John Salazar: Pledge Trumps Rule of Law

John Salazar and all Colorado Republicans in Congress, joined 38 other Democrats and all but 8 Republicans in voting for the Pledge Protection Act (H.R. 2389) last week.  The law tries to make an end run around the constitution itself by denying every federal court, including the U.S. Supreme Court, jurisdiction over cases involving the constitutionality of the Pledge of Allegiance. 

It is co-sponored by the entire Colorado Republican delegation: Bob Beauprez, Marilyn Musgrave, Joel Hefley, and Tom Tancredo.John Salazar is not a co-sponsor of the bill, and the only mention that the issue gets on is website is is reaction to a September 14th, 2005 court ruling:

WASHINGTON, DC — Following yesterday’s federal court ruling, Congressman Salazar released the following statement today in support of the Pledge of Allegiance.

“I am proud to stand up for our flag and the Pledge of Allegiance. The Pledge is part of our national heritage, a basic part of our culture as Americans.

“I cannot imagine my childhood or my time in the Army without reciting the Pledge. Every word of the Pledge has meaning. It resonates with the patriot in all of us.

“Countless millions support the Pledge and we cannot deny them the right to stand up for our country and its values.”

But, John Salazar and the rest of the Republican delegation seem to have no qualms about dismantling the basis principal of judicial review of laws for their constitutionality, which is a cornerstone of the American judicial system, nor do they care about denying the U.S. Supreme Court the ability to establish final, uniform federal rules on interpretation of the Constitution. 

The bill expressly engages in the ungainly business of meddling with the handful of cases on that issue already working their way through the courts, where jurisdiction has already attached, one of the most dramatic types of legislative interference with the judicial branch.

This bill stands for the proposition that Congress is legitimate in stripping the Courts of jurisdiction over cases where they think that their favored position is likely to lose, rather than recognizing the time honored proposition that the only way Congress can override a constitutional law ruling of a proper court was with an amendment to the Constitution of the United States.

The entire text of the Act is below:

SECTION 1. SHORT TITLE.

This Act may be cited as the `Pledge Protection Act of 2005′.

SEC. 2. LIMITATION ON JURISDICTION.

(a) In General- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1632. Limitation on jurisdiction

`(a) Except as provided in subsection (b), no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.

`(b) The limitation in subsection (a) does not apply to–

`(1) any court established by Congress under its power to make needful rules and regulations respecting the territory of the United States; or

`(2) the Superior Court of the District of Columbia or the District of Columbia Court of Appeals;’.

(b) Clerical Amendment- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:

`1632. Limitation on jurisdiction.’.

SEC. 3. EFFECTIVE DATE.

This Act and the amendments made by this Act take effect on the date of the enactment of this Act and apply to any case that–

(1) is pending on such date of enactment; or

(2) is commenced on or after such date of enactment.

While laws limiting the jurisdiction of particular courts on particular general issues are not uncommon, for example, limiting appeals of patent law cases to the U.S. Court of Appeals for the Federal Circuit, preventing all federal courts from considereing a question of federal law is largely unprecedented.

Since state courts have concurrent jurisdiction with the federal courts, the practical effect of the law is to move pledge cases founded on federal law to move from federal court to state courts immune from federal court review.  This has the potential to create the odd situation where the Pledge has been declared unconstitutional in some states, a decision which the U.S. Supreme Court would have no right to review, but constitutional in others.

For example, the Pledge of Allegiance might be declared unconstitutional in California, while remaining the same in Alabama, which seems a rather odd way to “Protect the Pledge.”

No one doubts that the Pledge of Allegiance, with its Eisenhower Administration addition in 1954 of “under God” language designed to take a jab at atheists when atheism was associated with communism in the popular immagination (ironic because the pledge was written by a socialist), is popular with the general public.  Incidentally, the U.S. Supreme Court has already ruled, even before the “under God” language was added to the Pledge, that schools may not compel children to recite it, a reaction to the objection of a Jehovah’s Witness to mandatory recitations of the Pledge.

But, a politician who can’t credibily tell his constituents that he cares more about the rule of law than about the possibility that a court might find the pledge of allegiance unconstitutional, exemplifies everything that makes politician a four letter word.

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Andrew Oh-Willeke

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