Wednesday, September 22, 2004


Go Knock Yourselves Out – with liberty and justice for all

Congressional Republicans propose to prohibit federal courts from hearing constitutional challenges to the pledge of allegiance – So what?

[Law & Politics]

The established playbook of Republican electoral strategy contains a number of ways to get distract voters from their economic interests and get them to focus on “social” issues, such as gun control, abortion, gay rights, the death penalty, flag burning – and, of course, the pledge of allegiance.

Thus, on September 15, the Republican majority on the House Judiciary Committee rammed through a bill that would strip the power of federal courts — including the Supreme Court — to hear cases making constitutional challenges to the Pledge of Allegiance. In this way, the Republicans hope to reignite the furor that occurred when a federal appeals court ruled that the phrase “under God” in the pledge of allegiance violated the First Amendment clause prohibiting government establishment of religion. That furor, you recall, died down when a politically savvy Supreme Court reversed the appeals court decision on narrow technical grounds that left open the question of whether “under God” does indeed violate the Establishment Clause.

The Republicans are counting on Democrats to impale themselves on a politically unpopular, but principled stance stance that federal courts should always be open to claims that the government is violating constitutional rights. In the history of jurisdiction stripping bills, there have been occasions when the Democrats have had to bite this bullet – court-stripping bills aimed at depriving federal courts of jurisdiction to hear school desegregation cases is the leading example. This time is not one of them.

What bad thing in Constitutional law would occur if the Republican proposal were passed, and lower federal courts would be barred from hearing constitutional challenges to the pledge? I say, nothing. To begin with, the constitutionality of jurisdiction stripping bills is far from clear – if the bill were passed, the federal courts could strike it down as unconstitutional, on the ground that jurisdiction stripping bills violate separation of powers or the First Amendment right to petition government. (The latter argument is that the First Amendment's requirement of viewpoint and content neutrality regarding speech also applies to "the right to petition government" clause.)

Even if lower federal court jurisdiction could be stripped, have you checked the roster of federal judges lately? It’s a predominantly Republican bunch, the majority of whom are likely to be somewhat inhospitable to claims that parts of the Pledge are unconstitutional. If the bill is successful, and itself withstands constitutional challenge, that will not eliminate the possibility of bringing a constitutional challenge to the Pledge of Allegiance as established by any state or local institution. Instead, a challenger has to go into state court, not federal court.

There are 12 federal courts of appeals that could conceivably decide a pledge challenge in the federal system. But challengers to the pledge who are “forced” by the jurisdiction-stripping law to go into state court would get up to 50 bites at the apple with their constitutional tests. That could get very interesting.

The bill also purports to forbid the Supreme Court from hearing pledge challenges. I say, let them pass that one too. When state courts decide cases based on the U.S. Constitution, the U.S. Supreme Court has the authority to review their decisions, and the constitutionality of stripping the Supreme Court of this appellate review is highly doubtful. But again, remember Bush v. Gore? 50 differing results on the constitutionality of the pledge may be a lot more fun than one boring old U.S. Supreme Court decision upholding “under God.” And in a few years the Republicans will have to lead the charge the other way, to give the federal courts back their jurisdiction.

By the way Democrats, listen up: if you do want to oppose the jurisdiction stripping bill, you should say that you’re doing so to prevent “rogue state courts” from having their way with the Pledge.

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