[Congressional Record (Bound Edition), Volume 150 (2004), Part 14]
[House]
[Pages 19094-19122]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     PLEDGE PROTECTION ACT OF 2004

  The SPEAKER pro tempore. Pursuant to House Resolution 781 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the consideration of the bill, H.R. 2028.

                              {time}  1133


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 2028) to amend title 28, United States Code, with respect to the 
jurisdiction of Federal courts inferior to the Supreme Court over 
certain cases and controversies involving the Pledge of Allegiance, 
with Mr. Shaw in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and 
the gentleman from New York (Mr. Nadler) each will control 30 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the Pledge of Allegiance reads: ``I pledge allegiance 
to the Flag of the United States of America, and to the Republic for 
which it stand, one Nation, under God, indivisible, with liberty and 
justice for all.''
  Two words in the Pledge, ``under God,'' help define our national 
heritage as beneficiaries of a Constitution sent to the States for 
ratification, as the Constitution itself states, ``in the Year of our 
Lord,'' 1787, by a founding generation that saw itself guided by a 
providential God. Those two words, and their entirely proper presence 
in the system of government defined by our Constitution, have been 
repeatedly and overwhelmingly reaffirmed by the House of 
Representatives, most recently twice in the 107th Congress, by votes of 
416 to 3 and 401 to 5, and in this Congress by a vote of 400 to 7.
  The first Congress not only acknowledged a proper role for religion 
in public life, but it did so at the very time it drafted the 
Establishment Clause of the first amendment. Just three days before 
Congress sent the text of the first amendment to the States for 
ratification, it authorized the appointment of legislative chaplains.
  And on November 28, 1863, President Abraham Lincoln delivered the 
Gettysburg Address and declared, in words now inscribed in one of our 
most beloved national monuments, ``we here highly resolve that these 
dead shall not have died in vain, that this Nation, under God, shall 
have a new birth of freedom.''
  Although the United States Supreme Court recently reversed and 
remanded the Ninth Circuit's latest holding striking down the Pledge as 
unconstitutional, the Supreme Court did so on the questionable grounds 
that the plaintiff lacked the legal standing to bring the case. The 
Supreme Court's decision not to reach the merits of the case is 
apparently an effort to forestall a decision adverse to the Pledge 
since the dissenting Justices concluded that the Court in its decision, 
``erected a novel prudential standing principle in order to avoid 
reaching the merits of the constitutional claim.'' That does not bode 
well for the Pledge of Allegiance.
  To protect the Pledge from Federal court decisions that would have 
the effect of invalidating the Pledge across several States, or 
nationwide, H.R. 2028 will preserve to State courts the authority to 
decide whether the Pledge is valid within that State's boundaries. It 
will place final authority or a State's pledge policy in the hands of 
the States themselves.
  H.R. 2028 as reported by the Committee on the Judiciary is identical 
to H.R. 3313, the Marriage Protection Act, which the House passed just 
prior to the August recess except that it addresses the Pledge rather 
than the Defense of Marriage Act. If different States come to different 
decisions regarding the constitutionality of the Pledge, the effects of 
such decisions will be felt only within those States. A few Federal 
judges sitting hundreds of miles away from your State will not be able 
to rewrite your State's Pledge policy.
  A remedy to abuses by Federal judges has long been understood to lie, 
among other places, in Congress's authority to limit Federal court 
jurisdiction. The Constitution clearly provides that the lower Federal 
courts are entirely creatures of Congress as much as appellate 
jurisdiction of the Supreme Court excluding its only very limited, 
constitutional, original jurisdiction over cases involving ambassadors 
and cases in which the States have legal claims against each other.
  As a leading treatise on Federal court jurisdiction has pointed out, 
``Beginning with the first Judiciary Act in 1789, Congress has never 
vested the Federal courts with the entire `judicial Power' that would 
be permitted under Article III'' of the Constitution.
  Justice William Brennan, no conservative by record, writing for the 
Supreme Court said, ``virtually all matters that might be heard in 
Article III Federal courts could also be left by Congress to the State 
courts.''
  As the Dean of Stanford Law School wrote recently, ``The Constitution 
leaves room for countless political responses to an overly assertive 
Court: Congress can strip it of jurisdiction. The means are available 
and they have been used to great effect when necessary, used we should 
note, not by disreputable or failed leaders, but by some of the most 
admired Presidents and Congresses in American history.''
  Far from violating the separation of powers legislation that leaves 
State courts with jurisdiction to decide certain classes of cases would 
be an exercise of one of the very checks and balances provided in the 
Constitution. Integral to the American constitutional system is each 
branch of government's responsibility to use its powers to prevent 
overreaching by the other two

[[Page 19095]]

branches. H.R. 2028, which has 226 co-sponsors, does just that, and I 
urge my colleagues to join me in supporting it.
  Mr. Chairman, I reserve the balance of my time.
  Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, this is not simply about the Pledge of Allegiance. I 
really hate to be an I-told-you-so, but the last time we considered 
legislation to strip the Federal courts of jurisdiction, in that case, 
to hear cases challenging the Defense of Marriage Act, I warned there 
would be no end to it.
  Our former colleague, Bob Barr, whose legislation Congress was 
purporting to protect on that occasion said, no thanks. He wrote, 
``This bill will needlessly set a dangerous precedent for future 
Congresses that might want to protect unconstitutional legislation from 
judicial review. During my time in Congress I saw many bills introduced 
that would violate the Takings Clause, the second amendment, the tenth 
amendment and many other constitutional protections. The fundamental 
protections afforded by the Constitution would be rendered meaningless 
if others followed the path set by H.R. 3313.''
  Bob Barr was right. And it would make the Constitution like the 
Soviet Constitution which had plenty of guarantee of rights, but they 
were not worth the paper they were written on because there was no 
independent court system to enforce them.
  Today it is the turn of the religious minorities. Once upon a time a 
student could be expelled from school for refusing to recite the Pledge 
of Allegiance. In 1943 in the middle of World War II, the Supreme Court 
in the Barnette case held that the children had a first amendment right 
not to be compelled to swear an oath against their beliefs.
  Justice Jackson wrote, ``If there is any fixed star in our 
constitutional constellation, is that no official, high or petty, can 
prescribe what shall be orthodox in politics, nationalism, religion or 
other matters of opinion, or force citizens to confess by word or act, 
their faith therein.''
  This obviously includes a pledge of faith in God.
  The Jehovah Witnesses in the Barnette case felt that it was idolatry 
to be forced to pledge that even they believe in God.
  This legislation would of course strip those families of the right to 
go to court to defend their religious liberty. Schools could once again 
expel children for acting according to the dictates of their religious 
faith, and Congress will have slammed the courthouse door in their 
faces.
  This bill is part of a more general attack on our system of 
government. You learned about this in school. We have an independent 
judiciary whose job it is to interpret the Constitution, even if their 
decisions are really unpopular. And what this bill does, what these 
bills do is to slam the courthouse door in the face of people who 
believe that their Constitutional rights are violated so they cannot go 
to court because we tell them they cannot.
  As unfortunate as I find the current Supreme Court on so many issues, 
I understand that we cannot maintain our system of government, we 
cannot enforce our Bill of Rights if the independent judiciary cannot 
enforce those rights even if the majority does not like it.
  As to the complaints about unelected judges, remember your high 
school civics. We have an independent judiciary precisely to rule 
against the wishes of a trenchant majority, especially when it comes to 
the rights of unpopular minorities. That is our system of government 
and it is a good one.
  As Alexander Hamilton said in Federalist 78, ``The complete 
independence of the courts of justice is peculiarly essential in a 
limited Constitution. By a limited Constitution, I understand one which 
contains certain specified exceptions to the legislative authority. 
Limitations of this kind can be preserved in practice no other way than 
through the medium of courts of justice whose duty it must be to 
declare all acts contrary to the manifest tenor of the Constitution 
void. Without this, all reservations of particular rights or privileges 
would amount to nothing.''
  And here we are saying that when someone believes that an Act of 
Congress violates their rights, they may not go to court to try to see 
if those rights are supreme if the legislation is unconstitutional.
  We are playing with fire here. We are playing with the national unity 
of this country. The gentleman from Wisconsin (Mr. Sensenbrenner) says 
the 50 State courts would reserve to themselves the right to declare 
Federal law unconstitutional. So what would be constitutional in one 
State would be unconstitutional in another. We would be back to the 
Articles of Confederation. We would be undoing 200 years of American 
history because we would have 50 different interpretations of the 
Constitution and of our State laws.
  The gentleman from Wisconsin (Mr. Sensenbrenner) says that the 
Judiciary Act of 1789 restricted the jurisdiction of the courts. That 
is true. But he fails to note that the Judiciary Act of 1789 predates 
the Bill of Rights, the first ten amendments to the Constitution. The 
fifth amendment says that no person may be deprived of life, liberty or 
property without due process of law.

                              {time}  1145

  All claims, all claims essentially come down to a claim that someone 
is being deprived of life or liberty or property without due process of 
law; and if you cannot go to a court to adjudicate that claim by 
definition, you are being denied due process of law. So this is clearly 
unconstitutional.
  I ask my colleagues, is demagoging a case that they have won in court 
so far really worth destroying the enforceability of the Bill of 
Rights? I urge my conservative colleagues to shape up and act like 
conservatives for once. We live in a free society that protects 
unpopular minorities even if the majority hates that minority. Feel 
free to hate if my colleagues must, but please leave our Constitution, 
leave our liberties, leave our civil liberties that define this Nation 
and makes it what it is, leave it alone.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 4 minutes to the gentleman 
from Indiana (Mr. Pence), a member of the Committee on the Judiciary.
  Mr. PENCE. Mr. Chairman, I rise in strong support of the Pledge 
Protection Act with a particular sense of gratitude to the gentleman 
from Wisconsin (Chairman Sensenbrenner), as well as the capable 
gentleman from Missouri (Mr. Akin), who authored the legislation today.
  The Pledge of Allegiance which we perform every day on the floor of 
this Congress reads: ``I pledge allegiance to the flag of the United 
States of America and to the Republic for which it stands, one Nation 
under God.'' Two words in the pledge ``under God'' help in a very real 
way, Mr. Chairman, to define our national heritage as the beneficiaries 
of a Constitution that, as the gentleman from Wisconsin (Chairman 
Sensenbrenner) said, was sent to the States for ratification ``in the 
Year of our Lord'' 1787.
  Our Nation was established by a generation that saw itself in so many 
ways and by overwhelming numbers guided by a providential God who was 
not indifferent to the establishment of a free Nation on this 
continent, a Nation that would be, in John Winthrop's terms, a shining 
city on a hill, a Nation that both went to war and continues to fire 
the imagination of the world, as we heard today in the eloquent words 
of Iraqi Prime Minister Allawi.
  Even in our own Declaration of Independence there is clear reference 
to the belief of our Founders that we are endowed by our creator with 
certain unalienable rights.
  In November of 1863, President Abraham Lincoln traveled not far from 
here, delivering the Gettysburg Address, the dedication of a cemetery 
at the site of that extraordinary battle, saying that ``we here highly 
resolve that these dead shall not have died in vain, that this Nation, 
under God, shall have a new birth of freedom.''
  What Lincoln resolved that day under God, unfortunately, today, the 
Federal courts have put in jeopardy in

[[Page 19096]]

one case after another, most notably the Newdow case. There have been 
Federal courts that have either struck the term ``under God'' from our 
Pledge or, in the case of the Supreme Court of the United States, 
simply deferred the decision altogether.
  This, despite the fact that the American people overwhelmingly, in 
survey after survey, and more importantly, through votes here on the 
floor of the House of Representatives, have expressed their will on 
this matter in deafening terms.
  The Congress itself, as the gentleman from Wisconsin (Chairman 
Sensenbrenner) referred, has voted not once but twice in recent days in 
overwhelming numbers, more than 400 of the 435 Members of Congress, 
reaffirming the inclusion of the words ``under God'' in our Pledge of 
Allegiance.
  Today, I expect in the course of this debate we will continue to hear 
a great deal about constitutional theory, which as a member of the 
Committee on the Judiciary, as a man trained in the law, I have great 
and passionate interest in; but those who will come to this floor today 
and suggest that the Congress does not in effect possess the ability to 
limit the jurisdiction of the Federal courts do so in a way that 
virtually ignores the express language of the Constitution itself, 
which gives to the Congress the establishment of the jurisdiction of 
the courts.
  Even the dean of the Stanford Law School wrote recently, ``the 
Constitution leaves room for countless political responses to an overly 
assertive court. Congress can strip it of its jurisdiction. The means 
are available, and they have been used to great effect when necessary, 
used, we should note, not by disreputable or failed leaders, but by 
some of the most admired Presidents and Congresses in American 
history.''
  Far from violating separation of powers, legislation that leaves 
State courts the jurisdiction on issues of great and deep meaning to 
the American people is in keeping with our best tradition.
  Let us say the American people will be heard, not lifetime-appointed 
judges, on the recognition that this is one Nation under God.
  Mr. NADLER. Mr. Chairman, I am pleased to yield 3 minutes to the 
gentleman from North Carolina (Mr. Watt).
  Mr. WATT. Mr. Chairman, I appreciate the gentleman yielding me time.
  If this debate were really about whether ``under God'' was going to 
be in the Constitution, and that was all it was about, I would be right 
there. I have been reciting the Pledge of Allegiance ever since, even 
before I knew what it meant, and ``under God'' has been in it. I have 
had no real objection to it, even when I did not understand what it 
meant.
  But this debate is about much, much more than that. It is really 
about whether there is going to be a constitutional framework in which 
we operate and who is going to decide ultimately what is 
constitutional, the United States Supreme Court and the Federal courts 
of our Nation or the arrogance of my colleagues here in this body. 
There are actually some people here who believe that they should be the 
ultimate arbiter of what is constitutional; and if they do not get the 
result that they want in any given case, they want to take jurisdiction 
away from whoever gave them a different result.
  So that is what this is about, how do we protect a constitutional 
framework which historically has had the legislative body doing its job 
and the courts determining what is constitutional and ultimately the 
United States Supreme Court determining what is constitutional.
  Now, the fear that they might get a result that is different than the 
one they want has these people here in our body saying to us that we 
should give that ultimate authority not to the United States Supreme 
Court but to State courts. So this really is not even about whether 
``under God'' is going to be in the pledge or not, even at that level, 
because if a State court determines that ``under God'' is 
unconstitutional, then what are we going to do in that case?
  In North Carolina, it might be constitutional. In California it may 
be unconstitutional. We may have 50 different standards about when we 
can recite ``under God'' in the Pledge of Allegiance under the 
standards that this bill would allow us to set up.
  This is not about whether we retain ``under God'' in the Pledge of 
Allegiance. The court has already decided that. This is a great vehicle 
for the majority to be able to come out here and tell us they believe 
in God. I believe in God, too, but there are some citizens in this 
country who do not necessarily believe in a god or who believe that 
having to profess it publicly is idolatry. We have an obligation to 
protect their rights, also. They are citizens, also, in this country.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman 
from Virginia (Mr. Forbes), a member of the Committee on the Judiciary.
  Mr. FORBES. Mr. Chairman, right above the Chair's head today are four 
words, ``In God We Trust''; and time after time in this country, we 
have seen in times of storm or war or illness the American people have 
embraced those words and believed in them very strongly.
  That is why 2 years ago, shortly after the release of the Ninth 
Circuit Court's decision that ``under God'' was to be struck from the 
Pledge of Allegiance, Newsweek published a poll finding 87 percent of 
Americans supported the inclusion of the phrase ``under God'' in the 
pledge.
  Nevertheless, the few, but articulate, supporters of the court, 
waving U.S. flags and calling themselves one of the last groups in 
America facing unrestrained bigotry, marched on the Mall to protest 
what they said was increasing infringement of religion in government 
affairs.
  Staging their first Godless Americans March on Washington, the 
demonstrators cheered and waved signs that expressed disapproval of 
religion. Their signs read: ``God Is a Fairy Tale,'' ``Keep Your Gods 
Out of Our Schools,'' and ``Al Qaeda is a Faith-Based Initiative.'' 
According to the New York Times, Dr. Michael Newdow touted that he 
planned to ``ferret out all insidious uses of religion in daily life. 
Why should I be made to feel like an outsider?'' he asked.
  Mr. Chairman, Dr. Newdow and the two judges in California were right 
on one thing: atheists are outsiders in America. But they are not 
outsiders because, as they claim, the beliefs of others are being 
forced upon them, but instead, because they, unlike the vast majority 
of Americans, are attempting to create an environment where their 
beliefs are paramount over the beliefs of others.
  Like every other American, atheists have the right not to recite the 
Pledge, not to attend church, and not to engage in any other practice 
of which they disapprove. They do not, however, have the right to 
impose their atheism on the vast majority of Americans whose beliefs 
now and historically have defined America as a religious Nation. 
Indeed, the concept of the separation of church and State was not born 
to establish freedom from religion, but to establish freedom for 
religion.
  Repeatedly and overwhelmingly, our legislative bodies, our civic 
leaders, our historical heritage and, most importantly, the people of 
the United States of America have affirmed the two words ``under God'' 
and their entirely proper presence in our system of government. This 
week, over 2 years after two judges in California imposed their will 
upon a Nation, I urge my colleagues to reclaim this court's abuse of 
power and, in passing the Pledge Protection Act, reaffirm that we are, 
indeed, one Nation under God, indivisible, with liberty and justice for 
all.
  Mr. NADLER. Mr. Chairman, I yield 2 minutes to the distinguished 
gentleman from Massachusetts (Mr. Frank).
  Mr. FRANK OF Massachusetts. Mr. Chairman, even by the standards that 
have sadly governed this House recently, the bill before us is bizarre. 
It makes a big hole in the Constitution for the first time in American 
history, if it were to pass and become law, to counteract a decision 
which has already been overruled. We should be very clear. There is no 
pending case even at the Federal level that deals with this.

[[Page 19097]]

  But what I have heard people say is, well, do not worry, because 
there is an individual liberty here. The Supreme Court of the United 
States, after all, did say in 1943 in the Barnette case that no child 
could be forced to say the Pledge of Allegiance if it violated his own 
family's religious views. The Jehovah's Witnesses said saying the 
Pledge of Allegiance violated their views. The Supreme Court said they 
did not have to say it.
  I have heard people say, well, do not worry because children will be 
protected if they find this objectionable by the Supreme Court 
decision. Now the bizarre aspect is that this is a bill that would 
prevent a Supreme Court decision, the very thing on which they are 
relying to justify it, but it is also the case that under this bill, if 
a State court should decide to disregard that Supreme Court opinion and 
say that saying the pledge was mandatory, even for Jehovah's Witnesses 
or others who might have a principled religious objection to it, that 
that could be overruled.
  The other thing that ought to be noted is this. Once my colleagues 
start down this road, this is the second time the majority has done 
this, telling us that the Supreme Court cannot decide, they are going 
to create a precedent, if this ever succeeds, that will be followed in 
other issues.
  The business community ought to follow this very closely because it 
will now become demanded of Members of Congress that when they pass a 
law they show that they really mean it by taking away Supreme Court 
jurisdiction. So the important desire of the business community for 
Federal uniformity, all of the efforts they have been making recently 
to try and get national laws that govern commercial transactions, will 
be at risk; and we will see laws in area after area, if this precedent 
is followed, which will mean that there is no uniform national 
interpretation of them.

                              {time}  1200

  Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman 
from Ohio (Mr. Chabot), chairman of the Subcommittee on the 
Constitution.
  Mr. CHABOT. Mr. Chairman, I thank the gentleman for yielding me this 
time, and I thank him for his leadership on this. I also want to thank 
and recognize the leadership of the gentleman from Missouri (Mr. Akin) 
for his determination in protecting the Pledge of Allegiance in this 
country. I wish to also express my support, as chairman of the 
Subcommittee on the Constitution, for H.R. 2028, the Pledge Protection 
Act.
  When the issue of limiting Federal Court jurisdiction was raised 
during the discussions of the Marriage Protection Act, the Subcommittee 
on the Constitution held a hearing examining Congress' authority to do 
this. During the hearing, testimony was heard by a number of 
constitutional experts. While there was mixed opinion on whether 
Congress should exercise its authority, there was a consensus that 
Congress did in fact have the authority under Article III of the 
Constitution to determine what issues were heard by the Supreme Court 
under its appellate jurisdiction and by the lower Federal courts.
  This point was highlighted most recently by the Dean of Stanford Law 
School who wrote, ``The Constitution leaves room for countless 
political responses to an overly assertive court. Congress can strip it 
of jurisdiction. The means are available, and they have been used to 
great effect when necessary; used, we should note, not by disreputable 
or failed leaders, but by some of the most admired presidents and 
Congresses in American history.''
  As we continue the debate today, I would urge each Member of Congress 
to recite to himself or herself the Pledge of Allegiance that we are 
talking about and ask yourself what it means to you. It deserves 
protection. It defines not only our national heritage, but unites our 
society each time it is recited. We cannot let rogue Federal judges 
redefine our country's history and the basis from which our Founding 
Fathers found guidance and strength when constructing our great 
country.
  Mr. Chairman, I urge my colleagues to support H.R. 2028.
  Mr. NADLER. Mr. Chairman, I yield 5 minutes to the gentleman from 
Virginia (Mr. Scott).
  Mr. SCOTT of Virginia. Mr. Chairman, I thank the gentleman for 
yielding me this time.
  Mr. Chairman, I come from a State with a long tradition of supporting 
religious freedom. The Virginia Statute For Religious Freedom, written 
by Thomas Jefferson preceded the first amendment to the Constitution. 
This bill does not protect religious freedom, and it also undermines 
fundamental rights of American citizens.
  Mr. Chairman, most experts believe that the bill is meaningless, 
because whether or not the recitation of the Pledge is constitutional 
or not constitutional is a matter for the courts to decide. And if it 
is unconstitutional, that ruling cannot be changed by a statute enacted 
by this body.
  Now, I happen to believe that the present Pledge of Allegiance is 
constitutional, and I agree with the dissent in the Newdow versus U.S. 
Congress case, the recent Ninth Circuit case involving the Pledge of 
Allegiance. In my judgment, the dissent accurately surmised, and I 
quote ``Legal world abstractions and ruminations aside, when all is 
said and done the danger that `under God' in our Pledge of Allegiance 
will tend to bring about a theocracy or suppress someone's belief is so 
minuscule as to be de minimis. The danger that phrase represents to our 
first amendment's freedoms is picayune at best.''
  Now, to the extent that ``under God'' is worthy of this excessive 
attention, every hearing we have and every bill we pass on this issue 
only serves to chip away at the de minimis argument and we have to deal 
with the issue as it is explained in the Christian Century, a non-
denominational Protestant weekly, which stated, and I quote, ``To the 
extent `under God' has real religious meaning, then it is 
unconstitutional. The phrase is constitutional to the extent that it is 
religiously innocuous. Given that choice, I side with the Ninth 
Circuit, the government should not link religion and patriotism.'' Now, 
that is an editorial position expressed by the Christian Century.
  The simple fact is we need to protect the Constitution and the rights 
of the court to decide whether the Pledge is constitutional or not, but 
the majority will not do that. H.R. 2028 is a court-stripping bill, 
plain and simple.
  We had the same debate on the floor just 2 months ago when we debated 
the Marriage Protection Act of 2003. Mr. Chairman, I ask that that 
debate be incorporated by reference here just to save time. Because at 
that time many of us expressed concern about the detrimental precedent 
that we would be setting by passing a court-stripping bill. Today, our 
concerns have been validated.
  This bill would strip the courts of their ability to hear cases that 
are clearly within Federal jurisdiction because they address 
fundamental constitutional rights and individual liberties guaranteed 
to us in the bill of rights. Furthermore, this bill is not limited to 
cases addressing the words ``under God.'' The recitation of the Pledge 
may, in some circumstances, implicate the right to free speech, the 
right of free association, the right to the free exercise of religion, 
and the establishment clause protections, all guaranteed under the 
first amendment to the Constitution.
  We need Federal courts to protect our rights, and this bill prohibits 
the courts from doing just that. This bill violates over 200 years of 
constitutional principle established in Marbury versus Madison that the 
Supreme Court can rule on the constitutionality of legislative actions.
  Now, if this kind of court-stripping legislation had been passed in 
1954, Congress could have prohibited the Supreme Court from hearing 
cases involving segregation in public schools and the courts could not 
have ruled in Brown v. Board of Education. Or if it had passed such 
language in the 1960s, we might not have had the decision issued by 
what some are now calling rogue, unelected, lifetime-appointed,

[[Page 19098]]

activist judges when they ruled to overrule the will of the people of 
Virginia and require Virginia to recognize marriages between blacks and 
whites. That could not have happened unless those so-called rogue, 
unelected, lifetime-appointed, activist judges made the decision they 
made.
  The truth is we rely on Federal courts to determine and enforce our 
civil rights. In our system of democracy, which we are touting around 
the world, courts are where citizens can vindicate their rights. Our 
government works on a system of checks and balances. That is why many 
organizations, legal associations, civil rights groups, and religious 
organizations, have written to oppose us overturning 200 years of 
judicial precedence.
  In closing, Mr. Chairman, we should, instead, adhere to the wisdom of 
the Supreme Court in the Barnette case, which said ``The very purpose 
of the bill of rights was to withdraw certain subjects from the 
vicissitudes of political controversy, to place them beyond the reach 
of majorities and officials, and to establish them as legal principles 
to be applied by the courts. One's right to life, liberty, and 
property, to free speech, a free press, freedom of worship and 
assembly, and other fundamental rights may not be submitted to vote; 
they depend on the outcome of no elections.''
  Mr. Chairman, I submit for the Record letters from organizations in 
opposition to this bill.

                                     The Constitution Project,

                               Washington, DC, September 20, 2004.
     House of Representatives, U.S. Capitol, Washington, DC.
       Dear Members of House of Representatives: I write on behalf 
     of the Constitution Project to urge you to oppose H.R. 2028, 
     the ``Pledge Protection Act of 2003.''
       The Constitution Project, based on Georgetown University's 
     Public Policy Institute, specializes in creating bipartisan 
     consensus on a variety of legal and governance issues, and 
     promoting that consensus to policymakers, opinion leaders, 
     the media, and the public. We have initiatives on the death 
     penalty, liberty and national security, war powers, and 
     judicial independence (our Courts Initiative), among others. 
     Each of our initiatives is directed by a bipartisan committee 
     of prominent and influential businesspeople, scholars, and 
     former public officials.
       Our Courts Initiative works to promote public education on 
     the importance of our courts as protectors of Americans' 
     essential constitutional freedoms. Its co-chairs are the 
     Honorable Mickey Edwards, John Quincy Adams Lecturer at the 
     John F. Kennedy School of Government at Harvard University 
     and former chair of the House of Representatives Republican 
     Policy Committee (R-OK), and the Honorable Lloyd Cutler, a 
     prominent Washington lawyer and White House counsel to 
     Presidents Carter and Clinton.
       In 2000, the Courts Initiative created a bipartisan Task 
     Force to examine and identify basic principles as to when the 
     legislature acts unconstitutionally in setting the powers and 
     jurisdiction of the judiciary. The Task Force was unanimous 
     in its conclusion that some legislative acts restricting 
     courts' powers and jurisdiction are unconstitutional. The 
     Task Force also concluded that some legislative actions, even 
     if constitutional, are undesirable. (The Task Force's 
     findings and recommendations are published in Uncertain 
     Justice: Politics and America's Courts 2000.)
       Our Task Force arrived at seven bipartisan consensus 
     recommendations, including the following, which are relevant 
     to the legislation at hand:
       1. Congress and state legislatures should heed 
     constitutional limits when considering proposals to restrict 
     the powers and jurisdiction of the courts.
       2. Legislatures should refrain from restricting court 
     jurisdiction in an effort to control substantive judicial 
     decisions in a manner that violates separation of powers, due 
     process, or other constitutional principles.
       3. Legislatures should not attempt to control substantive 
     judicial decisions by enacting legislation that restricts 
     court jurisdiction over particular types of cases.
       4. Legislatures should refrain from restricting access to 
     the courts and should take necessary affirmative steps to 
     ensure adequate access to the courts for all Americans.
       Specifically, our Task Force was unanimous in its view that 
     there are some constitutional limits on the authority the 
     legislature to restrict court jurisdiction in an effort to 
     control substantive judicial decisions. In particular, 
     separation of powers, due process, and other constitutional 
     provisions limit such authority. Task Force members had 
     differing views about the scope and source of the 
     constitutional limit on the legislature's power in this area. 
     For instance, some believed that restrictions on jurisdiction 
     become unconstitutional when they undermine the essential 
     role of the Supreme Court. Others relied on a reading of the 
     Vesting Clause of Article III, which places judicial power--
     the power to decide cases--in the hands of the courts alone. 
     Nonetheless, all believed that constitutional limitations 
     exist.
       Apart from the constitutionality of laws restricting 
     federal court jurisdiction, the Task Force was also unanimous 
     in its view that legislative acts stripping courts of 
     jurisdiction to hear particular types of cases in an effort 
     to control substantive judicial decisions are undesirable and 
     inappropriate in a democratic system with co-equal branches 
     of government. Legislative restriction of jurisdiction in 
     response to particular substantive decisions unduly 
     politicizes the judicial process, and attempts by 
     legislatures to affect substantive outcomes by curtailing 
     judicial jurisdiction are inappropriate, even if believed 
     constitutional. (Indeed, it was striking that members 
     reflecting a broad ideological range--from, for example, 
     Leonard Leo of the Federalist Society to Steven Shapiro of 
     the American Civil Liberties Union--agreed that restrictions 
     on jurisdiction to achieve substantive changes in the law are 
     unwise and undesirable policy.)
       The Task Force was also unanimous that legislation that 
     restricts access to the courts and precludes individuals from 
     using a judicial forum to enforce rights is undesirable and 
     unconstitutional. Rights are meaningless without a forum in 
     which they can be vindicated. Therefore, access to the courts 
     at both the federal and state levels is essential in order 
     for rights to have effect. Legislatures have the duty to 
     ensure meaningful access to the courts and legislative 
     actions that preclude this are undesirable and 
     unconstitutional.
       Our Task Force reached these conclusions and 
     recommendations rightly. From its beginning, our system of 
     constitutional democracy has depended on the independence of 
     the judiciary. Judges are able to protect citizens' basic 
     rights and decide cases fairly only if free to make decisions 
     according to the law, without regard to political or public 
     pressure. Similarly, the judiciary can maintain the checks 
     and balances essential to preserving a healthy separation of 
     powers only if able to resist overreaching by the political 
     branches. Indeed, the cornerstone of American liberty is the 
     power of the courts to protect individual rights from 
     momentary excesses of political and popular majorities.
       In recent years, as part of the polarization and posturing 
     that increasingly characterize our national and state 
     politics, threats to judicial independence have become more 
     commonplace. Attacks on judges for unpopular decisions, even 
     those made in good faith, have become more rampant. 
     Politicians are responding to unpopular decisions and 
     litigants by attempting to restrict courts' powers in certain 
     kinds of cases. However, Americans have much to lose if we do 
     not exercise self-restraint and instead choose short-term 
     political gain at the expense of judicial independence. The 
     independence of our judiciary is, as Chief Justice Rehnquist 
     described, ``one of the crown jewels of our system of 
     government.''
       In conclusion, while Article III of our Constitution gives 
     Congress the power to regulate federal court jurisdiction, 
     this power is not unlimited, and Congress should not--and in 
     some instances may not--use its power to restrict federal 
     court jurisdiction in ways that infringe upon separation of 
     powers, violate individual rights and equal protection, or 
     offend federalism. H.R. 2028 is poised to do all three by 
     stripping federal courts--including even the U.S. Supreme 
     Court--of the authority to hear cases involving the Pledge of 
     Allegiance, even when such cases involve First Amendment 
     issues of free speech and freedom of religion. It sets the 
     dangerous precedent of transferring questions of federal and 
     constitutional law exclusively to state courts and preventing 
     American citizens from seeking protection of fundamental 
     rights in federal court, and it threatens the critical and 
     unique role that the federal courts play in constitutional 
     balance of powers, interpreting and enforcing constitutional 
     law, and providing legal certainty.
       For these reasons, as well as those detailed our Task 
     Force's findings and recommendations, the Constitution 
     Project urges you to oppose H.R. 2028. Thank you for your 
     consideration.
           Sincerely,
                                                Kathryn A. Monroe,
     Director, Courts Initiative.
                                  ____



                                American Humanist Association,

                                               September 20, 2004.
     Oppose H.R. 2028, the ``Pledge Protection Act 2003''

       Dear Representative, The American Humanist Association 
     (AHA) stands in opposition to H.R. 2080, the ``Pledge 
     Protection Act of 2003,'' which would prevent all federal 
     courts from hearing cases challenging or interpreting rights 
     granted by the First Amendment as they relate to Pledge of 
     Allegiance cases. We urge you to vote against this bill, 
     which would compromise long held American legal principles of 
     due process and separation of powers by shutting the federal 
     courthouse doors to large numbers of Americans.

[[Page 19099]]

       If passed, the Pledge Protection Act would set a dangerous 
     precedent by stripping federal courts of judicial 
     independence and paving the way to preventing federal judges 
     from ruling on other controversial social issues from 
     abortion and gun control to school vouchers and school 
     prayer. As we warned with the Marriage Protection Act (H.R. 
     3313), attempts by Congress to strip the judiciary of their 
     power to review the legislation are inequitable and will open 
     the door to more of the same. If the Pledge Protection Act 
     passes it will fuel the fires for similar bills.
       Denying access to the federal court system is unacceptable 
     to religious and Humanist minorities who have a due process 
     right to have their cases heard.
       The Pledge Protection Act presents a serious separation of 
     powers concern. Federal courts are uniquely prepared to 
     interpret federal constitutional concerns and to serve as a 
     check on the constitutionality of actions of Congress and the 
     Executive branch. That's why constitutional concerns are 
     raised when an attempt is made to block the courts from 
     reviewing and interpreting the constitutionality of a single 
     act.
       Congress should not disrupt the balance of power intended 
     by our Founding Fathers. Restricting the federal courts' 
     ability to protect First Amendment rights severely undermines 
     the American judicial system.
       Humanists are particularly concerned about this bill 
     because it would violate judicial independence in order to 
     undermine American citizens, in this case those of a minority 
     faith or no religion, the right to access federal courts to 
     challenge a piece of legislation.
       In the past Congress has rejected attempts to withdraw 
     controversial issues from the scope of federal courts and the 
     AHA encourages you to do so again at this important juncture. 
     We urge you to defend due process and separation of powers 
     and vote no on the Pledge Protection Act.
           Sincerely,
                                                       Mel Lipman,
     AHA President.
                                  ____

         Unitarian Universalist Association of Congregations, 
           Washington Office for Advocacy, Washington, DC, 
           September 20, 2004.
       Dear Representative: On behalf of more than 1,050 
     congregations that make up the Unitarian Universalist 
     Association, I urge you to oppose H.R. 2028, the ``Pledge 
     Protection Act of 2004.'' As a tradition with a deep 
     commitment to religious pluralism, we believe that this 
     legislation would seriously undermine the First Amendment 
     protections of the Constitution, and particularly the rights 
     of religious minorities, by stripping federal courts, 
     including the Supreme Court, of jurisdiction over cases 
     concerning the Pledge of Allegiance.
       In resolutions dating back to 1961, the highest policy-
     making body of the Unitarian Universalist Association has 
     repeatedly affirmed the right of all Americans to religious 
     freedom, including the right of religious minorities in 
     public schools to not recite the Pledge of Allegiance. The 
     Supreme Court has agreed in the case of West Virginia State 
     Board of Education v. Barnette, 319 U.S. 624 (1943) that the 
     Pledge cannot be mandatory for public school students.
       Despite the Barnette ruling, we know from experience that 
     the practice of mandatory recitation continues. By 
     eliminating the mechanism for religious minorities to seek 
     relief from this practice through appeals to a federal court, 
     H.R. 2028 would have the practical effect of all but 
     eliminating the right itself. As a result, we believe that 
     this legislation will seriously harm religious minorities and 
     the constitutional free speech rights of countless parents 
     and children, many of whom are members of Unitarian 
     Universalist congregations and are involved in our religious 
     education programs.
       By undermining the power of federal courts to protect 
     constitutional rights affirmed by the U.S. Supreme Court, we 
     believe that H.R. 2028 would weaken the separation of powers 
     in a way that we find deeply troubling.
       The congregations of the Unitarian Universalist Association 
     collectively affirm and promote the right of conscience and 
     the use of the democratic process in society at large. We are 
     committed to the ideals of the founders of this nation, 
     including religious liberty and religious pluralism, as well 
     as the balance of powers that protects such rights.
       I urge you to preserve the rights of religious minorities, 
     as well as the constitutional separation of powers, by 
     opposing the ``Pledge Protection Act of 2004.''
           In Faith,
                                                Robert C. Keithan,
     Director.
                                  ____

                                               September 20, 2004.

  Protect Separation of Powers and Religious Minorities' Longstanding 
        Constitutional Rights; Oppose Final Passage of H.R. 2028

       Dear Representative: We, the undersigned religious, civil 
     rights, and civil liberties organizations, urge you to oppose 
     H.R. 2028, the ``Pledge Protection Act,'' misguided 
     legislation that would strip all federal courts, including 
     the Supreme Court, from hearing First Amendment challenges to 
     the Pledge of Allegiance and from enforcing longstanding 
     constitutional rights in federal court.
       The signatories to this letter include organizations that 
     supported the recent court challenge to the constitutionality 
     of including ``under God'' in the Pledge of Allegiance, 
     organizations that opposed that challenge, and organizations 
     that took no position on the matter. We are united, however, 
     in believing that H.R. 2028 threatens the separation of 
     powers that is a fundamental aspect of our constitutional 
     structure. Beyond this, while the legislation ostensibly 
     responds to the controversy surrounding ``under God'' in the 
     Pledge of Allegiance, this legislation sweeps far more 
     broadly, with potentially severe constitutional implications 
     for religious minorities who are adversely affected by 
     government-mandated recitation of the Pledge.
       First and foremost, we are opposed to H.R. 2028 because 
     this legislation, by entirely stripping all federal courts, 
     including the Supreme Court, of jurisdiction over a 
     particular class of cases, threatens the separation of powers 
     established by the Constitution, and undermines the unique 
     function of the federal courts to interpret constitutional 
     law. This legislation deprives the federal courts of the 
     ability to hear cases involving religious and free speech 
     rights of students, parents, and other individuals. The 
     denial of a federal forum to plaintiffs to vindicate their 
     constitutional rights would force plaintiffs out of federal 
     courts, which are specifically suited for the vindication of 
     federal interests, and into state courts, which may be 
     hostile or unsympathetic to these federal claims, and which 
     may lack expertise and independent safeguards provided to 
     federal judges under Article III of the Constitution. It is 
     in apparent recognition of this concern that no federal bill 
     withdrawing federal jurisdiction in cases involving 
     fundamental constitutional rights has become law since the 
     Reconstruction period.
       In addition, as drafted, the bill would deny access to the 
     federal courts in cases to enforce existing constitutional 
     rights for religious minorities. Over sixty years ago, the 
     Supreme Court decided the case of West Virginia State Board 
     of Education v. Barnette, 319 U.S. 624 (1943). In Barnette, 
     the Supreme Court struck down a West Virginia law that 
     mandated schoolchildren to recite the Pledge of Allegiance. 
     Under the West Virginia law, religious minorities faced 
     expulsion from school and could be subject to prosecution and 
     fined, if convicted of violating the statute's provisions. In 
     striking down that statute, the Court reasoned: ``To believe 
     that patriotism will not flourish if patriotic ceremonies are 
     voluntary and spontaneous instead of a compulsory routine is 
     to make an unflattering estimate of the appeal of our 
     institutions to free minds . . . If there is any fixed star 
     in our constitutional constellation, it is that no official, 
     high, or petty can prescribe what shall be orthodox in 
     politics, nationalism, religion, or other matters of 
     opinion.'' 319 U.S. at 639-40.
       Moreover, just recently, a panel of the U.S. Court of 
     Appeals for the Third Circuit held that a Pennsylvania law 
     mandating recitation of the Pledge, even when it provided a 
     religious exception, violated the Constitution because it 
     violated the free speech of the students. Circle School v. 
     Pappert, No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert, 
     the court found that: ``It may be useful to note our belief 
     that most citizens of the United States willingly recite the 
     Pledge of Allegiance and proudly sing the national anthem. 
     But the rights embodied in the Constitution, particularly the 
     First Amendment, protect the minority--those persons who 
     march to their own drummers. It is they who need the 
     protection afforded by the Constitution and it is the 
     responsibility of federal judges to ensure that protection.'' 
     Pappert, Slip Op. at 14.
       H.R. 2028 would undermine the longstanding constitutional 
     rights of religious minorities to seek redress in the federal 
     courts in cases involving mandatory recitation of the Pledge. 
     As a result, this legislation will seriously harm religious 
     minorities and the constitutional free speech rights of 
     countless individuals.
       H.R. 2028 also raises serious legal concerns about the 
     violation of the principles of separation of powers, equal 
     protection and due process. The bill undermines public 
     confidence in the federal courts by expressing outright 
     hostility toward them, threatens the legitimacy of future 
     congressional action by removing the federal courts as a 
     neutral arbiter, and rejects the unifying function of the 
     federal judiciary by denying federal courts the opportunity 
     to interpret the law. We strongly believe that this 
     legislation as drafted will have broad, negative implications 
     on the ability of individuals to seek enforcement of 
     previously constitutionally protected rights concerning 
     mandatory recitation of the Pledge. We therefore urge, in the 
     strongest terms, your rejection of this misguided and unwise 
     legislation.
           Sincerely,
         American Civil Liberties Union
         American Federation of State, County and Municipal 
           Employees (AFL-CIO)
         American Humanist Association

[[Page 19100]]

         American Jewish Committee
         Americans for Democratic Action
         Americans for Religious Liberty
         Americans United for Separation of Church and State
         Anti-Defamation League
         Baptist Joint Committee
         Central Conference of American Rabbis
         Committee for Judicial Independence
         General Board of Church and Society of the United 
           Methodist Church
         Human Rights Campaign
         Jewish Reconstructionist Federation
         Leadership Conference on Civil Rights
         Legal Momentum (the new name of NOW Legal Defense and 
           Education Fund)
         National Council of Jewish Women
         National Senior Citizen Law Center
         Northwest Religious Liberty Association
         People for the American Way
         Sikh Mediawatch and Resource Task Force (SMART)
         The Interfaith Alliance
         U.S. Action
         Union for Reform Judaism
         Unitarian Universalist Association of Congregations

  Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman 
from Tennessee (Mr. Duncan).
  Mr. DUNCAN. Mr. Chairman, I thank the very distinguished chairman of 
the Committee on the Judiciary, the gentleman from Wisconsin (Mr. 
Sensenbrenner), for yielding me this time, and for his work on this 
legislation and his work on so many other important bills before this 
body.
  I also want to commend the gentleman from Missouri (Mr. Akin) for his 
outstanding leadership on this issue.
  Mr. Chairman, in a 1952 Supreme Court case, Zorach versus Clawson, in 
an opinion written, I think, by Justice Douglas, it said, there is ``No 
constitutional requirement which makes it necessary for government to 
be hostile to religion and throw its weight against efforts to widen 
the effective scope of religious influence.''
  Similar to that, a few years ago the great columnist for the 
Washington Post, William Raspberry, who I am sure most people would 
describe as being fairly liberal on most issues, when he was writing 
about an issue similar to this, he said ``Is it not just possible that 
anti-religious bias, masquerading as religious neutrality, has cost 
this Nation far more than we have been willing to acknowledge?''
  Mr. Chairman, I spent 7\1/2\ years as a circuit court judge or State 
trial judge in the State of Tennessee. For years, I have heard and read 
Federal judges complaining about how Congress is putting too much into 
the Federal courts, expanding their jurisdiction too much, and how 
overworked they are, and how there should be more limits on the 
jurisdiction of these courts and that we should stop taking so many 
cases away from State courts. This is a very minimal limitation on the 
jurisdiction of the Federal courts. Very minimal. A very reasonable 
limitation.
  As the gentleman from Indiana (Mr. Pence) pointed out a few moments 
ago, there is almost no question that it is within the scope of 
congressional jurisdiction, or Congressional power to limit the 
jurisdiction of the Federal courts.
  Alexander Hamilton, writing many years ago in Federalist paper number 
81 said, ``To avoid all inconveniences, it will be safest to declare 
generally that the Supreme Court shall possess appellate jurisdiction 
that shall be subject to such exceptions and regulations as the 
national legislature may prescribe. This will enable the government to 
modify it in such a manner as will best answer the ends of public 
justice and security.''
  And Thomas Jefferson, in a letter written in September of 1820, said 
this, responding to the argument that Federal judges should be the 
final interpreters of the Constitution. Thomas Jefferson wrote this: 
``You seem to consider the Federal judges as the ultimate arbiters of 
all constitutional questions, a very dangerous doctrine indeed and one 
which would place us under the despotism of an oligarchy. Our judges 
are as honest as other men and not more so. They have with others the 
same passions for party, for power, and the privilege of their corps. 
Their power is the more dangerous, as they are in office for life and 
not responsible as the other functionaries are to the elective control. 
The Constitution has erected no such single tribunal.''
  Mr. Chairman, I am sorry my time has run out. I urge support for this 
very reasonable, very minimal limitation on the Federal Courts' 
jurisdiction.
  Mr. NADLER. Mr. Chairman, I yield 3 minutes to the gentleman from 
Michigan (Mr. Conyers), the very distinguished ranking member of the 
Committee on the Judiciary.
  Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding me this 
time.
  My colleagues, we have before us a measure that is unconstitutional, 
that undermines the Federal Judiciary, and is totally unnecessary. The 
bill, of course, violates Marbury versus Madison, which has stated and 
been the law of the land since 1803. Never in these 201 years has any 
Congress ever brought a measure like this to the floor of the House.
  In Marbury, Justice Harlan said, ``it is emphatically the role of the 
court to determine what the law is.'' And so we violate the very basic 
fundamental part of the role of the Judiciary in the Constitution. It 
violates the separation of powers principle because it denies the 
Supreme Court its historical role of final authority on the 
constitutionality of our laws.
  Who wants 50 different decisions coming from the several courts of 
the States? It violates freedom of speech and religion. And we have 
Supreme Court cases, West Virginia State Board of Education versus 
Barnett, and just this year the Third Circuit held in Pennsylvania that 
the mandated recitation of the Pledge of Allegiance was 
unconstitutional.
  Now, I know what you are trying to accomplish by this gross 
distortion of constitutional history, but ultimately someone has to 
decide, and we have been deciding for 201 years. To make sure it is 
constitutional, some minds reason, we should strip the jurisdiction of 
the subject from the court. What is next: guns, freedom of choice, 
terrorism?
  We cannot proceed as a democratic nation without very emphatically 
joining with Senator Barry Goldwater, and Robert Bork, and our former 
Judiciary colleague, Bob Barr.
  I rise in strong opposition to H.R. 2028, the so-called ``Pledge 
Protection Act''. This bill is not only unconstitutional, it undermines 
our federal judiciary and is totally unnecessary.
  H.R. 2028 is Unconstitutional: This bill violates just about every 
principle in our constitution and bill of rights. First, it violates 
separation of powers principles because it denies the Supreme Court its 
historical role as the final authority on the constitutionality of our 
laws. This is a doctrine that was established more than 200 years ago 
in the landmark Marbury v. Madison decision, and which has served as 
the cornerstone of our system of checks and balances.
  Second, it violates Freedom of Speech and Religion. This is because 
it makes it far more difficult for persons who feel they are being 
coerced into reciting the pledge to have access to the courts. These 
cases are not hypothetical. Sixty years ago, the Supreme Court issued 
the West Virginia State Board of Education v. Barnett decision, which 
held that it was unlawful to expel religious minorities from school if 
they refused to recite the pledge of allegiance. Just this year the 
Third Circuit held a Pennsylvania law which mandated recitation of the 
Pledge of Allegiance was unconstitutional.
  Third, it violates the equal protection clause. This is because it 
imposes an undue burden on a specific class of individuals--religious 
minorities--without a rational basis, other than fear of independent 
judges. Just read the 1996 Roemer decision, which held it unlawful to 
pass a law excluding gay and lesbians from legal protections.
  H.R 2028 Undermines the Federal Judiciary: If H.R. 2028 is enacted, 
it would constitute the first and only time Congress has ever enacted 
legislation totally eliminating any federal court from considering the 
constitutionality of federal legislation--in this case, the Pledge of 
Allegiance.
  Adoption of the bill will result in the balkanization of our 
judiciary and would eliminate any possibility of operating under a 
single uniform Supreme Court. This is inconsistent with the very words 
of the Pledge of Allegiance, namely that we are ``one Nation under God, 
indivisible, with liberty and justice for all.'' Dividing our nation 
into 50 different legal regimes, where the Pledge is permitted in some 
jurisdictions and not in others, is the very antithesis of this sacred 
principle.

[[Page 19101]]

  It is no wonder that principled conservatives like former Senator 
Barry Goldwater found court stripping legislation to be so repugnant. 
When court stripping legislation was proposed in the 1970's concerning 
school prayer, abortion, and busing, Senator Goldwater opposed them, 
warning that the ``frontal assault on the independence of the Federal 
courts is a dangerous blow to the foundations of a free society.''
  Robert Bork, a former Yale Law professor and Reagan appointee for the 
D.C. Circuit Court of Appeals, also is strongly opposed to court-
stripping measures, arguing, ``[y]ou'd have 50 different constitutions 
running around out there, and I'm not sure even the conservatives would 
like the results.''
  Our former colleague Bob Barr has written, the principal problem with 
court stripping bills is ``that it sets a harmful precedent for the 
future. Our healthy democracy depends on having three separate and 
independent branches of government . . . I am concerned about having a 
Congress or President unchecked by the independent judiciary 
established by the Constitution.''
  If we allow H.R. 2028 to pass into law, it truly could be open season 
on our precious rights and liberties. This was our prediction when the 
Majority was contemplating the Marriage Protection Act, and here we are 
again. Today I ask, where will this all end? Why in the world would we 
exempt these laws from federal judicial review and not laws concerning 
terrorism, or child pornography?
  H.R. 2028 is unnecessary: What is most amazing to me is that we are 
taking up this bill at a time when the Supreme Court--which is 
dominated by Republican appointees--has not issued a single opinion in 
any way undermining the Pledge of Allegiance.
  Why do we have to take up this bill now when the death toll of our 
men and women fighting for our right to be free from terror has reached 
record limits and continues to rise every single day. A recent report 
from the Center for American Progress shows an alarming number of 
suicides this year among U.S. troops serving in Iraq. Yet, at a time 
when our troops are working hard to answer the Nation's call, their own 
needs remain unmet--put at the bottom of the list of priorities.
  Conclusion: Just as I opposed the ill-considered Marriage Protection 
Act two months ago, I must oppose this court stripping bill. These 
efforts to deny our citizens access to the federal courts constitute 
nothing less than a modern day version of ``court packing.'' Just as 
President Roosevelt's efforts to control the outcome of Supreme Court 
decisions by packing it with loyalists was rejected by Congress in the 
1930's, thereby preserving the independence of the federal judiciary, 
so too must this modern day effort to show the courts ``who is boss'' 
fail as well.
  Mr. Chairman, I insert for the Record letters from organizations 
opposing this bill:

                                               September 20, 2004.
     Oppose the ``Pledge Protection Act,'' H.R. 2028

     U.S. House of Representatives,
     Washington, DC.
       Dear Representative: We, the undersigned organizations 
     dedicated to protecting women's reproductive health and 
     rights, write to urge you to oppose H.R. 2028, the so-called 
     ``Pledge Protection Act.'' The implications of this bill go 
     far beyond the context of the Pledge of Allegiance. This bill 
     would set a dangerous precedent that would disrupt the 
     traditional separation of powers and undermine the 
     longstanding role of the federal judiciary in safeguarding 
     constitutional rights, including the right of reproductive 
     choice.
       H.R. 2028 would deny all federal courts--including the U.S. 
     Supreme Court--the jurisdiction to hear any cases concerning 
     the interpretation or constitutionality of the Pledge of 
     Allegiance. The bill would irreparably alter the relationship 
     between the judicial branch and the two other branches of the 
     federal government by depriving the federal courts of their 
     traditional role as interpreters of the U.S. Constitution. 
     Even more disturbing, unlike other previous versions of 
     court-stripping legislation, H.R. 2028 deprives even the U.S. 
     Supreme Court of jurisdiction, divesting the Court of its 
     historical role as the final authority on the U.S. 
     Constitution.
       We are deeply concerned about legislation like H.R. 2028 
     that strips federal courts of their important role in 
     safeguarding constitutional rights and freedoms. While the 
     target today is a controversial view of the Pledge of 
     Allegiance and the separation of church and state (a view 
     that the Supreme Court has not endorsed), there can be no 
     doubt that anti-choice lawmakers and their allies in Congress 
     intend to use this strategy to achieve other policy goals 
     that they are unable to accomplish without toppling the 
     delicate constitutional balance of powers that has served 
     this country for more than 200 years. Recently, House 
     Majority Leader Tom DeLay told reporters that he plans to use 
     ``jurisdiction stripping'' measures to achieve other social 
     policy goals. While he claimed that the time is ``not quite 
     ripe'' to apply this legislative tactic to the issue of 
     abortion, in fact, anti-choice lawmakers have already made 
     the attempt--in 2002, when considering the Federal Abortion 
     Ban. Although that particular effort failed, passage of H.R. 
     2028 would set a dangerous precedent for future attempts to 
     strip federal courts of jurisdiction to hear cases regarding 
     reproductive choice. The federal courthouse doors should not 
     be closed to women seeking to vindicate their right to obtain 
     critical reproductive health services.
       For these reasons, we urge you to oppose H.R. 2028.
           Sincerely,
         American Association of University Women
         Center for Reproductive Rights
         Choice USA
         Feminist Majority
         Legal Momentum (the new name of NOW Legal Defense and 
           Education Fund)
         NARAL Pro-Choice America
         National Abortion Federation
         National Council of Jewish Organizations
         National Council of Women's Organizations
         National Family Planning and Reproductive Health 
           Association
         Planned Parenthood Federation of America
         Unitarian Universalist Association of Congregations.
                                  ____



                                        Human Rights Campaign,

                                               September 22, 2004.
       Dear Representative: On behalf of the Human Rights 
     Campaign, the nation's largest lesbian, gay, bisexual and 
     transgender (LGBT) civil rights organization, and its 600,000 
     members nationwide, I write to express our opposition to H.R. 
     2028, the ``Pledge Protection Act.'' The Human Rights 
     Campaign (HRC) opposes this dangerous piece of legislation, 
     as well as any other piece of legislation that would 
     undermine the critical separation of powers that supports the 
     elegant system of government that the framers of the United 
     States Constitution envisioned.
       H.R. 2028 would strip all federal courts, including the 
     Supreme Court, of jurisdiction over cases involving the 
     Pledge of Allegiance. This would preclude religious 
     minorities from being able to have their ``day in court'', if 
     their claims happen to involve the Pledge. This blocking of 
     access to the courts is offensive to principles of both equal 
     protection and due process. While HRC does not have an 
     official position on the Pledge, we do have a position 
     against hampering the ability of any branch of government to 
     protect the rights of political minorities. The framers of 
     the United States Constitution laid out a tripartite system 
     of government and involved co-equal branches and a delicate 
     system of checks and balances. This system necessarily 
     includes the ability of the federal courts to invalidate any 
     piece of congressional legislation that violates basic 
     constitutional protections. H.R. 2028 does violence to this 
     system of government and its associated guarantees of liberty 
     and justice. Disturbingly, H.R. 2028, when seen in 
     conjunction with H.R. 3313 (The Marriage Protection Act), 
     appears to be a part of a larger attack on the independence 
     of the Judiciary.
       HRC urges you to vote ``NO'' on H.R. 2028 when it is 
     considered by the floor of the House of Representatives. 
     Quite simply, we believe that the very patriotism that 
     inspired the Pledge of Allegiance would demand a defense of 
     the ideals of equity and justice that inspired it. This 
     patriotism is incompatible with the Pledge Protection Act.
       Thank you for the opportunity to comment and for your 
     consideration of our concerns. If you have any questions, 
     please do not hesitate to contact Praveen Fernandes, on my 
     staff, at 202.216.1559.
           Sincerely,
                                               Winnie Stachelberg,
     Political Director.
                                  ____

                                          Leadership Conference on


                                                 Civil Rights,

                               Washington, DC, September 21, 2004.

Oppose the ``Pledge Protection Act of 2003'' (H.R. 2028): It Threatens 
              Constitutional Protections and Civil Rights

       Dear Representative: On behalf of the Leadership Conference 
     on Civil Rights (LCCR), the nation's oldest, largest, and 
     most diverse civil rights coalition representing people of 
     color, women, children, older Americans, persons with 
     disabilities, gays and lesbians, major religious 
     organizations, labor unions, and civil and human rights 
     groups, we urge you to vote against H.R. 2028, the ``Pledge 
     Protection Act of 2003.'' LCCR firmly believes that access to 
     the courts must not be slammed shut--especially by laws that 
     will block the federal courthouse doors. H.R. 2028, the so-
     called ``Pledge Protection Act,'' will do exactly that--deny 
     Constitutional rights to religious minorities by stripping 
     the courts of jurisdiction.
       LCCR strongly opposes any proposal that would eliminate 
     access to the federal judiciary for any group of Americans. 
     For over 50

[[Page 19102]]

     years, the federal courts have played an indispensable role 
     in the interpretation and enforcement of civil rights laws. 
     When Congress has sought to prevent the courts from 
     exercising this role, such efforts ultimately tend to do 
     little more than enshrine discrimination in the law. 
     Fortunately, in most instances, cooler heads prevail. In the 
     1970s, for example, some members of Congress unsuccessfully 
     sought to strip the courts of jurisdiction to hear cases 
     involving desegregation efforts such as busing--legislation 
     that would have done nothing but preserve racial inequality. 
     More recently, however, at the height of anti-immigrant 
     sentiment in 1996, Congress succeeded in enacting immigration 
     laws that stripped courts of the ability to hear appeals by 
     legal immigrants who were challenging harsh new deportation 
     laws--laws that were so extreme that the Supreme Court 
     ultimately had no choice but to step in and scale them back.
       The judicial branch has often been the sole protector of 
     the rights of minority groups against the will of the popular 
     majority. Any proposal to interfere with this role through 
     ``court-stripping'' proposals would set a dangerous precedent 
     that would harm all Americans. Allowing the courthouse doors 
     to be closed to one minority group, as H.R. 2028 would do to 
     religious minorities, is not only unjustified in itself, but 
     will also set a dangerous precedent that will ultimately 
     weaken the rights of any other groups that may be forced to 
     turn to the courts for justice. Further, H.R. 2028 threatens 
     the separation of powers established by the Constitution, and 
     undermines the unique function of the federal courts to 
     interpret Constitutional law. This legislation deprives the 
     federal courts of the ability to hear cases involving 
     religious and free speech rights of students, parents, and 
     other individuals. The denial of a federal forum to 
     plaintiffs to vindicate their Constitutional rights would 
     force plaintiffs out of federal courts, which are 
     specifically suited for the vindication of federal interests, 
     and into state courts, which may be hostile or unsympathetic 
     to these federal claims, and which may lack expertise and 
     independent safeguards provided to federal judges under 
     Article III of the Constitution. It is in apparent 
     recognition of this concern that no federal bill withdrawing 
     federal jurisdiction in cases involving fundamental 
     Constitutional rights has become law since the Reconstruction 
     period.
       H.R. 2028 would deny access to the federal courts in cases 
     to enforce existing constitutional rights for religious 
     minorities. Over sixty years ago, the Supreme Court decided 
     the case of West Virginia State Board of Education v. 
     Barnette, 319 U.S. 624 (1943). In Barnette, the Supreme Court 
     struck down a West Virginia law that mandated schoolchildren 
     to recite the Pledge of Allegiance. Under the West Virginia 
     law, religious minorities faced expulsion from school, and 
     could be subject to prosecution and fined, if convicted of 
     violating the statute's provisions. In striking down that 
     statute, the Court reasoned: ``To believe that patriotism 
     will not flourish if patriotic ceremonies are voluntary and 
     spontaneous instead of a compulsory routine is to make an 
     unflattering estimate of the appeal of our institutions to 
     free minds . . . If there is any fixed star in our 
     Constitutional constellation, it is that no official, high, 
     or petty can prescribe what shall be orthodox in politics, 
     nationalism, religion or other matters of opinion.'' (319 
     U.S. at 639-40)
       LCCR urges you to vote against H.R. 2028 because of the 
     dangers to Constitutional protections and civil rights laws 
     and enforcement posed by its enactment. If you have any 
     questions, please feel free to contact Rob Randhava, LCCR 
     policy analyst, at (202) 466-6058, or Nancy Zirkin, LCCR 
     deputy director, at (202) 263-2880. Thank you for your 
     consideration.
           Sincerely,
     Wade Henderson,
       Executive Director,
     Nancy Zirkin,
       Deputy Director.
                                  ____



                                     American Bar Association,

                                  Chicago, IL, September 20, 2004.
       Dear Representative: We understand that efforts are 
     underway to bring H.J. Res. 56, the Federal Marriage 
     Amendment, to the House floor for a vote during the next few 
     weeks. While we have taken no position either favoring or 
     opposing laws that would allow same-sex couples to enter into 
     civil marriages, the American Bar Association is staunchly 
     opposed to this proposed amendment. Regardless of your 
     personal views on same-sex marriage, we urge you to reject 
     this attempt to use the constitutional amendment process to 
     impose on the states a particular moral viewpoint about a 
     controversial issue and to vote against the proposed 
     amendment, which tramples on the traditional authority of 
     each state to establish its own laws governing civil 
     marriage.
       The authority to regulate marriage and other family-related 
     matters has resided with the states since the founding of our 
     country and is rooted in principles of federalism. This has 
     enabled states to enact diverse marriage laws that respect 
     and reflect the unique needs and views of their residents. 
     Our federal system also gives states the authority to adopt 
     their own state constitutions and to interpret its provisions 
     to accord greater protection to individual rights than are 
     granted under similar provisions of the U.S. Constitution. 
     Over the years, we not only have successfully tolerated the 
     fact that state laws and judicial interpretations governing 
     marriage are not uniform, we have benefited from it. As the 
     late Justice Louis Brandeis famously explained many years 
     ago:
       To stay experimentation in things social and economic is a 
     grave responsibility. Denial of the right to experiment may 
     be fraught with serious consequences to the Nation. It is one 
     of the happy incidents of the federal system that a single 
     courageous State may . . . serve as a laboratory; and try 
     novel social experiments without risk to the rest of the 
     country.
       Variations among the state laws governing same-sex unions 
     have provided the opportunity to examine the effect different 
     laws have on society, increased each state's exposure to new 
     ideas, and served as guidance to those states that seek to 
     modify their laws. Adoption of H.J. Res. 56 would deprive the 
     nation of these benefits.
       While the proposed amendment is far too vague to ascertain 
     its full meaning with certainty, its adoption would have 
     sweeping consequences for the states that extend well beyond 
     invalidating or prohibiting same-sex civil marriages. For 
     instance, it would forever prohibit a state from adopting its 
     own constitutional amendment to establish civil unions or 
     extending to unmarried couples--heterosexual or gay--legal 
     protections, such as health insurance, that the state 
     provides to married spouses if the state constitutions so 
     require, as in Vermont. And, despite the claims of the 
     resolution's authors, it is unclear whether a state would be 
     prohibited from passing laws permitting civil unions or 
     domestic partnerships and providing state-conferred benefits 
     to the couples involved. There is little doubt, however, that 
     the joint resolution's lack of clarity will result in 
     extensive litigation and that its passage and adoption will 
     limit the future ability of states to fashion their own 
     responses to meet the changing needs of their residents.
       H.J. Res. 56 also should be opposed because a 
     constitutional amendment is neither a necessary nor 
     appropriate vehicle for changing our civil marriage laws. The 
     Constitution should not be amended absent urgent and 
     compelling circumstances, and it certainly should not be 
     amended to call a halt to democratic debate within the states 
     or to promote a particular ideology. As Bob Barr, former U.S. 
     Representative from Georgia, succinctly stated in testimony 
     before the Senate Judiciary Committee this past spring, ``We 
     meddle with the Constitution to our own peril. If we begin to 
     treat the Constitution as our personal sandbox, in which to 
     build and destroy castles as we please, we risk diluting the 
     grandeur of having a Constitution in the first place.''
       It particularly does not make sense for the House to pursue 
     the Family Marriage Amendment during these busy, final weeks 
     of the 108th Congress since there is no urgent need for 
     immediate action and, clearly, no national consensus has 
     emerged over the legal ramifications of same-sex unions. 
     Indeed, Congress, through enactment of the Defense of 
     Marriage Act in 1996, has already denied same-sex couples the 
     more than 1,000 federal benefits that extend to heterosexual 
     married couples and relieved states of their obligation to 
     accord full faith and credit to same-sex marriages sanctioned 
     by other jurisdictions. Therefore, this proposed amendment 
     would only affect state laws governing marriage and same-sex 
     unions and attending judicial interpretations. During your 
     deliberations over the next week, we hope you will not loose 
     sight of the fact that, at present, 49 states grant civil 
     marriage licenses exclusively to heterosexual couples. 
     Clearly, this nation is not facing a crisis of constitutional 
     proportions that requires a drastic and immediate solution.
       The ABA Section of Family Law recently released a white 
     paper titled An Analysis Of The Law Regarding Same-Sex 
     Marriage, Civil Unions And Domestic Partnership, which is 
     available on our website at: http://www.abanet.org/family/
 whitepaper/fullreport.
     pdf. (Printed copies may be obtained by emailing Denise 
     Cardman, Senior Legislative Counsel in our Governmental 
     Affairs Office, at [email protected].) This thorough 
     compilation of activity within the 50 states amply 
     demonstrates that courts and legislatures already have 
     enacted or issued hundreds of statutes, local ordinances and 
     court opinions to address the myriad complex issues and 
     ramifications arising from this relatively new public policy 
     debate and are continuing to address the issues vigorously. 
     We hope that the report will help you in your review of this 
     proposed amendment.
       Allowing the states to craft their own solutions in this 
     area requires both confidence and humility: confidence in the 
     wisdom of the people and their representatives, and humility 
     to understand, in the words of the late Judge Learned Hand, 
     that ``[t]he spirit of liberty is the spirit that is not too 
     sure that it is right.'' If the Constitution is to continue 
     to embody the spirit of liberty for future generations, we 
     must not seek to use it to enshrine still-evolving societal 
     views.
       Despite the fact that more than 11,000 proposed 
     constitutional amendments have been

[[Page 19103]]

     introduced in Congress since 1789, the Constitution has been 
     amended only 27 times in 215 years--a testament to its 
     vitality and to Congressional restraint. We urge you to 
     exercise the same restraint today and oppose H.J. Res. 56.
           Sincerely,
     Robert J. Grey, Jr.
                                  ____



                                  People For the American Way,

                               Washington, DC, September 20, 2004.
     House of Representatives,
     Washington, DC.
       Dear Member of Congress; On behalf of the more than 675,000 
     members and activists of People For the American Way, we 
     write to urge you to oppose H.R. 2028, the ``Pledge 
     Protection Act of 2003.'' This legislation would violate the 
     First Amendment, and would set a terrible precedent against 
     the separation of powers embodied in our Constitution that 
     protects the fundamental rights of all Americans.
       As amended, H.R. 2028 would eliminate any role for the 
     federal courts, including the U.S. Supreme Court, in 
     challenges concerning the constitutionality of the Pledge of 
     Allegiance. This would have an immediate and dramatic impact 
     on the ability of individual Americans to be free from 
     government-coerced speech or religious expression. For 
     example, this legislation would bar the federal courts from 
     enforcing the U.S. Supreme Court's 1943 decision in West 
     Virginia State Board of Education v. Barnette which barred a 
     local school district from forcing children to recite the 
     Pledge of Allegiance over their religious objections.
       Apart from being unwise as a matter of policy, H.R. 2028 
     appears to be an unconstitutional overreach of Congress' 
     power under article III regarding the federal judiciary, 
     particularly in light of the Fifth Amendment's due process 
     clause and the Fourteenth Amendment's equal protection 
     clause. Further, it would contradict common sense, and more 
     than 200 years of constitutional history, to allow Congress 
     to circumvent the words ``Congress shall make no law'' by 
     eliminating effective enforcement of the First Amendment by 
     the courts and the U.S. Supreme Court. We agree with U.S. 
     Senator Barry Goldwater who stated about a similar attempt to 
     strip federal courts of jurisdiction over fundamental rights 
     more than twenty two years ago: ``If there is on independent 
     tribunal to check legislative or executive action all the 
     written guarantees or rights in the world would amount to 
     nothing.''
       Nor are state courts the appropriate sole and final venue 
     for enforcement of federal constitutional rights. Indeed, 
     H.R. 2028 raises the prospect of 50 different interpretations 
     of the First Amendment. Guarantees of such fundamental rights 
     as freedom of religion, freedom of speech and freedom from 
     governmental religious coercion should not and cannot 
     properly be relegated to such jurisprudential uncertainty. We 
     note that the Reagan Administration, hardly an opponent of 
     federalism, rejected historical and textual arguments for 
     removing jurisdiction over federal constitutional questions 
     to state courts:
       ``Nor does it seem likely that the [Constitutional] 
     Convention would have developed the Exceptions Clause as a 
     check on the Supreme Court in such a manner that an exercise 
     of power under the Clause to remove Supreme Court appellate 
     jurisdiction would . . . vest [the power] in the state 
     courts. Hamilton regarded even the possibility of multiple 
     courts of final jurisdiction as unacceptable.''
       In addition, H.R. 2028 expressly sets the precedent for 
     future Congresses to completely bar U.S. citizens from 
     raising any judicial challenge to federal action. State 
     courts can only assert jurisdiction over the federal 
     government if it consents to be sued. Failing that consent, 
     individuals would be left without recourse to 
     unconstitutional actions of the Congress or the executive 
     branch. Unreviewable federal power to infringe on fundamental 
     individual rights of American citizens is alien to our 
     republic.
       Finally, H.R. 2028 threatens to disrupt the framework of 
     checks and balances on governmental power embodied in the 
     U.S. Constitution through the separation of powers by setting 
     the precedent for Congress to remove legislation from 
     constitutional review by the judicial branch. For all 
     practical purposes, Congress could become the sole arbiter of 
     constitutionality on any subject within its powers--or indeed 
     outside its powers since it could legislate away any 
     challenge to congressional interpretation of its own 
     authority. Litigation over the meaning of article III, a 
     necessary part of the inevitable court challenge to H.R. 
     2028, could in of itself result in a constitutional crisis 
     deeply damaging to the separation of powers.
       H.R. 2028 would set a terrible precedent for separation of 
     powers and protection of individual rights. We urge you to 
     reject the premise that Congress is above the Constitution 
     and vote no on this legislation.
           Sincerely,
     Ralph G. Neas,
       President.
     Marge Baker,
       Director of Public Policy.
                                  ____



                                The American Jewish Committee,

                               Washington, DC, September 20, 2004.
       Dear Representative: I write on behalf of the American 
     Jewish Committee, a national organization with more than 
     125,000 members and supporters represented by 33 chapters, to 
     urge you to oppose H.R. 2028, the ``Pledge Protection Act of 
     2003.''
       This misguided legislation--which would strip all federal 
     courts, including the Supreme Court, of the jurisdiction to 
     hear First Amendment challenges to the Pledge of Allegiance--
     threatens the separation of powers that is a fundamental 
     aspect of our constitutional structure. Further, while H.R. 
     2028 ostensibly responds to the controversy surrounding 
     inclusion of the phrase ``under God'' in the Pledge of 
     Allegiance, this legislation sweeps far more broadly, with 
     potentially severe constitutional implications for religious 
     minorities and others who are adversely affected when the 
     government impermissibly seeks to mandate recitation of the 
     Pledge.
       It should be emphasized that the American Jewish Committee 
     did not take a position in the recent case in which a 
     challenge was brought to the constitutionally of including 
     ``under God'' in the Pledge of Allegiance. Whatever the 
     merits of that case, however, we are strongly committeed to 
     the principle that, in our constitutional system, the federal 
     courts must be available to hear cases in which individuals 
     challenge what they believe to be incursions on their 
     religious and free speech rights.
       It would be a terrible--and virtually unprecedented--
     distortion of that system for the U.S. Congress to deprive 
     students, parents, and other individuals of their access for 
     a specific class of cases to the branch of government crafted 
     to vindicate constitutional claims. Moreover, such an action 
     would undermine public confidence in the federal courts by 
     expressing outright hostility toward them, threaten the 
     legitimacy of future congressional action by removing the 
     federal courts as a neutral arbiter, and reject the unifying 
     function of the federal judiciary by denying federal courts 
     the opportunity to interpret the law.
       In addition, as drafted, the bill would seem to deny access 
     to the federal courts--even the Supreme Court--for cases in 
     which individuals seek redress in cases involving mandatory 
     recitation of the Pledge. As a result, this legislation will 
     seriously undermine constitutional guarantees of freedom of 
     speech and religion. There is no question that coercing 
     students to say the Pledge of Allegiance--or any portion 
     thereof--is contrary to the very principles of freedom of 
     conscience that are at the core of our Constitution, and for 
     which the Pledge stands. See the U.S. Supreme court's 
     landmark decision in West Virginia State Board of Education 
     v. Barnett, 319 U.S. 624 (1943) (striking down a West 
     Virginia law that mandated schoolchildren to recite the 
     Pledge of Allegiance) and, more recently, the decision of a 
     federal appellate court in Circle School v. Pappert, No. 03-
     3285 (3rd Cir. Aug. 19, 2004) (holding that a Pennsylvania 
     law mandating recitation of the Pledge, even when it provided 
     a religious exception, violated the Constitution because it 
     violated the free speech of the students). But, 
     astonishingly, H.R. 2028 appears to remove from the federal 
     courts the jurisdiction to hear these types of cases.
       For all these reasons, the American Jewish Committee urges, 
     in the strongest terms, that you vote against this misguided 
     and unwise legislation.
       Thank you for your consideration of our views on this 
     important matter.
           Respectfully,
                                                Richard T. Foltin,
     Legislative Director and Counsel.
                                  ____

                                   Americans United for Separation


                                          of Church and State,

                               Washington, DC, September 21, 2004.
     Re Reject efforts to slam federal courthouse doors on 
         religious minorities and vote ``no'' on H.R. 2028.
       Dear Representative: Americans United for Separation of 
     Church and State urges you to vote ``No'' on passage of H.R. 
     2028, the ``Pledge Protection Act,'' which is expected to 
     reach the floor of the House of Representatives later this 
     week. Americans United represents more than 70,000 individual 
     members throughout the fifty states and in the District of 
     Columbia, as well as cooperating houses of worship and other 
     religious bodies committed to the preservation of religious 
     liberty. H.R. 2028 is an extreme and unwise proposal that 
     will undermine the crucial separation of powers at the heart 
     of our government and deny religious minorities from seeking 
     enforcement of their longstanding constitutional rights in 
     the federal courts.
       H.R. 2028 would deprive all federal courts--including the 
     U.S. Supreme Court--of their ability to hear cases involving 
     the Pledge of Allegiance and to enforce longstanding 
     constitutional rights against coerced recitation of the 
     Pledge. Americans United firmly believes that the text, 
     history and structure of the Constitution, together with 
     important policy considerations, should lead the House of 
     Representatives to soundly defeat this dangerous and 
     misguided bill, as well as any other court-stripping 
     proposal.

[[Page 19104]]




             the pledge protection act is unconstitutional

       Article III, Section 1 of the United States Constitution 
     creates the Supreme Court and provides the Congress with the 
     power to establish ``such inferior Courts as the Congress may 
     from time to time establish.'' Section 2 of Article III 
     delineates sets of cases that the Federal courts may hear, 
     provides for areas of original jurisdiction of the U.S. 
     Supreme Court, and also provides for the appellate 
     jurisdiction of the Supreme Court in other areas ``with such 
     Exceptions, and under such Regulations as the Congress shall 
     make.''
       Under Section 2, Congress may have limited authority to 
     limit the types of cases over which the Supreme Court may 
     exercise its appellate jurisdiction. Although the extent of 
     this authority is in dispute and has been the subject of 
     academic commentary over the years, there are clear limits to 
     the authority of Congress to limit the jurisdiction of the 
     federal courts based on other applicable provisions of the 
     Constitution. The Pledge Protection Act would do just that, 
     in that it would entirely deprive every federal court from 
     hearing any constitutional challenge to government-mandated 
     recitation of the Pledge of Allegiance, in violation of due 
     process and separation of powers principles.


    The Pledge Protection Act Would Violate Due Process Rights and 
                   Undermine the Separation of Powers

       Basic due process demands an independent judicial forum 
     capable of determining federal constitutional rights. This 
     legislation deprives the federal courts of the ability to 
     hear cases involving fundamental free exercise and free 
     speech rights of students, parents, and other individuals. 
     Congress' denial of a federal forum to plaintiffs in a 
     specified class of cases would force plaintiffs out of 
     federal courts, which are specially suited for the 
     vindication of federal interests, and into state courts, 
     which may be hostile or unsympathetic to federal claims, and 
     which may lack expertise and independent safeguards provided 
     to federal judges under Article III of the Constitution. It 
     is in apparent recognition of this concern that no federal 
     bill withdrawing federal jurisdiction over cases involving 
     fundamental constitutional rights with respect to a 
     particular substantive area has become law in decades.
       Political frustration with controversial court decisions 
     during the second half of the twentieth century provoked 
     Congress to propose a number of court-stripping measures 
     designed to overturn court decisions touching on a wide 
     variety of issues, including: anti-subversive statutes, 
     apportionment in state legislatures, ``Miranda'' warnings, 
     busing, school prayer, abortion, racial integration, and 
     composition of the armed services. All of these measures 
     failed to pass Congress. In each instance, bipartisan 
     concerns over threats to the American system of government 
     and constitutional order gave way to a recognition of these 
     court-stripping measures for what they truly were: attempts 
     to circumvent the careful process required for amendments to 
     the U.S. Constitution. As Professor Michael J. Gerhardt 
     stated in his testimony regarding the ``Constitution 
     Restoration Act of 2004'' before the Subcommittee on Courts 
     on September 13, 2004: ``Efforts, taken in response to or 
     retaliation against judicial decisions, to withdraw all 
     federal jurisdiction or even jurisdiction of inferior federal 
     courts on questions of constitutional law are transparent 
     attempts to influence, or displace, substantive judicial 
     outcomes. For several decades, the Congress, for good reason, 
     has refrained from enacting such laws.'' Like so many failed 
     court-stripping measures that have come before it, the Pledge 
     Protection Act represents yet another illegitimate short cut 
     to amending the Constitution, is against the weight of 
     history, and must fail.


 The Pledge Protection Act is Extreme, Unwise and Represents Misguided 
                                 Policy

       As drafted, the bill would slam the courthouse doors to 
     religious minorities trying to gain protection for their 
     fundamental constitutional religious and free speech rights. 
     Over sixty years ago, the Supreme Court decided the case of 
     West Virginia State Board of Education v. Barnette, 319 U.S. 
     624 (1943). In Barnette, the Supreme Court struck down a West 
     Virginia law that mandated schoolchildren to recite the 
     Pledge of Allegiance. Under the West Virginia law, religious 
     minorities faced expulsion from school and could be subject 
     to prosecution and fined, if convicted of violating the 
     statute's provisions. In striking down that statute, the 
     Court reasoned: ``To believe that patriotism will not 
     flourish if patriotic ceremonies are voluntary and 
     spontaneous instead of a compulsory routine is to make an 
     unflattering estimate of the appeal of our institutions to 
     free minds . . . If there is any fixed star in our 
     constitutional constellation, it is that no official, high, 
     or petty can prescribe what shall be orthodox in politics, 
     nationalism, religion, or other matters of opinion.'' 319 
     U.S. at 639-40.
       Moreover, just recently, a panel of the U.S. Court of 
     Appeals for the Third Circuit held that a Pennsylvania law 
     mandating recitation of the Pledge, even when it provided a 
     religious exception, violated the Constitution because it 
     violated the free speech of the students. Circle School v. 
     Pappert, No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert, 
     the court found that: ``It may be useful to note our belief 
     that most citizens of the United States willingly recite the 
     Pledge of Allegiance and proudly sing the national anthem. 
     But the rights embodied in the Constitution, particularly the 
     First Amendment, protect the minority--those persons who 
     march to their own drummers. It is they who need the 
     protection afforded by the Constitution and it is the 
     responsibility of federal judges to ensure that protection.'' 
     Pappert, Slip Op. at 14.
       The Pledge Protection Act is an attack on our very system 
     of government. Americans United strongly urges you to leave 
     the independence of the federal judiciary in tact, protect 
     longstanding constitutional rights of religious minorities in 
     the federal courts, and respect free speech rights of 
     countless individuals by rejecting this misguided 
     legislation.
           Sincerely,
                                               Rev. Barry W. Lynn,
      Executive Director.
                                  ____



                               American Civil Liberties Union,

                               Washington, DC, September 21, 2004.
     Re Don't shut the federal courthouse doors to religious 
         minorities; oppose passage of H.R. 2028.
       Dear Representative: The American Civil Liberties Union 
     strongly urges you to oppose H.R. 2028, ``the Pledge 
     Protection Act of 2004.'' H.R. 2028 is an extreme measure 
     that would remove jurisdiction from all federal courts, 
     including the Supreme Court, over any constitutional claim 
     involving the Pledge of Allegiance or its recitation. This 
     bill is expected to be on the House floor later this week.
       H.R. 2028 was amended significantly in Committee and is now 
     the same as H.R. 3313, the Marriage Protection Act, except it 
     deals with jurisdiction over all constitutional claims 
     related to the pledge instead of the Defense of Marriage Act. 
     Prior to mark-up, H.R. 2028 limited the jurisdiction of lower 
     federal courts over First Amendment claims related to the 
     Pledge, but left intact the Supreme Court's jurisdiction.
       H.R. 2028 would slam shut the federal court house doors to 
     religious minorities, parents, schoolchildren and others who 
     seek nothing more than to have their religious and free 
     speech claims heard before the courts most uniquely suited to 
     entertain such claims. Further, by entirely stripping all 
     federal courts of jurisdiction over a particular class of 
     cases, H.R. 2028 raises serious legal concerns, violating 
     principles of separation of powers, equal protection and due 
     process. The bill undermines public confidence in the federal 
     courts by expressing outright hostility toward them, 
     threatens the legitimacy of future congressional action by 
     removing the federal courts as a neutral arbiter, and rejects 
     the unifying function of the federal judiciary by denying 
     federal courts the opportunity to interpret the law. H.R. 
     2028 would deny the U.S. Supreme Court its historical role as 
     the final authority on resolving differing interpretations of 
     federal constitutional rights. As a result, each of the 50 
     state supreme courts would be a final authority on these 
     federal constitutional questions. This would potentially 
     create a situation where we could have as many as 50 
     different interpretations of any relevant federal 
     constitutional question.
       It is in apparent recognition of many of these concerns 
     that no federal bill withdrawing federal jurisdiction in 
     cases involving fundamental constitutional rights has become 
     law since the Reconstruction period. Federal courts were 
     established to interpret federal law and to ensure that the 
     states and the government did not violate the protections in 
     the federal constitution. An effort to deny them jurisdiction 
     over the very sort of claim they were established to hear--
     that government conduct violates a constitutional right--is 
     the most extreme attack possible on the role of federal 
     courts in our system of checks and balances. It strikes at 
     the very purpose of the Founders in creating federal courts 
     in the first place.
       While the supporters of this bill see it as an appropriate 
     response to recent court decisions that they dislike 
     concerning the words ``under God'' in the Pledge, the impact 
     of H.R. 2028 would NOT be limited merely to that issue. This 
     bill would remove jurisdiction over ALL constitutional 
     claims, related to the pledge, from ALL federal courts. This 
     could potentially undermine decades of well-established 
     Supreme Court precedents by denying access to the federal 
     courts in cases brought to enforce existing constitutional 
     rights for religious minorities. For example, over sixty 
     years ago, the Supreme Court decided the case of West 
     Virginia State Board of Education v. Barnette, 319 U.S. 624 
     (1943). In Barnette, the Supreme Court struck down a West 
     Virginia law that mandated schoolchildren to recite the 
     Pledge of Allegiance. Under the West Virginia law, religious 
     minorities faced expulsion from school and could be subject 
     to prosecution and fined, if convicted of violating the 
     statute's provisions. In striking down that statute, the 
     Court reasoned: ``To believe that patriotism will not 
     flourish if patriotic ceremonies are voluntary and 
     spontaneous instead of a compulsory routine is to make an 
     unflattering estimate of the appeal of our institutions to 
     free minds . . . If there is any fixed star in

[[Page 19105]]

     our constitutional constellation, it is that no official, 
     high, or petty can prescribe what shall be orthodox in 
     politics, nationalism, religion, or other matters of 
     opinion.'' 319 U.S. at 639-40.
       Just last month, a panel of the U.S. Court of Appeals for 
     the Third Circuit held that a Pennsylvania law mandating 
     recitation of the Pledge, even when it provided a religious 
     exception, violated the Constitution because it violated the 
     free speech rights of the students. Circle School v. Pappert, 
     No. 03-3285 (3rd Cir. Aug. 19, 2004). In Pappert, the court 
     found that: ``It may be useful to note our belief that most 
     citizens of the United States willingly recite the Pledge of 
     Allegiance and proudly sing the national anthem. But the 
     rights embodied in the Constitution, particularly the First 
     Amendment, protect the minority--those persons who march to 
     their own drummers. It is they who need the protection 
     afforded by the Constitution and it is the responsibility of 
     federal judges to ensure that protection.'' Pappert, Slip Op. 
     at 14.
       First comes marriage then comes the Pledge . . . Where will 
     it end? Passage of H.R. 2028 would set a dangerous precedent 
     for responses by Members of Congress to court decisions with 
     which they disagree. In this session alone, Congress is 
     considering court-stripping legislation related to the Pledge 
     of Allegiance, religious displays/Ten Commandments, marriage 
     and another dealing with all cases related to religion and 
     the acknowledgement of God.
       Over the years, Congress has considered legislation 
     designed to strip court jurisdiction on the issues such as 
     public school busing, voluntary prayer and abortion. 
     Fortunately, none of those proposals was adopted by Congress 
     because legislators understood that setting a precedent for 
     stripping the courts of their jurisdiction over a particular 
     issue might, in the future, be used by some other group of 
     advocates, when in the majority, to establish its views as 
     the law of the land, safely out of the reach of the courts. 
     We urge members of this Congress to oppose passage of H.R. 
     2028 and not to abandon this tradition of thoughtfulness and 
     restraint.
           Sincerely,
     Laura W. Murphy,
       Director.
     Terri A. Schroeder,
       Legislative Analyst.
                                  ____



                                     The Constitution Project,

                               Washington, DC, September 15, 2004.
       Dear Members of the Judiciary Committee: I write on behalf 
     of the Constitution Project to urge you to oppose committee 
     passage of H.R. 2028, the ``Pledge Protection Act of 2003.''
       The Constitution Project, based at Georgetown University's 
     Public Policy Institute, specializes in creating bipartisan 
     consensus on a variety of legal and governance issues, and 
     promoting that consensus to policymakers, opinion leaders, 
     the media, and the public. We have initiatives on the death 
     penalty, liberty and national security, war powers, and 
     judicial independence (our Courts Initiative), among others. 
     Each of our initiatives is directed by a bipartisan committee 
     of prominent and influential businesspeople, scholars, and 
     former public officials.
       Our Courts Initiative works to promote public education on 
     the importance of our courts as protectors of Americans' 
     essential constitutional freedoms. Its co-chairs are the 
     Honorable Mickey Edwards, John Quincy Adams Lecturer at the 
     John F. Kennedy School of Government at Harvard University 
     and former chair of the House of Representatives Republican 
     Policy Committee (R-OK), and the Honorable Lloyd Cutler, a 
     prominent Washington lawyer and White House counsel to 
     Presidents Carter and Clinton.
       In 2000, the Courts Initiative created a bipartisan Task 
     Force to examine and identify basic principles as to when the 
     legislature acts unconstitutionally in setting the powers and 
     jurisdiction of the courts. The Task Force was unanimous in 
     its conclusion that some legislative acts restricting the 
     powers and jurisdiction of the courts are unconstitutional. 
     The Task Force also concluded that some legislative actions, 
     even if constitutional, are undesirable. (The Task Force's 
     findings and recommendations are published in Uncertain 
     Justice: Politics and America's Courts 2000.)
       The work of our Task Force resulted in seven consensus 
     recommendations, including the following, which are relevant 
     to consideration of the legislation at hand:
       1. Congress and state legislatures should heed 
     constitutional limits when considering proposals to restrict 
     the powers and jurisdiction of the courts.
       2. Legislatures should refrain from restricting court 
     jurisdiction in an effort to control substantive judicial 
     decisions in a manner that violates separation of powers, due 
     process, or other constitutional principles.
       3. Legislatures should not attempt to control substantive 
     judicial decisions by enacting legislation that restricts 
     court jurisdiction over particular types of cases.
       4. Legislatures should refrain from restricting access to 
     the courts and should take necessary affirmative steps to 
     ensure adequate access to the courts for all Americans.
       Specifically, our Task Force was unanimous in its view that 
     there are some constitutional limits on the authority of the 
     legislature to restrict court jurisdiction in an effort to 
     control substantive judicial decisions. In particular, 
     separation of powers, due process, and other constitutional 
     provisions limit such authority. Task Force members had 
     differing views about the scope and source of the 
     constitutional limit on the legislature's power in this area. 
     (For instance, some believed that restrictions on 
     jurisdiction become unconstitutional when they destroy the 
     essential role of the Supreme Court. Others relied on a 
     reading of the Vesting Clause of Article III, which places 
     judicial power--the power to decide cases--in the hands of 
     the courts alone.) Nonetheless, all believed that 
     constitutional limitations exists.
       Apart from the constitutionality of laws restricting 
     federal court jurisdiction, the Task Force was also unanimous 
     in its view that legislative acts stripping courts of 
     jurisdiction to hear particular types of cases in an effort 
     to control substantive judicial decisions are undesirable and 
     inappropriate in a democratic system with co-equal branches 
     of government. Legislative restriction of jurisdiction in 
     response to particular substantive decisions unduly 
     politicizes the judicial process, and attempts by 
     legislatures to control substantive outcomes by curtailing 
     judicial jurisdiction are inappropriate, even if believed 
     constitutional. (Indeed, it was striking that members of 
     Citizens for Independent Courts reflecting a broad 
     ideological range--from, for example, Leonard Leo of the 
     Federalist Society to Steven Shapiro of the American Civil 
     Liberties Union--agreed that restrictions on jurisdiction to 
     achieve substantive changes in the law are unwise and 
     undesirable policy.)
       The Task Force was also unanimous that legislation that 
     restricts access to the courts and precludes individuals from 
     using a judicial forum to vindicate rights is undesirable and 
     unconstitutional. Rights are meaningless without a forum in 
     which they can be vindicated. Therefore, access to the courts 
     at both the federal and state levels is essential in order 
     for rights to have effect. Legislatures have the duty to 
     ensure meaningful access to the courts and legislative 
     actions that preclude this are undesirable and 
     unconstitutional.
       Our Task Force reached these conclusions and 
     recommendations rightly. From its beginning, our system of 
     constitutional democracy has depended on the independence of 
     the judiciary. Judges are able to protect citizens' basic 
     rights and decide cases fairly only if free to make decisions 
     according to the law, without regard to political or public 
     pressure. Similarly, the judiciary can maintain the checks 
     and balances essential to preserving a healthy separation of 
     powers only if able to resist overreaching by the political 
     branches. Indeed, the cornerstone of American liberty is the 
     power of the courts to protect individual rights from 
     momentary excesses of political and popular majorities.
       In recent years, as part of the polarization and posturing 
     that increasingly characterize our national and state 
     politics, threats to judicial independence have become more 
     commonplace. Attacks on judges for unpopular decisions, even 
     those made in good faith, have become more rampant. 
     Politicians are responding to unpopular decisions and 
     litigants by attempting to restrict courts' powers in certain 
     kinds of cases. However, Americans have much to lose if we do 
     not exercise self-restraint and instead choose short-term 
     political gain at the expense of judicial independence. The 
     independence of our judiciary is, as Chief Justice Rehnquist 
     described, ``one of the crown jewels of our system of 
     government.''
       In conclusion, while Article III of our Constitution gives 
     Congress the power to regulate federal court jurisdiction, 
     this power is not unlimited, and Congress should not--and in 
     some instances may not--use its power to restrict federal 
     court jurisdiction in ways that infringe upon separation of 
     powers, violate individual rights and equal protection, or 
     offend federalism. H.R. 2028 is poised to do all three by 
     stripping federal courts of the authority to hear cases 
     involving the Pledge of Allegiance, including when such cases 
     involve claims of free speech and religious freedom. Such 
     jurisdiction-stripping threatens the critical and unique role 
     that the federal courts play in constitutional balance of 
     powers, protecting individual rights, and interpreting 
     constitutional law.
       For the reasons stated above, as well as those detailed our 
     Task Force's findings and recommendations, we at the 
     Constitution Project urge you to oppose H.R. 2028. Thank you 
     for your consideration.
           Sincerely,
                                                Kathryn A. Monroe,
     Director, Courts Initiative.
                                  ____



                                      Baptist Joint Committee,

                               Washington, DC, September 14, 2004.
       Dear Representative: The Baptist Joint Committee (BJC) 
     urges you to vote No on H.R. 2028, the so-called ``Pledge 
     Protection Act.'' The BJC is a nearly 70-year-old 
     organization committed to the principle that religion must be 
     freely exerecised, neither advanced nor inhibited by 
     government. We oppose any legislation that seeks to strip the 
     federal courts of their fundamental role in protecting 
     individual liberties.

[[Page 19106]]

       The existence of an independent judiciary, free from 
     political or public pressure, has been essential to our 
     nation's success in protecting religious liberty for all 
     Americans. Indeed, the role of the federal courts has long 
     been recognized as essential in the battle for full religious 
     liberty. As Justice Jackson stated in the case of West 
     Virginia State Board of Education v. Barnett: ``The very 
     purpose of a Bill of Rights was to withdraw certain subjects 
     from the vicissitudes of political controversy, to place them 
     beyond the reach of majorities and officials and to establish 
     them as legal principles to be applied by the courts. One's 
     right to life, liberty, and property, to free speech, a free 
     press, freedom of worship and assembly, and other fundamental 
     rights may not be submitted to vote; they depend on the 
     outcome of no elections.'' 319 U.S. 624, 639 (1943).
       Moreover, the result of any particular case does not 
     undermine the important role of the judiciary. The misnamed 
     ``Pledge Protection Act'' represents a dangerous attack on 
     our tradition of religious freedom, on the constitutional 
     separation of powers and indeed our system of government. It 
     represents an unwarranted attempt to restrict the power of 
     the federal judicial system.
       Whatever the motivation, there is insufficient basis to 
     depart from a long-standing congressional custom against 
     using jurisdiction-stripping to control the federal courts. 
     Federal judicial review has consistently supported the proper 
     separation of church and state so vital to all Americans, and 
     we must trust that the courts will continue to do so. We ask 
     you to reject H.R. 2028.
           Sincerely,
     J. Brent Walker,
       Executive Director.
     K. Hollyn Hollman,
       General Counsel.
                                  ____



                                                     Bob Barr,

                                       Atlanta, GA, July 19, 2004.
     Re Upcoming vote on the Marriage Protection Act, H.R. 3313.
       Dear Representative: I would like to take this opportunity 
     to express my concerns with the Marriage Protection Act, H.R. 
     3313, which I understand may be on the House floor as early 
     as this week. While I understand and appreciate the reason 
     that supporters of this bill are trying to pass this 
     legislation, I respectfully disagree on the need for the bill 
     and see the potential of a bad precedent for future 
     legislation. For these reasons, I urge that members vote 
     against H.R. 3313.
       H.R. 3313 would preclude federal courts, including the 
     Supreme Court, from reviewing the constitutionality of the 
     cross-state recognition section of the Defense of Marriage 
     Act (``DOMA''). If H.R. 3313 is enacted, each of the 50 state 
     supreme courts would be a final authority on the 
     constitionality of DOMA, with no opportunity for either a 
     state (as a defendant) or a plaintiff to appeal a decision to 
     the Supreme Court.
       As the principal author and lead sponsor of DOMA, I 
     completely share the views of the supporters of H.R. 3313 who 
     view DOMA as critical to our federalist system of government, 
     and as integral to the proper resolution of the difficult 
     questions raised by any state extending marriage rights to 
     same-sex couples. DOMA is an important law that will help 
     each state in the nation retain its own sovereignty over the 
     fundamental state issue of who is married under its laws.
       However, where I differ with the supporters of H.R. 3313 is 
     in my confidence that the Supreme Court will not invalidate 
     DOMA. During the lengthy consideration of DOMA, the House of 
     Representatives heard detailed testimony on the 
     constitionality of DOMA. A parade of legal experts--including 
     the Justice Department--determined that DOMA is fully 
     constitutional. Although there were a few naysayers and 
     wishful thinkers who opined that DOMA is unconstitutional, 
     the overwhelming weight of authority was clear that DOMA is 
     constitutional. Based on the exhaustive review of these 
     opinions, Congress overwhelmingly passed DOMA and it was 
     signed into law by President Clinton.
       DOMA remains good law. It has never been invalidated by any 
     court anywhere in the country. It is a sound and valid 
     exercise of congressional authority, pursuant to the Full 
     Faith and Credit Clause of the Constitution.
       Some supporters of H.R. 3313 point to the Supreme Court's 
     opinion last year in Lawrence v. Texas, in which the Court 
     invalidated a state sodomy law, as reason for concern that 
     the Court could invalidate DOMA. However, I believe the 
     Supreme Court justifiably would see a world of difference 
     between a sodomy law that applied only to homosexual 
     relations, and a federal law allowing the enforcement of 
     nearly uniform state policies prohibiting cross-state 
     recognition of marriages of same-sex couples. Moreover, when 
     the Supreme Court correctly invalidated a racially 
     discriminatory marriage law in Loving v. Virginia, it applied 
     the highest level judicial scrutiny to the state's marriage 
     law. The Supreme Court always applies the highest level of 
     scrutiny to race claims, but minimal level to sexual 
     orientation claims. Serious legal scholars do not see that 
     changing.
       Moreover, because H.R. 3313 does not strip state courts of 
     jurisdiction to hear challenges to the cross-state 
     recognition section of DOMA, the result will be that each of 
     the 50 state supreme courts will be the final authority on 
     the constitutionality of a federal law. The chaotic result 
     could be 50 different interpretations reached by state 
     supreme courts, with no possibility of the U.S. Supreme Court 
     reversing any incorrect interpretation of the federal DOMA. 
     The potential for mischief by these courts is obvious. 
     Ironically, I fear an increased likelihood of an adverse 
     decision on DOMA's constitutionality if H.R. 3313 becomes 
     law.
       However, the principal problem with H.R. 3313 is not just 
     that it is protecting a wholly constitutional law that needs 
     no additional protection, but that it sets a harmful 
     precedent for the future. Our healthy democracy depends on 
     having three separate and independent branches of government. 
     I have long been concerned about a runaway judiciary, but I 
     am also concerned about having a Congress or President 
     unchecked by the independent judiciary established by the 
     Constitution.
       H.R. 3313 will needlessly set a dangerous precedent for 
     future Congresses that might want to protect unconstitutional 
     legislation from judicial review. During my time in Congress, 
     I saw many bills introduced that would violate the Takings 
     Clause, the Second Amendment, the Tenth Amendment, and many 
     other constitutional protections. My main concern with H.R. 
     3313 is that it will lay the path for the sponsors of such 
     unconstitutional legislation to simply add the language from 
     H.R. 3313 to their bills. The fundamental protections 
     afforded by the Constitution would be rendered meaningless if 
     others follow the path set by H.R. 3313.
       For these reasons, I urge you to vote against this well-
     intentioned, but unnecessary legislation. The Congress should 
     keep in place the separation of powers outlined in the 
     Constitution, rather than act hastily in fear of an outcome 
     on DOMA that is unlikely in the first instance.
       Thank you for your attention to this issue, and with warm 
     regards, I remain.
           Very truly yours,
                                                         Bob Barr,
     Member of Congress, 1995-2003.
                                  ____

                                                    July 13, 2004.
     Hon. Jerrold Nadler,
     House of Representatives,
     Washington, DC.
       Dear Congressman Nadler: I am happy to respond to your 
     inquiry of July 9, asking for elaboration of my testimony 
     before the Subcommittee on the Constitution of the Judiciary 
     Committee of the House of Representatives, concerning the 
     constitutionality of congressional power to control federal 
     court jurisdiction on the interpretation and review of the 
     Defense of Marriage Act.
       I cannot emphasize strongly enough that while I believe 
     that Congress's power to regulate federal court jurisdiction 
     is broad, the Constitution places clear limits on that power 
     which must be observed. As I believe I made clear in both my 
     written and oral testimony, nothing in Article III provides 
     Congress with the power to exclude from all independent 
     judicial review the constitutionality of any governmental 
     action, state or federal. However, as long as the state 
     courts remain open and available for this purpose, due 
     process would not be violated by congressional exclusion of 
     the jurisdiction of either the lower federal courts or the 
     Supreme Court.
       I see from your inquiry, however, that I may have failed to 
     anticipate in my testimony several other potential 
     permutations and combinations of jurisdictional restriction 
     related to the Defense of Marriage Act, and if so I sincerely 
     apologize. There are conceivably two other situations which 
     could give rise to possibly serious constitutional problems, 
     and I write this letter in order to provide you with my views 
     on those instances.
       First, it is quite clear that Congress lacks constitutional 
     authority to vest the federal courts with jurisdiction to 
     apply or enforce the Defense of Marriage Act while 
     simultaneously restricting those courts' jurisdiction either 
     to interpret or to review the constitutionality of that 
     legislation. As famed jurisdiction scholar Henry Hart wrote 
     many years ago, ``the difficulty involved in asserting any 
     judicial control in the face of a total denial of 
     jurisdiction doesn't exist if Congress gives jurisdiction but 
     puts strings on it. . . . [I]f Congress directs an Article 
     III court to decide a case, I can easily read into Article 
     III a limitation on the power of Congress to tell the court 
     how to decide it.'' Henry Hart, The Power of Congress to 
     Limit the Jurisdiction of Federal Courts: An Exercise in 
     Dialectic, 66 Harv. L. Rev. 1362, 1372-1373 (1953) (emphasis 
     in original). For a detailed discussion of my views on this 
     issue, see Martin H. Redish, Federal Jurisdiction: Tensions 
     in the Allocation of Judicial Power 47-52 (2d ed. 1990).
       Second, to the extent even the total exclusion of federal 
     court jurisdiction were imposed, there may be a 
     constitutional problem if, in order to enforce and protect 
     underlying constitutional rights, a reviewing court would 
     have to directly control the actions of a federal officer 
     through the writs of habeas corpus, mandamus or injunction. 
     For while it has long been understood that state courts

[[Page 19107]]

     provide an adequate forum to protect and enforce federal 
     rights, it is also well established--in a line of cases 
     beginning in 1821--that state courts lack authority directly 
     to control the actions of federal officers. See McClung v. 
     Silliman, 19 U.S. (6 Wheat.) 598 (1821) (mandamus); Tarble's 
     Case, 80 U.S. (13 Wall.) 397 (1871) (habeas corpus). While 
     there exists no definitive Supreme Court decision denying 
     state courts power to issue injunctions to federal officers, 
     there does exist a strong line of cases in the lower federal 
     courts to this effect. See, e.g., Kennedy v. Bruce, 298 F.2d 
     860 (1962). Moreover, the logic which led the Supreme Court 
     to deny state courts the power to issue mandamus or habeas 
     relief to federal officers logically applies with the same 
     force to writs of injunction. Thus, if a federal right may 
     only be enforced through issuance of a directly controlling 
     order to a federal officer, exclusion of all federal court 
     jurisdiction could arguably give rise to a serious 
     constitutional problem, because the state courts would be 
     simultaneously closed to the issuance of such relief.
       While there does exist some language in Supreme Court 
     doctrine (particularly in Tarble's Case) suggesting that 
     state courts inherently lack such power as a constitutional 
     matter, it is difficult to believe this conclusion would be 
     adhered to today. In light of the Madisonian Compromise's 
     inherent assumption that if Congress declined to exercise its 
     discretion under Article III, section 1 to create lower 
     federal courts state courts could perform the exact same 
     functions, it is highly unlikely that the framers intended to 
     impose such an absolute constitutional bar to state court 
     power to directly control the actions of federal officers. In 
     my scholarship, therefore, I have argued that the reasoning 
     of Tarble's Case can be reworked ``into simply an inference 
     of congressional intent to exclude state court power in the 
     face of congressional silence . . . because, were Congress 
     actually to consider the question, it likely would not want 
     state courts . . . to have the authority to impair the 
     operation of federal programs by directly controlling the 
     actions of federal officers.'' Martin H. Redish, 
     Constitutional Limitations on Congressional Power to Control 
     Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. 
     U. L. Rev. 143, 158-159 (1982). Thus, under my reading of 
     this line of cases, if Congress so desired it could revoke 
     the limits on state court power imposed by the Tarble line of 
     cases, simply by explicitly vesting in the state courts the 
     power to control federal officers through the issuance of the 
     writs previously mentioned. Absent such explicit 
     congressional directive, however, the rule of Tarble, closing 
     the state courts for this limited purpose, would remain 
     intact.
       The issue becomes more complicated where, as here, Congress 
     considers excluding all federal court power to review the 
     constitutionality of federal officer behavior. There are 
     respected scholars--particularly Professor Paul Bator and 
     other revisers of the Hart and Wechsler text--who believe 
     that were Congress to automatically exclude all federal court 
     jurisdiction to enforce constitutional rights and interests, 
     the state court bar imposed by the Tarble line of cases would 
     automatically be revoked. However, I do not agree. I believe 
     that unless Congress simultaneously and expressly revokes the 
     limit on state court authority to issue directly controlling 
     writs to federal officers, its exclusion of federal court 
     power to issue such writs inexorably leads to a violation of 
     due process. For in such a situation, neither the state 
     courts nor federal courts would be available to protect 
     constitutional rights, and the due process right to an 
     independent judicial forum for enforcement of constitutional 
     rights would therefore have been violated.
       It is true, of course, that normally a reviewing court will 
     assume that Congress did not intend to violate constitutional 
     rights. Therefore one might reason that the closing off of 
     the federal courts should automatically be taken as an 
     opening of the state courts. However, I believe that before 
     Congress closes off all federal court authority to review the 
     constitutionality of a statute and to control federal office 
     actions in order to protect particular constitutional rights, 
     it must be aware of certain facts. First, Congress must 
     recognize that some adequate and independent judicial forum 
     must be available to control federal officers in order to 
     protect constitutional rights. Second, it must be aware that 
     once it has closed all federal courts for this purpose, the 
     only courts that will be available to control federal officer 
     action through issuance of appropriate writs will be the 
     state courts--without any opportunity for policing or 
     unifying review in any federal court, including the Supreme 
     Court. If Congress wishes to create such an unstable 
     situation, I believe it has power to do so (though once again 
     I should note that certain language in Tarble suggests that 
     the limit imposed on state court power derives from the 
     Constitution, rather than congressional will; if such 
     reasoning were to be adopted today, then the issue would be 
     taken from Congress's hands and the closing of the federal 
     courts to the issuance of such directly controlling writs 
     would necessarily violate due process). Absent express 
     revocation of the limits imposed on state court jurisdiction 
     imposed by the Tarble line of cases, I believe, Congress will 
     not have evinced the requisite consideration of these 
     important issues. In this sense, the rule of interpretation 
     that I have advocated in similar to the ``clear statement'' 
     rule presently invoked by the Supreme Court for congressional 
     revocation of state sovereign immunity.
       I must emphasize the uncertainty that surrounds the Tarble 
     line of cases. First, it is unclear whether the Supreme Court 
     there intended to erect a constitutional barrier to state 
     court issuance of directly controlling writs to federal 
     officers, and if so whether it would still be adhered to 
     today. Second, assuming the barrier is not deemed to be of 
     constitutional status, it is unclear whether congressional 
     exclusion of federal judicial power to issue such writs would 
     be taken automatically to revoke the Tarble restriction on 
     state court power over federal officers. There simply is no 
     case law on that issue. Moreover, as already mentioned, my 
     view that express congressional revocation of the Tarble 
     barrier is required to render the congressional exclusion of 
     federal court power to issue the directly controlling writs 
     of mandamus, habeas corpus and injunction constitutional has 
     been challenged by other respected scholars. Nevertheless, 
     the only way that Congress could be certain, at this point, 
     that its exclusion of all federal court power directly to 
     control federal officer behavior when constitutional rights 
     are at stake would satisfy due process is at the same time to 
     expressly authorize state courts to issue these writs to 
     federal officers. Absent such an express congressional 
     authorization, the constitutionality of the restriction on 
     federal court review power would at the very least be in 
     doubt, and, in my opinion, unconstitutional.
       I apologize for so complex an answer to your question, but 
     I am afraid I see no means of explaining the potential 
     pitfalls facing Congress in any simpler manner. In any event, 
     I hope you find this response helpful. If I can be of 
     assistance in any other way, please do not hesitate to 
     contact me.
           Sincerely yours,
                                                 Martin H. Redish,
                            Northwestern University School of Law.

                              {time}  1215

  Mr. SENSENBRENNER. Mr. Chairman, I yield 5 minutes to the gentleman 
from Missouri (Mr. Akin), the author of the bill.
  Mr. AKIN. Mr. Chairman, we have heard a lot of legalese this morning, 
and perhaps trying to make a subject that is not very complicated a lot 
more complicated. The simple question is whether or not school kids are 
going to be able to say the Pledge of Allegiance the way we have done 
it for the last 50 years.
  Some may say that is not that important an issue, but I would ask 
this question: If Members were asked, and perhaps it would be one of 
these big old TV cameras, and somebody came up and said, you have lived 
in America all these years, how would you, in the simplest form, 
describe what is the glue that holds us all together as Americans? What 
is the heart of America? If, like an onion, we peeled off the layers 
and got to the very center, what is it that makes America such a unique 
and special place? What is it that made people from all different 
nationalities come here and call themselves Americans? What is it that 
makes illegal immigrants try to come here? What is it that makes 
America special?
  I think the answer can be found in our birthday document, our 
Declaration of Independence. It sets out essentially a three-part 
formula. It says we hold these truths to be self-evident, that all men 
are created equal and endowed by their creator with certain inalienable 
rights, and among these is life, liberty and the pursuit of happiness. 
And it goes on to say the job of government is to protect those rights. 
The three-part formula is that there is a God; God grants all people 
everywhere certain basic fundamental rights; and it is the job of 
government to protect those rights.
  Now, if we allow activist judges to start creating law and say it is 
wrong to somehow allow school children to say ``under God'' in the 
Pledge, we have emasculated the very heart of what America has always 
been about.
  This is quite simply a matter of judges turning the first amendment 
upside down. The first amendment was supposed to be about free speech, 
religious or political free speech, and now these judges are censoring 
our very Pledge of Allegiance and telling school kids they cannot say 
the Pledge. If we allow activist judges to go there, what is next?

[[Page 19108]]

  Behind me, set in brass above the Speaker's desk, ``In God we 
trust.'' Is this a sense of the co-equal power of the branches of 
government that the court can next step in here and take ``In God we 
trust'' off that? Are they going to tell us we cannot have chaplains? 
Are they going to go to the Jefferson Monument that has in stone that 
God that gave us life, gave us liberties, and can the liberties of the 
people be secure if we remove the conviction that those liberties are 
the gift of God? Is that going to be plastered over? Are we going to 
get rid of the Gettysburg Address? How far will we let them go?
  Yet my colleagues have been arguing that anything the court says; it 
is unconstitutional to challenge the Supreme Court. In my State of 
Missouri, the Dred Scott decision was brought, and the Supreme Court 
said black people are not actually people. That was a dumb decision, 
and we need to be able to tell the Supreme Court or any other court 
that makes ridiculous decisions they are wrong. Yet we are hearing it 
is off base to try to check their authority. It is the job of the other 
two branches of government to draw up short the judiciary when they 
exceed their constitutional authority. And legislating from the bench 
and using the first amendment as a tool of censorship certainly 
qualifies that we should weigh in.
  Mr. Chairman, I would close by saying that I have heard a number of 
assertions that there is absolutely no precedent to use article III 
section 2. And yet, if Members were to simply check with the 
congressional research people, as our office has done, they would tell 
Members they cannot print them all out there are so many examples. In 
the 107th Congress, most of us voted for the PATRIOT Act. The PATRIOT 
Act has article III section 2 language in it, and we have it used in 
all kinds and numbers of ways.
  A certain prominent Senator from South Dakota made an amendment to a 
bill that said we are going to clear the undergrowth from the forest of 
the Black Hills. That, of course, is against environmental law, but the 
problem is that all that undergrowth was fueling forest fires. This 
particular gentleman made the comment and put it into law, regardless 
of what any Federal court says, we are going to clear the undergrowth. 
Another use of the limitation of the appellate jurisdiction of the 
courts. There are numerous cases to that regard. Certainly, these 
charges are completely and factually inaccurate.
  Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentleman from 
Maryland (Mr. Hoyer), the Democratic whip of the House.
  Mr. HOYER. Mr. Chairman, 2 minutes is obviously not sufficient time 
to respond to simplistic arguments. The previous speaker said he has 
heard simple legal arguments. He talked about why people came to 
America.
  I chaired the Commission on Security and Cooperation in Europe, the 
Helsinki Commission, and I went to numerous countries in which the 
judiciary was not independent, where it was dictated to by the 
legislature and the executive departments if the judiciary did not do 
what the legislature and the executive wanted them to do. That is the 
perverseness of this legislation. That is the demagoguery of this 
legislation. This is the simplistic approach that this legislation 
takes.
  Let me say, I believe that ``under God'' in the Pledge of Allegiance 
is absolutely appropriately there. It is constitutional, and it ought 
to be there. And frankly, if the Supreme Court ruled it was 
unconstitutional, I would vote for a constitutional amendment to ensure 
its presence.
  The gentleman is correct; Thomas Jefferson intoned those compelling 
words that we get our rights not from the legislature, not from the 
executive, not even from the majority. Those basic rights are within us 
as children of God. That is the difference between this country. That 
is what Marbury v. Madison meant. It meant a legislature, irrespective 
of its animus, irrespective of the prejudice that it wanted to include, 
not in this instance but in other instances, could be overseen by the 
courts of this United States.
  The gentleman mentioned the Dred Scott decision. It was not the 
legislature that overturned that decision or the majority of Americans 
that overturned that decision; it was the Supreme Court of the United 
States ultimately that said that is wrong. The gentleman is absolutely 
correct; the Supreme Court said separate is not equal. But had they 
been precluded from having the jurisdiction over that case, we would 
still have segregated schools. We would still have separate but equal, 
but it was the courts that stepped in and made sure that the dream of 
America was the reality of America.
  Defeat this legislation. There is no case pending. It has been 
dismissed by the Supreme Court.
  No court in this Nation has precluded. Every child in America now 
stands and proudly stands, as we do in this chamber, and pledges 
allegiance to our flag and to this Nation under God, indivisible with 
liberty and justice for all. But we have found through the centuries 
that justice, justice, justice is protected by our independent 
judiciary. Let us keep it that way for all Americans. Defeat this 
legislation.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman 
from New Jersey (Mr. Garrett).
  Mr. GARRETT of New Jersey. Mr. Chairman, I rise today in proud 
support of H.R. 2028, the Pledge Protection Act, introduced by the 
gentleman from Missouri (Mr. Akin). We are here today because, once 
again, activist judges have taken it upon themselves to dictate law in 
this country, believing they know better than all Americans, they know 
better than the State legislatures or the Federal legislature, and they 
know better than the Founding Fathers themselves, they think.
  The Pledge Protection Act defends the constitutionality of reciting 
the Pledge of Allegiance by simply restricting the jurisdictions of 
some lower Federal courts. This body here is more than within our 
bounds to limit the role of Federal court jurisdiction.
  The power of Congress is granted in article III of the Constitution. 
The clause states, ``The judicial power of the United States shall be 
vested in one Supreme Court and in such inferior courts as the Congress 
may from time to time ordain and establish.''
  Accordingly, the Constitution provides that the lower courts are 
entirely creatures of Congress, as is the jurisdiction of the Supreme 
Court.
  Just as this Congress is checked every so often by the power of the 
Presidential veto, and we are checked every 2 years by re-elections, we 
in turn have the ability to check or rein in abusive and out-of-line 
courts.
  The Pledge closely reflects the noblest intentions of our Founding 
Fathers and the inspiration that has led to the creation of this great 
Nation, and that is why I can confidently say that nothing in the 
reciting of the Pledge discriminates against any religious minorities 
or abuses any rights.
  The phrase ``under God'' simply acknowledges that our Founding 
Fathers, who were leaders in the fight for our independence and the 
authors of our Nation's framework, did so with the inspiration and 
their belief in a divine being.
  We all know this House starts each morning with the Pledge as we 
begin our business, and I believe that right should not be taken away 
from the children of this country as well.
  Mr. NADLER. Mr. Chairman, I yield for the purpose of a making a 
unanimous consent request to the gentleman from Texas (Mr. Green).
  Mr. GREEN of Texas. Mr. Chairman, I include my statement for the 
Record supporting the Watt amendment, and also supporting the original 
Protect the Pledge Act.
  Mr. Chairman, I rise today in support of the Watt amendment to H.R. 
2028, the Protect the Pledge Act. This amendment is plain and simple; 
it would restore H.R. 2028 to its original language.
  I strongly support the Pledge of Allegiance. In fact, in the last 
Congress I introduced H.J. Res. 103, an amendment to the Constitution 
that would affirm that the Pledge of Allegiance in no way violates the 
First Amendment. Unfortunately, Congress did not pass the resolution 
before it adjourned for the 107th Congress. As an original cosponsor of 
H.R. 2028,

[[Page 19109]]

I had hoped that it would protect the Pledge of Allegiance from 
unnecessary court battles without infringing on the rights of the 
people. However, with H.R. 2028 in its current form Congress has lost 
its balance between our constitutional rights and the law.
  The Pledge of Allegiance is an important symbol of the privileges and 
rights that our founding fathers fought so desperately to preserve. 
Although the major controversy surrounding the pledge rests on the 
words ``under God,'' H.R. 2028 blatantly ignores the words ``with 
liberty and justice for all.''
  Every citizen has the right to due process under the law. By 
stripping the Supreme Court of jurisdiction to hear cases pertaining to 
the Pledge, we take away the basic right for everyone to have their 
case heard before the highest court in the land. Article III of the 
Constitution states that Congress has the power to define the 
jurisdiction of the Federal district and appellate courts, but we do 
not have the power to decide which cases the Supreme Court can and 
cannot hear.
  The Watt amendment restores the Protect the Pledge Act to its 
original language. I urge my colleagues to support this amendment and 
protect our constitutional rights.
  Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, obviously, I stand here today 
formerly a second-class citizen in America, and if it had not been for 
the courts of the United States of America, article III courts and the 
United States Supreme Court, I would still be in a place with nowhere 
to be able to seek redress of my grievances.
  Let me make it clear that I voted to retain the language ``under 
God'' in the Pledge of Allegiance, and I did so because I believe it is 
protected by the first amendment. That amendment allows us to exercise 
our freedom of religion, but this is at best political chicanery. This 
is a joke, and the reason is, I would ask my colleagues on the other 
side of the aisle why they did not put this kind of legislation to 
eliminate the right of the Federal courts and the Supreme Court to 
engage in the oversight of election laws? The reason, because they got 
the decision they wanted in 2000.
  This is a bill that destroys the Constitution as we know it. Article 
III of the U.S. Constitution vests the judicial power of the United 
States in one Supreme Court. How can we eliminate the appellate 
jurisdiction of the Article III courts and the Supreme Court that 
leaves all of America a lack of opportunity to address their grievances 
no matter who they are?
  I pledge allegiance to the flag. I respect the language ``under 
God,'' but it is the right of the American people to at least go into 
the courts to address their grievances.
  And what about religion? If one has a religion that gives them the 
instruction to not recite that kind of language, that individual has 
the right, as an expression of their right of religious freedom, to do 
so or to seek redress of grievances in the courts. Again, this is 
political opportunity, but I would join my colleagues in eliminating 
the rights of the Federal courts and the Supreme Court to decide any 
election case so we will not have the biased decision that was rendered 
in the Bush v. Gore decision of 2000. If they join me on that, maybe we 
will have a sense of fairness. Today, we do not.
  I stand with the Constitution which says we have a right to be able 
to address our grievances in the courts of the United States of 
America. We have the right to freedom of religion. We should vote down 
this bill as one that puts a stain on the Constitution of the United 
States of America. Remember--our history--that of minorities in this 
country--was only made better many times by the decisions of the 
Federal courts.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself 30 seconds.
  Mr. Chairman, I beg to disagree with the gentlewoman from Texas (Ms. 
Jackson-Lee). It was not the Supreme Court that gave her and her 
ancestors their freedom; it was the 600,000 people who died during the 
Civil War that did that and allowed the Congress to pass three 
constitutional amendments which guaranteed freedom for former slaves 
and their descendants.
  Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. 
Stearns).

                              {time}  1230

  Mr. STEARNS. Mr. Chairman, I would say to the 30-second speech by the 
chairman of the Committee on the Judiciary, Amen to what he just said.
  Let me give a hypothetical example to the people on this side of the 
aisle who are predominately against this amendment. Let us say that it 
turned out that the Supreme Court wanted to take the words ``In God We 
Trust'' off the marble slab that stands on top of the flag in the 
Speaker's rostrum. At what point would you as a Member of Congress get 
up and say enough is enough for the Supreme Court to do this? I mean, 
at what point does your side have to be so upset to get involved to 
really exercise what the Constitution allows?
  It has been repeated many times under article III, section 2 of the 
Constitution, we in this body have the right, and some would say we 
have the duty, to limit the jurisdiction of Federal courts. I certainly 
would hope if they tried to strip ``In God We Trust'' off the Speaker's 
rostrum that they on that side of the aisle would stand up and say 
enough is enough and agree that we would allow Congress to exercise its 
prerogative under article III, section 2 of the Constitution.
  Also, I brought this up before, all of those on this side of the 
aisle know that Tom Daschle, the minority leader, inserted a provision 
in legislation to prohibit the courts from hearing cases about brush 
clearings in South Dakota.


                             Point Of Order

  Ms. PELOSI. Mr. Chairman, I make a point of order.
  Mr. Chairman, the gentleman was referencing activities as far as the 
other body is concerned, naming a Senator by name. Is that not out of 
order by this body?
  Mr. SENSENBRENNER. Mr. Chairman, on the point of order, the gentleman 
from Florida was referencing a provision in a conference report that 
was adopted by this body as well as by the other body and became law.
  The CHAIRMAN pro tempore. All Members should refrain from improper 
references to Members of the other body.
  Mr. STEARNS. Mr. Chairman, I did mention in my speech about a 
provision in legislation that was inserted; so I thought that was 
important.
  In July we passed the Marriage Protection Act, removing the Federal 
courts' jurisdiction from questions arising under the Defense of 
Marriage Act. Frankly, is marriage not more important than the forests 
that I mentioned previously that was inserted in legislation?
  So I am honored to support this bill and to protect the Pledge of 
Allegiance from further judicial interference.
  I will include my entire statement in the Record.
  Mr. Chairman, for decades, activist judges have been free to impose 
their own beliefs on the American people with impunity.
  We have had to endure egregious decisions about abortion, obscenity, 
school prayer and homosexual ``marriage,'' to name but a few issues.
  On each of these issues, the vast majority of the American people 
took the exact opposite position as the federal court.
  This was especially true when the 9th Circuit Court of Appeals 
declared that the words ``under God'' in the Pledge of Allegiance are 
unconstitutional.
  But I am glad to note that Congress has recently been exercising its 
constitutional prerogative to limit the federal courts.
  Under Article III, Section 2 of the Constitution, we have the right--
some would say the duty--to limit the jurisdiction of the federal 
courts.
  It is not like it hasn't been done before.
  In the 1868 landmark case of Ex parte McCardle, the U.S. Supreme 
Court agreed that Congress had the constitutional right to remove 
jurisdiction from the court in a pending case.
  More recently, Senate Minority Leader Tom Daschle inserted a 
provision in legislation to prohibit the courts from hearing cases 
about brush clearing in South Dakota.
  And in July, we passed the ``Marriage Protection Act,'' removing the 
federal court's jurisdiction from questions arising under the Defense 
of Marriage Act.

[[Page 19110]]

  Frankly, isn't marriage and the Pledge more important than forests?
  I am honored to support this bill and to protect the Pledge of 
Allegiance from further judicial interference.
  Mr. Chairman, for years the Federal Courts have been taking 
jurisdiction away from Congress. It is only proper that we exercise our 
constitutional right to limit their jurisdiction.
  Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
  The reference to Senator Daschle was not true. We rebutted it in the 
debate last time. I will reference something for the Record so we do 
not waste time on this untruth anymore now.

       Brush Clearing Rider: Most notably, the Majority claims 
     that a rider to the 2002 Supplemental Appropriations Act 
     authored by the senior senator from South Dakota approving 
     logging and clearance measures by the Forest Service in the 
     Black Hills of South Dakota serves as a precedent for the 
     enactment of these types of court-stripping measures.
       The problem with this argument is that, while the rider 
     restricted ``judicial review'' of ``any [logging or 
     clearance] action'' by the Forest Service, it did not 
     restrict federal judicial review of the rider itself or its 
     constitutionality. Indeed, the federal courts did review the 
     validity of the rider, and explicitly found that the 
     ``challenged legislation's jurisdictional bar did not apply 
     to preclude Court of Appeals' review as to the legislation's 
     validity''

  Mr Chairman, I yield 2 minutes to the distinguished gentlewoman from 
California (Ms. Waters).
  Ms. WATERS. Mr. Chairman, if anyone had told me that coming to the 
Congress of the United States of America, representing my district, I 
would have to be on the floor of Congress defending the constitutional 
rights of the Supreme Court to make constitutional rulings, I would 
have told them they are crazy. This is absolutely outrageous. The 
gentleman just asked when do we get so angry that we agree to strip the 
Court of its constitutional responsibility.
  Mr. Chairman, I have disagreed with any number of decisions of the 
Supreme Court. I disagree with the fact that the Dred Scott decision 
said separate was all right, separate but equal. And in the last 2002 
election, I disagreed with the fact that the Supreme Court gave the 
Presidency to George W. Bush. But my colleagues did not see me and 
others coming in here and talking about stripping them of their ability 
to make constitutional decisions.
  The court-stripping proposed in this bill would destroy the Supreme 
Court's historical function as the interpreter and ultimate arbiter of 
what the Constitution requires. This misguided legislation to strip the 
Supreme Court of its appellate jurisdiction also would have seriously 
damaging implications for the relationships among our three branches of 
government. This bill and other court-stripping bills proposed by the 
Republicans would be laughable if the results of enacting this bill 
were not so tragic and not so threatening to the constitutional rights 
of our people and the independence of the Federal judiciary.
  If H.R. 2028 were passed into law, it would constitute the first and 
only time Congress has enacted legislation totally eliminating any 
Federal court from considering the constitutionality of Federal 
legislation, in this case the Pledge of Allegiance.
  Mr. SENSENBRENNER. Mr. Chairman, I reserve the balance of my time.
  Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished 
gentleman from Washington (Mr. Inslee).
  Mr. INSLEE. Mr. Chairman, yes, we are one Nation under God, and we 
are one Nation under the Constitution, until today.
  I voted some time ago to keep the words ``under God'' in the Pledge, 
and I will vote today to keep the Supreme Court in its constitutional 
business of enforcing the Bill of Rights. The Republican Party today 
intends to treat the Bill of Rights the way the Soviet Union operated 
during their long tyranny. Because in the Soviet Union, one could go 
next to Lenin's grave and see their beautiful bill of rights nicely 
illuminated, looked fine. But the Soviet Union lacked one thing: they 
stripped their courts of the ability to enforce their own bill of 
rights. And today the Republican Party intends to do the same thing in 
America.
  In America we should not abandon what we learned as kids in school, 
that checks and balances are necessary to our fundamental liberties. 
And sometimes the Supreme Court gets it wrong, but heaven help the day 
that one trusts liberty to Congress, where the day that Congress is in 
session, their life and liberty is in danger. We have got to depend on 
the U.S. Supreme Court.
  Mr. NADLER. Mr. Chairman, I yield 1 minute to the gentlewoman from 
California (Ms. Pelosi), Democratic leader.
  Ms. PELOSI. Mr. Chairman, with our troops in harm's way and a 
deteriorating situation in Iraq and with our country facing the clear 
and present danger of terrorism, there are grave and great issues that 
Congress must address.
  But what are we doing here today? Are we debating the 9/11 Commission 
recommendations to secure our Nation? Are we providing health insurance 
to millions of Americans who have lost their insurance under this 
President, providing jobs to the millions of unemployed Americans and 
fully funding our schools?
  No, Mr. Chairman. Instead, we are gathering here to once again debate 
undermining the Constitution of the United States and dishonoring the 
oath of office that we take to protect and defend the Constitution.
  The bill before us claims to protect the Pledge of Allegiance. But 
protect the Pledge from what? Our Supreme Court has not undermined the 
constitutionality of the Pledge.
  With the reversal of the Newdow case, there is only one major appeals 
court decision that has addressed the constitutionality of the Pledge; 
and that court, the seventh circuit, has upheld the Pledge.
  This is a piece of legislation in search of a solution for a problem 
that does not exist.
  Millions of Americans daily and proudly pledge ``one Nation under 
God, indivisible, with liberty and justice for all.'' Let me be clear. 
I defer to no one in my defense of the voluntary recitation of the 
Pledge. I strongly believe that the phrase ``under God'' and the Pledge 
itself is an uplifting expression of support for the United States. I 
love the Pledge.
  The distinguished chairman of the Committee on the Judiciary 
referenced the Civil War in response to a statement made by the 
gentlewoman from Texas (Ms. Jackson-Lee) and said it was not the 
Supreme Court that increased freedom in our country for all Americans; 
it was the Civil War and the amendments that followed it. That 
certainly was an important part of it. But absent the Brown v. The 
Board of Education decision, we would not be enjoying the freedoms we 
have for all Americans today.
  But since the gentleman referenced the Civil War, I want to call to 
our colleagues' attention a quote that is familiar to all of them. It 
is from Lincoln's second inaugural address: ``With malice toward none, 
with charity for all, with firmness in the right as God gives us to see 
the right, let us strive to finish the work we are in, to bind up our 
Nation's wounds.'' President Lincoln called upon God.
  Another of my favorite inaugural addresses is that of President 
Kennedy and his inaugural address. He said: ``With good conscience our 
only reward, with history the final judge of our deeds, let us go forth 
to lead the land we love, asking His blessing and His help and knowing 
that here on Earth God's work must truly be our own.''
  So evoking God's will and calling upon Him to guide us in our work is 
something that is very important to all Members of Congress on both 
sides of the aisle. I resent the comments made by some that there is 
anything less than that commitment on both sides of the aisle.
  This bill not only does not protect the Pledge; it violates the 
spirit of the Pledge by professing a lack of faith in the 
constitutional framework. It has been a settled principle since Chief 
Justice John Marshall's opinion in 1803 in Marbury v. Madison that ``it 
is emphatically the province and the duty of the judicial department to 
say what the law is.'' The Federalist Papers, subsequent decisions of 
the Court, and the

[[Page 19111]]

judicial branch's role as a co-equal branch all strongly suggest that 
Congress cannot prohibit courts from determining constitutional 
questions.
  There is no question that this bill does not pass constitutional 
muster. But that does not deter the bill's proponents. The gentleman 
from Indiana, the author of the last court-stripping bill and a key 
advocate for this bill, has even outdone his statement 2 months ago 
that 200 years of precedent in Marbury v. Madison establishing judicial 
review was ``wrongly decided.'' The gentleman from Indiana (Mr. 
Hostettler) amazingly asserted in the markup of the bill last week that 
``the notion of an independent judiciary is a flawed notion . . . the 
notion of an independent judiciary does not bear out actually in the 
Constitution.''
  The notion of an independent judiciary is not contained in our 
Constitution? This is a principle that we as a power of example of our 
country try to convey to emerging democracies that central to democracy 
is an independent judiciary. And advocates for this legislation say 
that that is not contained in our Constitution.
  Is this what the leadership of this House and the chairman of the 
Committee on the Judiciary really believe? I suggest that they read 
James Madison and Alexander Hamilton's writings in the Federalist 
Papers. This radical concept is completely counter to our history and 
our values.
  Two months ago, some assured us that the court-stripping efforts 
would stop once they got their wanted Defense of Marriage Act. But as 
the gentleman from Michigan (Mr. Dingell), distinguished dean of the 
House, so eloquently warned us in July, ``We should expect to see this 
dangerous approach repeated on a wide range of other legislation.''

                              {time}  1245

  Today his prediction has come true, and there is no pretense that 
this will end. What is next? Voting rights? Laws that prohibit racial 
discrimination? Civil liberties? Our rights to privacy?
  As we consider this bill, we must remember our history and protect 
our Constitution to ensure our liberty. We must protect the ability of 
the Federal judiciary to safeguard our freedoms and ensure access to 
the courts by all.
  This bill is an assault on our cherished Constitution and the 
independent judiciary for its part for partisan purposes, and it is an 
attempt to distract the American people from the Republicans' record of 
failure.
  Mr. Chairman, let us honor the pledge by keeping faith with its 
spirit. Let us pledge to be one Nation under God, indivisible, with 
liberty and justice for all.
  This bill has been brought to the floor to embarrass some Members, so 
I respect whatever decisions they have to make in light of the 
motivation behind it. I just want the record to show why I so strongly 
oppose this legislation.
  Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
  Mr. Chairman, 1,800 years ago, Christians were persecuted because 
they would not worship the Roman emperor as a god; 450 years ago St. 
Thomas Moore lost his head because he would not swear an oath that king 
and parliament commanded that violated his Catholic belief.
  But the United States is different. Our Constitution prohibits test 
oaths. Our Constitution protects the rights of Jehovah's Witnesses' 
children to refuse to recite a pledge that we hold dear but that 
violates the tenets of their faith.
  Or at least the United States was different. This bill would leave to 
the States, as the gentleman from Wisconsin (Mr. Sensenbrenner) says, 
the decision whether that religious liberty would be protected or not.
  The issue, Mr. Chairman, in this bill is not the Pledge of 
Allegiance. The issue in this bill is whether we strip the courts of 
the power to protect our liberties against perhaps transient majorities 
and legislative bodies. The issue is whether we eliminate the only 
final protection of our liberties, of our religious and other 
liberties, that we have evolved. If we pass this bill and go in this 
direction, the United States will be a very different and a much, much 
less free country.
  I urge the defeat of this bill.
  Mr. Chairman, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of my 
time.
  The CHAIRMAN pro tempore (Mr. Latham). The gentleman is recognized 
for 3 minutes.
  Mr. SENSENBRENNER. Mr. Chairman, on September 17, 1937, President 
Franklin D. Roosevelt gave a Constitution day address, and in that 
speech President Roosevelt said in part, ``Lay rank and file can take 
cheer from the historic fact that every effort to construe the 
Constitution as a lawyer's contract rather than a layman's charter has 
ultimately failed. Whenever legalistic interpretation has clashed with 
contemporary sense on great questions of broad national policy, 
ultimately the people and the Congress have had their way.''
  This was a statement that was made by what is conceded on both sides 
of the aisle as the greatest Democratic President in the history of 
this country.
  In the last Congress, both the House and the Senate passed and the 
President signed public law 107-206. Section 706(j) of that law says, 
``Any action authorized by this section shall not be subject to 
judicial review by any court of the United States.''
  Now, where were all of the Members who are complaining about this 
bill when that legislation came up, because it took away the right of 
the Federal courts to review legal issues relating to trees in South 
Dakota. If Congress can deny all the Federal courts the authority to 
hear a class of cases to protect trees, it certainly can do so to 
protect the States' policy regarding the Pledge of Allegiance. That is 
why this bill ought to be passed.
  Mr. ALLEN. Mr. Chairman, I rise in strong opposition to H.R. 2028, 
the so-called Pledge Protection Act.
  I believe that the phrase ``under God'' should remain as part of the 
Pledge of Allegiance, and I believe that the statute that fixed that 
phrase as part of the Pledge is constitutional. But I cannot support 
this misguided congressional power grab that would prevent the federal 
courts from interpreting a law passed by Congress, or deciding its 
constitutionality.
  In the name of custom, our Republican colleagues disregard 200 years 
of legal and constitutional customs and precedent just to score 
political points in an election year.
  Despite its name, this legislation does not protect the Pledge of 
Allegiance. It does, however, undermine the very foundation of our 
system of government.
  We teach our children to respect the work of the Founders and the 
Constitution's system of checks and balances. Judicial review is a 
vital component of that system. Unfortunately, the so-called 
conservative Republican majority shows no respect today for the 
traditional role of our federal courts.
  The bizarre effect of this bill would be to allow fifty different 
state courts to interpret the United States Constitution in fifty 
different ways. Never in our history has a state court had the final 
say on interpreting the U.S. Constitution. That is the role and duty of 
the federal judiciary by history, custom and law.
  But for the Majority, there is no tradition, no custom, no practice, 
no matter how broadly accepted, that is immune from Republican assault.
  The Framers, our original revolutionaries, were wiser and more 
tolerant. Reject this election year stunt.
  Mr. BLUMENAUER. Mr. Chairman, this resolution represents the third 
time in as many years that the House has brought needless legislation 
to the floor to ``protect'' the Pledge of Allegiance. At a time when we 
should be discussing issues of great consequence, like the genocide 
occurring in Sudan, the implementation of the recommendations of the 9/
11 Commission, and the use of our federal surface transportation 
dollars, the House leadership has again decided to bring up this stale 
topic. This time, however, the legislation is not simply frivolous; it 
is downright dangerous.
  This bill, which will purportedly protect the Pledge of Allegiance, 
is the continuation of a reckless and destructive pattern to strip 
courts of their ability to determine the constitutionally of the Pledge 
of Allegiance. This is an outrageous assault on our fundamental 
constitutional framework. Personally, I do not think individual 
liberties are threatened by the words ``under God'' in the Pledge of 
Allegiance. Regardless, this remains a decision that should

[[Page 19112]]

be made in federal courts--not here in Congress. The very notion of 
this legislation is unconstitutional. It should be fundamentally and 
decisively rejected today.
  Mr. DINGELL. Mr. Chairman, I rise in strong opposition to H.R. 2028. 
Here we are again considering needless court-stripping legislation that 
would destroy our constitutional system of checks and balances. This 
time we wrap it in the flag and call it the Pledge Protection Act.
  This is another extraordinary piece of arrogance on the part of the 
House of Representatives to pass legislation which would strip American 
citizens of their right to access the federal courthouse. Can you 
imagine anything more shameful than telling an American citizen you 
cannot go into court to have your concerns addressed regarding 
Constitutional rights, or to have those rights heard by the courts of 
your Nation?
  I do not believe that we should strip the federal courts of 
jurisdiction when it comes to issues related to the Equal Protection 
Clause of the Constitution. It drastically interferes with the 
separation of powers between the three branches of our government.
  While I will always defend the autonomy and the power of the 
legislative branch, the principle of judicial review that Chief Justice 
John Marshall set out in the 1803 decision Marbury v. Madison is law. 
This landmark case established that the Supreme Court has the right to 
pass on the constitutionality of an act of Congress. To whittle away 
one of the bedrock powers of the judicial branch is wrong for the Union 
and wrong for our citizenry.
  Tinkering with the foundation of our judicial branch could come back 
to haunt us. You can be almost certain with the passage of this 
legislation that there are interests out there deciding what other 
rights can be stripped of American citizens because we disagree with 
them. Maybe a future Congress will want to strip court challenges to 
gun control legislation by gun owners or sportsmen.
  Mr. 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.
  I strongly oppose this legislation and urge my colleagues to do the 
same.

  Mr. STARK. Mr. Chairman, I rise in opposition to H.R. 2028, the So-
Called ``Pledge Protection Act.'' This potentially unconstitutional 
piece of legislation speaks volumes about the uncontrollable extremism 
of the Republican Party and its desperation to look ``conservative'' in 
the face of $400 billion deficits and nation-building in Iraq.
  The fact that the Supreme Court already threw out the decision 
striking ``Under God'' from the Pledge of Allegiance makes this bill 
irrelevant with regard to the Pledge, and all the more frightening with 
regard to the true intentions of the Republicans. In the interest of 
politics, they would unravel our system of checks and balances and 
close the courthouse doors to religious minorities. They would set a 
new, disastrous precedent of letting 50 different state courts be the 
final arbiters of our laws. They prefer that state judges, rather than 
federal judges confirmed by the Senate, make Constitutional law.
  If the right wing had been in control of the Republican Party in the 
1960s, we wouldn't have desegregation or Miranda warnings, as there 
were court-stripping proposals on those subjects, too.
  Mr. Chairman, everyone here realizes that if Congress could just pass 
whatever laws it wanted and throw in a line to keep them from being 
held unconstitutional, our Constitution and Separation of Powers would 
be rendered meaningless. So let's just admit what this is really about: 
rallying the base and attacking defenseless Americans.
  Shame on any Member of this body who will trample on our Constitution 
just to score a few political points. If the Oath we all took to 
``support and defend the Constitution of the United States'' means 
anything to you, you will vote ``no'' on this election-year ploy.

  Mr. HOLT. Mr. Chairman, I rise in opposition to H.R. 2028, which 
would prevent federal courts and the Supreme Court from hearing any 
claim that the recitation of the Pledge of Allegiance violates the 
first amendment of the Constitution.
  The Constitution--perhaps the greatest invention in history--has been 
the source of our freedom in this great country for more than two 
centuries. The framework of government it established has allowed our 
diverse people to live together, to balance our various interests, and 
to thrive. It has provided each citizen with broad, basic rights.
  The judiciary was designed to be the one branch of the federal 
government that is not influenced or guided by political forces. This 
independent nature enables the judiciary to thoughtfully and 
objectively review laws enacted by the legislative branch to ensure 
that federal law is in line with the Constitution. Throughout the 
development of our nation, this check has been vital to protecting the 
rights of minorities.
  Although the Constitution gives Congress the power to limit the 
jurisdiction of the federal judiciary and the appellate jurisdiction of 
the Supreme Court, I am certain that the founding fathers did not 
intend for Congress to use this power to shape the jurisdiction of the 
courts along ideological lines. This legislation will set a dangerous 
precedent by allowing Congress to insulate itself from judicial review 
so that it can pass legislation that it thinks may be unconstitutional. 
This is a clear misuse of Congressional authority and it is a cynical 
attempt to question the patriotism of Members of this institution.
  Like every member of this body, I am proud to recite the Pledge of 
Allegiance as a way to express my loyalty to this Nation and its 
founding principles. I share the view of many Members that the current 
text of the Pledge of Allegiance is constitutional including the phrase 
``under God''. I expressed my support for the Pledge in its current 
form when I joined many of my colleagues in voting for a resolution 
that expressed the opinion of Congress that the Ninth Circuit's 
decision in Newdow v. U.S. Congress was erroneous, This was an 
appropriate forum for me, as a Member of Congress, to express my belief 
in the constitutionality of the Pledge of Allegiance.
  Unfortunately, those who support this legislation do seek to alter 
our delicate system of checks and balances and make their own decisions 
infallible. They are attempting to alter the intended framework of our 
government, which has met the needs of a diverse population and allowed 
us to remain indivisible in times of crisis for more than 200 years. 
They ignore the fact that we are a political institution guided by 
public opinion that is constantly fluctuating and believe that this 
institution is better equipped than the judiciary to evaluate what laws 
violate the Constitution.
  It is unclear to me where the supporters of this legislation will end 
in restricting an individual's ability to seek redress. In July, we 
passed legislation that denied individuals the ability to question the 
constitutionality of the Defense of Marriage Act. Today we are debating 
legislation that limits an individual's ability to bring a claim 
regarding the Pledge of Allegiance. What law will the Majority party 
choose next to put above the process of judicial review? At what point 
will the Majority party stop adding exceptions to the right to due 
process?
  A vote against this bill signifies a desire to make the words of the 
Pledge of Allegiance a living reality and not a hollow promise. A vote 
for this legislation is a vote against the values that are embedded in 
our Constitution. I urge my colleagues to oppose this legislation.

  Ms. LEE. Mr. Chairman, I rise in strong opposition to H.R. 2028, the 
Pledge Protection Act.
  I am outraged that my colleagues on the other side of the aisle would 
give serious consideration to this legislation that infringes on the 
First Amendment, and blurs the Separation of Powers.
  This bill is just another misguided election year ploy designed to 
score political points.
  H.R. 2028 threatens a fundamental aspect of our constitutional 
structure and would set a dangerous precedent by stripping federal 
courts of judicial independence and pave the way to preventing federal 
judges from ruling on other controversial social issues.
  It is unacceptable and unconstitutional to propose stripping powers 
from the judicial branch every time we disagree with a decision they 
make.
  Regardless of race or creed, we should all have the right to access 
the federal courts to challenge a particular policy or piece of 
legislation. By denying this right, this bill is both bigoted and 
backwards.
  By bringing this legislation to the Floor, the Republican Leadership 
has demonstrated again that they are more concerned with making 
political headlines than making headway on substantial legislation--
like the VA-HUD appropriations bill or the National Affordable Housing 
Trust Fund.
  My constituents who have serious needs--like housing, jobs, 
education, and affordable heath care. How can I explain the 
Republican's misplaced priorities?
  And I must explain how the Leadership of this body decided to waste 
another legislative day on political legislation like this bill.
  We need to get back to the people's business and deal with some of 
the real pressing issues that face our country.
  I urge my colleagues to oppose this unnecessary legislation and vote 
against H.R. 2028.

  Mr. SULLIVAN. Mr. Chairman, I rise in strong support of H.R. 2028, 
the Pledge Protection Act of 2004. H.R. 2028 is a commonsense piece of 
legislation that reserves to the

[[Page 19113]]

state courts the authority to decide whether the Pledge of Allegiance 
is valid within each state's boundaries. It will place final authority 
over a state's pledge policy in the hands of the states themselves, 
where it belongs.
  The role of Congress has always been clear on the limitation of 
jurisdiction of the federal judiciary. Integral to our American 
Constitutional system is each branch of government's responsibility to 
use its powers to prevent overreaching by the other branches. Passage 
of H.R. 2028, will send a strong signal to the federal judiciary that 
the will of the people will prevail against judicial activism on the 
Pledge of Allegiance.
  In a Nation where the vast majority of Americans believe in a divine 
power, it is un-American to place our pledge in the hands of the 
Federal Judiciary. I believe that reciting the Pledge of Allegiance is 
not only a right, but also a responsibility. While no one is forced to 
recite it, neither should anyone be prohibited from pledging allegiance 
to our great country.
  It is wrong for any court to impose its will on whether the 
overwhelming majority of Americans can publicly express a fundamental 
belief. The people have spoken through their elected representatives on 
both the federal and state levels on this issue.
  I urge passage of this legislation to send a strong message of 
judicial restraint, and of empowerment of the people in their own 
government, to protect the Pledge of Allegiance for all Americans.

  Mr. UDALL of Colorado. Mr. Chairman, this bill seeks to prevent any 
federal court--including the Supreme Court--from considering ``any 
question pertaining to the interpretation of, or the validity under the 
Constitution of, the Pledge of Allegiance . . . or its recitation.''
  As we all know, introduction of the bill was prompted by the 2002 
decision of the Court of Appeals for the Ninth Circuit in what is known 
as the ``Newdon'' case. That decision held that the 1954 legislation 
adding ``under God'' to the pledge and a California school district's 
policy of daily recitation of the pledge with those words were both 
unconstitutional. (That court later modified the decision to apply only 
to the school district's recitation policy.)
  The school district and the United States both appealed to the 
Supreme Court--and on June 14th the Supreme Court reversed the 
decision, on the grounds that the plaintiff did not have legal standing 
to challenge the school district's policy.
  But the Republican leadership of the House evidently is afraid that 
somebody else might bring a similar lawsuit--and that prospect that is 
so alarming to them that they have brought forward this bill, which 
would prevent any federal court from hearing a lawsuit like that.
  I cannot support such legislation. It may or may not be 
constitutional--on that I defer to those with more legal expertise than 
I can claim. But I think it clearly is not just unnecessary but 
misguided and destructive.
  I have no objection to the current wording of the Pledge of 
Allegiance. After the court of appeals announced its decision in the 
Newdon case I voted for a resolution--approved by the House by a vote 
of 416 to 3--affirming that ``the Pledge of Allegiance and similar 
expressions are not unconstitutional expressions of religious belief'' 
and calling for the case to be reheard.
  But this bill is a different matter.
  The bill may be called the ``Pledge Protection Act,'' but that is not 
accurate. In reality, it not only fails to protect the pledge but also 
would undercut the very thing to which those who recite the pledge are 
expressing allegiance.
  The bill fails to protect the pledge because even if it becomes law 
people who don't like the way the pledge is worded would still be able 
to bring lawsuits in state courts--and the Supreme Court could not 
review how state's courts ruled on those suits.
  So, while Colorado's courts might uphold the current wording, the 
courts of other states might reach a different conclusion--meaning 
there would no longer be a single Pledge of Allegiance, but different 
pledges for different states, and the First Amendment's meaning would 
vary based on state lines.
  And that would be directly contrary to the very idea of the United 
States as ``one nation'' that should remain ``indivisible'' and whose 
defining characteristics are devotion to ``liberty and justice for 
all''--that is, to the very Republic (symbolized by the American flag) 
to which we pledge allegiance when we recite the pledge this bill 
pretends to ``protect.''
  How ironic--and how pathetic. As national legislators, as Untied 
States Representatives, we can and should do better. We should reject 
this bill.
  Mr. OSE. Mr. Chairman, I rise today to reluctantly voice my 
opposition to H.R. 2028, the Pledge Protection Act.
  As a cosponsor of the original legislation, I am disheartened to see 
changes that have removed necessary civil rights protections. In the 
course of a Committee mark up, the original Pledge Protection Act was 
stripped and rewritten to exclude the Supreme Court from jurisdiction 
from hearing cases surrounding the Pledge of Allegiance.
  I strongly believe that if a citizen of the United States has a 
grievance of a federal nature, that individual deserves his or her day 
in federal court. By removing the Supreme Court from jurisdiction to 
hear Pledge cases, the Pledge Protection Act effectively removed a 
citizen's day in federal court. As such, I can not support this 
legislation in its current form.
  Mr. POMEROY. Mr. Chairman, I rise in opposition to H.R. 2028, the 
Pledge Protection Act.
  I strongly believe that the Pledge of Allegiance, including the 
phrase, ``under God'' is a constitutional expression of patriotism. I 
recall reciting the Pledge of Allegiance in school as a child growing 
up in Valley City, North Dakota, and I believe that it plays an 
important role in unifying our country and celebrating our national 
identity.
  Like my colleagues, I was outraged by past court decisions that 
erroneously declared the Pledge of Allegiance unconstitutional. That is 
why on March 20, 2003, I voted in favor of H. Res. 132, which urged the 
Supreme Court ``to correct the constitutionally infirm and incorrect 
holding'' by the 9th Circuit Court of Appeals in its revised decision 
on the Newdow v. U.S. Congress case. This resolution also expressed the 
sense of the House of Representatives that the recitation of the Pledge 
is a ``patriotic'' act rather than a religious one, that phrase ``One 
Nation, under God'' should remain in the Pledge and that the practice 
of voluntarily reciting the Pledge in public school classrooms should 
be encouraged by the policies of Congress. Furthermore, on July 22, 
2003, I voted in favor of the amendment offered by Rep. Hostettler to 
H.R. 2799, the Commerce, Justice and State and Related Agencies 
Appropriations bill, which barred the use of any of the funds 
appropriated by the bill to ``enforce the judgment'' in the Newdow v. 
U.S. Congress.
  During the 107th Congress, I also voted in favor of H. Res. 459, 
which expressed the view of the House of Representatives that the 9th 
Circuit Court of Appeals' original decision in Newdow v. U.S. Congress 
to strike the words ``under God'' from the Pledge of Allegiance was 
incorrectly decided. Similarly, I strongly supported S. 2690, 
legislation that reaffirms the language of the Pledge of Allegiance, 
including the phrase ``one Nation under God.''
  I am concerned that the passage of H.R. 2028 would deny the Supreme 
Court its historical role as the final authority on the 
constitutionality of federal laws and nullify the separation of powers 
set forth in the United States Constitution. Furthermore, H.R. 2028 
sets a dangerous precedent for future Congresses. By adding language 
from H.R. 2028 to unconstitutional legislation, a future Congress could 
enact laws that are clearly contrary to key tenets of the Constitution 
while preventing the Supreme Court from ever considering their 
validity. Given these considerable problems with H.R. 2028, I intend on 
voting against this measure.
  Mr. PAUL. Mr. Chairman, I am pleased to support, and cosponsor, the 
Pledge Protection Act (H.R. 2028), which restricts federal court 
jurisdiction over the question of whether the phrase ``under God'' 
should be included in the pledge of allegiance. Local schools should 
determine for themselves whether or not students should say ``under 
God'' in the pledge. The case finding it is a violation of the First 
Amendment to include the words ``under God'' in the pledge is yet 
another example of federal judges abusing their power by usurping state 
and local governments' authority over matters such as education. 
Congress has the constitutional authority to rein in the federal 
court's jurisdiction and the duty to preserve the states' republican 
forms of governments. Since government by the federal judiciary 
undermines the states' republican governments, Congress has a duty to 
rein in rogue federal judges. I am pleased to see Congress exercise its 
authority to protect the states from an out-of-control judiciary.
  Many of my colleagues base their votes on issues regarding federalism 
on whether or not they agree with the particular state policy at issue. 
However, under the federalist system as protected by the Tenth 
Amendment to the United States Constitution, states have the authority 
to legislate in ways that most members of Congress, and even the 
majority of he citizens of other states, disapprove. Consistently 
upholding state autonomy does not mean approving of all actions taken 
by state governments; it simply means acknowledging that the 
constitutional limits on federal power require Congress to respect the 
wishes of the states even when the states act unwisely. I would remind 
my colleagues that an unwise state law,

[[Page 19114]]

by definition, only affects the people of one state. Therefore, it does 
far less damage than a national law that affects all Americans.
  While I will support this bill even if the language removing the 
United States Supreme Court's jurisdiction over cases regarding the 
pledge is eliminated, I am troubled that some of my colleagues question 
whether Congress has the authority to limit Supreme Court jurisdiction 
in this case. Both the clear language of the United States Constitution 
and a long line of legal precedents make it clear that Congress has the 
authority to limit the Supreme Court's jurisdiction. The Framers 
intended Congress to use the power to limit jurisdiction as a check on 
all federal judges, including Supreme Court judges, who, after all, 
have lifetime tenure and are thus unaccountable to the people.
  Ironically, the author of the pledge of allegiance might disagree 
with our commitment to preserving the prerogatives of state and local 
governments. Francis Bellamy, the author of the pledge, was a self-
described socialist who wished to replace the Founders' constitutional 
republic with a strong, centralized welfare state. Bellamy wrote the 
pledge as part of his efforts to ensure that children put their 
allegiance to the central government before their allegiance to their 
families, local communities, state governments, and even their creator! 
In fact, the atheist Bellamy did not include the words ``under God'' in 
his original version of the pledge. That phrase was added to the pledge 
in the 1950s.
  Today, most Americans who support the pledge reject Bellamy's vision 
and view the pledge as a reaffirmation of their loyalty to the Framers' 
vision of a limited, federal republic that recognizes that rights come 
from the creator, not from the state. In order to help preserve the 
Framers' system of a limited federal government and checks and 
balances, I am pleased to support H.R. 2028, the Pledge Protection Act. 
I urge my colleague to do the same.
  Mr. SHAYS. Mr. Chairman, I voted against H.R. 2028, the Pledge 
Protection Act.
  The phrase ``under God'' belongs in our Pledge of Allegiance to the 
Flag of the United States of America and the words ``In God We Trust'' 
belong on our currency. The Ninth Circuit Court of Appeals made a 
serious error in Newdow v. U.S. Congress when they declared our Pledge 
unconstitutional.
  When the phrase ``under God'' was added to the Pledge of Allegiance 
in 1954, I was in elementary school and remember feeling the phrase 
belonged there. It appropriately reflects the fact that a belief in God 
motivated the founding and development of our great Nation.
  The Declaration of Independence states, ``We hold these truths to be 
self-evident, that all men are created equal, that they are endowed by 
their Creator with certain inalienable rights . . .'' Our forefathers 
understood it was not they, but He, who had bestowed upon all of us 
those most cherished rights to life, liberty and the pursuit of 
happiness upon which our model of government is based.
  At Gettysburg, President Abraham Lincoln acknowledged we were a 
Nation under God and, during his Second Inaugural Address, he mentioned 
our Creator 13 times.
  Those historic speeches, the Pledge of Allegiance, our currency and 
the Declaration of Independence are not prayers or parts of a religious 
service. They are a statement of our commitment as citizens to our 
great Nation and the role God plays in it.
  Our founders envisioned a government that would allow, not discourage 
or punish, the free exercise of religion and we are living their dream.
  I voted against the Pledge Protection Act because I have faith in our 
Constitution and do not believe we should preclude judges from hearing 
issues of social relevance, simply because we may disagree with their 
ultimate decisions.
  The tactic of restricting courts' jurisdiction is spiraling out of 
control. In July, I voted against a bill that would block the courts 
from hearing Constitutional challenges to the Defense of Marriage Act 
and again today we considered legislation to tie the courts' hands. 
What's next?
  While the courts may, from time to time, produce a ruling we 
question, the principle of judicial review is essential to maintaining 
the integrity of our system of checks and balances and I fear the path 
we appear to be on. We are a Nation under God, and in Him we trust.
  Mr. WELDON of Florida. Mr. Chairman, I rise in strong support of the 
Pledge Protection Act because it upholds the rights of the overwhelming 
majority of American people who support the phrase ``under God'' in the 
Pledge of Allegiance.
  H.R. 2028, of which I am a cosponsor, removes from the jurisdiction 
of the Federal courts questions regarding the constitutionality of the 
Pledge of Allegiance. It does so utilizing the powers of Congress 
clearly expressed in article III of the Constitution. Article III 
reserves for the Congress the power to regulate or completely eliminate 
the Supreme Court's appellate jurisdiction over a class of cases.
  Chief Justice Rehnquist of the U.S. Supreme Court stated that the 
court has already erected ``a novel prudential principle in order to 
avoid reaching the merits of the constitutional claim'' that the phrase 
``under God'' violates the Establishment Clause. It is clear from this 
precedent that the U.S. Supreme Court is most likely to rule the phrase 
``under God'' unconstitutional should a case reach the high court.
  Liberal activist judges are consistently working to remove the 
mention of ``God'' from the public realm. As a Nation that affirms in 
its own Declaration of Independence that God is the source of our 
rights, it is absolutely appropriate for Congress to act on this 
important issue.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN pro tempore. All time for general debate has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill shall be considered as an original bill 
for the purpose of amendment under the 5-minute rule and shall be 
considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                               H.R. 2028

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Pledge Protection Act of 
     2004''.

     SEC. 2. LIMITATION ON JURISDICTION.

       (a) In General.--Chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1632. Limitation on jurisdiction

       ``No court created by Act of Congress shall have any 
     jurisdiction, and the Supreme Court shall have no appellate 
     jurisdiction, to hear or decide any question pertaining to 
     the interpretation of, or the validity under the Constitution 
     of, the Pledge of Allegiance, as defined in section 4 of 
     title 4, or its recitation.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 99 of title 28, United States Code, is 
     amended by adding at the end the following new item:

``1632. Limitation on jurisdiction.''.

  The CHAIRMAN pro tempore. No amendment to the committee amendment is 
in order except those printed in House Report 108-693.
  Each amendment may be offered only in the order printed in the 
report, by a Member designated in the report, shall be considered read, 
shall be debatable for the time specified in the report, equally 
divided and controlled by the proponent and an opponent, shall not be 
subject to amendment, and shall not be subject to a demand for division 
of the question.
  It is now in order to consider amendment No. 1 printed in House 
Report 108-693.


              Amendment No. 1 Offered by Mr. Sensenbrenner

  Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.
  The CHAIRMAN pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Sensenbrenner:
       In section 1632 of title 28, United States Code, as added 
     by section 2(a) of the bill, insert the following after ``or 
     its recitation.'': ``The limitation in this section shall not 
     apply to the Superior Court of the District of Columbia or 
     the District of Columbia Court of Appeals.''.

  The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the 
gentleman from Wisconsin (Mr. Sensenbrenner) and a Member opposed each 
will control 5 minutes.
  Mr. NADLER. Mr. Chairman, I ask unanimous consent to control the time 
in opposition, though I do not oppose the amendment.
  The CHAIRMAN pro tempore. Without objection, the gentleman from New 
York (Mr. Nadler) will be recognized for 5 minutes.
  There was no objection.
  The CHAIRMAN pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) is recognized for 5 minutes.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, this amendment is simple. Currently the bill prevents

[[Page 19115]]

Federal courts, including courts created by an act of Congress, from 
striking down ``under God'' in the Pledge, while reserving to the State 
courts the authority to hear cases involving the Pledge.
  The District of Columbia, however, due to its unique constitutional 
position, does not have State courts. Instead, its courts that are the 
equivalent of State courts are created by an act of Congress.
  So, to preserve a judicial forum for District residents regarding 
challenges to the Pledge, this amendment simply adds the following 
section to the bill: ``The limitation in this section shall not apply 
to the Superior Court of the District of Columbia or the District of 
Columbia Court of Appeals.''
  This sentence preserves the authority of the District's courts to 
hear cases involving the Pledge. I urge its adoption.
  Mr. Chairman, I reserve the balance of my time.
  Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, on this side of the aisle we do not oppose the 
amendment.
  Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr. 
Scott).
  Mr. SCOTT of Virginia. Mr. Chairman, I applaud the chairman of the 
committee for offering the manager's amendment that grants to the D.C. 
residents the same rights that apply to residents of the 50 States 
under this bill, that is, the right to have some recourse in a local, 
non-Federal court. However, the manager's amendment still does nothing 
to address the same problem with respect to U.S. citizens who are 
residents of the U.S. Virgin Islands, Northern Mariana Islands, and 
Guam.
  This amendment just goes to show that the majority was so busy 
stripping the courts of jurisdiction that it inadvertently stripped 
jurisdiction from all the courts, just as they did last week in a tort 
reform bill allowing foreign corporations to escape all liability for 
injuries to American citizens because the bill, in some cases, provided 
no United States jurisdiction in which the case could be brought.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the reason that this amendment does not include the 
local courts in Puerto Rico and the territories is that those courts 
are not created by Act of Congress, so residents of Puerto Rico and the 
territories will be able to file suits regarding the Pledge in the 
courts that have been created by their respective legislatures pursuant 
to the organic Act that Congress has previously passed.
  Mr. SCOTT of Virginia. Mr. Chairman, will the gentleman yield?
  Mr. SENSENBRENNER. I yield to the gentleman from Virginia.
  Mr. SCOTT of Virginia. Mr. Chairman, I would say to the chairman, I 
think I agree with him on Puerto Rico, but disagree with regard to the 
Virgin Islands and others. If we could agree that the legislative 
intent is to make sure there will be some recourse, we could have that 
fixed in conference.
  Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, I agree with the 
comments made by the gentleman from Virginia (Mr. Scott).
  Mr. Chairman, I yield back the balance of my time.
  Mr. NADLER. Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman 
from California (Ms. Lofgren).
  Ms. LOFGREN. Mr. Chairman, the amendment is fine, but it does not fix 
the problem with the bill. Marbury versus Madison, 1803, was when the 
great decision was made that the judicial branch would interpret the 
law. Since that time, we have had, like we all learned in 8th grade, 
the three branches of government, and it served us pretty darn well for 
the last 200 years. We have a free country that lives under law.
  This bill actually would try to remove the judicial branch from its 
job of interpreting the law, and, most importantly, making sure that 
the laws that the Congress passes and the actions that the executive 
takes meet up with the standards in the Constitution of the United 
States.
  Now, I have been listening to the debate of the proponents of this 
bill with some concern. Some of the things that have been said, I 
wonder, can they be that dumb, or are they being venal, or is it both? 
Absolutely we know there is a difference between passing a statute and 
having that statute interpreted to see whether the statute meets 
constitutional muster.
  Clearly, Congress has the ability to do all kinds of things with the 
courts. We can set statutes of limitation, we can provide for direct 
appeal to the Supreme Court. What we cannot do is say that the Federal 
courts, that the Supreme Court, cannot review what we do to see whether 
it meets the requirements of the Federal Constitution. That is what we 
are trying to do today.
  Now, if we succeed, if we pass this, we will either change 
fundamentally the free country that we enjoy, or else we will promote a 
constitutional crisis. Maybe we could get a Marbury-II.
  But I think there is another reason for this bill today. I think we 
are here today for political purposes. We are here so that certain 
Members of this House who try and protect the Constitution will be 
subject to 30-second political ads. I think that is a misuse of our 
processes here. Either radicals have taken over the Congress, or 
venality has hit a new low, and we would trash our system of government 
for political purposes. I think either is a disgrace.
  Mr. NADLER. Mr. Chairman, I yield the balance of my time to the 
distinguished gentleman from New York (Mr. Weiner).
  Mr. WEINER. Mr. Chairman, I thank the gentleman for yielding me time.
  Mr. Chairman, first of all, I know the author of the bill came to the 
floor a few moments ago, the gentleman from Missouri, and said we are 
trying to confuse this issue with legality.
  I am actually confused by a couple of things. One, those of us who 
want ``God'' in the Pledge of Allegiance, we won. You would think from 
this debate that this morning when we took the Pledge of Allegiance, we 
did not say ``God.'' You would think that that crazy court in 
California that came up with the wrong decision was not reversed. We 
won that case.
  The second thing I am curious about, what is it about bills and 
issues that you do not strip review from that you like less than this? 
How come when you say that there should be no abortions for women in 
this country, that you do not strip the review of that? How come when 
you do your budget, you do not strip your review of that? How come when 
you do all of the other bills around, do not you love them as much? Are 
they not equally as important to you?
  I am shocked there is any legislation you bring to this floor that 
you do not strip the review of the courts, because, frankly, by your 
interpretation of the Constitution, the court has no role there.
  The final question I have, and I hate to vex my opponents on the 
other side with talk of legality, but if not the courts are 
interpreting the Constitution of the United States, who is going to do 
it? What is your suggestion? Are we going to have like a reality show, 
where maybe we let 12 people on an island come up with the decision? 
And what if you do not have Federal courts doing it, you just have the 
State courts?
  Maybe I guess then the 14th Amendment is a bit troublesome. I guess 
there are no uniform constitutional rights in this country, no uniform 
right to bear arms, no uniform right to speech and to practice 
religion.
  If anyone can answer any of those three points, I will gladly vote 
for this bill.
  Mr. CONYERS. Mr. Chairman, while I commend Chairman Sensenbrenner for 
heeding the advice of Representative Bobby Scott and offering an 
amendment that will allow DC residents to have their day in court, I am 
concerned that the amendment does not grant similar protections to 
residents of U.S. territories.
  This is because the local courts in the U.S. Virgin Islands (codified 
at 48 U.S.C. Sec. 1611, population 110,000 residents); the Northern 
Mariana Islands (codified at 48 U.S.C. Sec. 1821, population 78.000); 
and Guam (codified at 48 U.S.C. Sec. 1424, population 160,000); were 
all

[[Page 19116]]

created by acts of Congress, not the local legislatures.
  Since this bill provides that ``[n]o court created by an Act of 
Congress'' shall have any jurisdiction to hear cases concerning the 
constitutionality of the Pledge of Allegiance, the net result is that 
under H.R. 2028, no judicial review would be available for Pledge of 
Allegiance cases for the nearly 350,000 combined residents of these 
territories.
  As the majority's own witness, Martin Redish, concluded at the 
Committee's hearing on court stripping legislation:

     . . . as long as the state courts remain available and 
     adequate forums to adjudicate federal law and protect federal 
     rights, it is difficult to see how the Due Process Clause 
     would restrict congressional power to exclude federal 
     judicial authority to adjudicate a category of cases, even 
     one that is substantively based.

  Unfortunately, under the Chairman's amendment, such a local court 
review would not be possible in Guam, the Virgin Islands, and the 
Northern Mariana Islands. As a result, the bill would continue to be 
unconstitutional with regard to these territories.
  The CHAIRMAN pro tempore.
  The question is on the amendment offered by the gentleman from 
Wisconsin (Mr. Sensenbrenner).
  The amendment was agreed to.

                              {time}  1300

  The CHAIRMAN pro tempore (Mr. Latham). It is now in order to consider 
amendment No. 2 printed in House Report 108-693.


                  Amendment No. 2 Offered by Mr. Watt

  Mr. WATT. Mr. Chairman, I offer an amendment.
  The CHAIRMAN pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 2 offered by Mr. Watt:
       In section 1632 of title 28, United States Code, as added 
     by section 2(a) of the bill, strike ``, and the Supreme Court 
     shall have no appellate jurisdiction,''.

  The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the 
gentleman from North Carolina (Mr. Watt) and a Member opposed each will 
control 10 minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Watt).
  Mr. WATT. Mr. Chairman, I yield myself 1 minute.
  Mr. Chairman, my amendment would restore the bill to its original 
form. The original bill that was introduced, H.R. 2028, actually 
stripped only the lower courts, not the Supreme Court, of jurisdiction 
to hear these cases. My colleague, the gentlewoman from Illinois (Mrs. 
Biggert), who was an original supporter and sponsor of the original 
bill, both of us submitted amendments to the Committee on Rules asking 
the Committee on Rules to restore the bill to its original intention, 
and the Committee on Rules decided it would make my amendment in order, 
I guess so that it would not send a signal to the Republicans that this 
is a bipartisan amendment.
  So I want to offer this amendment to restore the jurisdiction of the 
United States Supreme Court to determine constitutionality.
  Mr. AKIN. Mr. Chairman, I claim the time in opposition to the 
amendment, and I yield myself such time as I may consume.
  Mr. Chairman, the reason why we should vote against this amendment is 
fairly basic and pretty simple mathematics, and that is, in the last 
decision, when the Newdow case was thrown out on standing, that 
decision made it clear that there are only three chief justices who 
support the Pledge of Allegiance, and three is not enough to keep 
``under God'' in the pledge.
  Now, what this amendment is going to do is it is going to allow the 
Supreme Court to hear additional or any future challenges to the Pledge 
of Allegiance. And when the current court hears that challenge, we are 
struck with that simple mathematics, that there are only three votes on 
the Supreme Court that would keep ``under God'' in the Pledge.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Illinois (Mrs. Biggert).
  Mrs. BIGGERT. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  Mr. Chairman, I rise today in support of the Watt amendment which 
would restore the Supreme Court's jurisdiction over questions relating 
to the Pledge of Allegiance, changing the bill back to the way it read 
when I and 224 other Members cosponsored it.
  Congress clearly has the authority under article III of the 
Constitution to define the jurisdiction of the Federal district and 
appellate courts, and the original H.R. 2028 was perfectly supportable 
on this point. But this new bill strips the Supreme Court jurisdiction, 
and I cannot support that.
  Mr. Chairman, in our more than 200-year history as a Nation, there is 
no direct court precedent in which the Supreme Court is cut off 
entirely from review of a constitutional issue. Congress wisely has 
chosen not to test its power to deny Supreme Court review of laws 
Congress has passed; that is until H.R. 3313 and this amended version 
of H.R. 2028.
  I know that the gentleman from Wisconsin (Chairman Sensenbrenner) 
cited Ex Parte McCardle as authority under article III to make 
exceptions to the appellate jurisdiction of the Supreme Court. But in 
McCardle, the court recognized that other avenues and at least some 
level of review were available on a constitutional challenge.
  I would caution my colleagues to think twice before tampering with 
authorities clearly granted in the Constitution. The issue today may be 
the Pledge, but what if the issue tomorrow is second amendment rights, 
civil rights, environmental protection or a host of other issues that 
Members may hold dear. I would ask my colleagues, do we really need 50 
different versions of the Pledge of Allegiance? I certainly do not 
think so.
  I believe that ``under God'' are two of the most important words in 
the Pledge. I also believe that the Supreme Court should be the final 
arbiter of all Federal questions. That is why I urge my colleagues to 
support the Watt amendment to the Pledge Protection Act.
  Mr. AKIN. Mr. Chairman, I yield 2 minutes to my good friend, the 
gentleman from South Carolina (Mr. Barrett).
  Mr. BARRETT of South Carolina. Mr. Chairman, I thank the gentleman 
for yielding me this time.
  Mr. Chairman, exactly what we are talking about is limiting the 
appellate jurisdiction of the Supreme Court, and let me just read my 
colleagues a couple of things. According to constitutional experts, 
under article III of the Constitution, Congress clearly has the ability 
to limit the appellate jurisdiction of the Supreme Court to review 
certain cases. Now, this is satisfied by constitutional experts, and 
who are these constitutional experts? Well, justices of the Supreme 
Court.
  In the decision Wiscart v. Dauchy, the Court ruled, ``If Congress has 
provided no rule to regulate our proceedings, we cannot exercise 
appellate jurisdiction; and if the rule is provided, we cannot depart 
from it.''
  Let me read another decision, Martin v. Hunters' Lessee. The Court 
ruled, ``Congress is able to regulate and restrain appellate 
jurisdiction of the U.S. Supreme Court as public necessity requires.''
  And one last decision, United States v. Bitty. The Court ruled, 
``Congress holds the wisdom and authority to establish exceptions and 
regulations concerning the court's appellate jurisdiction.''
  What we are doing here, I say to my colleagues, is letting our State 
courts take a look at this and not Federal activist judges.
  Let us leave these decisions up to our State courts and not our 
Federal court system. Let us not gut the Sensenbrenner amendment, and I 
urge Members to vote no against the Watt amendment.
  Mr. WATT. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from 
New Hampshire (Mr. Bass).
  Mr. BASS. Mr. Chairman, I thank the gentleman for yielding me this 
time. I thank my colleague, the gentlewoman from Illinois, for joining 
him in offering what I consider to be a bipartisan amendment.
  I would only point out that Newdow on its face was based on a 
procedural

[[Page 19117]]

issue of standing, and the math might be quite different if the 
decision was based upon substance rather than standing.
  I rise in support of this amendment offered by my friend, the 
gentleman from North Carolina (Mr. Watt). I sponsored H.R. 2028, along 
with 225 or so other Members of Congress, because I believe that we 
should have ``under God'' in the Pledge of Allegiance, and I voted on 
three other occasions in the same fashion.
  There are two other issues involved here. The first is whether or not 
we want to make sure that we have ``under God'' in the Pledge of 
Allegiance, and the second issue is, do we want to take on a 
fundamental issue that has been debated in this country for over 200 
years? And that is whether or not the Supreme Court has standing in 
appellate jurisdiction for issues that may be unconstitutional.
  I come down on the side of the precedent that we have had in this 
country for the last 200 years. I support the Watt amendment because I 
support passage of the bill and the signing of the bill by the 
President of the United States. I want ``under God'' in the Pledge of 
Allegiance. I want to make policy. As a colleague of mine on the 
Republican side said yesterday, let us make policy, not make 
statements.
  Vote for the Watt amendment and pass the bill.
  Mr. AKIN. Mr. Chairman, I yield 4 minutes to my distinguished 
colleague, the gentleman from Indiana (Mr. Hostettler).
  Mr. HOSTETTLER. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  I rise in opposition to the gentleman's amendment from North Carolina 
and in support of the base bill that is being considered.
  As I listen to the debate on this bill, I cannot help but remember 
the note written in the margin of the pastor's sermon where he reminds 
himself during a particularly questionable part of theology where he 
says, ``pound pulpit hard here; argument weak.'' And that is what we 
see here from the other side, a very weak argument, because the 
suggestion that is being made by several of the folks on the other side 
is something we are trying to do is unconstitutional.
  In the markup of this bill in the Committee on the Judiciary, I was 
intrigued by the attempt by the other side to continue to ask Americans 
to leave the Constitution alone. A colleague of mine on the other side 
of the aisle repeatedly said, leave the Constitution alone. What he 
meant by that was, stop reading the Constitution. Because if you read 
the Constitution, you will find that in article III section 2 of the 
Constitution, you find the basis for the legislation, the policy that 
the gentleman from Missouri seeks to put into law.
  In article III section 2, after referring to all of the types of 
cases that shall come under the jurisdiction of the Federal judiciary, 
it says, ``In all cases affecting ambassadors, other public ministers 
and consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all of the other cases 
before mentioned,'' all the other cases before mentioned, ``the Supreme 
Court shall have appellate jurisdiction both as to law, in fact, with 
such expects and under such regulations as the Congress shall make.''
  The notion of an independent judiciary, and it has been quoted by 
several folks here, my statement in the markup, the notion of an 
independent judiciary fails the Constitution test. The simple fact is, 
the framers of the Constitution did not want an unelected, 
unaccountable, life-tenured body, namely, the judiciary, to be able to, 
by writ large, enact policy across the country when the people 
themselves would not have an obligation or an ability to reverse it. 
But they gave that authority in the Constitution to the people's 
representatives in the Congress.
  The gentlewoman from California, the minority leader, requested that 
Members of the House of Representatives read the Federalist Papers, and 
especially Hamilton, to understand the importance of the Congress' role 
vis-a-vis the judiciary. And as she said that I was inspired to do just 
that thing, and I pulled out from Alexander Hamilton, Federalist No.78, 
``Whoever attentively considers the different departments of power must 
perceive that in a government in which they are separated from each 
other, the judiciary is beyond comparison the weakest of the three 
departments of power. It has no influence over either the sword or the 
purse, no direction either of the strength or of the wealth of the 
society and can take no active resolution whatever. It may truly be 
said to have neither force nor will but merely judgment and must 
ultimately depend upon the aid of the executive arm, even for the 
efficacy of its judgments. That is, from the natural feebleness of the 
judiciary, it is in continual jeopardy of being overpowered, awed or 
influenced by its coordinate branches.''
  Now, does that sound like an independent judiciary? I am not sure how 
radical, I have heard the word ``radical'' today, radical Alexander 
Hamilton was. But we do know that what Hamilton, Madison, Jefferson, 
Washington, all of the founders, all of the framers of the Constitution 
wanted was to have these very important decisions, fundamental 
decisions about inculcating in our children the values of our families 
as being Americans, that they gave this opportunity, this ability to 
the people through their elected representatives.
  Mr. WATT. Mr. Chairman, I yield 3 minutes to the gentleman from New 
York (Mr. Weiner).
  Mr. WEINER. Mr. Chairman, the author of the base bill, the gentleman 
from Missouri, is a friend of mine, but apparently there is a second 
Congressman Akin around here somewhere. Perhaps he was the one who 
wrote the bill.
  The original version of the bill says, with respect to the 
jurisdiction of Federal courts inferior to the Supreme Court, and says 
that the Supreme Court shall be able to hear these cases. That was what 
the author of the bill said.
  Now, the reason the author originally included that language, 
although he is now opposed to having it reinserted, the reason he put 
it in is because we do need someone to be the final arbiter of the 
interpretation of free speech, freedom of religion cases, of all cases, 
among the different States.
  Imagine if we had a United States of America envisioned by the 
gentleman from Indiana, where every State court was free to kind of 
come up with their own interpretation of the Constitution of the United 
States. What incentive would there be on the parts of folks in 
Missouri, for example, or the folks in New York to have consistent 
constitutional values in this country?
  Now, I have heard again and again, let us refer to the Constitution 
of the United States. I will freely confess one thing. Nowhere is 
judicial review in the Constitution. It was the creation of a great man 
that all of us went on record paying tribute to just last month. When 
John Marshall came up with this concept, it has been sacrosanct 
throughout jurisprudence since then.
  But I ask my colleagues again and again, if not judicial review, then 
what? Who is it that guarantees me as a member of the minority, someone 
who is one person who believes he has a right to stand up for gun 
rights, let us say, who guarantees my constitutional right to speak if 
not the court?

                              {time}  1315

  This is the body where the majority has its say. We do it every day. 
The courts are where the minority, even the tiniest of minorities, go 
to have their day in court. For those of you who are concerned about 
the Pledge of Allegiance, we won that case. We won.
  We lost the case, by the way on my side, when the Supreme Court 
overturned precedent and appointed a President. But if we were 
Republicans what would we do? Strip the Supreme Court from any right to 
decide and let all 50 States decide who the President is?
  I would conclude with a question. That is, do you believe that 
reproductive rights legislation should be protected from judicial 
review? If so, include it in your bill. Do you believe

[[Page 19118]]

that tax should be subject to judicial review? If so, then strip the 
courts in those cases.
  I would say to the gentleman from Indiana (Mr. Hostettler) since he 
is on his feet, does he believe that a woman's right to choose, or your 
position, restricting abortion, is important of principle, that we in 
this Congress should strip judicial review? Yes or no.
  The CHAIRMAN pro tempore (Mr. Latham). The gentleman's time has 
expired.
  Mr. AKIN. Mr. Chairman, I reserve the balance of my time.
  Mr. WATT. Mr. Chairman, who has the right to close?
  The CHAIRMAN pro tempore. The gentleman from North Carolina (Mr. 
Watt).
  Mr. WATT. Mr. Chairman, I reserve the balance of my time.
  Mr. AKIN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, it is interesting. I have heard a number of people here 
professing that they think the words ``under God'' in the Pledge are a 
good thing to have. I have even heard that developed even further in 
references to Jefferson and to the second inaugural address of Lincoln 
which made references to God. And there seems to be a pretty good 
consensus that we want to leave the Pledge as it is.
  But the interesting thing is that this amendment would clearly not 
leave the Pledge as it is. But I guess my question is, and we are 
getting to a very fundamental kind of question about what our job is as 
legislators here, and the question is, is it our responsibility to be a 
co-equal branch of government. If we really believe in the words 
``under God'' in the Pledge, do we assert ourselves or do we roll over 
if the court decides they want to take something out that has been 
there for 50 years.
  I guess it goes down to the very first day when we come down here to 
serve in this body and we put our hands up and we take an oath that 
says that we will uphold the Constitution. And that means that we are 
one of three co-equal branches of government. And yet today, what I 
hear people saying is with their lips, I like the words ``under God,'' 
but I will not lift a finger, in fact, I will vote for an amendment to 
make sure that under God gets stripped out the next time this thing 
takes a trip to the Supreme Court.
  I guess my question is, how bad does it have to get before we assert 
our authority? I mean, how far does some activist judge have to go? You 
just use your imagination, is not there some point when we say enough 
already? The fact is historically, the fact that we have a right to 
recognize that is long recognized. There was a number of references to 
Marbury versus Madison, of course that was coming out of Marshall's 
court. It is just interesting to note that Chief Justice Marshall 
recognized our constitutional right to limit the appellate jurisdiction 
of the Supreme Court in Druso versus the U.S.
  So this is clear-cut. It is something that has always been, but we do 
not want to somehow do our job. We do not want to exercise the 
authority the Constitution gives us.
  There are repeated cases, others that have not been mentioned, Barry 
versus Merson. This is one that says the Supreme Court ruled that its 
appellate power was limited because Congress had neither expressly nor 
implicitly given the appellate jurisdiction in a class of cases 
involving the writ of habeas corpus in child custody. Then we have the 
other one, Wiskert versus Douchey where it says, if Congress has 
provided no rule to regulate our proceedings, we cannot exercise 
appellate jurisdiction, and if the rule is provided we cannot depart 
from it.
  I had a couple of things I wanted to say in closing. That is, there 
is a certain point where the courts go too far. We know where the votes 
are on the Supreme Court. In the last decision when Newdow was struck 
down, it is clear, the fact remains that there are only three votes 
that are going to uphold ``under God'' in the Pledge of Allegiance. If 
you support ``under God'' in the Pledge of Allegiance, you will have to 
vote this amendment down because what this amendment does is it opens a 
hole that the Supreme Court can take this case out of State courts.
  The CHAIRMAN pro tempore. The gentleman's time has expired.
  Mr. WATT. Mr. Chairman, I yield 1 minute to the gentleman from 
Wisconsin (Mr. Kind).
  Mr. KIND. Mr. Chairman, I am a strong supporter of the Pledge of 
Allegiance. I believe ``under God'' should be in the Pledge of 
Allegiance. But what I cannot support today is legislation that 
basically tells the third branch of our government, go home, no thanks, 
we do not need you any more.
  Judicial review has been a part of our democracy in this 
constitutional government for over 200 years. And now with the fancy 
language embodied in this legislation and other pieces of legislation 
that have been pending, they are trying to disrupt that delicate 
balance of power, the checks and balances that exist that allows the 
Federal courts from time to time to take a look at the work that we are 
doing in this Congress to see whether or not we are complying with the 
highest law of the land, the United States Constitution. That is what 
judicial review is all about.
  What is so ironic about today's debate is that the courts have 
already weighed in and said that the Pledge is okay, ``under God'' is 
okay. So what are we doing here when we have anemic economic job growth 
in the country, rising health care costs and tuition that is placing 
college out of the reach of students. We can do better by the American 
people.
  Mr. WATT. Mr. Chairman, how much time remains?
  The CHAIRMAN pro tempore. The gentleman from North Carolina (Mr. 
Watt) has 2 minutes remaining. The gentleman from Missouri's time has 
expired.
  Mr. WATT. Mr. Chairman, I yield myself the balance of my time.
  Mr. Chairman, when I was in law school, one of the first things I 
learned is that if you win a debate, you sit down and quit arguing 
about it.
  The other side has asked us several times, well, how far does the 
Supreme Court have to go, how far does the court have to go before we 
step in?
  You have won the lawsuit. Newdow has been reversed.
  Get a grip. You have won and you are here asking me, how far the 
Supreme Court has got to go?
  Imagine this, no Supreme Court, no jurisdiction in the Supreme Court, 
and the State of South Carolina or New York strips out ``under God.'' 
Who would have decided the case? Who would have decided the case? 
Nobody would have been there to reverse Newdow. Fifty different States, 
50 different rules under your bill.
  What happened to the word ``indivisible'' under God? Indivisible. 
Does indivisible not count anymore? Fifty different rules, is that 
indivisibility?
  What have we got to do? You won the case.
  This bill is not about the Pledge of Allegiance. This is an assault 
on the judiciary and on the right of the American people to a uniform 
interpretation of what the law is. It is not the Pledge that is in need 
of protection. It is our constitutionally established system of 
government. As long as you are in control in asserting it, every time 
you get a result that you do not like you will be back here.
  Mr. CONYERS. Mr. Chairman, I rise in support of this amendment, which 
would preserve Supreme Court review of appeals related to the 
constitutionality of the Pledge of Allegiance.
  As presently drafted the legislation precludes any federal judicial 
review, either by a lower federal court or the Supreme Court, of any 
constitutional challenge to the Pledge of Allegiance.
  Aside from the obvious constitutional flaws inherent in the bill, the 
idea of Congress unilaterally cutting off constitutional review by the 
Supreme Court constitutes both a poor and dangerous legal precedent. As 
presently drafted, the legislation not only degrades the independence 
of the federal judiciary and the Supreme Court, but eliminates any 
possibility of developing a single uniform policy with regard to the 
recitation of the Pledge from the 50 state supreme courts.
  Since H.R. 2028 strips the Supreme Court of the ability to review 
state court decisions, including those involving federal questions, a 
lack of uniformity in the law is an imminent

[[Page 19119]]

threat. One's federal rights would depend on the vagaries of location. 
Ultimately, coercing children to recite the Pledge may be permitted in 
one state and not in another. This is why it is so important that we 
pass the Watt amendment.
  The complete, unprecedented, and unnecessary stripping of Supreme 
Court jurisdiction inherent in the current bill would be totally at 
odds with the policy of checks and balances envisioned by the Nation's 
founders. As a matter of fact, the legislation would bring us far 
closer to the balkanized scenario envisioned by the Articles of 
Confederation, than the unified nation brought forth by the 
Constitution.
  It is ironic that in the very same year that Congress celebrated 
Justice John Marshall by authorizing a commemorative coin in his honor, 
the Judiciary Committee would disparage him by passing legislation such 
as the bill that is totally inconsistent with Marshall's seminal legal 
opinion, Marbury v. Madison.
  We should not use the issue of the constitutionality of the Pledge of 
Allegiance to permanently damage our courts, our constitution, and 
Congress. At a time when it is more important that ever that our nation 
stand out as a beacon of freedom, I cannot support a bill which 
undermines the very protector of those freedoms--our independent 
federal judiciary.
  I urge my colleagues to vote ``yes'' on this important amendment.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentleman from North Carolina (Mr. Watt).
  The question was taken; and the Chairman pro tempore announced that 
the noes appeared to have it.
  Mr. WATT. Mr. Chairman, I demand a recorded vote, and pending that, I 
make the point of order that a quorum is not present.
  The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings 
on the amendment offered by the gentleman from North Carolina (Mr. 
Watt) will be postponed.
  The point of no quorum is considered withdrawn.
  The CHAIRMAN pro tempore. It is now in order to consider amendment 
No. 3 printed in House Report 108-693.


          Amendment No. 3 Offered by Ms. Jackson-Lee of Texas

  Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
  The CHAIRMAN pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 3 offered by Ms. Jackson-Lee of Texas:
       In section 1632 of title 28, United States Code, as added 
     by section 2(a) of the bill, insert after ``recitation'' the 
     following: ``, except in a case in which the claim involved 
     alleges coerced or mandatory recitation of the Pledge of 
     Allegiance, including coercion in violation of the protection 
     of the free exercise of religion, such as that held to be in 
     violation of the First Amendment in West Virginia State Board 
     of Education v. Barnett, 319 U.S. 624, 638 (1943) and Circle 
     School v. Pappert (No. 03-3285; 3rd Circuit, August 19, 
     2004)''.

  The CHAIRMAN pro tempore. Pursuant to House Resolution 781, the 
gentlewoman from Texas (Ms. Jackson-Lee) and a Member opposed each will 
control 5 minutes.
  Mr. SENSENBRENNER. Mr. Chairman, I claim the time in opposition.
  The CHAIRMAN pro tempore. The Chair recognizes the gentlewoman from 
Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, my amendment is very simple, it leaves the door open to 
acknowledge a very sacred and well-believed amendment of the 
Constitution. My amendment seeks to protect that amendment and that is 
the first amendment, that Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise thereof.
  Now, many of us have risen to this floor and wanted to make sure that 
all who heard us knew that we stood with the Pledge of Allegiance as it 
is now written. And we have recited it all of our lives and accepted 
the language ``under God.''
  That acceptance by me as an individual or my colleagues does not, in 
any way, give comfort to those who because of their religious faith 
have chosen to express.
  Let me tell of a girl called Hazel who sat along side of me in my 
elementary school classroom. As we rose every morning to pledge 
allegiance to the United States of America, little Hazel sat in her 
seat. She was not a terrorist. She was not a radical from the left. She 
was not one trying to overthrow the United States of America. She was 
practicing her faith as her mommy and her daddy asked her to do.
  It was a lonely place. Most of us looked at Hazel long and hard every 
day. But we were grateful that there was a teacher and a Constitution 
that respected Hazel's right to freedom of religion.
  This law as it is presently written now says to the American people, 
you cannot practice your faith and you can not seek the cases by going 
into the courthouse, the appellate courts and the Supreme Court of the 
United States of America.
  It is well known that the courts are given to us on the basis of 
judicial review. It is also well-known that many times this body has 
risen because they have decided that there is some kind of frivolous 
idea or something that we disagree with, and there have been thoughts 
about limiting the courts. Many times legislators have sometimes been 
tempted to yank controversial matters from the court's jurisdiction, as 
The Washington Post has indicated this morning, but cooler heads have 
prevailed.
  We would hope that cooler heads will prevail now. Whether the Pledge 
violates the first amendment separation from church and State is a 
legal question. Congress has no business obstructing the courts from 
answering it. Is it not a shame that under Marbury versus Madison, we 
now want to egregiously rip away the rights of petitioners in the 
United States to go into the court.
  Is it not an outrage that we would stand here as those listening to 
the Interim Prime Minister of Iraq this morning who cried out for 
justice and democracy and free courts and today, moments after he 
spoke, we are now stripping away the courts of the United States.
  Let me just say one other thing, Mr. Chairman. Let me correct one who 
decides to offer my history to this body. For I live in my skin and I 
cannot change it. And I came to this Nation as a slave. And it may have 
been those who fought in the Civil War that opened the doors, but let 
me tell you that Jim Crow rose his ugly legal head, and for 50 years or 
more into the 20th century, Jim Crow's ugly laws kept me as a second 
class citizen. I could not vote. I could not go into accommodations. I 
could not go to schools that closed their doors.
  Racism was here in this country and it was not until Brown versus 
Topeka Board of Education that the Supreme Court allowed me the 
opportunity to be free in this Nation.
  I dare anyone to challenge that history. Slavery may have ended in 
its name, but it did not end in its practice. And it was the courts of 
the United States, the Federal courts that gave me this freedom.
  Mr. Chairman, I rise to offer an amendment to the bill before us 
today, H.R. 2028, the Pledge Protection Act of 2003. The operative 
language of H.R. 2028 is contained in a single provision in section 
2(a):

     [n]o court created by an Act of Congress shall have any 
     jurisdiction, and the Supreme Court shall have no appellate 
     jurisdiction, to hear or decide any question pertaining to 
     the interpretation of, or the validity under the Constitution 
     of, the Pledge of Allegiance, as defined in section 4 of 
     title 4, or its recitation.

  The bill precludes any Federal judicial review of any constitutional 
challenge to recitation of the Pledge of Allegiance--whether it be in 
the lower Federal courts or in the highest court in the land, the U.S. 
Supreme Court. Effectively, if passed, this extremely vague legislation 
will relegate all claimants to State courts to review an challenges to 
the pledge. This possibility will lead to different constitutional 
constructions in each of the 50 States.
  The Jackson-Lee amendment provides for an exception to the bill's 
preclusion for that involves allegations of coerced or mandatory 
recitation of the Pledge of Allegiance, including coercion in violation 
of the first amendment.
  Closing the doors of the Federal courthouse doors to claimants will 
actually amount to a coercion of individuals to recite the pledge and 
its ``under God'' reference in violation of West Virginia State Board 
of Education v. Barnette.

[[Page 19120]]

  In Barnette, the Supreme Court struck down a West Virginia law that 
mandated schoolchildren to recite the Pledge of Allegiance. Under the 
West Virginia law, religious minorities faced expulsion from school and 
could be subject to prosecution and fined, if convicted of violating 
the statute's provisions. In striking down that statute, Justice 
Jackson wrote for the Court:

       To believe in patriotism will not flourish if patriotic 
     ceremonies are voluntary and spontaneous instead of a 
     compulsory routine is to make an unflattering estimate of the 
     appeal of our institutions to free minds . . . If there is 
     any fixed star in our constitutional constellation, it is 
     that no official, high, or petty can prescribe what shall be 
     orthodox in politics, nationalism, religion, or other matters 
     of opinion or force citizens to confess by word or act their 
     faith therein.

  This legislation would strip the parents of those children of the 
right to go to court and defend their children's religious liberty. If 
this legislation is passed schools could expel children for acting 
according to the dictates of their faith and Congress will have slammed 
the courthouse door shut in their faces. When I was a child, I always 
wondered why when the rest of the class recited the Pledge of 
Allegiance, she always sat quietly. Today, I understand that it was 
because she was of the 7th Day Adventist faith and therefore reciting 
the ``under God'' provision would force her to frustrate her religious 
faith. If H.R. 2028 were law back then, the school administrators could 
have forced her to say the pledge and she would have no recourse in the 
Federal courts.
  The Jackson-Lee amendment protects religious minorities, Mr. Speaker.
  Recently, a panel of the U.S. Court of Appeals for the Third Circuit 
held that a Pennsylvania law requiring recitation of the pledge, even 
when it provided a religious exception, violated the Constitution 
because it violated the free speech of the students.
  In Circle School v. Pappert, the court found that:

       It may be useful to note our belief that most citizens of 
     the United States willingly recite the Pledge of Allegiance 
     and proudly sing the national anthem. But the rights embodied 
     in the Constitution, particularly the first Amendment, 
     protect the minority--those persons who march to their own 
     drummers. It is they who need the protection afforded by the 
     Constitution and it is the responsibility of federal judges 
     to ensure that protection.

Again, under H.R. 2028, such a coercive speech case could never reach 
the Federal courts.
  Article III of the U.S. Constitution vests ``the Judicial Power of 
the United States . . . in one supreme court.'' The laundry list of 
areas which the Federal courts have the power to hear and decide under 
section 2 of article III, establishes the doctrine of the ``separation 
of powers.'' For over 50 years, the Federal courts have played a 
central role in the interpretation and enforcement of civil rights 
laws. Bills such as H.R. 2028 and H.R. 3313, the Marriage Protection 
Act--bills to prevent the courts from exercising their article III 
functions only mask discrimination. We cannot allow bad legislation 
such as this to pass in the House. In the 1970s, some Members of 
Congress unsuccessfully sought to strip the courts of jurisdiction to 
hear desegregation efforts such as busing, which would have perpetuated 
racial inequality.
  H.R. 2028, as drafted, insulates the Pledge of Allegiance as set 
forth in section 4 of title 4 of the United States Code from 
constitutional challenge in the Federal court.
  However, the statute and the pledge are subject to change by future 
legislative bodies. This means that if some future Congress decides to 
insert some religiously offensive or discriminatory language in the 
pledge, the matter would be immune to constitutional challenge in the 
Federal courts. I also support the Watt amendment to restore Supreme 
Court Jurisdiction to this matter.
  Mr. Speaker, I ask that my colleagues vote to protect the religious 
minorities--vote to protect judicial review--vote to protect separation 
of powers--vote to protect access to the Federal courts. I yield back.
  Mr. Chairman, I reserve the balance of my time.

                              {time}  1330

  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, this amendment was defeated in committee, and it should 
be defeated here today because it guts the bill.
  First, nothing in H.R. 2028 would allow State courts to deviate from 
Supreme Court precedent prohibiting the coerced recitation of the 
Pledge of Allegiance. Even when Federal courts are denied jurisdiction 
to hear certain classes of cases, and those classes of cases are 
thereby reserved to the State courts, the previously existing Supreme 
Court precedents still govern State court determinations. This is 
required by the Supremacy Clause of the Constitution; and in West 
Virginia Board of Education v. Barnette, the Supreme Court held it is 
unconstitutional to require individuals to salute the flag.
  In that case, the Supreme Court held, ``If there is any fixed star in 
our constitutional constellation, it is that no official, high or 
petty, can prescribe what shall be orthodox in politics, nationalism, 
religion, or other matters of opinion or force citizens to confess by 
word or act their faith therein.'' Under H.R. 2028 as written, that 
decision will preclude State courts from allowing coerced recitations 
of the Pledge.
  State courts are not second-class courts, and they are equally 
capable of deciding Federal constitutional questions. The Supreme Court 
has clearly rejected claims that State courts are less competent to 
decide Federal constitutional issues than Federal courts. Even Justice 
William Brennan wrote in Northern Pipeline Construction Company v. 
Marathon Pipe Line Company that ``virtually all matters that might be 
heard in article III courts could also be left by Congress to State 
courts.'' Justice Brennan was joined in that decision by Justices 
Marshall, Blackmun, and Stevens.
  Now what, then, could be the harm of adopting this amendment? Plenty. 
If we carve out an exception for cases in which coercion, for example, 
is involved, we will open the flood gates to expansive interpretations 
by the Federal courts that will gut the purpose of the bill. Carving 
out a coercion exemption will invite the Federal courts, including the 
very liberal Ninth Circuit Court of Appeals, to hold that excessive 
coercion exists to pressure a student to recite the Pledge simply when 
a majority of school children choose to recite it, but one or a few 
students do not want to. The inevitable claim will be that in the 
school environment, there is no such thing as free will whenever the 
majority of students are reciting the Pledge, because those that do not 
want to recite it will feel pressured to recite it simply because other 
students are reciting it. Yet again, the courts will strike a blow to 
the concept of free will and the concept of personal responsibility if 
we let them. The amendment should be defeated.
  Mr. Chairman, I reserve the balance of my time.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, may I ask how much time is 
remaining.
  The CHAIRMAN pro tempore (Mr. Latham). The gentlewoman from Texas 
(Ms. Jackson-Lee) has 30 seconds remaining.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, let me first say that this 
amendment was made in order by the Committee on Rules, and I think that 
is extremely important for this body to know.
  Mr. Chairman, I yield 25 seconds to the distinguished gentleman from 
New York (Mr. Weiner).
  Mr. WEINER. Mr. Chairman, I thank the gentlewoman for the time.
  I guess what it comes down to is a person's view of where an 
individual who is in the minority on an issue, even an issue that is 
protected in the Constitution, where does that person go to have their 
rights protected? What if 435 of us believe one way about the 
Constitution, where does that one lone individual go?
  If we do not allow them access to the court, and one highest court, 
to mediate disputes between the various States, we simply do not have 
the system that we have today, and that should be the lesson of this 
effort. Every school child in America who had forgotten what the courts 
were supposed to be should be reminded of that by this amendment.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the 
time.
  Mr. Chairman, I will just repeat myself. The issue is settled law. 
There cannot be a coerced or forced recitation of the Pledge. This bill 
does not change that. The amendment allows the courts to determine what 
coercion

[[Page 19121]]

shall be. That has far-reaching consequences. I think that the best 
vote to prevent unintended consequences from occurring is ``no'' on 
this amendment. I urge that it be defeated.
  Mr. CONYERS. Mr. Chairman, the Jackson-Lee amendment is needed to 
make sure that the bill does not prevent religious minorities who are 
coerced into reciting the Pledge, in violation of their religious 
beliefs from having access to the Federal courts.
  As presently drafted, the bill would prevent not only persons who 
believe that voluntary recitation of the Pledge is unconstitutional 
from seeking relief in Federal courts, but also those persons who 
assert that they are being forced into recitation of the Pledge in 
violation of their religious beliefs.
  Cases of this nature are not infrequent. For example, in the landmark 
Supreme Court decision of West Virginia State Board of Education v. 
Barnett; the Supreme Court struck down a West Virginia law that 
mandated schoolchildren to recite the Pledge of Allegiance. Under the 
West Virginia law, religious minorities faced expulsion from school and 
could be subject to prosecution and fined, if convicted of violating 
the statute's provisions. In striking down that statute, Justice 
Jackson wrote for the Court:

       If there is any fixed star in our constitutional 
     constellation, it is that no official, high, or petty can 
     prescribe what shall be orthodox in politics, nationalism, 
     religion, or other matters of opinion or force citizens to 
     confess by word or act their faith therein.

  To argue that the State courts would still be bound by this precedent 
as the Chairman asserts, misses the point. Unless the State courts know 
the Supreme court can and will enforce its precedent, the State courts 
are free to ignore it. And there will be no further appeal.
  Moreover, just this year, in striking down a Pennsylvania law 
mandating recitation of the Pledge as violating free speech the Third 
circuit in Circle School v. Pappert court found:

       The rights embodied in the Constitution, particularly the 
     First Amendment, protect the minority--those persons who 
     march to their own drummers. It is they who need the 
     protection afforded by the Constitution and it is the 
     responsibility of federal judges to ensure that protection.

  As presently drafted, the bill would strip the parents of those 
children of the right to go to court and defend their children's 
religious liberty. If this legislation is passed, schools could expel 
children for acting according to the dictates of their faith and 
Congress will have slammed the courthouse door shut in their faces. We 
need this amendment to make sure religious minorities continue to have 
access to the Federal courts in cases of religious coercion.
  For these reasons I urge my colleagues to vote ``yes'' on this 
amendment.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentlewoman from Texas (Ms. Jackson-Lee).
  The amendment was rejected.


                  Amendment No. 2 Offered by Mr. Watt

  The CHAIRMAN pro tempore. The pending business is the demand for a 
recorded vote on the amendment offered by the gentleman from North 
Carolina (Mr. Watt) on which further proceedings were postponed and on 
which the noes prevailed by voice vote.
  The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.


                             Recorded Vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 202, 
noes 217, not voting 14, as follows:

                             [Roll No. 466]

                               AYES--202

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Bass
     Becerra
     Bell
     Berkley
     Berman
     Biggert
     Bishop (NY)
     Blumenauer
     Boehlert
     Bono
     Boswell
     Boucher
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Case
     Castle
     Clay
     Clyburn
     Conyers
     Cooper
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis, Tom
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Dreier
     Emanuel
     Engel
     English
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Foley
     Ford
     Fossella
     Frank (MA)
     Frost
     Gephardt
     Gilchrest
     Gonzalez
     Green (TX)
     Greenwood
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Houghton
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (CT)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kirk
     Kolbe
     Kucinich
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Leach
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Ose
     Otter
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Pryce (OH)
     Rangel
     Reyes
     Rodriguez
     Rohrabacher
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Simmons
     Simpson
     Slaughter
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Thompson (CA)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NOES--217

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Beauprez
     Berry
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonilla
     Boozman
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cantor
     Capito
     Carson (OK)
     Carter
     Chabot
     Chandler
     Chocola
     Coble
     Cole
     Collins
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (TN)
     Davis, Jo Ann
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Duncan
     Dunn
     Edwards
     Ehlers
     Emerson
     Everett
     Feeney
     Ferguson
     Flake
     Forbes
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Gordon
     Granger
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Herseth
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kline
     Knollenberg
     LaHood
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (OK)
     Manzullo
     Marshall
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Mica
     Miller (MI)
     Miller, Gary
     Mollohan
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Oxley
     Paul
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Putnam
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Ros-Lehtinen
     Ross
     Royce
     Ryan (WI)
     Ryun (KS)
     Sandlin
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Turner (TX)
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--14

     Bishop (GA)
     Bonner
     Cannon
     Goss
     Graves
     Kleczka
     Lucas (KY)
     Miller (FL)
     Nethercutt
     Quinn
     Smith (WA)
     Tauzin
     Thompson (MS)
     Vitter


                Announcement by the Chairman Pro Tempore

  The CHAIRMAN pro tempore (Mr. Latham) (during the vote). There are 2 
minutes remaining in this vote.

                              {time}  1401

  Mr. HOLDEN and Mr. GERLACH changed their vote from ``aye'' to ``no.''

[[Page 19122]]


  Ms. DeGETTE and Mr. ROHRABACHER changed their vote from ``no'' to 
``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN pro tempore. The question is on the committee amendment 
in the nature of a substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN pro tempore. Under the rule, the Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Thornberry) having assumed the chair, Mr. Latham, Chairman pro tempore 
of the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
2028) to amend title 28, United States Code, with respect to the 
jurisdiction of Federal courts inferior to the Supreme Court over 
certain cases and controversies regarding the Pledge of Allegiance, 
pursuant to House Resolution 781, he reported the bill back to the 
House with an amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on the amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the committee amendment in the nature 
of a substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on passage of H.R. 2028 will be followed by a 5-minute vote 
on the motion to suspend the rules and pass H.R. 1057.
  The vote was taken by electronic device, and there were--yeas 247, 
nays 173, not voting 13, as follows:

                             [Roll No. 467]

                               YEAS--247

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Berry
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boozman
     Boswell
     Boucher
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cantor
     Capito
     Carson (OK)
     Carter
     Castle
     Chabot
     Chandler
     Chocola
     Clyburn
     Coble
     Cole
     Collins
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Emerson
     English
     Etheridge
     Everett
     Feeney
     Ferguson
     Flake
     Foley
     Forbes
     Ford
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Gordon
     Granger
     Green (WI)
     Greenwood
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Herseth
     Hobson
     Hoekstra
     Holden
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     LaHood
     Lampson
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lucas (OK)
     Manzullo
     Marshall
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Mica
     Miller (MI)
     Miller, Gary
     Mollohan
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Nethercutt
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Ros-Lehtinen
     Ross
     Royce
     Ryan (OH)
     Ryan (WI)
     Ryun (KS)
     Sandlin
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Tanner
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Turner (TX)
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Wynn
     Young (AK)
     Young (FL)

                               NAYS--173

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Becerra
     Bell
     Berkley
     Berman
     Biggert
     Bishop (NY)
     Blumenauer
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Case
     Clay
     Conyers
     Cooper
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Emanuel
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Frank (MA)
     Frost
     Gephardt
     Gilchrest
     Gonzalez
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kolbe
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Ose
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rangel
     Reyes
     Rodriguez
     Rohrabacher
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Slaughter
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tauscher
     Thompson (CA)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu

                             NOT VOTING--13

     Bishop (GA)
     Bonner
     Cannon
     Goss
     Graves
     Kleczka
     Lucas (KY)
     Miller (FL)
     Quinn
     Smith (WA)
     Tauzin
     Thompson (MS)
     Vitter


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members 
are advised there are 2 minutes remaining in this vote.

                              {time}  1420

  Messrs. REYES, BUTTERFIELD, CUMMINGS, ROHRABACHER, and GUTIERREZ 
changed their vote from ``yea'' to ``nay.''
  So the bill was passed.
  The result of the vote was announced as above recorded.
  The title of the bill was amended so as to read: ``A bill to amend 
title 28, United States Code, with respect to the jurisdiction of 
Federal courts over certain cases and controversies involving the 
Pledge of Allegiance.''.
  A motion to reconsider was laid on the table.

                          ____________________