Pledge Protection Act of 2004

PLEDGE PROTECTION ACT OF 2004 -- (House of Representatives - September 23, 2004)

The SPEAKER pro tempore. Pursuant to House Resolution 781 and rule XVIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 2028.

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

Mr. Chairman, this is not simply about the Pledge of Allegiance. I really hate to be an I-told-you-so, but the last time we considered legislation to strip the Federal courts of jurisdiction, in that case, to hear cases challenging the Defense of Marriage Act, I warned there would be no end to it.

Our former colleague, Bob Barr, whose legislation Congress was purporting to protect on that occasion 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 tenth amendment and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by H.R. 3313."

Bob Barr was right. And it would make the Constitution like the Soviet Constitution which had plenty of guarantee of rights, but they were not worth the paper they were written on because there was no independent court system to enforce them.

Today it is the turn of the religious minorities. Once upon a time a student could be expelled from school for refusing to recite the Pledge of Allegiance. In 1943 in the middle of World War II, the Supreme Court in the Barnette case held that the children had a first amendment right not to be compelled to swear an oath against their beliefs.

Justice Jackson wrote, "If there is any fixed star in our constitutional constellation, is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act, their faith therein."

This obviously includes a pledge of faith in God.

The Jehovah Witnesses in the Barnette case felt that it was idolatry to be forced to pledge that even they believe in God.

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

This bill is part of a more general attack on our system of government. You learned about this in school. We have an independent judiciary whose job it is to interpret the Constitution, even if their decisions are really unpopular. And what this bill does, what these bills do is to slam the courthouse door in the face of people who believe that their Constitutional rights are violated so they cannot go to court because we tell them they cannot.

As unfortunate as I find the current Supreme Court on so many issues, I understand that we cannot maintain our system of government, we cannot enforce our Bill of Rights if the independent judiciary cannot enforce those rights even if the majority does not like it.

As to the complaints about unelected judges, remember your high school civics. We have an independent judiciary precisely to rule against the wishes of a trenchant majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one.

As Alexander Hamilton said in Federalist 78, "The complete independence of the courts 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. 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."

And here we are saying that when someone believes that an Act of Congress violates their rights, they may not go to court to try to see if those rights are supreme if the legislation is unconstitutional.

We are playing with fire here. We are playing with the national unity of this country. The gentleman from Wisconsin (Mr. Sensenbrenner) says the 50 State courts would reserve to themselves the right to declare Federal law unconstitutional. So what would be constitutional in one State would be unconstitutional in another. We would be back to the Articles of Confederation. We would be undoing 200 years of American history because we would have 50 different interpretations of the Constitution and of our State laws.

The gentleman from Wisconsin (Mr. Sensenbrenner) says that the Judiciary Act of 1789 restricted the jurisdiction of the courts. That is true. But he fails to note that the Judiciary Act of 1789 predates the Bill of Rights, the first ten amendments to the Constitution. The fifth amendment says that no person may be deprived of life, liberty or property without due process of law.

All claims, all claims essentially come down to a claim that someone is being deprived of life or liberty or property without due process of law; and if you cannot go to a court to adjudicate that claim by definition, you are being denied due process of law. So this is clearly unconstitutional.

I ask my colleagues, is demagoging a case that they have won in court so far really worth destroying the enforceability of the Bill of Rights? I urge my conservative colleagues to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities even if the majority hates that minority. Feel free to hate if my colleagues must, but please leave our Constitution, leave our liberties, leave our civil liberties that define this Nation and makes it what it is, leave it alone.

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

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Mr. NADLER. Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from North Carolina (Mr. Watt).

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Mr. NADLER. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from Massachusetts (Mr. Frank).

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Mr. NADLER. Mr. Chairman, I yield 5 minutes to the gentleman from Virginia (Mr. Scott).

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Mr. NADLER. Mr. Chairman, I yield 3 minutes to the gentleman from Michigan (Mr. Conyers), the very distinguished ranking member of the Committee on the Judiciary.

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Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr. Hoyer), the Democratic whip of the House.

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Mr. NADLER. Mr. Chairman, I yield for the purpose of a making a unanimous consent request to the gentleman from Texas (Mr. Green).

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Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

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

The reference to Senator Daschle was not true. We rebutted it in the debate last time. I will reference something for the RECORD so we do not waste time on this untruth anymore now.

Brush Clearing Rider: Most notably, the Majority claims that a rider to the 2002 Supplemental Appropriations Act authored by the senior senator from South Dakota approving logging and clearance measures by the Forest Service in the Black Hills of South Dakota serves as a precedent for the enactment of these types of court-stripping measures.

The problem with this argument is that, while the rider restricted "judicial review" of "any [logging or clearance] action" by the Forest Service, it did not restrict federal judicial review of the rider itself or its constitutionality. Indeed, the federal courts did review the validity of the rider, and explicitly found that the "challenged legislation's jurisdictional bar did not apply to preclude Court of Appeals' review as to the legislation's validity"

Mr Chairman, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Waters).

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Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished gentleman from Washington (Mr. Inslee).

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Mr. NADLER. Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Pelosi), Democratic leader.

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

Mr. Chairman, 1,800 years ago, Christians were persecuted because they would not worship the Roman emperor as a god; 450 years ago St. Thomas Moore lost his head because he would not swear an oath that king and parliament commanded that violated his Catholic belief.

But the United States is different. Our Constitution prohibits test oaths. Our Constitution protects the rights of Jehovah's Witnesses' children to refuse to recite a pledge that we hold dear but that violates the tenets of their faith.

Or at least the United States was different. This bill would leave to the States, as the gentleman from Wisconsin (Mr. Sensenbrenner) says, the decision whether that religious liberty would be protected or not.

The issue, Mr. Chairman, in this bill is not the Pledge of Allegiance. The issue in this bill is whether we strip the courts of the power to protect our liberties against perhaps transient majorities and legislative bodies. The issue is whether we eliminate the only final protection of our liberties, of our religious and other liberties, that we have evolved. If we pass this bill and go in this direction, the United States will be a very different and a much, much less free country.

I urge the defeat of this bill.

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

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Mr. NADLER. Mr. Chairman, I ask unanimous consent to control the time in opposition, though I do not oppose the amendment.

The CHAIRMAN pro tempore. Without objection, the gentleman from New York (Mr. Nadler) will be recognized for 5 minutes.

There was no objection.

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

Mr. Chairman, on this side of the aisle we do not oppose the amendment.

Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr. Scott).

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Mr. NADLER. Mr. Chairman, I yield 2 ½ minutes to the gentlewoman from California (Ms. Lofgren).

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Mr. NADLER. Mr. Chairman, I yield the balance of my time to the distinguished gentleman from New York (Mr. Weiner).

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