Pledge Protection Act of 2005

Floor Speech

PLEDGE PROTECTION ACT OF 2005 -- (House of Representatives - July 19, 2006)

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Mr. SCOTT of Virginia. Mr. Chairman, anytime we consider legislation like this, one can be assured that veterans benefits have either just been cut or are about to be cut. Instead of addressing the real issues of patriotism, such as the adequacy of health care funding for veterans or the fact that the number of veterans waiting for benefit determinations has increased by approximately 80,000 since last year alone, we are going to use this bill to divert attention from those more pressing issues.

Mr. Chairman, this bill is aimed at the Ninth Circuit Court of Appeals case, Newdow v. U.S. Congress, which held that the words ``under God'' in the Pledge are unconstitutional in the context of public school recitations. I happen to disagree with that decision and I agree with the dissent in that case which stated, ``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 miniscule as to be de minimis. The danger that the phrase represents to our first amendment's freedoms is picayune at best.''

I agree with that language, Mr. Chairman. So as we discuss the constitutionality of ``under God'' in the Pledge, we must recognize that every bill that is introduced, every hearing we have, every vote that we take on the issue enhances the importance of this issue and these actions serve to chip away at the de minimis argument and actually increase the chance that the court will ultimately decide that the Pledge is unconstitutional.

The simple fact is that we need to respect the Constitution and the right of courts to decide whether the Pledge is constitutional or not. But the majority will not do that. H.R. 2389 is a court-stripping bill as the bill does not address the substance of the arguments pro and con, it just prohibits Federal courts, including the Supreme Court, from deciding the case.

This bill is a blatant attempt to prevent the judicial branch from doing its job. The foundation of our democracy rests on the principle of checks and balances of power among three coequal branches, and this bill is a flagrant disregard of that principle. In addition, this bill will result in unprecedented confusion as each State court will decide how to interpret the Federal Constitution.

It also sets a poor precedent that at any time we are considering a bill that might be found unconstitutional by the courts, we might just prohibit the courts from saying so by taking away their right to hear the case.

Mr. Chairman, this bill would strip Federal courts from their ability to hear cases that are clearly within Federal jurisdiction because those cases address Federal constitutional rights and individual liberties guaranteed under the Bill of Rights, and many rights may be involved because the bill is not limited to cases addressing the words ``under God.'' The recitation of the Pledge may in some situations implicate the right of free speech, the right of freedom of association, the right to free exercise of religion, the establishment clause protections, all guaranteed under the first amendment of the Constitution.

The passage of this bill will mean that there will be no Federal law on a Federal constitutional question, not even a supreme law of the land to guide other Federal or State courts on the matter or to definitively state the law when there are inconsistent decisions in different States. So a Federal constitutional right could be applied inconsistently to American citizens simply because they live in different parts of the country.

The need for a Federal review of many different rights that may be involved is not speculative. For example, Mr. Chairman, even before the words ``under God'' were in the Pledge, the Supreme Court in 1943 held in West Virginia Board of Education v. Barnette that a compulsory flag salute and accompanying Pledge were unconstitutional when required of a public school student in violation of the student's religious beliefs.

In that case, the lawsuit was originally filed in Federal Court and was never considered in State court. If this legislation passes, State courts won't even have to follow prior Supreme Court precedents. The reason that State courts are prohibited from ignoring Supreme Court precedent is if they do so, the Supreme Court is there, ready and willing and able to reverse the State court's decision. But no more under this bill. We may well end up with 50 interpretations and applications of a single Federal constitutional right.

For over 200 years, since Marbury v. Madison in 1803, the Supreme Court has been the final arbiter of what is constitutional and what is not. So while Congress has the power to regulate jurisdiction of Federal courts, the court-stripping language of H.R. 2389 grossly exceeds that power in violation of the principles of separation of powers.

If this court-stripping idea had been around in 1954, Congress could have prohibited the Supreme Court from hearing issues involving student assignment to public schools. We never would have had the decision of Brown v. Board of Education, or it could have passed in the 1960s, and the decision in the Federal court in Loving v. Virginia, to overrule the will of the people of Virginia and require Virginia to recognize racially mixed marriages, might not have ever happened.

The judges in those decisions were described just as judges are described today: liberal, rogue, unelected, life-time appointed activist judges. But they made the right decisions in those cases. The truth is that we rely on Federal courts to determine and enforce our constitutional rights.

America is more politically and religiously diverse than it was in 1943, but instead of embracing that diversity, this bill would jeopardize our fundamental rights. We should instead adhere to the wisdom of the Supreme Court in the Barnette case which said, and I quote, ``The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and 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, there are numerous legal, civil rights and religious organizations opposed to this legislation, including the American Bar Association, the ACLU, the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee, the Constitutional Project, the Leadership Conference on Civil Rights, Legal Momentum, the National Women's Law Center and People for the American Way.

Mr. Chairman, I will ask unanimous consent to insert those letters into the RECORD at the appropriate time, and there are other organizations, of course, that are opposed to the bill. I urge my colleagues to vote ``no'' on this legislation.

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Mr. SCOTT of Virginia. Mr. Chairman, when I listed the organizations opposed to the bill, I inadvertently left off Americans United for Separation of Church and State and the National Council of Negro Women.

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