Anyone with a law background?

[Colleen Thomas]

WASHINGTON - The House passed legislation Thursday that would prevent the Supreme Court from ruling on whether the words "under God" should be stricken from the Pledge of Allegiance.

In a politically and emotionally charged debate six weeks before Election Day, Democrats said majority Republicans were debasing the Constitution to force a vote that could hurt Democrats at the ballot box.

Supporters insisted Congress has always had authority to limit federal court jurisdiction, and the legislation is needed to protect an affirmation of religion that is part of the national heritage.

The bill, which the House approved, 247-173, would prohibit federal courts, including the Supreme Court, from hearing cases involving the pledge and its recitation and would prevent federal courts from striking the words "under God" from the pledge.

The legislation has little chance of advancing in the Senate this year, but it laid down another marker for politicians seeking to differentiate themselves from their election opponents on volatile social issues of the day. Other "wedge" issues that have come up or may arise before the election include gay marriage and flag-burning.

In June, the Supreme Court dismissed, on a technicality, a 2002 federal court decision that the religious reference made the pledge unconstitutional.

Rep. Todd Akin (news, bio, voting record), R-Mo., who wrote the amendment on legislation before the House on Thursday, said the outcome could be different if the high court rules on the substance, or "if we allow activist judges to start creating law and say that it is wrong to somehow allow schoolchildren to say 'under God' in the pledge."

In such a scenario, Akin said, Congress will have "emasculated the very heart of what America has always been about."

But Rep. Jerrold Nadler (news, bio, voting record), D-N.Y., said, "We're playing with fire here, we are playing with the national unity of this country" by undoing 200 years of federal judicial review and letting each state make its own interpretation of constitutional law.

The vote paralleled another in July, when the House prevented federal courts from ordering states to recognize same-sex unions sanctioned in other states.

"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 for in the Constitution," said Rep. James Sensenbrenner, R-Wis., chairman of the Judiciary Committee (news - web sites).

But many Democrats said the real objective of Thursday's debate was to force them into an unpopular vote just weeks before the election. Aside from the constitutional issue, a large percentage of Americans, and almost all members of Congress, think "under God" should stay in the pledge.

"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 motivations behind it," said Minority Leader Nancy Pelosi, D-Calif. In the end, 34 Democrats voted for the bill and six Republicans opposed it.

A closer vote was on an amendment by Rep. Mel Watt, D-N.C., that would have returned the legislation to its original form, under which lower federal courts were barred from ruling on the pledge but the Supreme Court retained its authority.

There is no direct precedent for making exceptions to the Supreme Court's appellate jurisdiction, said Rep. Judy Biggert (news, bio, voting record), R-Ill., who backed the original bill but opposed the changes.

"The issue today may be the pledge, but what if the issue tomorrow is Second Amendment (gun) rights, civil rights, environmental protection, or a host of other issue that members may hold dear?" she asked.

"Under God" has been part of the pledge since 1954, when Congress passed and President Eisenhower signed a law amending the pledge to include the phrase.

I thought I had a fiarly decent understanding of how the system of checks and baances within the U.S. works. I have never heard of congress having the authority to pass a law making a law immune to judicial review. I thought the point of judicail review was to keep congress from passing laws that didn't conform to the constitution.

I've never heard of anything like this. Does anyone have any idea how this s supposed to work, because I am totally agast.



-Colly

 

[Guest]

Colly, here's Rueter's post. It does seem it won't go anywhere, but I too am stunned at the effort. Also, I had not known the inclusion of "under God" had been politically motiviated. P.

House Votes to 'Protect' Pledge of Allegiance - By REUTERS, Filed at 4:26 p.m. ET

WASHINGTON (Reuters) - Federal courts would be barred from striking the words "under God'' from the Pledge of Allegiance to the American flag under a bill passed on Thursday by a House of Representatives split largely along party lines.

The Republicans in control of the chamber rejected Democratic claims that the measure was an unconstitutional bid to limit the power of the federal judiciary and an election-year ploy to rally social conservatives. It passed on a vote of 247-173.

Spurred by a celebrated but ultimately failed court challenge to the pledge in California, the bill is expected to die in the U.S. Senate without a vote as the U.S. Congress draws to an end this year. But that did not dampen Republican enthusiasm.

"We have heard a lot of legalese here ... (but) this is not very complicated,'' said Rep. Todd Akin, a Missouri Republican and the bill's chief sponsor.

"The simple question is whether school kids are going to be able to say the pledge the way we have done it for the past 50 years,'' Akin said.

Congress added the phrase "under God'' to the pledge in 1954 as a symbolic way to distinguish the United States from the Soviet Union, its officially atheist Cold War foe.

Democrats argued that the House bill, the "Pledge Protection Act,'' would violate the Constitution's separation of powers between the government's judicial and legislative branches.

"I love the pledge,'' said House Minority Leader Nancy Pelosi, a California Democrat. But "this bill ... violates the spirit of pledge by professing a lack of faith in the constitutional framework.''

The bill would essentially let only state courts hear constitutional challenges to the pledge in order to prevent what backers denounced as possible meddling by "activist'' or "rogue'' federal judges.

Earlier this year, the U.S. Supreme Court overturned a ruling by a federal appeals court in California that reciting "under God'' in the pledge amounted to a violation of church-state separation.

The high court avoided the constitutional question, however, by finding that the plaintiff lacked legal standing to bring the case. It left open the possibility of future challenges.

 

[Virtual_Burlesque]

I thought that the integrity of the Judicial in balance with the Legislature and the Executive branches where essential for the 'checks" and "balances" of our governmental system to work.

Or, at least, that’s how I remember it from civics class.

 

[Guest]

Me too, Burly. It seems some balances are more checked than others (to badly paraphrase Orwell). P.

 

[Virtual_Burlesque]

"Under God"
From the October 18, 2003 issue: The history of a phrase.
by James Piereson
Volume 009, Issue 07
10/27/2003

... IN ARRIVING AT ITS DECISION, the Court of Appeals placed great weight on the fact that Congress inserted the words "under God" into the pledge in 1954 as a means of advancing religion at a time when the nation was engaged in a battle against the doctrines of atheistic communism. The court further noted that when President Eisenhower signed the bill, he stated, "From this day forward, the millions of our schoolchildren will daily proclaim . . . the dedication of our Nation and our people to the Almighty." From the Ninth Circuit's point of view, the record amply demonstrated that the purpose of the act was not to advance patriotism (a legitimate secular goal), but rather to promote religion. ...

 

[cjh]

Congress regularly tries to strip the courts of power. (Remember the efforts to pass a law outlawing flag burning.) It does have the authority to determine federal jurisdiction over non-Constitutional issues. Congress cannot strip the courts of jurisdiction over Constitutuional issues by means of a mere statute. That takes an amendment to the Constitution. Presumably the proposed law implicates the Establishment Clause of the First Amendment (you know, the one that says we do not have to join the Church of England, or any church for that matter, if we'd rather not). That said, the bill is bound to provide a lot of political mileage for "patriotic" candidates.

 

[Joe Wordsworth]

I really hope it doesn't make it.

But I do hope they don't change the pledge.

 

[cheerful_deviant]

No law background here except for a few Construction Law classes wich certainly won't help in this case.

I don't know about the rest of you but the idea that Congress can strip the Federal Courts of their power scares the hell out of me.

Maybe I'm just too cynical or maybe it's just because I have only been following politics for a relativly short period of time, but does anyone else besides me think that the 'Powers That Be' are getting more out of control every year?

It seems to me that every year the government gets more and more removed from the lives of every day Americans and more and more conserned with their relection campaigns. Am I just imagining things?

 

[cjh]

A matter of perspective, but I think the powers that be are getting more in control. And that "We, the people" are being pushed more and more out of control.

 

[rgraham666]

No, you're not CD.

This, in my opinion. is a clear case of the autocrats setting up a "have you stopped beating your wife" benchmark, just before the election.

"See? My opponent denies God! The evil heretic!"

 

[dr_mabeuse]

Well fuck these guys. America's not about the "Pledge of Alleigence" to me, nor is it about the flag or just what it says on a dollar bill. That's just chump stuff. I care more about my freedom of speech than I do about some jerky statement of contrived patriotism or whether we make the flag some sort of pseudo Holy relic. They can take their Pledge of Alleigence and stuff it up their ass with the rest of their hymns for all I care.

No one can force you to say it, and it means absolutely nothing. It's a symbol, and mistaking a symbol for what it stands for is the sin of idolatry.

Our "American heritage" also includes wearing powdered wigs and buckled shoes. Are those next?

What the hell are these people so frightened of? No wonder the rest of the world looks at us as a bunch of slack-jawed yokels.

---dr.M.

 

[Joe Wordsworth]

Looked into the situation... I still have friends in the Law School.

Apparently, its not as big a deal as its being made out to be. The Supreme Court, even if the law is voted up, can say its unconstitutional.

Nothing to worry about.

 

[Weird Harold]

Apparently, its not as big a deal as its being made out to be. The Supreme Court, even if the law is voted up, can say its unconstitutional.

Yes, the Supreme Court CAN rule the law unconstitutional, but WILL the Supreme Court rule that way or ever even see a challenge to the law?

As far as I know, there is no automatic judicial revue of legislation; it has to be challenged and appealed to the Supreme Court.

I can't see any way the Supreme would ever uphold such a law, but I can see it going unchallenged.

 

[Edward Teach]

Under God

I visited a club a while back where they begin their meetings with the Pledge of Alleigence. Before the Pledge, however, the club president instructed we visitors that in their particular club they say "one nation under God (no pause)" instead of "one nation, (pause) under God."

Some people are WAY serious about this shit. Zealots scare me.

IIRC Hitler came to power with only 25% of the vote and his Storm Troopers were considered a joke, about like our KKK.

Eddie The Chicken Shit

 

[cjh]

If it is passed, it will be challenged. It's a front burner issue for the ACLU: http://www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm?ID=16538&c=142 .

 

[minsue]

If it is passed, it will be challenged. It's a front burner issue for the ACLU: http://www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm?ID=16538&c=142 .

I knew there was a reason I carry that ACLU card.

As for the House bill, it's yet another chicken shit measure to force liberals into voting their consciences before an election. I'm always bemused when tradition and history are mentioned as reasons for not removing 'under god'. If the historical significance is that important, you'd think they'd want to return the pledge to its original text, wouldn't you?

 

[dr_mabeuse]

I don't think they can do this. Doesn't this amount to one branch of the government usurping the powers on another? Isn't that what the Constitution is all about?

If you can decide on what the Supremes can rule on, what's to prevent lawmnakers from forbidding them from ruling on cases involving abortion or prayer in schools or habeus corpus? Where does it stop? And who has oversight over congress then? And if Bush gets two more judges to appoint, will they just vote to disband themselves?

I noticed too the use of that hot new bogeyman of the religious right newspeak: the "activist judge" who supposedly makes all sorts of radical decisions based on his evil liberal whims and forces God-feraing Christians to live amongst married homosexuals and flag-burning atheists and other sinners. Down with the evil liberal judiciary! Don't they know that their role is to enforce the laws, not rule upon them?

---dr.M.

 

[Colleen Thomas]

Findlaw.com has a pretty good artile onit, and on the establishment clause, as well as the constitutional grounds by which congress can prevent FEDERAL judicial review of something.

I'd post a link, but those guys are, after all lawyers


-Colly

 

[Colleen Thomas]

Feeble attempt at humor aside:


http://writ.news.findlaw.com/hamilton/20040923.html