nontheists oppose the 1954 change to the Pledge of
Allegiance, which turned that patriotic exercise into a
statement of religiously-based division of Americans and used
religion as a tool for political gain and theism as a litmus
test for patriotism. By inserting religion into government,
Americans who do not believe in God are relegated to a
second-class citizenship. Regardless of
[[Page H5406]]
whether or not individuals support the revision of the pledge
however, it is up to the judicial branch to enforce the
Constitution, including the Bill of Rights.
Our nation has respected the separation of powers which our
founders so wisely created to prevent anyone branch from
gaining too much power. Congress must not encroach on the
judiciary's power to resolve constitutional issues. If
Congress passes constitutional laws, they should be upheld on
judicial review. If Congress passes laws deemed to be
unconstitutional, it is the duty of the judiciary to overturn
such laws. Without such checks and balances, the rights of
minorities guaranteed in the Bill of Rights would be
meaningless; the Constitution could not be enforced; and a
tyranny of the majority would ensue.
Passage of HR 2389 creates a slippery slope that would
leave the judicial branch constrained to address only those
issues of which Congress approves. Any time the judicial
branch makes a decision unpopular with Congress, it could
simply pass legislation taking away the court's jurisdiction.
Passing this type of court-stripping legislation would
subvert the will, not only of the people, but of the founders
of our great nation.
Sincerely,
Lori Lipman Brown, Esq.,
Director, Secular Coalition for America.
____
American Humanist Association,
Washington, DC, June 8, 2006.
Re Oppose H.R. 2389, the ``Pledge Protection Act of 2005.''
Dear Representative, The American Humanist Association
(AHA) stands in opposition to H.R. 2389, the ``Pledge
Protection Act of 2005,'' 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 of 2005
(H.R. 1100), attempts by Congress to strip the judiciary of
their power to review 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.
Mr. BLUNT. Mr. Chairman, yielding myself 15 seconds, I would like to
point out that clearly this is in absolute agreement with Marbury v.
Madison. Even in that case, the Chief Justice dismissed cases later
when the Federal courts had not been granted jurisdiction.
Granting jurisdiction is the constitutional job of this body.
Mr. Chairman, I yield 4\1/2\ minutes to the gentleman from Florida
(Mr. Stearns).
(Mr. STEARNS asked and was given permission to revise and extend his
remarks.)
Mr. STEARNS. Mr. Chairman, I thank my distinguished colleague from
Missouri for yielding me time.
The question was posed by the gentleman from New York and others is
this Pledge Protection Act, H.R. 2389, constitutional? Is the whole
concept of ``under God'' part of our Pledge constitutional? I submit
this humble penny with Abraham Lincoln's picture on it. Do you know
what it says on the side? ``In God We Trust.''
Behind the Speaker's chair, ``In God We Trust.''
At the Supreme Court they pray every day, asking for God's blessing.
So Surely when we have a pledge, we should be able to use the word
``under God.'' Throughout our history this concept, as the United
States being a providential Nation, has been the cornerstone of our
success.
Would our Founding Fathers, if they were here today, decide to take
``under God'' from the Pledge? I do not think so. In fact, let's go and
look at what the Founding Fathers talked about. This belief in our
Nation being under God is a central part of our heritage. History bears
this out.
Even before independence, a central theme among all forefathers was
that our liberty flowed from our Creator. Josiah Quincy was one of
these leaders. Not a lot of people know who he was. He was a
charismatic leader in the American Revolution and outstanding lawyer.
He wrote a series of anonymous articles for the Boston Gazette in which
he opposed the Stamp Act and other British colonial policies. He, along
with John Adams, bravely defended the British soldiers at a trial for
the Boston Massacre, to show the world that the colonialists valued the
rule of law above all.
In 1774, he was sent as an agent to argue the colonial cause for
independence in England. He perished on the journey over. Yet, before
he left, these are his immortal words that he uttered: ``For under God,
we are determined that wheresoever, whensoever, or howsoever we shall
be called to make our exit, we will die free men.''
Our Founding Fathers uttered similar statements time and time again,
my colleagues, yet perhaps never more eloquently than the Declaration
of Independence when even Thomas Jefferson penned the famous lines that
``we hold these truths to be self-evident: that all men are created
equal; that they are endowed by the Creator with certain unalienable
rights; that among these are life, liberty and the pursuit of
happiness.''
This same man who first wrote about separation of church and state
also acknowledged, ``The God who gave us life, gave us liberty at the
same time.'' And so over the years our Nation's leaders have freely
expressed their beliefs in a higher providence for this country.
In our darkest hour, President Lincoln during the Civil War and later
President Kennedy during the civil rights movement reaffirmed that this
Nation was founded under God, and that all men and women living here
are entitled by God to equal liberty.
Even more recently, in the midst of the Cold War, my colleagues,
President Reagan argued that ``freedom prospers when religion is
vibrant and the rule of law under God is acknowledged.''
So the whole idea of under God has been passed on from generation to
generation. We are blessed by this concept. The Constitution was
drafted to guard our liberties, obviously, our God-given liberties, and
wisely established a system of checks and balances for our government
structure. Mr. Akin pointed these out. The power of Congress to limit
jurisdiction of the courts is one of those primary checks on the power
of the judiciary. So this is all according to procedures that our
Founding Fathers established.
Article III, section 2 grants Congress the power to limit the
jurisdiction of Federal courts. So what we are doing today is according
to the Constitution.
The Pledge Protection Act invokes the constitutional powers and
removes the Pledge from the jurisdiction of Federal courts. I ask you
to support this act. I urge my colleagues for future generations to
acknowledge our providential point in history.
Mr. NADLER. Mr. Speaker, the gentleman is commenting and his entire
speech was about the desirability or the worth of the words ``under
God,'' which I think almost everybody agrees with. The issue in this
bill is court-stripping. Do we take away from the courts the right to
decide, to protect people's rights?
Mr. Speaker, Mr. Stearns may be right in everything that he is
saying, but he does not seem to have the confidence that the courts
will agree with him, because if he did, he would not be supporting this
legislation.
Mr. STEARNS. Mr. Chairman, will the gentleman yield?
[[Page H5407]]
Mr. NADLER. I yield myself 10 seconds so I can yield to the gentleman
from Florida.
Mr. STEARNS. Would you agree that we here in Congress can have the
right in the separation of powers to overrule the Supreme Court?
Mr. NADLER. To overrule the Supreme Court? Certainly we do not have
that.
Mr. STEARNS. Not to overrule, but to pass laws here to check the
balance of the Supreme Court?
Mr. NADLER. We have the right, but I do not believe we have the
right, given the fact that the Bill of Rights postdates the grant of
the jurisdiction-setting authority in the Constitution, I do not think
we have the right to take away from the Supreme Court the ability to
protect constitutional rights.
Mr. Chairman, I yield 5 seconds to the gentleman from Virginia (Mr.
Scott).
Mr. SCOTT of Virginia. Mr. Chairman, when I listed the organizations
opposed to the bill, I inadvertently left off Americans United for
Separation of Church and State and the National Council of Negro Women.
Mr. NADLER. Mr. Chairman, I yield 5 minutes to the gentleman from
California (Mr. Berman).
Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding me time.
As the gentleman pointed out, the gentleman from Florida gave a very
compelling argument for why it is appropriate to have ``under God'' in
the Pledge of Allegiance, and therefore concludes that since he thinks
that is in jeopardy, based on the court case now moving through the
judicial system arguing for stripping away the jurisdiction of the
court to decide that issue.
But the bill before us goes far beyond the issue of under God, and
that is why I would like to ask if the majority whip, I would like to
use my time to make sure that you and I have the same understanding of
the purpose of this bill.
Let's say, for example, that a school board in West Virginia decides
that every student in the school system must recite the Pledge of
Allegiance at the beginning of the school day. And a Jehovah's Witness
family goes to court, to State court, after this bill is passed and
says, it is a violation of our religious principles to pledge
allegiance to anyone other than God. We are prepared to make all kinds
of statements with respect to our regard for the country, but we cannot
pledge allegiance to anyone but God.
And then that case goes to the State courts, and the West Virginia
Supreme Court decides that, no, the school board is right. They have
the right to compel every student in that school system to recite the
pledge, even if it violates their religious principles. Or maybe it is
telling an Orthodox Jewish child that they have to remove their skull
cap for the recitation of the Pledge, and they say, no, if the West
Virginia school board ruled that way, the individual's right to
exercise their religious principles by keeping their skull cap on when
they are outside and in this public arena is trumped by the school
board's policy.
Should the U.S. Supreme Court be able to take that case on appeal
that compels a decision that a State court, that compels the recitation
of the Pledge in a way that violates the fundamental free exercise of
religion of a student? That is my question.
Mr. BLUNT. If my friend is yielding to me, the principal sponsor of
the bill, Mr. Akin, has said he would like to respond to that. If that
is appropriate, I would like for that to be our response.
Mr. BERMAN. Mr. Chairman, I yield to the gentleman from Missouri (Mr.
Akin) 1 minute of the remaining time I have.
Mr. AKIN. Mr. Chairman, as the gentleman made the scenario, let's
assume the bill passes that we are discussing now, is signed by the
President.
Mr. BERMAN. My assumption is this bill is now law.
Mr. AKIN. Now is law. What happens then is you are going to a
particular State, you are saying West Virginia. And what happens is
that a school board or something like that in the State decides to just
basically go against what is already established Supreme Court policy.
From 1944, the Supreme Court made the ruling that nobody is required
to say the Pledge of Allegiance. We have no interest in changing that.
We think that is good policy.
Mr. BERMAN. Mr. Chairman, reclaiming my time. Because under this
bill, they can decide to violate that Supreme Court decision, and the
West Virginia Supreme Court, now the final arbiter of it, says, we did
not like that decision in the first place, and now the Supreme Court
cannot take jurisdiction of this case, so they decide to reverse, for
West Virginia purposes, the Barnette case that the Supreme Court
decided in 1944, and this bill strips away the jurisdiction of the
Supreme Court to say, you did not follow our precedent.
Mr. AKIN. What you are saying is, first of all, you are making,
obviously you are taking this to a pretty extreme situation. You are
saying a whole series of courts in West Virginia are going to overturn
Supreme Court policy on the fact that people have to say the Pledge.
So first of all, they are going completely against what the Federal
courts have already established. They then expose themselves to the
checks and balances within that State. In at least 45, probably more,
of the States, there are provisions where those judges can be removed
by the people of that State.
Mr. BERMAN. Reclaiming my time. If you had stripped away the right of
the U.S. Supreme Court, of the Federal courts to decide whether
segregated schools, whether the doctrine of separate and equal should
stand or whether it violated the 14th amendment of the Constitution,
there are many States in this country where every State court would
have affirmed that separate is equal, is compliant with the 14th
amendment, and in many of those States, the voters in those States
would have been quite happy with that decision.
You have eliminated the Supreme Court's ability to review fundamental
decisions involving first amendment rights.
Mr. NADLER. Mr. Chairman, I will yield the gentleman 30 seconds, and
yield for an answer to how he would have prevented, under this bill,
all the States from negating the Supreme Court's Brown v. Board of
Education ruling.
{time} 1300
Mr. AKIN. Well, the situation is that you are dependent on this bill
with the various checks and balances on the Supreme Courts in the
States. That is, those justices could be impeached for violating the
Supreme Court.
Mr. BERMAN. And the voters of that State.
Mr. AKIN. And the voters of that State. It depends on the State laws.
Mr. BERMAN. The first amendment was to protect the exercise of
religion, even if the majority didn't like that religion.
Mr. AKIN. The bottom line is we have a system of republics. We have a
system of federalism. We have 51 established republics, one federated
and 50 States.
Mr. BLUNT. Mr. Chairman, I yield 2 minutes to my neighbor from
Arkansas (Mr. Boozman).
Mr. BOOZMAN. Mr. Chairman, I come to the floor today to support this
legislation that will preserve America's Pledge of Allegiance. This
Congress is working to strengthen America to taking steps to continue
job creation, keeping our economy growing, providing the tools that we
need to fight the war on terrorism and address the problems that are
leading to high energy prices.
However, we also have a responsibility to take a few minutes today to
reinforce the spirit and unity of the American people by protecting our
Pledge. The Pledge of Allegiance is not just a statement that our kids
rehearse in schools, it is an expression of we as Americans.
The American people are united by devotion, not just to our flag but
to our country. Our devotion is not just to our public, but to our
principles, including liberty and justice for all. Our shared Pledge of
Allegiance should not be rewritten on a whim by a few judges against
the will of the overwhelming majority of American public.
That is why this legislation is so important, and I appreciate Mr.
Blunt's and Mr. Akin's leadership on this issue. The Pledge Protection
Act, which has 197 cosponsors, passed the House in the
[[Page H5408]]
108th Congress by a wide margin. Article III of the Constitution gives
Congress the authority to pass this legislation. We should use this
authority with restraint.
But when it comes to protecting America's Pledge of Allegiance, we
should take these thoughtful steps to exercise the will of the American
people.
Mr. NADLER. Mr. Chairman, I yield 2\1/2\ minutes to the distinguished
gentleman from California (Mr. Rohrabacher).
Mr. ROHRABACHER. Mr. Chairman, I rise in opposition to this bill, and
it does pain me to be on the other side of a piece of legislation that
so many of my friends are advocating so sincerely on the other side.
Mr. Chairman, I yield to no one in my commitment to the Pledge of
Allegiance, and the Pledge of Allegiance that includes the words
``under God.'' However, it does not follow that the appropriate way to
deal with this issue is to strip Federal courts of their jurisdiction
to hear cases relating to the Pledge of Allegiance.
First of all, I don't believe that my colleagues who support H.R.
2389 realize the consequences of this bill, even though we just had a
discussion about what those consequences might be. H.R. 2389 does not
strip State and local courts from jurisdiction related to the Pledge,
only the Federal courts, and specifically strips the U.S. Supreme Court
of its ability to overrule State supreme courts in this matter.
So, for example, if the highest court in a State like Massachusetts
rules that it is unconstitutional under the Constitution for the State
schools to start their day with a Pledge of Allegiance, including the
words, ``under God,'' H.R. 2389 would prohibit the U.S. Supreme Court
from overturning that decision. Such a result would be ironically and
supremely counter to the stated goals of this bill's proponents.
But that is what would become the result of this language becoming
law. Members on my side of the aisle should seriously consider the
consequences of the precedents that are being set.
Republican support for court-stripping makes it that much easier for
the other side to someday strip a conservative Supreme Court of
jurisdiction on an issue paramount to our liberty. For example, if our
judges on the Court remain devoted to the second amendment, rather than
upholding a universal gun ban that is put into place by a future
President and Congress, and the other party, they will accuse our
President of stripping the court in order to get their way.
Here we are neutering our ability to have protections for the
constitutional things we believe in the future, in order to achieve a
temporary, I might even say a political, goal in the Pledge of
Allegiance.
The supporters of H.R. 2389 will come to regret this day when they
are being quoted by some future liberal Congress in order to strip the
Court of a decision made to protect our liberties.
Mr. Chairman, let us consider the long-term consequences of our
actions and let us look before we leap. I would suggest that we vote
``no'' on this. That is the Reagan and conservative position.
Mr. BLUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Tennessee (Mr. Wamp).
Mr. WAMP. I thank the distinguished majority whip.
Mr. Chairman, with respect, religion in the United States is rightly
pluralistic. We are or in no way should we be theocratic at all. As a
matter of fact, one of the great threats in the world today, jihadism,
is born out of theocracy.
That doesn't mean, though, that this country should be godless. One
of my greatest, one of the great sayings I love is if there is no God,
nothing matters. But if there is a God, nothing else matters. We should
remember that today.
Abraham Lincoln said we do not claim to have God on our side, but we
strive to be on his. We should not and cannot rewrite history to ignore
our spiritual heritage. It surrounds us. It cries out for our country
to honor God and to seek and supplicate His will in our country's life.
Today the people from my State of Tennessee would listen to this
debate, or even talk about a reference to God on our money or in the
Halls of Congress or in our Pledge and say, please, let common sense
and logic win the day and prevail versus legal mumbo jumbo.
In closing, let me just thank God, on the floor of the House, for not
turning away from us even though we seem to be turning away from Him.
Mr. NADLER. Mr. Chairman, I now yield 3 minutes to the distinguished
ranking member of the Judiciary Committee, the gentleman from Michigan
(Mr. Conyers).
Mr. CONYERS. I thank the ranking chairman of the Constitutional
Subcommittee, Mr. Nadler, for yielding to me. I commend him for the
incredible work that we have done to try to bring understanding to how
difficult and unworkable this so-called Pledge Protection Act is.
Mr. Chairman, I hold in my hands this letter that has just come in to
the Judiciary Committee from the American Bar Association, their
Governmental Affairs Office.
The controlling sentence is this: ``As a matter of policy, Congress
should not jettison our foundational principles because of current
dissatisfaction with the controversial decision of the Supreme Court or
lower Federal courts by permanently stripping the jurisdiction of the
Federal courts to hear certain categories of cases. Rather than
strengthening its legislative role, Congress, by pressing its own
checking power to the extreme, imperils the entire system of separated
powers.''
Ladies and gentlemen, this unconstitutional court-stripping bill, and
it would be found unconstitutional if enacted, is only the latest
attempt by a Congress to force a pluralist society into a one-size-
fits-all set of beliefs. This is a remarkable violation of the
separation of powers and the establishment clause.
If the act were to become law, it would clearly be held
unconstitutional. Only State courts would be able to constitutionally
challenge the Pledge, and so we would therefore end up with a 50-State
collection of views as to what the free exercise clause, the
establishment clause, meant in this context.
In addition, think of what this means to those groups that depend on
this provision of our law not to be able to bring their issues to the
court. This legislation 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 the
court, and would slam the Federal courthouse door on religious
minorities trying to do nothing more than enforce a fundamental
constitutional right that they have had for over 60 years.
Please, let us turn this Pledge Protection Act down this afternoon.
American Bar Association,
Government Affairs Office,
Washington, DC, July 18, 2006.
Re H.R. 2389, the Pledge Protection Act of 2005.
Dear Representative: We understand that the House is
scheduled to consider H.R. 2389 tomorrow. We are writing to
express our opposition to this legislation, which would strip
from all federal courts jurisdiction to hear constitutional
challenges to the interpretation of, or the validity of, the
Pledge of Allegiance.
Our views on H.R. 2389 are informed by our long-standing
opposition to legislative curtailment of the jurisdiction of
the Supreme Court of the United States and the inferior
federal courts for the purpose of effecting changes in
constitutional law. The ABA has taken no position on the
underlying issues regarding recitation of the Pledge of
Allegiance in public schools; instead, our strong opposition
to H.R. 2389 and other pending legislation that would strip
the federal courts of jurisdiction to hear selected types of
constitutional cases is based on our concern for the
integrity of our system of government.
This legislation would authorize Congress to use its
regulatory power over federal jurisdiction to advance a
particular legislative outcome by insulating it from
constitutional scrutiny by the federal judiciary. In addition
to being constitutionally suspect, this legislation would
establish a dangerous precedent if enacted. As a matter of
policy, Congress should not jettison our foundational
principles because of current dissatisfaction with a
controversial decision of the Supreme Court or lower federal
courts by permanently stripping the jurisdiction of the
federal courts to hear certain categories of cases. Rather
than strengthening its legislative role, Congress, by
pressing its own checking power to the extreme, imperils the
entire system of separated powers.
If enacted, H.R. 2389 would restrict the role of the
federal courts in our system of checks and balances and
thereby limit the ability of the federal courts to protect
the constitutional rights of all Americans. Indeed, this
legislation would leave the state courts as
[[Page H5409]]
the final arbiters of federal constitutional law, creating
the possibility that some state judges might choose not to
follow Supreme Court precedents. Because the legislation
would nullify the Supremacy Clause in certain classes of
cases, the Constitution could mean something different from
state to state; and, contrary to the expressed intentions of
the Framers, our fundamental rights and the balance of power
among the branches would be subject to evanescent majority
opinion.
At a time when Congress is accusing the federal courts of
overstepping their constitutional role and calling for
judicial restraint, we urge you to likewise exercise
legislative restraint and demonstrate your continued
commitment to the doctrine of separation of powers and a
government composed of separate but coequal branches by
voting to defeat passage of H.R. 2389.
If you have any questions regarding our position, please
have your staff contact Denise Cardman, Deputy Director of
the Governmental Affairs Office.
Sincerely,
Robert D. Evans.
Mr. BLUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. I thank the distinguished majority whip for yielding.
Mr. Chairman, I rise in strong support of the Pledge Protection Act
and commend its author, the gentleman from Missouri (Mr. Akin) for his
yeoman's work on this thoughtful legislation.
As a member of the Judiciary Committee, I admire my colleagues on the
other side of the aisle for their intellectual acumen and their
commitment to their view and their philosophy of government. But while
each of us may have a different philosophy of government, we don't get
to have different facts.
The clear policy of Article III, section 2 of the United States
Constitution reads, ``In all other cases before mentioned, the Supreme
Court shall have developed jurisdiction, but it is the law and the fact
with such exceptions and under such exceptions as the Congress shall
make.'' It is black letter law in the Constitution of the United States
of America that this body, this Congress, shall have the authority to
set the jurisdiction of the courts.
So if I may say, respectfully, let us stop with all the conversation
about anticonstitutional action being taken. In fact, restricting the
Federal courts' jurisdiction is a common practice in the House of
Representatives, and a long litany of recent legislation, like the
Black Hills National Forest, the recent Class Action Fairness Act,
attests to that.
But we are here about the business of protecting the contents of the
Pledge of Allegiance, which some Federal courts have either resolved as
unconstitutional or left unresolved.
We stand here today to say those words, which appear above you, Mr.
Chairman, in the phrase ``in God we trust'' in our national model,
words which were reflected in our founding documents that speak of a
Nation that believes its rights are endowed by our Creator, and words
that President Abraham Lincoln spoke at Gettysburg, that this is one
Nation under God, be protected and vouchsafed in our Pledge.
Let us take this jurisdiction away, which is our constitutional power
to do, and leave that power with the people of the United States and
the States severally.
Mr. NADLER. Mr. Chairman, I yield to the gentleman from Texas for a
unanimous consent request.
(Mr. GENE GREEN of Texas asked and was given permission to revise and
extend his remarks.)
Mr. GENE GREEN of Texas. I thank my colleague for yielding.
Mr. Chairman, I rise today in support of H.R. 2389, the Protect the
Pledge Act.
I strongly support the Pledge of Allegiance. In fact, in the 107th
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. 2389, I believe it is necessary to
protect the Pledge of Allegiance from unnecessary court battles, but
without infringing on the rights of the people.
Article III of the Constitution states that Congress has the power to
define jurisdiction of Federal district and appellate courts.
This bill still allows for our system of checks and balances to work
as it has for over 200 years.
The Pledge of Allegiance is an important symbol of the privileges and
rights that our Founding Fathers fought so desperately to preserve.
It deserves protection from those trying to remove the words ``under
God.''
Mr. NADLER. Mr. Chairman, how much time do I have left?
The CHAIRMAN. The gentleman has 3\1/2\ minutes.
Mr. NADLER. The other side?
The CHAIRMAN. They have 13\1/2\ minutes.
Mr. BLUNT. Mr. Chairman, I yield 2 minutes to the gentleman from Iowa
(Mr. King).
Mr. KING of Iowa. I thank the majority whip for yielding. I
especially thank Mr. Akin for bringing this bill before this Congress.
When we first met, he approached me with this bill, and I said, oh yes,
Article III, section 2, I will sign on. Then we got to know each other
after that. So it is a proud moment for me to stand here and stand with
the gentleman from Missouri and God-fearing and God-loving people
across this country.
{time} 1315
The question about the constitutionality of court-stripping Article
III, section 2, I think Mr. Pence addressed it very well. Black-letter
language in the Constitution was such exceptions and under such
regulations as the Congress shall make, and those exceptions are
legion.
In fact, the landmark case is Ex parte McCardle 1869 where Congress
had authorized Federal judges to issues writs of habeas corpus, and
they purported to be acting under its authority under Article III,
section 2 to make those exceptions.
But in reviewing the statutes the Supreme Court's jurisdiction
granted, they were not at liberty to inquire into the motives of the
legislature. We can only examine its power under the Constitution. In
fact, the majority decision on the Supreme Court said this: ``Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and
dismissing the cause. And this is not less clear upon authority than
upon principle.'' Ex parte McCardle, 1869.
And I would point out that Justice Scalia in the Hamdan case so
recently wrote in his opinion, albeit in dissent, he said that ``the
Court . . . cannot cite a single case in the history of Anglo-American
law . . . in which a jurisdiction-stripping . . . was denied immediate
effect in pending cases.'' But ``by contrast, the cases granting such
immediate effect are legion . . . they repeatedly rely on the plain
language of the jurisdictional repeal as an `inflexible trump,' '' and
we know in our current experience in Congress, we have done this
several times, particularly the Daschle case with Blackhawk Timber.
Mr. BLUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Texas (Mr. Hensarling).
Mr. HENSARLING. Mr. Chairman, I thank the distinguished majority whip
for yielding. I certainly thank the gentleman from Missouri (Mr. Akin)
for his leadership on this issue.
Mr. Chairman, the author of the Declaration of Independence, Thomas
Jefferson, once wrote: ``Can the liberties of a Nation be thought
secure when we have removed their only firm basis, a conviction in the
minds of the people that these liberties are the gift of God?''
Now, I have heard Democrat after Democrat saying that we should not
be debating the Pledge Protection Act here today. Apparently, whether
the phrase ``one Nation under God'' is stripped from our Pledge by
activist judges is of little importance to them, but it is to most
Americans, and it should be to our Democrat colleagues as well.
Mr. Chairman, what we are debating here today is nothing short of our
very liberty. What could be more worthy of this body than a debate
about our liberty?
When our forefathers gave birth to this new Nation, they also gave
birth to a radical, revolutionary idea in history, the idea that our
rights do not emanate from the State, that they are granted to us from
the Almighty.
[[Page H5410]]
Who among us have forgotten the words enshrined in our Declaration of
Independence that we are endowed by our Creator with certain
unalienable rights? The answer appears to be some of our Democrat
colleagues.
Nothing is more central to the foundation of our very liberty than
the acknowledgment of God in public life, not the Christian God, the
Jewish God or the Muslim God, but God, the Creator, as broadly defined
and acknowledged and worshipped in many faiths and traditions.
But, Mr. Chairman, there is now a concerted effort among some,
including apparently the Ninth Circuit Court of Appeals, to chase God
from the schoolhouse, the courthouse and the statehouse, not to mention
our very Pledge of Allegiance.
Through H.R. 2389, using our powers under Article III, section 2, we
should stop them and protect liberty by enacting the Pledge Protection
Act.
Mr. BLUNT. Mr. Chairman, I yield 3 minutes to the gentleman from
California (Mr. Dreier), the chairman of the Rules Committee.
(Mr. DREIER asked and was given permission to revise and extend his
remarks.)
Mr. DREIER. Mr. Chairman, I thank my very good friend, the
distinguished majority whip, for yielding time, and I congratulate my
friend from Missouri (Mr. Akin) for having shown his very strong
commitment to the U.S. Constitution. As we all know, the specificity is
Article III, section 2.
As I was talking to a friend of mine in Los Angeles yesterday, he was
asking, what are you bringing up in the Rules Committee today? When I
told him that we were bringing this measure to deal with the Ninth
Circuit Court's decision, basically throwing out the use of ``one
Nation under God'' in the Pledge of Allegiance, he, like most people,
was horrified. He said, let us look at the natural extension of the
Ninth Circuit Court's decision.
Well, for starters, in the County of Los Angeles, Mr. Chairman, we
have already seen the removal of the cross from the seal of the County
of Los Angeles. It seems kind of silly, and there obviously is a lot of
outrage in southern California about that.
But then one must conclude that the natural extension of this, when
we have dealt with the seal of the County of Los Angeles, let us look
at some of the cities in California: The City of Angels, Saint Francis,
San Francisco, San Diego, another saint. I found that my city that I
reside in, the city of San Dimas, is the name for the reformed saint of
thieves, San Dismas.
But one must come to the conclusion that if we are going to continue
down this road, that the west coast would become what many in the
country probably already believe it is, and that would be the lost
coast, and I find that to be a very troubling sign, that we are moving
in the direction to overturn that wise decision that was made by the
United States Congress in the 1950s when President Eisenhower was here.
I think that we should realize that common sense needs to be applied
when we look at an instance like this. The Ninth Circuit Court in
California clearly overreached, Mr. Chairman, and as we look at how far
they could go, I find the direction to be very, very troubling.
I thank my friend for yielding.
Mr. BLUNT. Mr. Chairman, I yield 3 minutes to the gentleman from
Texas (Mr. Gohmert).
Mr. GOHMERT. Mr. Chairman, the concern about the Constitution is
certainly worthwhile, but when it says very clearly Article III,
section 2, that in all other cases except those specified or mentioned,
the Supreme Court shall have appellate jurisdiction both as to law and
fact with such exceptions and under such regulations as the Congress
shall make, it also allows us to set the jurisdictions of the local
courts.
So, clearly, this is something that is constitutional to take up. As
an old judge and a former chief justice of an appellate court, those
things are important to us.
Our friend from New York indicated that it seems like some of us do
not have much faith in the Supreme Court, and he is right, some of us
do not. I would submit to you that while they are lingering under this
infirmity or disability of being prepositionally challenged, that this
is a good issue to take up and to remove jurisdiction on.
For example, in the 10th amendment it says all the things not
specified are reserved to the States and to the people. The Supreme
Court seems to think that means reserved from the States and from the
people. They are prepositionally challenged. They think freedom of
religion means freedom from religion.
There is so much rewriting of history, the separation of church and
state. It is not in the Constitution. That is in a letter that Thomas
Jefferson wrote to the Danbury Baptists about not specifying a specific
denomination, and at the same time Madison wrote the first amendment,
Jefferson wrote those words in a letter, they came to church, a
nondenominational Christian church, right down the hall in Statuary
Hall. For about 60 years there was a church down there.
So the question before us is, is this an issue we want to remove from
the Supreme Court's consideration until they remove or are able to
overcome the disability of being prepositionally challenged? I
certainly think it is.
Mr. BLUNT. Mr. Chairman, I yield myself 1\1/2\ minutes just to say
that this debate clearly, once again, emphasizes the responsibility of
the Congress to decide the jurisdiction of the courts.
It does not decide who has to say the Pledge of Allegiance. It does
not decide separate but equal. In fact, separate but equal was decided
by the Supreme Court just like the Dred Scott case was decided by the
Supreme Court, which is why Abraham Lincoln, in his inaugural address,
specifically talked about the danger of the Congress and the country
letting the Court be the sole decision of these kinds of issues.
This is an issue that clearly resonates to the heart of what we are
about as a country. It is the heart of what we are about as a people.
All of our documents, our coins, our institutions, the Constitution,
the Declaration of Independence, all have recognized a being superior
to ourselves.
We think that protection for that phrase and other phrases in the
Pledge is appropriate. Certainly we have not anticipated that State
courts, who, by the way, were also recognized by the early Congress as
appropriate determiners of some Federal laws, and early congressional
determination in an early Supreme Court decision was that Federal laws
that have been upheld by the State courts would not be subject to
Federal review. This is in line with our responsibilities. It would be
a responsibility some would like to suggest is different than it is,
but it is our responsibility.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, every word that we have heard uttered on this floor by
the majority side has, as Mr. Scott said, increased the likelihood of
the courts ordering that the words ``under God'' in the Pledge of
Allegiance cannot be recited in a public, in a school situation where
there is an imputation of coercion or pressure because the students
are, in fact, under the direction of the State agent, namely, the
teacher.
As someone who very deeply believes in God, I think it is insulting
to say that the words ``under God'' are not important, and yet that is
the defense that is offered in court because the Constitution says
there should be no establishment of religion. Well, saying that
schoolchildren must recite the Pledge of Allegiance with the words
``under God'' is not an establishment of religion. The defense is, no,
it is not because this is de minimis; it is not important; it is minor.
I do not believe the words ``under God'' are minor or de minimis,
unimportant. I think that it is an insult to religion.
But that whole question is for the courts, not for us, and here we
are seeing another bill to strip the courts of jurisdiction. We are
getting to a point where it is becoming boilerplate in any
controversial issue to say the courts shall not have jurisdiction.
Consider this, the Defense of Marriage Act, the Pledge, we passed the
bill a few weeks ago on the floor here saying that no funds should be
expended to enforce a court order in some court in Indiana because we
do not like what the courts do, or we think we might not like what the
court will do; we will strip them of jurisdiction.
This is a danger to all our constitutional rights. The only thing
that protects our rights as Americans, that
[[Page H5411]]
protects our freedom of speech, religion, press, assembly, et cetera,
is the ability to go to court and tell the President or the Governor or
whoever, you cannot do that, you cannot force them to do that, you
cannot put them in jail for not doing it. Without the protection of the
court, rights are meaningless.
There is a maxim in law: There is no right without a remedy. What we
are doing here is saying to people who are unpopular, to people who may
not want to recite the words ``under God,'' they may be wrong and
unpopular, but we are saying you cannot go to court to defend yourself
and assert your constitutional rights. It is very dangerous. As was
pointed out before, if we had done that before, we would still have
segregation in this country because in every State we would have
stripped the Supreme Court of the ability to declare separate but equal
schools unconstitutional. The State courts would have soon said it is
fine, and we would still have Jim Crow.
Almost lastly, we should not have a separate law in every State. We
should not have the Constitution mean different things in New York and
New Jersey. We should be one country. That is why the Supreme Court is
vested with jurisdiction to rule on appeals from the State supreme
courts.
Finally, this bill is itself unconstitutional. Someone said that the
courts have upheld Congress' ability to limit jurisdiction. Sure, they
have. Every single case has upheld limitations to jurisdiction,
regardless of subject matter, never with regard to constitutional
claims, not one case in the history of the Republic.
At a hearing that was held 2 years ago on a similar bill, the
majority witness, the Republican witness, professor of constitutional
law, said the following: ``The due process clause of the fifth
amendment requires that a neutral, independent and competent judicial
forum remain available in cases in which the liberty or property
interests of an individual or entity are at stake. The constitutional
directive of equal protection restricts congressional power to employ
its power to restrict jurisdiction in an unconstitutionally
discriminatory manner,'' which is what this bill does.
There is no ability, for example, to constitutionally provide that
Republicans, but no one else, may have access to the Supreme Court. No
one will think Congress could do that. This bill is clearly
unconstitutional for the same reason.
Mr. Chairman, I yield back my time.
{time} 1330
Mr. BLUNT. Mr. Chairman, I yield the balance of our time to the
gentleman from Missouri (Mr. Akin).
The CHAIRMAN. The gentleman from Missouri is recognized for 2
minutes.
Mr. AKIN. Mr. Chairman, I would like to start by quoting a person who
I believe is the founder, or at least acknowledged as the father, of
the Democratic Party, Thomas Jefferson. His words encased in stone on
his monument read: ``The God that gave us life gave us liberty.'' It
goes on to say: ``Can the liberties of a people be secure if we remove
the conviction that those liberties are the gift of God?''
The author of our Declaration well understood that it is impossible
to assert that we have inalienable rights and at the same time ignore
the person that gave us the inalienable rights, the God that provided
those rights itself.
This question goes to the heart of what America has always stood for
and always fought for. We believe that there is a God that gives basic
rights to all people, and it is the job of the government to protect
those rights. If the courts come to the decision that we cannot
acknowledge God, then we have ripped the heart out of the logic of what
makes America, the fact that our rights come from God Himself, and we
have thumbed our nose at Thomas Jefferson and our Declaration and our
300-plus years of history.
Now we have good reason to fear that the Court will not be content to
ignore just the fifth amendment and say that you can take private
property from people and redistribute it without a public purpose, but
that they may also decide to take the first amendment and turn it
upside down and use it as a sword of censorship rather than an oasis of
free speech.
I am not persuaded by the pious hand-wringing of liberal activists
who flinch not at the courts' unfettered march to create some imagined
utopia at the expense of the separation of powers in the Constitution
itself.
It is time for the Congress to reassert our legislative authority. It
is time for the Congress to signal an end to the courts' freewheeling
forays of unchecked legislative license.
Mr. WELDON of Florida. Mr. Chairman, I rise in strong support of H.R.
2389, the Pledge Protection Act of 2005. This legislation is important
to ensuring that over-zealous Federal courts do not strike down the
U.S. Pledge of Allegiance. In Newdow, Ninth Circuit ruled that the
pledge was unconstitutional. The U.S. Supreme Court struck down the
Newdow decision based not on the substance of the issue, but rather
because it found that Newdow did not have standing. The Supreme Court
did not address the underlying question regarding whether the phrase
``under God'' was constitutional. The Ninth Circuit is expected to rule
on this issue in March 2007.
The bill before us would prohibit Federal courts from ruling on
issues related to the Pledge of Allegiance. Article III, Section 2,
Clause 2 of the U.S. Constitution gives the Congress the authority to
set such limits. The Constitution states:
In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction. In all other
Cases before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to law and Fact, with such
Exceptions, and under such Regulations as the Congress shall
make [emphasis added].
Mr. Chairman, today, by passing this law, we are making those
exceptions.
I rise in strong support of this legislation and urge my colleagues
to join me in support of it.
Mr. CARDIN. Mr. Chairman, I rise today in opposition to H.R. 2389--
the Pledge Protection Act--a bill which does not protect the Pledge of
Allegiance, but instead endangers the constitutional balance between
the legislative and judicial branches.
I believe in the Pledge of Allegiance. In the wake of the Ninth
Circuit Court of Appeals opinion in Newdow v. U.S. Congress in 2002,
the House acted swiftly to affirm our support of the Pledge as it has
existed since 1954. I voted in favor of a resolution that disagreed
with the court's opinion that the words ``under God'' in the Pledge
violate the Establishment Clause of the Constitution.
My opinion today remains the same: the Pledge of Alliance is a
simple, eloquent statement of American values. Each morning millions of
school children pledge allegiance not only to the flag but to the
Nation and our values and our principles. This act, like the prayer
that opens each session of the House and the call that brings the
Supreme Court to order, reminds us all of the greater context of our
purpose.
I oppose this legislation, not because I do not support the Pledge of
Alliance, but because I know that this legislation does not achieve its
goal. This legislation takes a bold step towards a radical concept
which undermines the constitutional checks and balances so crucial to
our system of Government. We have taken steps to protect the Pledge and
we will continue to do so--but this is not the way.
This bill proposes to strip the courts of their just jurisdiction.
While the Congress is granted the power to create and establish Federal
courts and this jurisdiction, this power has always been used to
promote judicial efficiency. It has not, and should not, be used to
stifle debate on any issue regarding fundamental rights and liberties.
Since the Supreme Court decided the case of Marbury v. Madison in
1803, the judiciary has performed its unique role of interpreting laws
of this country. This bill is unconstitutional because it would fly in
the face of 200 years of our constitutional tradition. I cannot imagine
our democracy could long endure a system in which the Congress may take
from the courts the ability to hear cases regarding the freedom of
speech, the freedom of religion, civil rights, or privacy.
The 108th Congress considered this legislation, and the Senate
refused to pass this measure. Indeed, in this Congress the House
Judiciary Committee refused to favorably report the bill to the full
House.
The courts are now properly continuing to review constitutional
challenges regarding the Pledge of Allegiance. The Supreme Court has
dismissed a case regarding the Pledge, and the Ninth Circuit is again
reviewing this matter. Congress has gone on record in support of the
Pledge.
It is important that the courts remain as the neutral decision makers
in constitutional cases. The Founders wisely enshrined the concept of
judicial independence into the Constitution. Federal judges are given
lifetime tenure, and Congress is prohibited from reducing their pay
during their service in office.
Congress has indeed considered whether to intrude on the province of
the Federal courts
[[Page H5412]]
throughout the history of this country. Congress wisely rejected
President Franklin D. Roosevelt's plan to ``pack the court'' by
increasing the size of the Supreme Court. In the 1970s Congress
considered, but rejected, effort to strip jurisdiction away from the
courts in the areas of civil rights and privacy cases, as a result of
Supreme Court decisions of the 1950s and 1960s.
In many ways, this type of legislation is a thinly-veiled attempt to
circumvent Article V of the Constitution, which gives Congress the
ability to propose an amendment to the Constitution, and therefore
overturn a constitutional decision of the Supreme Court. Congress and
ultimately the states have the ability to amend the Constitution at
their discretion, but under Article III of the Constitution the courts
have the obligation to interpret the law and Constitution when ``cases
or controversies'' arise in a lawsuit that is properly brought by
parties before the court.
This bill would close the door to Federal courts. When there is no
court to hear a case, then there is no liberty. A law without a venue
for debate is a law without moral force. As the Ranking Member of the
Helsinki Commission, I have seen too many countries run by dictators
whose first actions are to shut down the independence courts and make
them answerable to what the executive and the legislature wanted them
to do. We cannot go down this path in the United States, and undermine
our citizens' confidence in an independent judiciary that will decide
cases without fear or favor.
I urge my colleagues to reject this legislation and attack on the
independence of the judiciary, and oppose this legislation.
Mr. UDALL of Colorado. Mr. Chairman, at best this bill is a mistake.
At worst, it is a cynical political stunt. Either way, it should not
pass.
It seeks to end the ability of Federal courts--including the Supreme
Court--``to hear or decide any question pertaining to the
interpretation of, or the validity under the Constitution of, the
Pledge of Allegiance'' as the pledge is now worded.
It responds to a 2002 decision of the Court of Appeals for the Ninth
Circuit that both the 1954 law that added the words ``under God'' to
the pledge and a local school district's policy of daily recitation of
the pledge as so worded were unconstitutional. (The ruling later was
modified to apply only to the school district's recitation policy.)
The Supreme Court reversed that decision because the plaintiff did
not have legal standing to challenge the school district's policy. But
the Republican leadership evidently finds the possibility of a similar
lawsuit so alarming--or maybe they think it presents such a political
opportunity--that they back this bill to keep any Federal court from
hearing a lawsuit like that.
I cannot support such legislation.
It mayor may not be constitutional--on that I defer to those with
more legal expertise than I can claim. But I have no doubt it is not
only unnecessary but even misguided and destructive.
I have no objection to the current wording of the Pledge of
Allegiance. After the Ninth Circuit's decision, 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. It may be called the ``Pledge
Protection Act,'' but that is inaccurate and even misleading--because
it not only fails to protect the pledge but also would undercut the
very thing to which those who recite the pledge are expressing their
allegiance.
It doesn't protect the pledge because even if it becomes law people
who don't like the way the pledge's current wording would still be able
to bring lawsuits in state courts. So, even if Colorado's courts upheld
the current wording, the courts of other States might not. And the bill
says the U.S. Supreme Court could not resolve the matter.
That would mean there would no longer be a single Pledge of
Allegiance, but different pledges for different States--and the
Constitution's meaning would vary based on State lines. That would
directly contradict 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.''
And that would be completely inconsistent with the idea of the
Republic (symbolized by the flag) to which we pledge allegiance when we
recite what this bill pretends to ``protect.''
How ironic--and how pathetic.
As national legislators, as U.S. Representatives, we can and should
do better. We should reject this bill.
Mr. DINGELL. Mr. Chairman, I rise in strong opposition to H.R. 2389.
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.
We dealt with this same legislation two years ago, and it failed to
become law. I ask my colleagues, why are we bringing this same
legislation up for consideration again 2 years later?
Could it be an election year? Could my colleagues in the majority
want to rally a certain part of their base? The real question is
whether the majority will put election year political concerns ahead of
the good of the Nation? Unfortunately, with this action, it looks like
the answer is yes.
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, heard by the
courts of your Nation?
The right for a citizen to access the courts to decide questions of
policy is as old as the Magna Carta, and it is important to us as
anything else in the Constitution. Here we calmly say, ``You cannot
have access to the Federal courts, including the Supreme Court.''
Shame, shame, shame, shame.
This is a precedent which is going to live to curse us, and we are
going to live to regret this day's labor because other precedents will
be following this, wherein we strip the rights of citizens under the
Second Amendment, the thirteenth, fourteenth, and fifteenth amendments.
The Congress has considered these kinds of questions before. It is to
be anticipated if this works, we can look to see this kind of abusive
legislation considered in this body again. And you can be certain that
somebody is sitting out there now thinking of new rights we can strip
because we disagree with them.
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. Chairman, 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.
Like I did 2 years ago, I strongly oppose this legislation and urge
my colleagues to do the same.
Mr. HOLT. Mr. Chairman, I rise in opposition to H.R. 2389, which
would strip from the federal courts and the Supreme Court the ability
to hear any cases related to the Pledge of Allegiance. This bill
eliminates the basic principle of judicial review that was established
by the Supreme Court in Marbury v. Madison back in 1803.
This bill should not have come to the floor today because it seeks to
make a dangerous change to our Nation's system of checks and balances.
For that reason, this bill was rejected by the House Judiciary
Committee. Yet, the Majority has brought it up today to intentionally
divide the House. This is not the first time. We have seen this before.
In September two years ago, we had this same vote, and I opposed it
then.
The judiciary was designed to be the one branch of the federal
government that is insulated from political forces. This independent
nature enables the federal judiciary to thoughtfully and objectively
review laws to ensure that they are 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 avoid judicial review so that it can
pass legislation that it thinks may be unconstitutional. This is a
clear abuse of Congressional authority and 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
[[Page H5413]]
founding principles. I make it a point during my town meetings in New
Jersey to lead my constituents in reciting the Pledge of Allegiance. 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 urged the Supreme
Court to recognize the constitutional right of children to recite the
pledge in school. That resolution was an appropriate way 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 seek to alter our
delicate system of checks and balances and make their own decisions
unchallengeable--as if they were 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 times
of crisis for more than 200 years. We should not make this dangerous
change to upset the balance of power established by our Founding
Fathers and enshrined in the Constitution.
I urge my colleagues to oppose this bill.
Mr. BONNER. Mr. Chairman, I rise today in support of H.R. 2389, ``The
Pledge Protection Act.''
As I rise to address this body, I am reminded by the words above the
Speaker's chair, ``In God We Trust'' and the significance those words
hold for our great Nation. From the unalienable rights that Mr.
Jefferson penned in the Declaration of Independence to the money that
is minted just blocks from this Chamber, our Nation has and will
continue to publicly recognize God's providence and guidance. However,
the recognition of God contained within the Pledge of Allegiance has
provided leverage for some courts to claim that reciting our Pledge is
unconstitutional.
In 1954, this body recognized the need to add the phrase ``under
God'' to our Pledge and for 46 years this was hailed by Americans and
remained uncontested. Yet in 2002, these two words were exploited by
courts claiming that it is unconstitutional for the Pledge of
Allegiance to remain a part of American life. Congress acted swiftly to
reverse the damage caused by such a ruling and preserve the patriotic
act of reciting the Pledge. In 2002, both Houses of Congress
overwhelmingly supported resolutions rebuking the court and upholding
the Pledge of Allegiance. However, Congress failed to invoke our
authority to prevent activist courts from destroying the American
institution that is the Pledge of Allegiance.
The Pledge embodies our patriotism and must be preserved. It serves
to remind this body, at the beginning of each daily session, of our
devotion to country. Protecting the Pledge ensures that the ideals of
America will continue for generations to come.
Mr. Chairman, I urge my colleagues to join with me in support of this
bill to prevent the federal judiciary from hearing cases against the
Pledge of Allegiance.
Mr. SHAYS. Mr. Chairman, today, I urge my colleagues to vote against
H.R. 2389, 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 oppose 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.
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. CARDOZA. Mr. Chairman, I rise in opposition to H.R. 2389, the
Pledge Protection Act.
While I strongly support the Pledge of Allegiance and the use of the
term under God, I oppose this misguided legislation because it would
strip all federal courts, including the Supreme Court, of the
jurisdiction to hear First Amendment challenges to the Pledge of
Allegiance.
In the process, this legislation would strip federal courts of their
important role in safeguarding Constitutional rights and freedoms. It
will also work to undermine public confidence in the federal courts by
expressing outright hostility to their role as a neutral arbiter of
constitutional claims.
Through passage of this legislation, this body is endorsing the
dangerous premise that Congress is above the Constitution. So in
response, I ask my colleagues this question: do you believe our
founding fathers designed the Constitution to protect the people from
their government, or to regulate the conduct of its citizens?
I submit that if we strip federal courts of their judicial
independence, nothing stops Congress from preventing courts to rule on
other freedoms protected in our Bill of Rights, including freedom of
speech, the right to bear arms, freedom of worship and freedom to
assemble. Is that really the precedent we want to establish?
I believe we need our judicial system to protect our rights--and this
bill prohibits the courts from doing just that. Indeed, I believe
enactment of this legislation would have a dramatic impact on the
ability of individual Americans to be free from government-coerced
speech or religious expression.
In our system of democracy, our government works on a system of
checks and balances. Instead of stripping power from the courts, I
believe we should follow the process prescribed in our Constitution--
consideration of a Constitutional amendment. In fact, as a member of
the California Legislature, I passed a bill calling on Congress to pass
a Pledge protection amendment, and I believe that is the appropriate
way to address this issue.
I happen to believe that the inclusion of the term under God in the
Pledge is appropriate and constitutional. Further, should the Supreme
Court ever rule that the term is unconstitutional, I would vote for a
constitutional amendment to it ensure its presence. I support the
Pledge because it is an important part of our American fabric, and an
important symbol of the rights our founding fathers fought so
desperately to preserve--liberty and justice for every American.
But our justice is protected by our independent judiciary. Let us
keep it that way for all Americans. Oppose this bill and support and
protect our Constitutional rights.
Mr. BLUMENAUER. Mr. Chairman, I oppose the ``Pledge Protection Act''
because of its potential ramification for the judicial process. This
legislation seeks to prohibit all federal courts, including the Supreme
Court, from hearing any case that challenges the constitutionality of
the Pledge of Allegiance.
This legislation is a response to recent challenges in the 9th
Circuit Court involving the statement ``under God.'' While I do not
agree with the court's decision, we are heading down a slippery slope
when we authorize Congress to use its power over the courts to limit
jurisdiction of constitutional challenges.
This seemingly bipartisan legislation is another attack on our
principles of civil liberties and equal protection, just as we saw on
yesterday's vote on the ``Marriage Protection Act,'' to please the most
extreme of the Republican base. It is not worth undermining our system
of checks and balances.
Yesterday, the state's domestic laws; today, the Pledge of
Allegiance; tomorrow . . .?
Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise in opposition to H.R.
2389, the Pledge Protection Act of 2005.
This 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 any challenges to
the pledge. This possibility will lead to different constitutional
constructions in each of the 50 States.
The only way to make this bill palatable is to adopt the Jackson-Lee
amendment, which provides for an exception to the bill's preclusion for
cases that involve allegations of coerced or mandatory recitation of
the Pledge of Allegiance, including coercion in violation of the First
Amendment or the Equal Protection clauses. Opposing the Jackson-Lee
amendment is tantamount to endorsing the coercion of children to
mandatory recitation of the Pledge of Allegiance.
Closing the doors of the Federal courthouse doors to claimants will
actually amount to a
[[Page H5414]]
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 school children recite the Pledge of Allegiance.
Under the West Virginia law, religious minorities faced expulsion from
school and could be subject to prosecution and fines, 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.''
H.R. 2389 would strip parents of their 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, one little
girl 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 undermine her religious faith. If
H.R. 2389 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 problem with this bill is that it does not protect religious
minorities, Mr. Chairman.
Article III, Section I of the U.S. Constitution vests ``the Judicial
Power of the United States . . . in one supreme court.'' The list of
subject matter areas which the Federal courts have the power to hear
and decide under section 2 of Article III establishes that, ``The
Judicial power shall extend to all cases . . . arising under this
Constitution.'' 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. 2389 and the Federal Marriage Amendment we
debated yesterday are bills to prevent the courts from exercising their
article III functions and prohibiting discrimination. We cannot allow
bad legislation such as this to pass in the House, and thereby
eviscerate the Constitution and the values upon which this nation was
originally founded. 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. We did not allow it then, and we should not allow it
now.
H.R. 2389, 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. The Jackson-Lee
amendment protects children from being coerced or forced into reciting
the Pledge of Allegiance against their will.
However, the statute and the pledge are subject to change by future
legislation 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.
Mr. Chairman, I ask unanimous consent to place in the Record a copy
of a letter dated July 18, 2006 from the American Bar Association which
supports my claims.
Mr. Chairman, I ask that my colleagues vote to protect religious
minorities, vote to protect judicial review, vote to protect separation
of powers, and vote to protect access to the Federal courts. I urge my
colleagues to vote against H.R. 2389.
Ms. LINDA T. SANCHEZ of California. Mr. Chairman, I support our
national Pledge of Allegiance 100 percent. I strongly believe the
Pledge teaches America's children national pride and a sense of civic
responsibility.
However, I oppose H.R. 2389, the ``Pledge Protection Act.'' This bill
is merely a reaction to one federal case: Newdow vs. U.S. Congress.
The 9th Circuit Federal court in Newdow held that the Pledge of
Allegiance violated the Established Clause of the Constitution. The
court ruled that the phrase ``one nation under God'' within the Pledge
impermissibly takes a position with respect to the identity and
existence of God.
I disagree with the 9th Circuit's ruling in the Newdow case. However,
I don't believe the way to protect the Pledge of Allegiance is by
banning all federal courts from hearing cases dealing with the Pledge,
which is what H.R. 2389 does. H.R. 2389 goes way too far. In fact, it
violates the Constitution and the very spirit of the Pledge itself.
The federal courts, not the United States Congress, have the power to
interpret and enforce rights protected under the Constitution. That is
what the famous Marbury vs. Madison case was all about: separation of
powers. But, H.R. 2389 violates the constitutional separation of powers
principle, because it strips all federal courts of their power to make
rulings on an individual's right to choose whether to recite the Pledge
of Allegiance.
To ensure that America remains an indivisible and proud Nation, it is
very important that we protect the Pledge of Allegiance, but it is even
more important that we do not violate the Constitution and undermine
the federal courts to do so.
Therefore, I oppose H.R. 2389.
Mr. TIAHRT. Mr. Chairman, I rise today in strong support of H.R.
2389, The Pledge Protection Act, offered by Representative Todd Akin.
This legislation protects our Pledge of Allegiance by preventing
radical judges and liberal lawyers from questioning the
constitutionality of the phrase ``under God.''
The preamble of 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 unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness.''
Our national motto is: ``In God We Trust.''
The opening announcement at the United States Supreme Court is: ``God
save the United States and this honorable court.''
Unless there is a law limiting the jurisdiction of Federal courts, we
will continue to see lawsuits such as the one that is trying to ban the
Pledge of Allegiance in schools because it mentions ``One nation under
God.''
The Constitution gives Congress the power to limit the jurisdiction
of Federal courts in Article III, Section 2. Maintaining checks and
balances on the power of the Judiciary Branch and the other two
branches is vital to keep the form of government set up by our Founding
Fathers.
I am proud to be a co-sponsor of The Pledge Protection Act and will
vote in favor of this legislation.
God Bless America!
Mrs. MALONEY. Mr. Chairman, I rise today in strong opposition to H.R.
2389, the ``Pledge Protection Act.''
This legislation represents an attempt by the Majority to strip the
federal courts of jurisdiction over yet another important issue. The
effect of H.R. 2389 would be to prevent individuals who have legitimate
cases from ever reaching a courtroom. The U.S. Constitution clearly
states that a separation of powers, ensured by a system of checks and
balances established by our Founding Fathers more than 200 years ago,
must exist among the three branches of government. What the proponents
of this bill want to do is to tell the courts what cases they can and
cannot hear.
This bill is wrong and costs too high a price. I urge my colleagues
to vote ``no'' on H.R. 2389.
The CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered read for amendment
under the 5-minute rule.
The text of the bill is as follows:
H.R. 2389
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
2005''.
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
``(a) Except as provided in subsection (b), 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) The limitation in subsection (a) does not apply to--
``(1) any court established by Congress under its power to
make needful rules and regulations respecting the territory
of the United States; or
``(2) the Superior Court of the District of Columbia or the
District of Columbia Court of Appeals;''.
(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.''.
The CHAIRMAN. No amendment to the bill shall be in order except those
printed in House Report 109-577. 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.
[[Page H5415]]
Amendment No. 1 Offered by Mr. Watt
The CHAIRMAN. It is now in order to consider amendment No. 1 printed
in House Report 109-577.
Mr. WATT. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Watt:
Page 2, lines 12 and 13, strike ``, and the Supreme Court
shall have no appellate jurisdiction,''.
The CHAIRMAN. Pursuant to House Resolution 920, the gentleman from
North Carolina (Mr. Watt) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, in many ways my amendment is quite simple. It
simply preserves the authority of the United States Supreme Court to do
its job. My amendment, however, is fundamental in its simplicity
because it reflects the cornerstone of our constitutional framework, a
framework that recognizes three coequal branches of government, each
with its own area of responsibility, each serving as a check and
balance on the others.
For over 200 years, the separation of powers doctrine has worked
well, vesting the legislative power with the Congress, the executive
power with the President, and the judicial power with the Supreme Court
and other inferior Federal courts. At the pinnacle of the judiciary is
and has been the one Court mandated by the Constitution, the United
States Supreme Court.
I have offered this amendment before, and I offer it today because
the very idea of Congress unilaterally cutting off all Federal court
review of a constitutional issue is both unprecedented and likely
unconstitutional, but it is also impractical and imprudent.
Despite the substantial body of scholarship that suggests that
Congress does not have the authority to strip the Supreme Court of this
appellate jurisdiction in the manner proposed by this bill, let's for
the sake of argument concede that it does have that authority, and let
me address the imprudence of this bill.
As legislators exercising the legislative power committed to us by
the Constitution, the compelling question is: Why would we want to do
what this bill would have us do? What could possibly motivate this
Congress to adopt this bill as sound public policy? How does this bill
do anything to protect the Pledge of Allegiance? What respect does it
show for our venerable institutions? How does it unify us as a Nation?
I suggest to you that this bill makes the Pledge far more vulnerable
to assorted, distasteful interpretations than the current law that
exists at present.
I appeal to our common sense. Under the bill as drafted, the
likelihood that different opinions on the Pledge will issue from State,
territorial and the District of Columbia courts is either ignored or
deliberately sheltered from challenge. Rather than protect the Pledge
of Allegiance, this bill invites a patchwork of interpretations from
all over the country.
What if your State is the State that determines that your child can
no longer recite the words ``under God'' in the Pledge? Will you move
to a neighboring State? Move across the country? Wherever you find a
friendly State interpretation? But what if there is no Federal
constitutional determination, and State legislatures are left to change
the law upon acquiring the appropriate majority. Would you become a
nomad? Would you move from State to State in search of the right
position for your child?
The bill eliminates every single recourse that you have. It
establishes a mechanism under which an individual's Federal rights
would depend entirely on the happenstance of location. Ultimately
coercing children to recite the Pledge without the language ``under
God'' may be prohibited in one place but not another. Constitutional
protections could be strong in one State and weak or nonexistent in
another.
My amendment would restore the obligation of the Supreme Court to
exercise its role as the final arbiter of the Constitution. Even if the
proponents of this measure believe the Federal, district, and circuit
courts of appeal should be removed from the process, the role of the
U.S. Supreme Court in establishing uniform standards to apply to all
Americans wherever they reside should certainly be protected.
I urge my colleagues to support my amendment.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. The gentleman's time has expired.
Mr. AKIN. Mr. Chairman, I rise to claim the time in opposition to the
amendment, and I yield 2 minutes to the gentleman from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Chairman, I thank the gentleman for yielding
this time and for his leadership on this issue.
This issue that is in front of us today is an example of
congressional restraint, congressional restraint with regard to a court
that is out of control.
The Ninth Circuit Court has thrown it back at this Congress time and
time again, and the activism that has taken place out there in the
ninth circuit brings me to some things that would be more drastic
solutions to this than this very careful, very narrow, very gently
defined legislation that we have before us. It only deals with the
words ``under God'' in the Pledge.
We could do far more. In fact, I voted to split the ninth circuit in
half. I would vote to abolish them if they continue this kind of
behavior, throwing this into the face of the American people. We are
not doing that. We are very carefully, very narrowly addressing
something that the American people are asking for, very well within the
jurisdiction of the United States Congress. And any Member who votes
against this legislation may have their opinions, as Mr. Watt does,
that they are either knowingly or inadvertently or perhaps even
willfully conceding some power and authority this Congress has to
control the courts.
In the end, it is the Congress that controls the courts. It is not
three separate but equal branches. In the end, the congressional
structure is set up for the Congress to determine the final authority
over the judicial branch of government through the pursestrings. For
all of our judicial courts and all of our appellate courts, everything
is a creature of Congress, except the Supreme Court, which is also a
creature of Congress, but established by the directive and the mandate
of the Constitution.
Mr. Chairman, we have the authority to do this. It is a very narrowly
and carefully defined piece of legislation.
The Watt amendment is a gutting amendment. It kills the bill. It
hands this authority over to the Supreme Court, which is our very
number one concern. We simply want to, with legislation, reflect the
values of the American people, reflect the values of the history and
the legacy of our Founding Fathers, and our rights that come from God
within this Pledge. I urge we oppose the Watt amendment.
Mr. AKIN. Mr. Chairman, I yield myself the balance of my time.
Essentially what our bill does, if you want to put it in a simple
word picture, we are creating a fence. The fence goes around the
Federal judiciary. We do that because we don't trust them. We don't
trust them because of previous decisions and because of the simple fact
that there are not five votes on the Supreme Court to protect our
beloved Pledge of Allegiance. And 80 percent to 90 percent of Americans
would like to leave the Pledge of Allegiance the way it is.
So what does this amendment do? This amendment simply opens a big
hole in the fence. So the gentleman from Iowa was absolutely right:
this is a gutting amendment. There is absolutely no reason to pass the
bill if this amendment were to pass. We simply allow the Supreme Court
to come in whenever they choose, turn the first amendment upside down
and simply say to kids, you are not allowed to say the Pledge of
Allegiance, and we are going to use the first amendment from now on as
a weapon instead of for free speech to censorship on the courts.
So I am not persuaded by the pious hand-wringing of liberal activists
who flinch not at the courts' unfettered march to create some imagined
utopia at the expense of the separation of powers. It is time for us to
do our job as Congressmen. It is time to assert ourselves, that we will
not give unchecked legislative authority to the courts. We have been
too long rolling
[[Page H5416]]
over to them. It is time to stand up and say on the Pledge of
Allegiance, enough is enough.
Mrs. BIGGERT. Mr. Chairman, I rise today in support of the Watt
Amendment, which would restore the Supreme Court's jurisdiction over
questions related to the Pledge of Allegiance.
The Pledge of Allegiance is an important expression of our shared
values, and it should be preserved in its current form. I fully support
the Pledge of Allegiance and urge my colleagues to do the same.
The intent of this bill is good. In fact, I was a cosponsor of this
bill in the 108th Congress. However, that was before the provision was
added to restrict the Supreme Court from hearing cases involving the
Pledge of Allegiance. The bill we vote on today again strips the
Supreme Court's jurisdiction over this important constitutional issue.
I recognize that Congress clearly has the authority under Article III
of the Constitution to define the jurisdiction or the federal district
and appellate courts. But constitutional scholars say there is no
direct precedent for making exceptions to the appellate jurisdiction of
the Supreme Court.
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 also ask my colleagues, do we really want 50 different
versions of the Pledge of Allegiance? I certainly don't think so.
The Watt amendment would restore to the bill the Supreme Court's
jurisdiction over questions related to the Pledge of Allegiance,
changing the bill back to the way it was originally introduced in the
108th Congress when I was a cosponsor.
I revere the Constitution and the Pledge of Allegiance. 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's why I urge you to support the Watt Amendment
to the Pledge Protection Act.
Mr AKIN. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from North Carolina (Mr. Watt).
The question was taken; and the Chairman 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 will be
postponed.
The point of no quorum is considered withdrawn.
Amendment No. 2 Offered by Ms. Jackson-Lee of Texas
The CHAIRMAN. It is now in order to consider amendment No. 2 printed
in House Report 109-577.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Ms. Jackson-Lee of Texas:
Page 3, line 2, 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''.
The CHAIRMAN. Pursuant to House Resolution 920, the gentlewoman from
Texas (Ms. Jackson-Lee) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman from Texas.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I would imagine that Members
across the campus in their offices and maybe even committee rooms are
moved by the impassioned pleas by my friends on the other side of the
aisle, so I want to make a pledge, and that is that I have stood on the
floor of the House and acknowledged the importance of having our
schoolchildren and others of America acknowledge and say the Pledge of
Allegiance every single day. I stand by that statement.
What bothers me is when Members come to the floor and vote, they will
look to the name of the proponent and they will simply vote ``no.''
They will not understand the crux of the debate. They will not
understand the sheer quarrel or the sheer amazement that we have with
this particular legislation in the first place.
This legislation deals with the idea of protecting the Pledge of
Allegiance by denying access to the courthouse. My amendment is simple.
It gives real meaning to the Pledge of Allegiance and the patriotism
that is felt when it is recited by making it clear that no one can be
forced or coerced to recite the Pledge of Allegiance or retaliated
against for not reciting it in those cases where doing so violates
one's religious beliefs.
What is the hindrance of Members agreeing to allow one to be able to
access the courts on the simple ground that it violates one's religious
beliefs?
{time} 1345
In this way, my amendment ensures that the Pledge of Allegiance is
being recited freely, voluntarily and without coercion or fear of
retaliation. In this way, a recited Pledge of Allegiance remains
sacrosanct, and our national commitment to religious freedom is
preserved.
Might I cite for my friends a quote from President Reagan, the great
communicator himself, who said in 1983, ``The first amendment of the
Constitution was not written to protect the people of this country from
religious values, it was written to protect religious values from
government tyranny.''
What I would suggest is to close the courthouse door is an example of
government tyranny. It means that if my 6-year-old friend by the name
of Hazel, who had a religious belief, whose family had a religious
belief, who was allowed to sit silently in her seat when all of us
stood to say I pledge allegiance, that little girl, if forced by any
school system to do so, now has the courthouse door closed to her.
It means that we are ignoring the West Virginia State Board of
Education versus Barnett case that mandated that school children recite
the Pledge of Allegiance. This was done in West Virginia. Under West
Virginia law, persons who on religious grounds refused to recite the
Pledge faced expulsion from school. But Justice Jackson wrote, ``To
believe 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 institution to free minds.''
Mr. Chairman, I have said it is good and good news to say the Pledge
and to have our school children say the Pledge. This amendment is very
clear. It does nothing to this particular legislation, other than to
say that if your grounds are religious based, based on religion, based
on your defined religious beliefs, why are you denying them the right
to go into the courthouse on religious beliefs only?
That is the question that clergy are asking across America. That is
the question that the American Bar Association, representing lawyers of
all political persuasions, are asking at this time.
And I beg of my colleagues to understand that we are protectors of
liberty. We are protectors of the first amendment. We are not to
denounce the first amendment. We are not to ignoring the first
amendment. We are not to stomp on the first amendment. And I would beg
to say that if we call ourselves protecting the flag, the very flag
that soldiers in Iraq and Afghanistan are now on the battlefield
shedding their blood, veterans, and we would deny Americans the right
to utilize the constitutional branch of government created by the
Constitution and created by this body.
Shame on us if we cannot accept the entreaty of a little girl named
Hazel, who sat next to me in a school a few short years ago, I might
add, lonely, unprotected, fearful, sitting isolated while we stood to
say the Pledge. I am grateful that I had a teacher that understood that
we would not stigmatize her, discriminate against her, and she had her
freedom.
This is an important amendment to ensure that all of our freedom is
protected. I ask my colleagues for a vote for religious freedom and
liberty and to allow the Jackson-Lee amendment to go forward.
Mr. Chairman, I have an amendment at the desk. I thank the members of
the Rules Committee for allowing this amendment to go forward.
Mr. Chairman, my amendment gives real meaning to the Pledge of
Allegiance and the
[[Page H5417]]
patriotism that is felt when it is recited by making it clear that no
one can be coerced or forced to recite the Pledge, or retaliated
against for not reciting it in those cases where doing so violates
one's religious beliefs. In this way, my amendment ensures that the
Pledge of Allegiance is being recited freely, voluntarily, and without
coercion or fear of retaliation. In this way, a recited Pledge of
Allegiance remains sacrosanct and our national commitment to religious
freedom is preserved.
Mr. Chairman, my amendment draws inspiration from President Reagan,
the Great Communicator himself, who said in 1983:
The First Amendment of the Constitution was not written to
protect the people of this country from religious values; it
was written to protect religious values from government
tyranny.
H.R. 2389 precludes Federal judicial review of any constitutional
challenge to recitation of the Pledge of Allegiance--whether it be in
the lower Federal courts or the U.S. Supreme Court. My amendment does
not disturb this legislative judgment except in the limited instance of
cases involving claims of coercion and mandatory recitation. In other
words, my amendment is intended to protect religious values from
government tyranny. Nothing less, nothing more.
Mr. Chairman, in West Virginia State Board of Education v. Barnett,
the Supreme Court struck down a West Virginia law that mandated
schoolchildren recite the Pledge of Allegiance. Under West Virginia
law, persons who, on religious grounds, refused to recite the Pledge
faced expulsion from school and could be prosecuted and fined for
violating the statute. In striking down that statute, the great Justice
Robert Jackson wrote for the Court:
To believe 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.
Mr. Chairman, my amendment is important for another reason. H.R.
2389, as drafted, insulates the Pledge of Allegiance from
constitutional challenge in Federal court.
However, the pledge itself is subject to change by future legislative
bodies. This means that if some future Congress decides to revise the
Pledge to include religiously offensive or discriminatory language in
the Pledge, the authority of the government to compel a person to
recite that Pledge could not be challenged in Federal court. None of us
would want that to happen. My amendment ensures that it won't.
Mr. Chairman, my amendment protects religious minorities. My
amendment protects judicial review. My amendment protects the
separation of powers. My amendment strengthens the Pledge by ensuring
that it recited voluntarily. My amendment ensures that the Pledge, like
the oath all Members of Congress take, is ``given freely, without
mental reservation or purpose of evasion.'' I urge all Members to
support the Jackson-Lee amendment.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. The gentlewoman's time has expired.
Mr. AKIN. Mr. Chairman, I rise to claim the time in opposition to the
amendment.
The CHAIRMAN. The gentleman is recognized for 5 minutes.
Mr. AKIN. Mr. Chairman, I yield 3 minutes to my distinguished
colleague from Arizona, Trent Franks.
Mr. FRANKS of Arizona. Mr. Chairman, may I first remind all of us of
words we each spoke not so long ago.
``I do solemnly swear that I will support and defend the Constitution
of the United States against all enemies, foreign or domestic; that I
will bear true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose of
evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter, so help me God.''
Mr. Chairman, when we swore this oath, we did not say that we would
protect the Constitution from everyone except rogue judges.
The issue that brings us to the floor this day is an act on the part
of the Ninth Circuit that ruled that the words ``under God'' in a
voluntary Pledge of Allegiance by our school children is
unconstitutional.
It astonishes me, Mr. Chairman, that we even have to address such an
insane conclusion. I truly believe that if we had lived in the days of
the Founding Fathers and accused them of intending to outlaw school
children from saying the words ``under God'' in their voluntary Pledge
of Allegiance, they would have challenged us to a duel for impugning
their honor in such an egregious and outrageous fashion.
Mr. Chairman, when judicial supremacists on the bench desecrate the
very Constitution that they are given charge, the sacred charge to
defend, those of us in this Congress who have also made an oath to
defend the Constitution must respond accordingly.
The Constitution of the United States, Mr. Chairman, does not
prohibit school children from saying the words ``under God'' in a
voluntary Pledge of Allegiance. It is that fundamentally simple.
Indeed, the Constitution does say that the Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof.
Mr. Chairman, when the Ninth Circuit decision said school children
cannot voluntarily say the words ``under God'' in their Pledge of
Allegiance, these judges, sir, were prohibiting the free exercise
thereof.
This legislation would take such a decision away from such rogue
judges.
Mr. Chairman, if Congress forsakes their oath and their duty to
defend the Constitution and allows this magnificent document to fall
prey to activist judges, we relegate this Republic to an arrogant
judicial oligarchy. It is an abrogation of our oath of office and it
tramples on the blood of our Founding Fathers and the soldiers who died
to give us America and her rule of law.
There would be nothing left to us at that point but to board up the
windows in this building and go home and quit pretending to be
defenders of the United States Constitution or representatives of the
greatest Republic in the history of humanity.
Mr. Chairman, it is not too late. I urge this amendment be rejected,
and the bill be passed as written.
Mr. AKIN. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentlewoman from Texas (Ms. Jackson-Lee).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentlewoman from Texas will be
postponed.
Ms. JACKSON-LEE of Texas. Mr. Chairman, in the spirit of reflection
of this disastrous bill, I ask unanimous consent to withdraw my
rollcall vote only because I believe that we would denigrate the
protection of religion even further by subjecting my very good
amendment to a rollcall vote. It should be already included in this.
The CHAIRMAN. Without objection, the gentlewoman's request for a
recorded vote is withdrawn, to the end that the amendment stands
rejected by voice vote.
There was no objection.
So the amendment was rejected.
Amendment No. 3 Offered by Mr. Akin
The CHAIRMAN. It is now in order to consider amendment No. 3 printed
in House Report 109-577.
Mr. AKIN. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 3 offered by Mr. Akin:
Add at the end the following:
SEC. 3. EFFECTIVE DATE.
This Act and the amendments made by this Act take effect on
the date of the enactment of this Act and apply to any case
that--
(1) is pending on such date of enactment; or
(2) is commenced on or after such date of enactment.
The CHAIRMAN. Pursuant to House Resolution 920, the gentleman from
Missouri (Mr. Akin) and a Member opposed each will control 5 minutes.
Mr. NADLER. Mr. Chairman, I claim the time in opposition.
The CHAIRMAN. The gentleman from New York will control the 5 minutes
in opposition.
The Chair recognizes the gentleman from Missouri.
Mr. AKIN. Mr. Chairman, could I just ask, is the other side going to
be speaking on the amendment?
The CHAIRMAN. Mr. Nadler has claimed the 5 minutes in opposition, so
I assume he is going to speak.
[[Page H5418]]
Mr. AKIN. That is a good assumption.
Mr. Chairman, the purpose of this amendment and the reason it was
added, to some degree in a last-minute nature, was because of the
Hamden decision. The Hamden decision, a majority of the Supreme Court
on an Article III, section 2 question said that because a particular
issue, in this case it was Gitmo, was being considered in the courts,
that the article III, section 2 language didn't apply.
Now, this is completely inconsistent with all previous rulings of the
Supreme Court. But we thought, just to be safe, that what we would do
here would be to add language that makes it clear that not only does
this bill consider any future cases that are brought before the court,
the Federal courts, but also existing cases, in this case, again, the
challenge to the Pledge that is already in the Federal court system and
is before the Ninth Circuit out in California and some of the States in
the West. So that was the reason for this technical and perfecting
amendment, certainly to clarify, just simply to clarify that this bill
would apply not only to future legislation but cases that are currently
before the Court.
Along those lines, I think it is very important for us to once again
affirm the importance of our discussion and our debate here today. It
is ultimately the job of the legislative branch and the executive
branch to provide some check and balance on the Supreme Court.
There would be no argument from me if the Supreme Court based all of
their decisions on the rules, that is the U.S. Constitution. However,
the Supreme Court has gone beyond that increasingly, and it is our
concern that they will go well beyond the U.S. Constitution in
considering this case.
We have every reason to believe that we do not have five Justices
that will support the Pledge. We have every reason to believe that the
Pledge could easily be struck, and it is for that reason that this bill
has been introduced.
Now, some would say that, in fact I believe the minority leader
called what is going on on this floor a charade. I think that is a
rather harsh way of describing people that have a genuine interest in
the Pledge of Allegiance, have a genuine interest in the heart of what
this good Nation was based on, the idea that there is, in fact, a God
that grants basic inalienable rights to all people, and that the job of
government is to protect those basic rights.
Part of that U.S. Constitution includes the first amendment, and the
first amendment has to do with free speech. I can understand the use of
the first amendment to say to someone, you are not required to give an
oath that you don't believe in. But I cannot understand how you can
look at free speech as a tool to censor school children across America
from saying that they cannot, they are going to censor the Pledge of
Allegiance, they cannot say the Pledge of Allegiance.
This is the time for this Congress to stand up, to be strong, and to
take notice of the fact that the Court will no longer be making these
forays of absolutely unchecked legislative decision-making. And it is
time for us to stand up and say no to a Court that is effectively
trying to create their own set of rules instead of reading the U.S.
Constitution.
Mr. Chairman, I think that there is good evidence from the way that
the Court has handled the fifth amendment in allowing the
redistribution of private property willy nilly, without a government
purpose, I think there is good reason to be concerned as the Court has
taken to itself a power to tax, which is unconstitutional. There is
good reason for us to be concerned about the Court's overrunning their
constitutional bounds.
It is time for us to show the backbone to stand up to the Court. It
is time for us to say no to this unregulated, general legislative
authority.
Mr. Chairman, I yield back the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, we are now down to the heart of the matter. This entire
spectacle is aimed at a possible decision by one Court that the
directed recitation by school children under the instruction of their
teacher of the phrase ``under God'' may violate the first amendment
rights of those children.
Let's be clear. Nowhere in the United States is the use of the phrase
``under God'' prohibited in the public schools. In the only two cases
in which the Court ruled that the directed recitation of the phrase
``under God'' violated the establishment clause, the Supreme Court
vacated one ruling, and has issued a stay preventing the second ruling
from interfering with the recitation of the Pledge.
For this we need to take a chain saw to the Constitution? For this we
need to endanger the religious liberty of religious minorities like the
Jehovah's Witnesses, who were thrown out of school because their
religion barred them from saying the Pledge?
Only the Supreme Court protected their rights in violence against
Jehovah's Witnesses that ensued.
This bill would not only prevent the Supreme Court from ruling on the
constitutionality of directing school children to recite the phrase
``under God,'' it would also overturn the 1943 Supreme Court Jehovah's
Witnesses case and allow the punishment or expulsion of school children
for refusing to recite a pledge that violates their religion or their
conscience.
{time} 1400
We may be endowed, Mr. Chairman, by our Creator with certain
unalienable rights, but people can, and routinely do, violate and take
away those rights. That is why we need a Supreme Court, to protect
these rights even when political majorities will not.
Supporters of this bill have candidly said they disagree with the
Supreme Court, and that, in their opinion, the Supreme Court has gone
beyond its powers, and that we, in effect, should overrule it and
prevent them from ruling in these cases. We have heard this before.
Look at the notorious ``Southern Manifesto'' against the Supreme Court
decision in the Brown v. Board of Education 50 years ago: ``We regard
the decisions of the Supreme Court in the school cases as a clear abuse
of judicial power. It climaxes a trend in the Federal judiciary
undertaking to legislate, in derogation of the authority of Congress,
and to encroach upon the reserved rights of the States and the
people.''
That is what we hear whenever people disagree with the Supreme Court,
in the school desegregation cases and now. And this amendment makes the
point of the bill explicit.
The sponsors are afraid of what the Supreme Court may do in a pending
case on this subject that may come before them and therefore explicitly
strip the Federal courts of jurisdiction even over a pending case. This
is Congress saying to a specific plaintiff, we do not approve of your
claim of a violation of your constitutional right; so we are going to
shut the courthouse door in your face.
This is a dangerous enterprise. I respect my friend's concerns and
his right to disagree with the courts, but we must not destroy our
Constitution and the one independent bulwark of our liberty. I urge
defeat of this bill.
Mr. Chairman, I yield for the purpose of making a unanimous consent
request to the distinguished ranking member of the Judiciary Committee,
Mr. Conyers.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Chairman, I rise today to oppose this amendment and
am against any amendment that would throw out any case currently
pending in the Court.
This amendment would add language making it explicit that this
already unconstitutional bill is effective immediately and applies to
all pending and future litigation. As it currently stands, this bill
does nothing to protect religious minorities from being coerced into
reciting the Pledge, in violation of their First Amendment right of
free speech. This amendment would effectively throw out any case that
is currently pending in court in which a child's right to be free from
religious persecution is being vindicated, and would slam the
courthouse door shut in their faces.
H.R. 2389 as a whole is premature and should not be on our list of
priorities.
What I find particularly troubling about this bill, setting aside all
of the concerns that I have already stated, is its timing. It seems
that my colleagues in the majority have lost sight of our priorities.
At a time of record budget deficits and gasoline prices, when we are
engaged in a quagmire in Iraq, when more than 45 million people are
uninsured in this nation, and every day workers are seeing their
pensions and health care benefits jeopardized,
[[Page H5419]]
surely we can find better things to do with our time as a congress than
bash the courts.
Why then is something as arbitrary as a bill that would strip our
Federal courts of their authority to hear an issue that the highest
court in our land has never spoke on at the top of our list of ``things
to do''? Need I remind my colleagues that the Supreme Court has never,
since the inclusion of the words ``under God'' into the Pledge of
Allegiance back in 1954, discussed or ruled on its constitutionality?
Why then do we need this legislation at all? Why then do we need to
offer this legislation now? It is our rights as individuals that are at
stake right now--not the sanctity and preservation of the Pledge.
I urge my colleagues to vote ``no'' on this amendment.
Mr. NADLER. Mr. Chairman, how much time do I have left?
The CHAIRMAN. The gentleman from New York has 1\1/2\ minutes.
Mr. NADLER. Mr. Chairman, I will not use the 1\1/2\ minutes. I will
simply say that this amendment is dangerous for the same reason that
the bill is dangerous. We should not say, in the case of this
amendment, to someone who is a plaintiff in a court in a pending case,
we are going to shut the courthouse door in your face because we are
afraid the Supreme Court might issue a decision. It has not done it
yet, but we are afraid the Supreme Court might issue a decision that we
disagree with. We do not trust the courts. We do not agree with them.
Never mind that George Bush has appointed two new members of the Court.
We still do not agree with it, and, therefore, we are going to try to
strip them of their jurisdiction.
That way strips the protection of our liberties from us. We need the
courts to protect our liberties. Our constitutional rights can only be
vindicated by the courts stepping in when the political branches of
government violate the rights of unpopular minorities. That is what the
courts have done throughout our history, and we need that protection to
continue. And that is why this bill is not only subversive of our
constitutional rights, but unconstitutional.
The bill ought to be defeated. The amendment ought to be defeated.
Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Missouri (Mr. Akin).
The amendment was agreed to.
Mr. AKIN. Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Marchant) having assumed the chair, Mr. LaTourette, Chairman 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. 2389) 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, had come to no resolution thereon.
____________________