Pledge Protection Act of 2005

PLEDGE PROTECTION ACT OF 2005

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I really hate to be an ``I told you so,'' but when, in 2003, we considered legislation to strip the Federal courts of jurisdiction, in that case to hear cases challenging the Defense of Marriage Act, I warned that there would be no end to it.

In fact, when we first marked up this bill, I asked my friend, the chairman of the Constitution Subcommittee, whether there would be other court-stripping bills. He assured me that this and the marriage court-stripping bill were the only ones ``so far.'' As we know, he was being, as always, truthful.

Our former colleague Bob Barr, the author of the Defense of Marriage Act, whose legislation Congress was purporting to protect in that case, said, no thanks.

He wrote: ``This bill will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. During my time in Congress, I saw many bills introduced that would violate the takings clause, the second amendment, the 10th amendment, and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by this bill.'' Z! EXT .033 ...HOUSE... K19JY7 PERSONAL COMPUTERJ9060-K19JY7-033-*****-*****-Payroll No.: -Name: -Folios: - -Date: mmddyy -Subformat:

Bob Barr was right. Today it is the turn of the religious minorities.

Once upon a time in this country a student could be expelled from school for refusing to cite the Pledge because it was against his or her religion. In 1943, the Supreme Court in West Virginia Board of Education v. Barnette held that children, in that case Jehovah's Witnesses, had a first amendment right not to be compelled to swear an oath or recite a pledge in violation of their religious beliefs.

This legislation would, of course, strip those families of the right to go to court and to defend their religious liberty. Schools would be able to expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces.

As dangerous as this legislation is, even for an election season, it is part of a more general attack on our system of government which includes an independent judiciary whose job it is to interpret the Constitution even if those decisions are unpopular. It is their job to protect individual rights, even if the exercise of those rights in given instances are unpopular.

Sometimes we do not like what the court says. I don't like that the Supreme Court struck down part of the Violence Against Women Act, or that they struck down part of the Gun Free Safe Schools Zones Act, or that they are misapplying, in my opinion, the commerce clause and the 11th amendment in order to gut some of our civil rights laws. I really didn't like it that Republican-appointed justices traversed, perverted justice in order to put someone in the White House who got more than half a million votes less than the other candidate who really won the election.

I don't hear my colleagues on the other side screaming about judicial activism by unelected judges in these cases.

As wrong as I believe the current Supreme Court to be on many issues, I understand that we cannot maintain our system of government and especially our Bill of Rights if the independent judiciary cannot enforce those rights, even if the majority doesn't like it.

Again, I will refer to the Soviet Stalinist Constitution of 1936, which had many rights in it, freedom of speech, freedom of association, freedom of the press, freedom of religious and antireligious propaganda, as they quaintly put it. But, of course, it wasn't worth the paper it was written on because they had no judicial enforcement of it, and if you tried to bring a lawsuit to enforce your right, they shot you before they brought you to court. Any constitutional right without the ability to enforce it in court is no right.

This House appears infected with hostility toward the rule of law. This bill is a perfect example. Even more egregious is the way it has reached the floor. The Judiciary Committee twice voted against reporting this bill to the House. The ``no'' vote was bipartisan. Now the Republican majority is abusing its power to bring it to the floor anyway.

Neither the Parliamentarian nor the Congressional Research Service has been able to find any other case like this. They report, ``We found one instance of a bill, a joint resolution, between the 100th Congress and the current Congress, in which a committee specifically voted not to report a measure that was later considered by the House.'' That measure was a 1996 agriculture bill that was rejected in committee and later folded into a reconciliation bill.

Now the Republican majority exceeds even that arrogance. We are asked to vote on a bill that guts our system of government and guts the protection of our individual rights when the committee tasked with the consideration of this bill rejected it. It must be an election year.

To return to Justice Jackson and the flag salute case, he observed that, and I quote because it is very apposite here, ``The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.''

But now some would strip the courts of any ability to protect these individual rights against a temporarily intolerant majority.

As to the complaints about unelected judges, I would refer my colleagues back to their high school civics textbooks. We have an independent judiciary precisely to rule against the wishes of the majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one and we should protect it.

As Alexander Hamilton said in Federalist Number 78, ``The complete independence of the court of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.''

Where would this bill leave religious liberty? The Republicans tell us State courts can protect those rights. What would this mean? It would mean that your rights might be protected in one State, but not in another. I thought the 14th amendment to our Constitution settled that issue.

One of the reasons we have a Supreme Court is so that the Federal Constitution means the same thing in New York as in California or Mississippi or Minnesota. This country must be one country, not 50 separate countries.

We are really playing with fire here. Do you really hate unpopular religious minorities so much that you are willing to destroy the first amendment? I urge my conservative colleagues especially to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities, even if the majority hates them or hates the expression of their opinion.

If someone doesn't want to recite the Pledge of Allegiance or doesn't feel conscientiously able to recite the words ``under God,'' that is their privilege. Our Constitution protects it, our civil liberties protect it, this country should protect it, and I urge the defeat of this bill.

Mr. Chairman, I reserve the balance of my time.

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Mr. NADLER. Mr. Speaker, the gentleman is commenting and his entire speech was about the desirability or the worth of the words ``under God,'' which I think almost everybody agrees with. The issue in this bill is court-stripping. Do we take away from the courts the right to decide, to protect people's rights?

Mr. Speaker, Mr. Stearns may be right in everything that he is saying, but he does not seem to have the confidence that the courts will agree with him, because if he did, he would not be supporting this legislation.

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Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, every word that we have heard uttered on this floor by the majority side has, as Mr. Scott said, increased the likelihood of the courts ordering that the words ``under God'' in the Pledge of Allegiance cannot be recited in a public, in a school situation where there is an imputation of coercion or pressure because the students are, in fact, under the direction of the State agent, namely, the teacher.

As someone who very deeply believes in God, I think it is insulting to say that the words ``under God'' are not important, and yet that is the defense that is offered in court because the Constitution says there should be no establishment of religion. Well, saying that schoolchildren must recite the Pledge of Allegiance with the words ``under God'' is not an establishment of religion. The defense is, no, it is not because this is de minimis; it is not important; it is minor. I do not believe the words ``under God'' are minor or de minimis, unimportant. I think that it is an insult to religion.

But that whole question is for the courts, not for us, and here we are seeing another bill to strip the courts of jurisdiction. We are getting to a point where it is becoming boilerplate in any controversial issue to say the courts shall not have jurisdiction.

Consider this, the Defense of Marriage Act, the Pledge, we passed the bill a few weeks ago on the floor here saying that no funds should be expended to enforce a court order in some court in Indiana because we do not like what the courts do, or we think we might not like what the court will do; we will strip them of jurisdiction.

This is a danger to all our constitutional rights. The only thing that protects our rights as Americans, that protects our freedom of speech, religion, press, assembly, et cetera, is the ability to go to court and tell the President or the Governor or whoever, you cannot do that, you cannot force them to do that, you cannot put them in jail for not doing it. Without the protection of the court, rights are meaningless.

There is a maxim in law: There is no right without a remedy. What we are doing here is saying to people who are unpopular, to people who may not want to recite the words ``under God,'' they may be wrong and unpopular, but we are saying you cannot go to court to defend yourself and assert your constitutional rights. It is very dangerous. As was pointed out before, if we had done that before, we would still have segregation in this country because in every State we would have stripped the Supreme Court of the ability to declare separate but equal schools unconstitutional. The State courts would have soon said it is fine, and we would still have Jim Crow.

Almost lastly, we should not have a separate law in every State. We should not have the Constitution mean different things in New York and New Jersey. We should be one country. That is why the Supreme Court is vested with jurisdiction to rule on appeals from the State supreme courts.

Finally, this bill is itself unconstitutional. Someone said that the courts have upheld Congress' ability to limit jurisdiction. Sure, they have. Every single case has upheld limitations to jurisdiction, regardless of subject matter, never with regard to constitutional claims, not one case in the history of the Republic.

At a hearing that was held 2 years ago on a similar bill, the majority witness, the Republican witness, professor of constitutional law, said the following: ``The due process clause of the fifth amendment requires that a neutral, independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner,'' which is what this bill does.

There is no ability, for example, to constitutionally provide that Republicans, but no one else, may have access to the Supreme Court. No one will think Congress could do that. This bill is clearly unconstitutional for the same reason.

Mr. Chairman, I yield back my time.

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, we are now down to the heart of the matter. This entire spectacle is aimed at a possible decision by one Court that the directed recitation by school children under the instruction of their teacher of the phrase ``under God'' may violate the first amendment rights of those children.

Let's be clear. Nowhere in the United States is the use of the phrase ``under God'' prohibited in the public schools. In the only two cases in which the Court ruled that the directed recitation of the phrase ``under God'' violated the establishment clause, the Supreme Court vacated one ruling, and has issued a stay preventing the second ruling from interfering with the recitation of the Pledge.

For this we need to take a chain saw to the Constitution? For this we need to endanger the religious liberty of religious minorities like the Jehovah's Witnesses, who were thrown out of school because their religion barred them from saying the Pledge?

Only the Supreme Court protected their rights in violence against Jehovah's Witnesses that ensued.

This bill would not only prevent the Supreme Court from ruling on the constitutionality of directing school children to recite the phrase ``under God,'' it would also overturn the 1943 Supreme Court Jehovah's Witnesses case and allow the punishment or expulsion of school children for refusing to recite a pledge that violates their religion or their conscience.

We may be endowed, Mr. Chairman, by our Creator with certain unalienable rights, but people can, and routinely do, violate and take away those rights. That is why we need a Supreme Court, to protect these rights even when political majorities will not.

Supporters of this bill have candidly said they disagree with the Supreme Court, and that, in their opinion, the Supreme Court has gone beyond its powers, and that we, in effect, should overrule it and prevent them from ruling in these cases. We have heard this before. Look at the notorious ``Southern Manifesto'' against the Supreme Court decision in the Brown v. Board of Education 50 years ago: ``We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.''

That is what we hear whenever people disagree with the Supreme Court, in the school desegregation cases and now. And this amendment makes the point of the bill explicit.

The sponsors are afraid of what the Supreme Court may do in a pending case on this subject that may come before them and therefore explicitly strip the Federal courts of jurisdiction even over a pending case. This is Congress saying to a specific plaintiff, we do not approve of your claim of a violation of your constitutional right; so we are going to shut the courthouse door in your face.

This is a dangerous enterprise. I respect my friend's concerns and his right to disagree with the courts, but we must not destroy our Constitution and the one independent bulwark of our liberty. I urge defeat of this bill.

Mr. Chairman, I yield for the purpose of making a unanimous consent request to the distinguished ranking member of the Judiciary Committee, Mr. Conyers.

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Mr. NADLER. Mr. Chairman, I will not use the 1 1/2 minutes. I will simply say that this amendment is dangerous for the same reason that the bill is dangerous. We should not say, in the case of this amendment, to someone who is a plaintiff in a court in a pending case, we are going to shut the courthouse door in your face because we are afraid the Supreme Court might issue a decision. It has not done it yet, but we are afraid the Supreme Court might issue a decision that we disagree with. We do not trust the courts. We do not agree with them. Never mind that George Bush has appointed two new members of the Court. We still do not agree with it, and, therefore, we are going to try to strip them of their jurisdiction.

That way strips the protection of our liberties from us. We need the courts to protect our liberties. Our constitutional rights can only be vindicated by the courts stepping in when the political branches of government violate the rights of unpopular minorities. That is what the courts have done throughout our history, and we need that protection to continue. And that is why this bill is not only subversive of our constitutional rights, but unconstitutional.

The bill ought to be defeated. The amendment ought to be defeated.

Mr. Chairman, I yield back the balance of my time.

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