[Congressional Record (Bound Edition), Volume 151 (2005), Part 15]
[Senate]
[Pages 20649-20651]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           ROBERTS NOMINATION

  Mr. ALLEN. With that diatribe or statement on innovation and 
invention completed, I switch to a place where I do not like invention, 
and that is in the judiciary. We have entirely too many judges in this 
country who invent the law rather than apply the law. I speak on this 
subject that is very timely because the Judiciary Committee is now 
considering--I know the Presiding Officer has been involved in those 
hearings--on Judge John Roberts, whom I sincerely hope will soon be on 
the floor for a vote, and confirmed to be our next Chief Justice of the 
Supreme Court of the United States.
  When I met with Judge Roberts in my office last month, I relayed to 
him my concern about Federal judges acting as a superlegislative body, 
acting as legislators. There are judges who seem to be interpreting the 
laws passed by the elected representatives in a way that they think 
they know better than the elected people.
  This country is a republic. The people of this country are the owners 
of the Government. Their views, their values, their aspirations are 
represented by those they elect. Sometimes it is at the local level, 
whether it is a county, city, or parish in Louisiana, or it will be a 
State legislature or for national, Federal laws, the people they elect 
to Congress and, obviously, Governors, as well as mayors, and the 
President of the United States in this representative democracy.
  In so many cases we see Federal judges who are appointed for life 
making decisions that completely negate and have very little respect 
for the will of the people as expressed through their legislative 
bodies.
  We see Federal courts striking down parental consent or parental 
notification laws. These are laws that States passed--we did it while I 
was Governor of Virginia, and so have other States. These laws say that 
if an unwed minor daughter is going through the trauma of an abortion, 
a parent ought to be involved. It makes sense. For ear piercing, 
tattoos, taking an aspirin, one needs parental consent. Certainly for 
this surgery, it makes sense, and many legislatures and the people in 
the States said the parents ought to be involved. Federal judges struck 
down that law.
  There are those who believe parameters ought to be placed on late-
term, partial-birth abortion. That law was passed by the Congress and 
by various States. Federal judges struck that down.
  We find Federal judges allowing attacks on the Boy Scouts. We see 
some judges, not necessarily Federal judges yet, but some judges 
redefining marriage. We see judges time after time making these 
decisions. Some folks wonder what is an activist judge. I did not get 
into specific cases with Judge Roberts when I was talking with him, but 
one of the prime examples was this Ninth Circuit Court of Appeals that 
was striking down the will of the people in California in certain 
counties where the Pledge of Allegiance is said in their public schools 
every day.
  The Ninth Circuit struck that down and said, no, the Pledge of 
Allegiance cannot be recited in public schools in California because of 
the words ``under God'' being in the pledge. This is a prime example of 
judicial activism, contrary to the will of the people of these counties 
in California.
  That case got to the Supreme Court. They avoided the decision, saying 
that the plaintiff did not have standing. That is a way for the U.S. 
Supreme Court to avoid making a decision.
  Just last week we had another Federal district court judge in 
California striking down or saying that the Pledge of Allegiance cannot 
be recited in public schools in California because of the words ``under 
God.'' This judge was following the Ninth Circuit in which California 
is located.
  I will give some of my colleagues a bit of legal education. When 
there is a legal analysis of an unconstitutional establishment of 
religion, the Supreme Court has applied a three-pronged test. This 
three-pronged test applies to all the States in the country, even these 
Federal courts in California who strike down laws and misconstrue the 
Constitution, thwarting the will of the good people of California. Here 
is the test that the U.S. Supreme Court has applied in such cases.
  The test as articulated in the U.S. Supreme Court case of Lemon v. 
Kurtzman. It is called the Lemon test. The first test is used to 
determine whether public activity had a primarily secular purpose. In 
this matter in California, the Pledge of Allegiance is primarily a 
patriotic event and purpose.
  The second test is called the endorsement test. In this California 
matter, there is no endorsement of any denomination of any religion. So 
the endorsement test fails because there is no endorsement.
  The third test is called the coercion test, and there is no coercion 
here for students.
  The Supreme Court has commented that the presence of ``one nation 
under God'' in the Pledge of Allegiance is constitutional, as has most 
recently the Fourth Circuit Court of Appeals, which includes the 
circuit of Virginia, the Carolinas, West Virginia, and Maryland. The 
Fourth Circuit ruled in a case called Myers v. Loudoun County Public 
Schools that the Pledge of Allegiance is constitutional.
  If this current decision in California that came down last week is 
not remedied by the Ninth Circuit Court of Appeals, I surely hope the 
Supreme Court of the United States will grant review to resolve this 
dispute between the circuits, because there are sometimes judges who 
have to be reversed on many occasions before they understand the plain 
intent of the law, of previous opinions, and the history of our 
country. These judges must have the proper respect for the people in 
this country to make laws that make sense, that are constitutional, and 
indicate their will.
  As a resource for both the Ninth Circuit and, if necessary, the U.S. 
Supreme Court, if this case reaches them. I direct the attention of my 
colleagues to some outstanding historical analyses prepared by a 
gentleman from Texas named David Barton. Mr. Barton heads up and is 
part of an organization called Wall Builders and he noted if reciting 
the pledge is truly a religious act in violation of the establishment 
clause, then the recitation of the Constitution itself would be, which 
refers to ``the year of Our Lord,'' and our Declaration of Independence 
which contains multiple references to God.
  Our Founders claimed the right to dissolve the political bands with 
Britain based on the laws of nature and of nature's God.
  The most well-known passage, of course, is ``all men are created 
equal, that they are endowed by their Creator with certain unalienable 
Rights.''
  Subsequently, the signatories of our Constitution and a variety of 
other documents appealed to the Supreme Judge of the world to rectify 
their intentions. Our national motto is, ``In God we trust.'' And the 
singing of the National Anthem actually has a verse and motto ``in God 
we trust.''
  Furthermore, the Supreme Court of the United States, even the Ninth 
Circuit Court of Appeals, opens its sessions with a call that says 
``God save the United States and this honorable court.'' This is the 
same court that said: No, you cannot have the Pledge of Allegiance in 
public schools. Obviously, we all recognize today as the Senate opened 
up there was a prayer, and then there was the Pledge of Allegiance.
  There is an undeniable and historical relationship between God and 
our Founders and the Government leaders throughout the history of our 
country. In fact, it was the Congress in 1837, acting upon the will of 
the people, that authorized the motto ``In God we trust'' to be printed 
on our currency.
  We can cite the actions of the entire body of the Founding Fathers. 
For example, in 1800, when Washington, DC, became the capital of the 
United States, Congress approved the use of

[[Page 20650]]

this Capitol Building as a church building for Christian worship 
services. In fact, Christian worship services on Sunday started at the 
Treasury Building and at the War Office.
  A scant review of the legislative history of the States and of the 
Federal Government reveals the intent of our Founders from George 
Washington to Thomas Jefferson who lay out the absurdity and even the 
arrogance of this district court decision.
  Everyone knows--maybe not everyone knows. Most of my learned 
colleagues know one of the things that Thomas Jefferson was most proud 
of was authoring the Declaration of Independence, founding the 
University of Virginia, and the third, no, was not the Louisiana 
Purchase--although that was the best real estate deal ever made--the 
thing he was thirdly most proudly of and is on his tombstone is 
``Author of the Statute of Religious Freedom.''
  If one reads the Statute of Religion Freedom--it is in article 1, 
section 16 of the Virginia Constitution--it is much better than the 
first amendment in the Constitution of the United States and the Bill 
of Rights because it goes on for paragraphs. One gets the sense of how 
there was not to be the establishment of religion, that people would 
not be forced or compelled to join a church contrary to their views, 
that they would not have to tithe or pay for a church, and people's 
rights were not to be enhanced or diminished on account of their 
religious beliefs.
  Mr. Jefferson was elected in 1800. He took office in 1801, at the 
same time that this Capitol Building was being used for Christian 
worship services.
  If the author of the Statute of Religious Freedom--and it was 
authored before the Federal Constitution and adopted in part of the 
Bill of Rights--if he thought that was going to be an establishment of 
religion or the Government funding religion, or compelling people to 
worship in a broad Christian sense, not Baptist versus Methodist versus 
Anglicans or Episcopalians or other denominations. If he saw that as an 
establishment of religion, he surely would have objected to it because 
he became President in 1801 right when DC became the Nation's Capital.
  That is the sense of history of the foundation of our country, and 
the law. It is a shame that the majority of justices on the Ninth 
Circuit Court of Appeals do not seem to understand this.
  Each of us who has the high privilege to serve in this Chamber is 
aware of the circumstances by which ``one nation under God'' became a 
part of the pledge in 1954. It was a will of Congress. Where did 
Congress get the idea, they got the idea from the people. The will of 
the people. Congress acted and that was made part of our Pledge of 
Allegiance.
  Today it is the will, unfortunately, of a few unelected judges that 
seek to remove those words from the Pledge of Allegiance.
  When one is dealing with Federal judges, they must get into the 
history, once again, that they are appointed for life. Most States do 
not have judges appointed for life; they are appointed for terms. The 
people have recourse from time to time to remove them. California has a 
way of recourse on State judges who are first appointed, but then there 
is a retention possibility.
  Federal judges, though--unfortunately Alexander Hamilton won this 
debate with Mr. Jefferson who wanted judges appointed for terms. 
Hamilton wanted them for life and Hamilton won. These Federal judges 
get selected and they are on there for life.
  Something that I know the Presiding Officer and I and others try to 
do is try to discern their views. Judges ought to have a greater 
respect for the will of the people.
  The State of California is not unique in encouraging students to 
engage in an appropriate patriotic exercise.
  In my Commonwealth of Virginia, we have a statute requiring a daily 
recitation of the Pledge of Allegiance in every public classroom in our 
Commonwealth. It is thoughtfully crafted. The Virginia statute provides 
that no student shall be compelled to recite the pledge if he, his 
parent, or legal guardian objects on religious, philosophical, or other 
grounds to his participation in this exercise. Students are thus exempt 
from reciting the pledge and shall remain quietly standing or sitting 
at their desk while others recite the pledge.
  The reason I talk about this is when I was Governor in 1996, I was 
able to sign, and happy to sign, this into law. It is a law that has 
commonsense provisions requiring the Pledge of Allegiance, but also 
with provisions to develop guidelines for reciting the pledge in public 
schools. That law has been the law since 1996.
  The point is that the pledge is a patriotic exercise. Thomas 
Jefferson, again, who authored the Statute of Religious Freedom, had no 
intention of allowing Government to limit, restrict, regulate, or 
interfere with public religious practices.
  Mr. Jefferson believed, along with our other Founders, that the first 
amendment had been enacted only to prevent Federal establishment of a 
national denomination. This patriotic pledge establishes no religious 
denomination. There is no establishment of any religious denomination. 
I would fight against any sort of effort, by any State, or by the 
Federal Government to establish any national denomination.
  Understand the history of our country. There was an Anglican Church, 
the Church of England. There were people who were forced to pay tithes 
or contribute to this church, even if they did not believe in it. The 
Baptists were the ones who were the most upset. Mr. Jefferson sent a 
letter to the Baptists of Danbury, where he was espousing his views and 
where some of these misinterpretations may have occurred. The point is 
this is no establishment of religion.
  This Federal judge, though, in California, and the Ninth Circuit 
Court of Appeals judges, are examples of Government overreach in a very 
different and harmful way. It is judicial activism at its very worst. 
It is activism by unelected judges. Through this decision and decisions 
such as this, they usurp the rights of the people, usurp the 
policymaking role given to this body and also to the people in the 
States. These are rights that are actually guaranteed to all of the 
people in the States in our Constitution.
  I do not know what the next decision from Federal judges might be, 
especially if they are relying on this precedent from the Ninth Circuit 
Court of Appeals. Will they ban the singing of God Bless America in our 
schools? Who knows?
  Will they redact, or force the editing of founding documents, which 
are some of the greatest documents in the history of mankind and 
civilization, because there are references to God or to our creator? 
Will the Congress, the Supreme Court, and State legislatures all across 
the land be prohibited from opening their sessions with the pledge 
because it might somehow offend the sensibilities of someone watching a 
legislative body opening with a Pledge of Allegiance, whether it is on 
a public access channel or C-SPAN or otherwise?
  The fact is this is not an argument about God or no God. It is not an 
argument about the separation of church and State. It is not an 
argument about the establishment of any particular religious 
denomination. Saying the Pledge of Allegiance is no more of a religious 
act than buying food with currency that reads ``In God We Trust.'' It 
is a patriotic act. If a student does not want to say it, he or she can 
sit quietly in the classroom. But that should not thwart the desire of 
the people, whether it is in counties in California or counties in 
cities and towns in the Commonwealth of Virginia or in the plains of 
Kansas or in the Rocky Mountains or anywhere else. If that is what they 
so desire, then the people ought to be able to have that in their 
public schools.
  I sense that most Americans agree that the Pledge of Allegiance 
should remain in our schools and other public functions. As it is 
today, it should be voluntary and should be a matter of public 
conscience.
  On this issue, similar to so many others, the Ninth Circuit Court of 
Appeals is out of touch with the people and flat-out wrong. This errant 
decision

[[Page 20651]]

clearly points out the need to put, reasonable, well-grounded judges 
who have common sense on the Federal bench, rather than these 
delusional activists who ignore the will of the people of the United 
States. The promise of America is rooted in one idea, that the 
direction of our country is, and will always be, determined by the 
consent and the will of the people.
  If there is anything to be understood from our Constitution, our Bill 
of Rights, it is that the Government is instituted by the people. They 
may have representative government through the States, but the Bill of 
Rights is there to protect our God-given rights. Some rights of ours 
are to have a government, with our consent, that reflects our values.
  I hope, in this particular case, which is illustrative of others, 
that either the Ninth Circuit, or the United States Supreme Court will 
reverse this egregious decision that bans the Pledge of Allegiance in 
public schools. The will of the people ought to be respected.
  I will close by saying this: God bless America; and I am glad I am 
still allowed to say it. I wish the kids were able to say the Pledge of 
Allegiance or God bless America in their schools, without worrying 
about some unelected Federal judge coming in and thwarting the will of 
the people, the decency and wholesomeness of the people of this 
country. I am hopeful we will soon have John Roberts as Chief Justice 
of the Supreme Court and other men and women, whether on the Ninth 
Circuit or other Federal courts, who understand the foundational 
principles of this country.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.

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