September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7451 and environmentally responsible thing with respect to the jurisdiction of Fed- fect of invalidating the Pledge across to do. eral courts inferior to the Supreme several States, or nationwide, H.R. 2028 f Court over certain cases and controver- will preserve to State courts the au- sies involving the Pledge of Allegiance, thority to decide whether the Pledge is OUTRAGEOUS SALES TAX with Mr. SHAW in the chair. valid within that State’s boundaries. It (Mr. SHERMAN asked and was given The Clerk read the title of the bill. will place final authority or a State’s permission to address the House for 1 The CHAIRMAN. Pursuant to the pledge policy in the hands of the States minute and to revise and extend his re- rule, the bill is considered as having themselves. marks.) been read the first time. H.R. 2028 as reported by the Com- Mr. SHERMAN. Mr. Speaker, I rise Under the rule, the gentleman from mittee on the Judiciary is identical to to address a bill by the gentleman from Wisconsin (Mr. SENSENBRENNER) and H.R. 3313, the Marriage Protection Act, which the House passed just prior to Georgia (Mr. LINDER). It is co-spon- the gentleman from New York (Mr. sored by the majority leader, a bill NADLER) each will control 30 minutes. the August recess except that it ad- which the President has indicated he The Chair recognizes the gentleman dresses the Pledge rather than the De- looks upon favorably. It is to abolish from Wisconsin (Mr. SENSENBRENNER). fense of Marriage Act. If different the income tax and impose a ‘‘23 per- Mr. SENSENBRENNER. Mr. Chair- States come to different decisions re- cent sales tax on all Americans.’’ man, I yield myself such time as I may garding the constitutionality of the Pledge, the effects of such decisions First, I headed the largest sales tax consume. Mr. Chairman, the Pledge of Alle- will be felt only within those States. A agency in the world for 6 years, and I giance reads: ‘‘I pledge allegiance to few Federal judges sitting hundreds of am going to tell you, you cannot ad- the Flag of the United States of Amer- miles away from your State will not be minister a 23 percent sales tax. That is ica, and to the Republic for which it able to rewrite your State’s Pledge pol- why Europe uses a value added tax. stand, one Nation, under God, indivis- icy. Second, a 23 percent tax would not ible, with liberty and justice for all.’’ A remedy to abuses by Federal judges replace the revenue. It would leave our Two words in the Pledge, ‘‘under has long been understood to lie, among troops in the field without the supplies God,’’ help define our national heritage other places, in Congress’s authority to they need. as beneficiaries of a Constitution sent limit Federal court jurisdiction. The Third, imagine a billionaire decides to the States for ratification, as the Constitution clearly provides that the to travel to luxury resorts in France Constitution itself states, ‘‘in the Year lower Federal courts are entirely crea- for an entire year. His property is pro- of our Lord,’’ 1787, by a founding gen- tures of Congress as much as appellate tected by the American Army, his per- eration that saw itself guided by a jurisdiction of the Supreme Court ex- son is protected, he enjoys all the joys providential God. Those two words, and cluding its only very limited, constitu- of being an American citizen and pays their entirely proper presence in the tional, original jurisdiction over cases absolutely zero in tax. system of government defined by our involving ambassadors and cases in Now imagine a retired couple. They Constitution, have been repeatedly and which the States have legal claims have paid tax on all the money they overwhelmingly reaffirmed by the against each other. have made. They squirreled it away. House of Representatives, most re- As a leading treatise on Federal They have invested in municipal bonds. cently twice in the 107th Congress, by court jurisdiction has pointed out, ‘‘Be- This thing passes. The muni bonds drop votes of 416 to 3 and 401 to 5, and in this ginning with the first Judiciary Act in in value. They are receiving this in- Congress by a vote of 400 to 7. 1789, Congress has never vested the come, and they are paying 23 percent The first Congress not only acknowl- Federal courts with the entire ‘judicial on their food, 23 percent on their edged a proper role for religion in pub- Power’ that would be permitted under health care, 23 percent on their phar- lic life, but it did so at the very time it Article III’’ of the Constitution. maceuticals. They can no longer afford Justice William Brennan, no conserv- drafted the Establishment Clause of food, so they are buying dog food, and ative by record, writing for the Su- the first amendment. Just three days they are paying 23 percent on that. preme Court said, ‘‘virtually all mat- before Congress sent the text of the This is an outrageous bill. ters that might be heard in Article III first amendment to the States for rati- Federal courts could also be left by f fication, it authorized the appointment Congress to the State courts.’’ GENERAL LEAVE of legislative chaplains. As the Dean of Stanford Law School And on November 28, 1863, President Mr. SENSENBRENNER. Mr. Speak- wrote recently, ‘‘The Constitution Abraham Lincoln delivered the Gettys- leaves room for countless political re- er, I ask unanimous consent that all burg Address and declared, in words Members may have 5 legislative days sponses to an overly assertive Court: now inscribed in one of our most be- Congress can strip it of jurisdiction. within which to revise and extend their loved national monuments, ‘‘we here remarks and include extraneous mate- The means are available and they have highly resolve that these dead shall not been used to great effect when nec- rial on H.R. 2028. have died in vain, that this Nation, The SPEAKER pro tempore (Mr. essary, used we should note, not by dis- under God, shall have a new birth of reputable or failed leaders, but by some PENCE). Is there objection to the re- freedom.’’ of the most admired Presidents and quest of the gentleman from Wis- Although the United States Supreme consin? Congresses in American history.’’ Court recently reversed and remanded Far from violating the separation of There was no objection. the Ninth Circuit’s latest holding powers legislation that leaves State f striking down the Pledge as unconsti- courts with jurisdiction to decide cer- tutional, the Supreme Court did so on PLEDGE PROTECTION ACT OF 2004 tain classes of cases would be an exer- the questionable grounds that the cise of one of the very checks and bal- The SPEAKER pro tempore. Pursu- plaintiff lacked the legal standing to ances provided in the Constitution. In- ant to House Resolution 781 and rule bring the case. The Supreme Court’s tegral to the American constitutional XVIII, the Chair declares the House in decision not to reach the merits of the system is each branch of government’s the Committee of the Whole House on case is apparently an effort to forestall responsibility to use its powers to pre- the State of the Union for the consider- a decision adverse to the Pledge since vent overreaching by the other two ation of the bill, H.R. 2028. the dissenting Justices concluded that branches. H.R. 2028, which has 226 co- the Court in its decision, ‘‘erected a b 1133 sponsors, does just that, and I urge my novel prudential standing principle in colleagues to join me in supporting it. IN THE COMMITTEE OF THE WHOLE order to avoid reaching the merits of Mr. Chairman, I reserve the balance Accordingly, the House resolved the constitutional claim.’’ That does of my time. itself into the Committee of the Whole not bode well for the Pledge of Alle- Mr. NADLER. Mr. Chairman, I yield House on the State of the Union for the giance. myself such time as I may consume. consideration of the bill (H.R. 2028) to To protect the Pledge from Federal Mr. Chairman, this is not simply amend title 28, United States Code, court decisions that would have the ef- about the Pledge of Allegiance. I really

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00007 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.013 H23PT1 H7452 CONGRESSIONAL RECORD — HOUSE September 23, 2004 hate to be an I-told-you-so, but the last pendent judiciary cannot enforce those Nation and makes it what it is, leave it time we considered legislation to strip rights even if the majority does not alone. the Federal courts of jurisdiction, in like it. Mr. Chairman, I reserve the balance that case, to hear cases challenging the As to the complaints about unelected of my time. Defense of Marriage Act, I warned judges, remember your high school Mr. SENSENBRENNER. Mr. Chair- there would be no end to it. civics. We have an independent judici- man, I yield 4 minutes to the gen- Our former colleague, Bob Barr, ary precisely to rule against the wishes tleman from Indiana (Mr. PENCE), a whose legislation Congress was pur- of a trenchant majority, especially member of the Committee on the Judi- porting to protect on that occasion when it comes to the rights of unpopu- ciary. said, no thanks. He wrote, ‘‘This bill lar minorities. That is our system of (Mr. PENCE asked and was given per- will needlessly set a dangerous prece- government and it is a good one. mission to revise and extend his re- dent for future Congresses that might As Alexander Hamilton said in Fed- marks.) Mr. PENCE. Mr. Chairman, I rise in want to protect unconstitutional legis- eralist 78, ‘‘The complete independence strong support of the Pledge Protec- lation from judicial review. During my of the courts of justice is peculiarly es- tion Act with a particular sense of time in Congress I saw many bills in- sential in a limited Constitution. By a gratitude to the gentleman from Wis- troduced that would violate the limited Constitution, I understand one consin (Chairman SENSENBRENNER), as Takings Clause, the second amend- which contains certain specified excep- well as the capable gentleman from ment, the tenth amendment and many tions to the legislative authority. Lim- Missouri (Mr. AKIN), who authored the other constitutional protections. The itations of this kind can be preserved legislation today. fundamental protections afforded by in practice no other way than through The Pledge of Allegiance which we the Constitution would be rendered the medium of courts of justice whose perform every day on the floor of this meaningless if others followed the path duty it must be to declare all acts con- Congress reads: ‘‘I pledge allegiance to set by H.R. 3313.’’ trary to the manifest tenor of the Con- the flag of the United States of Amer- Bob Barr was right. And it would stitution void. Without this, all res- ica and to the Republic for which it make the Constitution like the Soviet ervations of particular rights or privi- stands, one Nation under God.’’ Two Constitution which had plenty of guar- leges would amount to nothing.’’ words in the pledge ‘‘under God’’ help antee of rights, but they were not And here we are saying that when in a very real way, Mr. Chairman, to worth the paper they were written on someone believes that an Act of Con- define our national heritage as the because there was no independent gress violates their rights, they may beneficiaries of a Constitution that, as court system to enforce them. not go to court to try to see if those the gentleman from Wisconsin (Chair- Today it is the turn of the religious rights are supreme if the legislation is man SENSENBRENNER) said, was sent to minorities. Once upon a time a student unconstitutional. the States for ratification ‘‘in the Year could be expelled from school for refus- We are playing with fire here. We are of our Lord’’ 1787. ing to recite the Pledge of Allegiance. playing with the national unity of this Our Nation was established by a gen- In 1943 in the middle of World War II, country. The gentleman from Wis- eration that saw itself in so many ways the Supreme Court in the Barnette consin (Mr. SENSENBRENNER) says the and by overwhelming numbers guided case held that the children had a first 50 State courts would reserve to them- by a providential God who was not in- amendment right not to be compelled selves the right to declare Federal law different to the establishment of a free to swear an oath against their beliefs. unconstitutional. So what would be Nation on this continent, a Nation that Justice Jackson wrote, ‘‘If there is constitutional in one State would be would be, in John Winthrop’s terms, a any fixed star in our constitutional unconstitutional in another. We would shining city on a hill, a Nation that constellation, is that no official, high be back to the Articles of Confed- both went to war and continues to fire or petty, can prescribe what shall be eration. We would be undoing 200 years the imagination of the world, as we orthodox in politics, nationalism, reli- of American history because we would heard today in the eloquent words of gion or other matters of opinion, or have 50 different interpretations of the Iraqi Prime Minister Allawi. force citizens to confess by word or act, Constitution and of our State laws. Even in our own Declaration of Inde- their faith therein.’’ The gentleman from Wisconsin (Mr. pendence there is clear reference to the belief of our Founders that we are en- This obviously includes a pledge of SENSENBRENNER) says that the Judici- dowed by our creator with certain faith in God. ary Act of 1789 restricted the jurisdic- The Jehovah Witnesses in the unalienable rights. tion of the courts. That is true. But he In November of 1863, President Abra- Barnette case felt that it was idolatry fails to note that the Judiciary Act of to be forced to pledge that even they ham Lincoln traveled not far from 1789 predates the Bill of Rights, the here, delivering the Gettysburg Ad- believe in God. first ten amendments to the Constitu- This legislation would of course strip dress, the dedication of a cemetery at tion. The fifth amendment says that no the site of that extraordinary battle, those families of the right to go to person may be deprived of life, liberty court to defend their religious liberty. saying that ‘‘we here highly resolve or property without due process of law. that these dead shall not have died in Schools could once again expel chil- vain, that this Nation, under God, shall dren for acting according to the dic- b 1145 All claims, all claims essentially have a new birth of freedom.’’ tates of their religious faith, and Con- What Lincoln resolved that day come down to a claim that someone is gress will have slammed the court- under God, unfortunately, today, the house door in their faces. being deprived of life or liberty or Federal courts have put in jeopardy in This bill is part of a more general at- property without due process of law; one case after another, most notably tack on our system of government. You and if you cannot go to a court to adju- the Newdow case. There have been Fed- learned about this in school. We have dicate that claim by definition, you are eral courts that have either struck the an independent judiciary whose job it being denied due process of law. So this term ‘‘under God’’ from our Pledge or, is to interpret the Constitution, even if is clearly unconstitutional. in the case of the Supreme Court of the their decisions are really unpopular. I ask my colleagues, is demagoging a United States, simply deferred the de- And what this bill does, what these case that they have won in court so far cision altogether. bills do is to slam the courthouse door really worth destroying the enforce- This, despite the fact that the Amer- in the face of people who believe that ability of the Bill of Rights? I urge my ican people overwhelmingly, in survey their Constitutional rights are violated conservative colleagues to shape up after survey, and more importantly, so they cannot go to court because we and act like conservatives for once. We through votes here on the floor of the tell them they cannot. live in a free society that protects un- House of Representatives, have ex- As unfortunate as I find the current popular minorities even if the majority pressed their will on this matter in Supreme Court on so many issues, I un- hates that minority. Feel free to hate deafening terms. derstand that we cannot maintain our if my colleagues must, but please leave The Congress itself, as the gentleman system of government, we cannot en- our Constitution, leave our liberties, from Wisconsin (Chairman SENSEN- force our Bill of Rights if the inde- leave our civil liberties that define this BRENNER) referred, has voted not once

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00008 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.016 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7453 but twice in recent days in over- Court determining what is constitu- one thing: atheists are outsiders in whelming numbers, more than 400 of tional. America. But they are not outsiders the 435 Members of Congress, reaffirm- Now, the fear that they might get a because, as they claim, the beliefs of ing the inclusion of the words ‘‘under result that is different than the one others are being forced upon them, but God’’ in our Pledge of Allegiance. they want has these people here in our instead, because they, unlike the vast Today, I expect in the course of this body saying to us that we should give majority of Americans, are attempting debate we will continue to hear a great that ultimate authority not to the to create an environment where their deal about constitutional theory, United States Supreme Court but to beliefs are paramount over the beliefs which as a member of the Committee State courts. So this really is not even of others. on the Judiciary, as a man trained in about whether ‘‘under God’’ is going to Like every other American, atheists the law, I have great and passionate in- be in the pledge or not, even at that have the right not to recite the Pledge, terest in; but those who will come to level, because if a State court deter- not to attend church, and not to en- this floor today and suggest that the mines that ‘‘under God’’ is unconstitu- gage in any other practice of which Congress does not in effect possess the tional, then what are we going to do in they disapprove. They do not, however, ability to limit the jurisdiction of the that case? have the right to impose their atheism Federal courts do so in a way that vir- In North Carolina, it might be con- on the vast majority of Americans tually ignores the express language of stitutional. In California it may be un- whose beliefs now and historically have the Constitution itself, which gives to constitutional. We may have 50 dif- defined America as a religious Nation. the Congress the establishment of the ferent standards about when we can re- Indeed, the concept of the separation of jurisdiction of the courts. cite ‘‘under God’’ in the Pledge of Alle- church and State was not born to es- Even the dean of the Stanford Law giance under the standards that this tablish freedom from religion, but to School wrote recently, ‘‘the Constitu- bill would allow us to set up. establish freedom for religion. tion leaves room for countless political This is not about whether we retain Repeatedly and overwhelmingly, our responses to an overly assertive court. ‘‘under God’’ in the Pledge of Alle- legislative bodies, our civic leaders, Congress can strip it of its jurisdiction. giance. The court has already decided our historical heritage and, most im- The means are available, and they have that. This is a great vehicle for the ma- portantly, the people of the United been used to great effect when nec- jority to be able to come out here and States of America have affirmed the essary, used, we should note, not by tell us they believe in God. I believe in two words ‘‘under God’’ and their en- disreputable or failed leaders, but by God, too, but there are some citizens in tirely proper presence in our system of this country who do not necessarily be- some of the most admired Presidents government. This week, over 2 years lieve in a god or who believe that hav- and Congresses in American history.’’ after two judges in California imposed Far from violating separation of pow- ing to profess it publicly is idolatry. their will upon a Nation, I urge my col- ers, legislation that leaves State courts We have an obligation to protect their leagues to reclaim this court’s abuse of rights, also. They are citizens, also, in the jurisdiction on issues of great and power and, in passing the Pledge Pro- this country. deep meaning to the American people tection Act, reaffirm that we are, in- Mr. SENSENBRENNER. Mr. Chair- is in keeping with our best tradition. man, I yield 3 minutes to the gen- deed, one Nation under God, indivis- Let us say the American people will ible, with liberty and justice for all. tleman from Virginia (Mr. FORBES), a be heard, not lifetime-appointed Mr. NADLER. Mr. Chairman, I yield member of the Committee on the Judi- judges, on the recognition that this is 2 minutes to the distinguished gen- ciary. one Nation under God. Mr. FORBES. Mr. Chairman, right tleman from Massachusetts (Mr. Mr. NADLER. Mr. Chairman, I am above the Chair’s head today are four FRANK). Mr. FRANK OF Massachusetts. Mr. pleased to yield 3 minutes to the gen- words, ‘‘In God We Trust’’; and time tleman from North Carolina (Mr. after time in this country, we have Chairman, even by the standards that WATT). seen in times of storm or war or illness have sadly governed this House re- Mr. WATT. Mr. Chairman, I appre- the American people have embraced cently, the bill before us is bizarre. It ciate the gentleman yielding me time. those words and believed in them very makes a big hole in the Constitution If this debate were really about strongly. for the first time in American history, whether ‘‘under God’’ was going to be That is why 2 years ago, shortly after if it were to pass and become law, to in the Constitution, and that was all it the release of the Ninth Circuit Court’s counteract a decision which has al- was about, I would be right there. I decision that ‘‘under God’’ was to be ready been overruled. We should be have been reciting the Pledge of Alle- struck from the Pledge of Allegiance, very clear. There is no pending case giance ever since, even before I knew Newsweek published a poll finding 87 even at the Federal level that deals what it meant, and ‘‘under God’’ has percent of Americans supported the in- with this. been in it. I have had no real objection clusion of the phrase ‘‘under God’’ in But what I have heard people say is, to it, even when I did not understand the pledge. well, do not worry, because there is an what it meant. Nevertheless, the few, but articulate, individual liberty here. The Supreme But this debate is about much, much supporters of the court, waving U.S. Court of the United States, after all, more than that. It is really about flags and calling themselves one of the did say in 1943 in the Barnette case whether there is going to be a constitu- last groups in America facing unre- that no child could be forced to say the tional framework in which we operate strained bigotry, marched on the Mall Pledge of Allegiance if it violated his and who is going to decide ultimately to protest what they said was increas- own family’s religious views. The Jeho- what is constitutional, the United ing infringement of religion in govern- vah’s Witnesses said saying the Pledge States Supreme Court and the Federal ment affairs. of Allegiance violated their views. The courts of our Nation or the arrogance Staging their first Godless Ameri- Supreme Court said they did not have of my colleagues here in this body. cans March on Washington, the dem- to say it. There are actually some people here onstrators cheered and waved signs I have heard people say, well, do not who believe that they should be the ul- that expressed disapproval of religion. worry because children will be pro- timate arbiter of what is constitu- Their signs read: ‘‘God Is a Fairy tected if they find this objectionable by tional; and if they do not get the result Tale,’’ ‘‘Keep Your Gods Out of Our the Supreme Court decision. Now the that they want in any given case, they Schools,’’ and ‘‘Al Qaeda is a Faith- bizarre aspect is that this is a bill that want to take jurisdiction away from Based Initiative.’’ According to the would prevent a Supreme Court deci- whoever gave them a different result. New York Times, Dr. Michael Newdow sion, the very thing on which they are So that is what this is about, how do touted that he planned to ‘‘ferret out relying to justify it, but it is also the we protect a constitutional framework all insidious uses of religion in daily case that under this bill, if a State which historically has had the legisla- life. Why should I be made to feel like court should decide to disregard that tive body doing its job and the courts an outsider?’’ he asked. Supreme Court opinion and say that determining what is constitutional and Mr. Chairman, Dr. Newdow and the saying the pledge was mandatory, even ultimately the United States Supreme two judges in California were right on for Jehovah’s Witnesses or others who

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.017 H23PT1 H7454 CONGRESSIONAL RECORD — HOUSE September 23, 2004 might have a principled religious ob- of Allegiance that we are talking about Marriage Protection Act of 2003. Mr. jection to it, that that could be over- and ask yourself what it means to you. Chairman, I ask that that debate be in- ruled. It deserves protection. It defines not corporated by reference here just to The other thing that ought to be only our national heritage, but unites save time. Because at that time many noted is this. Once my colleagues start our society each time it is recited. We of us expressed concern about the det- down this road, this is the second time cannot let rogue Federal judges rede- rimental precedent that we would be the majority has done this, telling us fine our country’s history and the basis setting by passing a court-stripping that the Supreme Court cannot decide, from which our Founding Fathers bill. Today, our concerns have been they are going to create a precedent, if found guidance and strength when con- validated. this ever succeeds, that will be fol- structing our great country. This bill would strip the courts of lowed in other issues. Mr. Chairman, I urge my colleagues their ability to hear cases that are The business community ought to to support H.R. 2028. clearly within Federal jurisdiction be- follow this very closely because it will Mr. NADLER. Mr. Chairman, I yield cause they address fundamental con- now become demanded of Members of 5 minutes to the gentleman from Vir- stitutional rights and individual lib- Congress that when they pass a law ginia (Mr. SCOTT). erties guaranteed to us in the bill of they show that they really mean it by Mr. SCOTT of Virginia. Mr. Chair- rights. Furthermore, this bill is not taking away Supreme Court jurisdic- man, I thank the gentleman for yield- limited to cases addressing the words tion. So the important desire of the ing me this time. ‘‘under God.’’ The recitation of the business community for Federal uni- Mr. Chairman, I come from a State Pledge may, in some circumstances, formity, all of the efforts they have with a long tradition of supporting re- implicate the right to free speech, the been making recently to try and get ligious freedom. The Virginia Statute right of free association, the right to national laws that govern commercial For Religious Freedom, written by the free exercise of religion, and the es- transactions, will be at risk; and we Thomas Jefferson preceded the first tablishment clause protections, all will see laws in area after area, if this amendment to the Constitution. This guaranteed under the first amendment precedent is followed, which will mean bill does not protect religious freedom, to the Constitution. that there is no uniform national inter- and it also undermines fundamental We need Federal courts to protect pretation of them. rights of American citizens. our rights, and this bill prohibits the Mr. Chairman, most experts believe courts from doing just that. This bill b 1200 that the bill is meaningless, because violates over 200 years of constitu- Mr. SENSENBRENNER. Mr. Chair- whether or not the recitation of the tional principle established in Marbury man, I yield 2 minutes to the gen- Pledge is constitutional or not con- versus Madison that the Supreme tleman from Ohio (Mr. CHABOT), chair- stitutional is a matter for the courts to Court can rule on the constitutionality man of the Subcommittee on the Con- decide. And if it is unconstitutional, of legislative actions. stitution. that ruling cannot be changed by a Now, if this kind of court-stripping Mr. CHABOT. Mr. Chairman, I thank statute enacted by this body. legislation had been passed in 1954, the gentleman for yielding me this Now, I happen to believe that the Congress could have prohibited the Su- time, and I thank him for his leader- present Pledge of Allegiance is con- preme Court from hearing cases involv- ship on this. I also want to thank and stitutional, and I agree with the dis- ing segregation in public schools and recognize the leadership of the gen- sent in the Newdow versus U.S. Con- the courts could not have ruled in tleman from Missouri (Mr. AKIN) for gress case, the recent Ninth Circuit Brown v. Board of Education. Or if it his determination in protecting the case involving the Pledge of Alle- had passed such language in the 1960s, Pledge of Allegiance in this country. I giance. In my judgment, the dissent ac- we might not have had the decision wish to also express my support, as curately surmised, and I quote ‘‘Legal issued by what some are now calling chairman of the Subcommittee on the world abstractions and ruminations rogue, unelected, lifetime-appointed, Constitution, for H.R. 2028, the Pledge aside, when all is said and done the activist judges when they ruled to Protection Act. danger that ‘under God’ in our Pledge overrule the will of the people of Vir- When the issue of limiting Federal of Allegiance will tend to bring about a ginia and require Virginia to recognize Court jurisdiction was raised during theocracy or suppress someone’s belief marriages between blacks and whites. the discussions of the Marriage Protec- is so minuscule as to be de minimis. That could not have happened unless tion Act, the Subcommittee on the The danger that phrase represents to those so-called rogue, unelected, life- Constitution held a hearing examining our first amendment’s freedoms is pic- time-appointed, activist judges made Congress’ authority to do this. During ayune at best.’’ the decision they made. the hearing, testimony was heard by a Now, to the extent that ‘‘under God’’ The truth is we rely on Federal number of constitutional experts. is worthy of this excessive attention, courts to determine and enforce our While there was mixed opinion on every hearing we have and every bill civil rights. In our system of democ- whether Congress should exercise its we pass on this issue only serves to racy, which we are touting around the authority, there was a consensus that chip away at the de minimis argument world, courts are where citizens can Congress did in fact have the authority and we have to deal with the issue as it vindicate their rights. Our government under Article III of the Constitution to is explained in the Christian Century, a works on a system of checks and bal- determine what issues were heard by non-denominational Protestant week- ances. That is why many organiza- the Supreme Court under its appellate ly, which stated, and I quote, ‘‘To the tions, legal associations, civil rights jurisdiction and by the lower Federal extent ‘under God’ has real religious groups, and religious organizations, courts. meaning, then it is unconstitutional. have written to oppose us overturning This point was highlighted most re- The phrase is constitutional to the ex- 200 years of judicial precedence. cently by the Dean of Stanford Law tent that it is religiously innocuous. In closing, Mr. Chairman, we should, School who wrote, ‘‘The Constitution Given that choice, I side with the instead, adhere to the wisdom of the leaves room for countless political re- Ninth Circuit, the government should Supreme Court in the Barnette case, sponses to an overly assertive court. not link religion and patriotism.’’ Now, which said ‘‘The very purpose of the Congress can strip it of jurisdiction. that is an editorial position expressed bill of rights was to withdraw certain The means are available, and they have by the Christian Century. subjects from the vicissitudes of polit- been used to great effect when nec- The simple fact is we need to protect ical controversy, to place them beyond essary; used, we should note, not by the Constitution and the rights of the the reach of majorities and officials, disreputable or failed leaders, but by court to decide whether the Pledge is and to establish them as legal prin- some of the most admired presidents constitutional or not, but the majority ciples to be applied by the courts. One’s and Congresses in American history.’’ will not do that. H.R. 2028 is a court- right to life, liberty, and property, to As we continue the debate today, I stripping bill, plain and simple. free speech, a free press, freedom of would urge each Member of Congress to We had the same debate on the floor worship and assembly, and other funda- recite to himself or herself the Pledge just 2 months ago when we debated the mental rights may not be submitted to

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.019 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7455 vote; they depend on the outcome of no come unconstitutional when they undermine First Amendment issues of free speech and elections.’’ the essential role of the Supreme Court. Oth- freedom of religion. It sets the dangerous Mr. Chairman, I submit for the ers relied on a reading of the Vesting Clause precedent of transferring questions of federal of Article III, which places judicial power— and constitutional law exclusively to state RECORD letters from organizations in the power to decide cases—in the hands of courts and preventing American citizens opposition to this bill. the courts alone. Nonetheless, all believed from seeking protection of fundamental THE CONSTITUTION PROJECT, that constitutional limitations exist. rights in federal court, and it threatens the Washington, DC, September 20, 2004. Apart from the constitutionality of laws critical and unique role that the federal House of Representatives, U.S. Capitol, Wash- restricting federal court jurisdiction, the courts play in constitutional balance of pow- ington, DC. Task Force was also unanimous in its view ers, interpreting and enforcing constitu- DEAR MEMBERS OF HOUSE OF REPRESENTA- that legislative acts stripping courts of juris- tional law, and providing legal certainty. TIVES: I write on behalf of the Constitution diction to hear particular types of cases in For these reasons, as well as those detailed Project to urge you to oppose H.R. 2028, the an effort to control substantive judicial deci- our Task Force’s findings and recommenda- ‘‘Pledge Protection Act of 2003.’’ sions are undesirable and inappropriate in a tions, the Constitution Project urges you to The Constitution Project, based on George- democratic system with co-equal branches of oppose H.R. 2028. Thank you for your consid- town University’s Public Policy Institute, government. Legislative restriction of juris- eration. specializes in creating bipartisan consensus diction in response to particular substantive Sincerely, on a variety of legal and governance issues, decisions unduly politicizes the judicial KATHRYN A. MONROE, and promoting that consensus to policy- process, and attempts by legislatures to af- Director, Courts Initiative. makers, opinion leaders, the media, and the fect substantive outcomes by curtailing judi- public. We have initiatives on the death pen- cial jurisdiction are inappropriate, even if AMERICAN HUMANIST ASSOCIATION, alty, liberty and national security, war pow- believed constitutional. (Indeed, it was strik- September 20, 2004. ers, and judicial independence (our Courts ing that members reflecting a broad ideolog- Oppose H.R. 2028, the ‘‘Pledge Protection Act Initiative), among others. Each of our initia- ical range—from, for example, Leonard Leo 2003’’ tives is directed by a bipartisan committee of the Federalist Society to Steven Shapiro of prominent and influential businesspeople, of the American Civil Liberties Union— DEAR REPRESENTATIVE, The American Hu- scholars, and former public officials. agreed that restrictions on jurisdiction to manist Association (AHA) stands in opposi- Our Courts Initiative works to promote achieve substantive changes in the law are tion to H.R. 2080, the ‘‘Pledge Protection Act public education on the importance of our unwise and undesirable policy.) of 2003,’’ which would prevent all federal courts as protectors of Americans’ essential The Task Force was also unanimous that courts from hearing cases challenging or in- constitutional freedoms. Its co-chairs are the legislation that restricts access to the courts terpreting rights granted by the First Honorable Mickey Edwards, John Quincy and precludes individuals from using a judi- Amendment as they relate to Pledge of Alle- Adams Lecturer at the John F. Kennedy cial forum to enforce rights is undesirable giance cases. We urge you to vote against School of Government at Harvard University and unconstitutional. Rights are meaning- this bill, which would compromise long held and former chair of the House of Representa- less without a forum in which they can be American legal principles of due process and tives Republican Policy Committee (R-OK), vindicated. Therefore, access to the courts at separation of powers by shutting the federal and the Honorable Lloyd Cutler, a prominent both the federal and state levels is essential courthouse doors to large numbers of Ameri- Washington lawyer and White House counsel in order for rights to have effect. Legisla- cans. to Presidents Carter and Clinton. tures have the duty to ensure meaningful ac- If passed, the Pledge Protection Act would In 2000, the Courts Initiative created a bi- cess to the courts and legislative actions set a dangerous precedent by stripping fed- partisan Task Force to examine and identify that preclude this are undesirable and un- eral courts of judicial independence and pav- basic principles as to when the legislature constitutional. ing the way to preventing federal judges acts unconstitutionally in setting the powers Our Task Force reached these conclusions from ruling on other controversial social and jurisdiction of the judiciary. The Task and recommendations rightly. From its be- issues from abortion and gun control to Force was unanimous in its conclusion that ginning, our system of constitutional democ- school vouchers and school prayer. As we some legislative acts restricting courts’ pow- racy has depended on the independence of warned with the Marriage Protection Act ers and jurisdiction are unconstitutional. the judiciary. Judges are able to protect citi- (H.R. 3313), attempts by Congress to strip the The Task Force also concluded that some zens’ basic rights and decide cases fairly only judiciary of their power to review the legis- legislative actions, even if constitutional, if free to make decisions according to the lation are inequitable and will open the door are undesirable. (The Task Force’s findings law, without regard to political or public to more of the same. If the Pledge Protection and recommendations are published in Un- pressure. Similarly, the judiciary can main- Act passes it will fuel the fires for similar certain Justice: Politics and America’s tain the checks and balances essential to bills. Courts 2000.) preserving a healthy separation of powers Denying access to the federal court system Our Task Force arrived at seven bipartisan only if able to resist overreaching by the po- is unacceptable to religious and Humanist consensus recommendations, including the litical branches. Indeed, the cornerstone of minorities who have a due process right to following, which are relevant to the legisla- American liberty is the power of the courts have their cases heard. tion at hand: to protect individual rights from momentary The Pledge Protection Act presents a seri- 1. Congress and state legislatures should excesses of political and popular majorities. ous separation of powers concern. Federal heed constitutional limits when considering In recent years, as part of the polarization courts are uniquely prepared to interpret proposals to restrict the powers and jurisdic- and posturing that increasingly characterize federal constitutional concerns and to serve tion of the courts. our national and state politics, threats to ju- as a check on the constitutionality of ac- 2. Legislatures should refrain from re- dicial independence have become more com- tions of Congress and the Executive branch. stricting court jurisdiction in an effort to monplace. Attacks on judges for unpopular That’s why constitutional concerns are control substantive judicial decisions in a decisions, even those made in good faith, raised when an attempt is made to block the manner that violates separation of powers, have become more rampant. Politicians are courts from reviewing and interpreting the due process, or other constitutional prin- responding to unpopular decisions and liti- constitutionality of a single act. ciples. gants by attempting to restrict courts’ pow- Congress should not disrupt the balance of 3. Legislatures should not attempt to con- ers in certain kinds of cases. However, Amer- power intended by our Founding Fathers. trol substantive judicial decisions by enact- icans have much to lose if we do not exercise Restricting the federal courts’ ability to pro- ing legislation that restricts court jurisdic- self-restraint and instead choose short-term tect First Amendment rights severely under- tion over particular types of cases. political gain at the expense of judicial inde- mines the American judicial system. 4. Legislatures should refrain from re- pendence. The independence of our judiciary Humanists are particularly concerned stricting access to the courts and should is, as Chief Justice Rehnquist described, about this bill because it would violate judi- take necessary affirmative steps to ensure ‘‘one of the crown jewels of our system of cial independence in order to undermine adequate access to the courts for all Ameri- government.’’ American citizens, in this case those of a mi- cans. In conclusion, while Article III of our Con- nority faith or no religion, the right to ac- Specifically, our Task Force was unani- stitution gives Congress the power to regu- cess federal courts to challenge a piece of mous in its view that there are some con- late federal court jurisdiction, this power is legislation. stitutional limits on the authority the legis- not unlimited, and Congress should not—and In the past Congress has rejected attempts lature to restrict court jurisdiction in an ef- in some instances may not—use its power to to withdraw controversial issues from the fort to control substantive judicial decisions. restrict federal court jurisdiction in ways scope of federal courts and the AHA encour- In particular, separation of powers, due proc- that infringe upon separation of powers, vio- ages you to do so again at this important ess, and other constitutional provisions limit late individual rights and equal protection, juncture. We urge you to defend due process such authority. Task Force members had dif- or offend federalism. H.R. 2028 is poised to do and separation of powers and vote no on the fering views about the scope and source of all three by stripping federal courts—includ- Pledge Protection Act. the constitutional limit on the legislature’s ing even the U.S. Supreme Court—of the au- Sincerely, power in this area. For instance, some be- thority to hear cases involving the Pledge of MEL LIPMAN, lieved that restrictions on jurisdiction be- Allegiance, even when such cases involve AHA President.

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.021 H23PT1 H7456 CONGRESSIONAL RECORD — HOUSE September 23, 2004

UNITARIAN UNIVERSALIST ASSOCIA- lieving that H.R. 2028 threatens the separa- and the constitutional free speech rights of TION OF CONGREGATIONS, WASH- tion of powers that is a fundamental aspect countless individuals. INGTON OFFICE FOR ADVOCACY, of our constitutional structure. Beyond this, H.R. 2028 also raises serious legal concerns WASHINGTON, DC, SEPTEMBER 20, while the legislation ostensibly responds to about the violation of the principles of sepa- 2004. the controversy surrounding ‘‘under God’’ in ration of powers, equal protection and due DEAR REPRESENTATIVE: On behalf of more the Pledge of Allegiance, this legislation process. The bill undermines public con- than 1,050 congregations that make up the sweeps far more broadly, with potentially se- fidence in the federal courts by expressing Unitarian Universalist Association, I urge vere constitutional implications for religious outright hostility toward them, threatens you to oppose H.R. 2028, the ‘‘Pledge Protec- minorities who are adversely affected by the legitimacy of future congressional action tion Act of 2004.’’ As a tradition with a deep government-mandated recitation of the by removing the federal courts as a neutral commitment to religious pluralism, we be- Pledge. arbiter, and rejects the unifying function of lieve that this legislation would seriously First and foremost, we are opposed to H.R. the federal judiciary by denying federal undermine the First Amendment protections 2028 because this legislation, by entirely courts the opportunity to interpret the law. of the Constitution, and particularly the stripping all federal courts, including the We strongly believe that this legislation as rights of religious minorities, by stripping Supreme Court, of jurisdiction over a par- drafted will have broad, negative implica- federal courts, including the Supreme Court, ticular class of cases, threatens the separa- tions on the ability of individuals to seek en- of jurisdiction over cases concerning the tion of powers established by the Constitu- forcement of previously constitutionally Pledge of Allegiance. tion, and undermines the unique function of protected rights concerning mandatory reci- In resolutions dating back to 1961, the the federal courts to interpret constitutional tation of the Pledge. We therefore urge, in highest policy-making body of the Unitarian law. This legislation deprives the federal the strongest terms, your rejection of this Universalist Association has repeatedly af- courts of the ability to hear cases involving misguided and unwise legislation. firmed the right of all Americans to reli- religious and free speech rights of students, Sincerely, gious freedom, including the right of reli- parents, and other individuals. The denial of American Civil Liberties Union gious minorities in public schools to not re- a federal forum to plaintiffs to vindicate American Federation of State, County cite the Pledge of Allegiance. The Supreme their constitutional rights would force plain- and Municipal Employees (AFL–CIO) Court has agreed in the case of West Virginia tiffs out of federal courts, which are specifi- American Humanist Association State Board of Education v. Barnette, 319 U.S. cally suited for the vindication of federal in- American Jewish Committee 624 (1943) that the Pledge cannot be manda- terests, and into state courts, which may be Americans for Democratic Action tory for public school students. hostile or unsympathetic to these federal Americans for Religious Liberty Despite the Barnette ruling, we know from claims, and which may lack expertise and Americans United for Separation of experience that the practice of mandatory independent safeguards provided to federal Church and State recitation continues. By eliminating the judges under Article III of the Constitution. Anti-Defamation League mechanism for religious minorities to seek It is in apparent recognition of this concern Baptist Joint Committee relief from this practice through appeals to a that no federal bill withdrawing federal ju- Central Conference of American Rabbis federal court, H.R. 2028 would have the prac- risdiction in cases involving fundamental Committee for Judicial Independence tical effect of all but eliminating the right constitutional rights has become law since General Board of Church and Society of itself. As a result, we believe that this legis- the Reconstruction period. the United Methodist Church lation will seriously harm religious minori- In addition, as drafted, the bill would deny Human Rights Campaign ties and the constitutional free speech rights access to the federal courts in cases to en- Jewish Reconstructionist Federation of countless parents and children, many of force existing constitutional rights for reli- Leadership Conference on Civil Rights whom are members of Unitarian Universalist gious minorities. Over sixty years ago, the Legal Momentum (the new name of NOW congregations and are involved in our reli- Supreme Court decided the case of West Vir- Legal Defense and Education Fund) gious education programs. ginia State Board of Education v. Barnette, 319 National Council of Jewish Women By undermining the power of federal U.S. 624 (1943). In Barnette, the Supreme National Senior Citizen Law Center courts to protect constitutional rights af- Court struck down a West Virginia law that Northwest Religious Liberty Association firmed by the U.S. Supreme Court, we be- mandated schoolchildren to recite the People for the American Way lieve that H.R. 2028 would weaken the sepa- Pledge of Allegiance. Under the West Vir- Sikh Mediawatch and Resource Task ration of powers in a way that we find deeply ginia law, religious minorities faced expul- Force (SMART) troubling. sion from school and could be subject to The Interfaith Alliance The congregations of the Unitarian Univer- prosecution and fined, if convicted of vio- U.S. Action salist Association collectively affirm and lating the statute’s provisions. In striking Union for Reform Judaism promote the right of conscience and the use down that statute, the Court reasoned: ‘‘To Unitarian Universalist Association of of the democratic process in society at large. believe that patriotism will not flourish if Congregations We are committed to the ideals of the found- patriotic ceremonies are voluntary and spon- Mr. SENSENBRENNER. Mr. Chair- ers of this nation, including religious liberty taneous instead of a compulsory routine is to make an unflattering estimate of the appeal man, I yield 3 minutes to the gen- and religious pluralism, as well as the bal- tleman from Tennessee (Mr. DUNCAN). ance of powers that protects such rights. of our institutions to free minds . . . If there is any fixed star in our constitutional con- Mr. DUNCAN. Mr. Chairman, I thank I urge you to preserve the rights of reli- the very distinguished chairman of the gious minorities, as well as the constitu- stellation, it is that no official, high, or tional separation of powers, by opposing the petty can prescribe what shall be orthodox in Committee on the Judiciary, the gen- ‘‘Pledge Protection Act of 2004.’’ politics, nationalism, religion, or other mat- tleman from Wisconsin (Mr. SENSEN- In Faith, ters of opinion.’’ 319 U.S. at 639–40. BRENNER), for yielding me this time, Moreover, just recently, a panel of the U.S. ROBERT C. KEITHAN, and for his work on this legislation and Court of Appeals for the Third Circuit held Director. that a Pennsylvania law mandating recita- his work on so many other important tion of the Pledge, even when it provided a bills before this body. SEPTEMBER 20, 2004. religious exception, violated the Constitu- I also want to commend the gen- PROTECT SEPARATION OF POWERS AND RELI- tion because it violated the free speech of tleman from Missouri (Mr. AKIN) for GIOUS MINORITIES’ LONGSTANDING CONSTITU- the students. Circle School v. Pappert, No. 03– his outstanding leadership on this TIONAL RIGHTS; OPPOSE FINAL PASSAGE OF 3285 (3rd Cir. Aug. 19, 2004). In Pappert, the issue. H.R. 2028 court found that: ‘‘It may be useful to note Mr. Chairman, in a 1952 Supreme DEAR REPRESENTATIVE: We, the under- our belief that most citizens of the United Court case, Zorach versus Clawson, in signed religious, civil rights, and civil lib- States willingly recite the Pledge of Alle- an opinion written, I think, by Justice erties organizations, urge you to oppose H.R. giance and proudly sing the national an- Douglas, it said, there is ‘‘No constitu- 2028, the ‘‘Pledge Protection Act,’’ misguided them. But the rights embodied in the Con- legislation that would strip all federal stitution, particularly the First Amendment, tional requirement which makes it courts, including the Supreme Court, from protect the minority—those persons who necessary for government to be hostile hearing First Amendment challenges to the march to their own drummers. It is they who to religion and throw its weight Pledge of Allegiance and from enforcing need the protection afforded by the Constitu- against efforts to widen the effective longstanding constitutional rights in federal tion and it is the responsibility of federal scope of religious influence.’’ court. judges to ensure that protection.’’ Pappert, Similar to that, a few years ago the The signatories to this letter include orga- Slip Op. at 14. great columnist for the Washington nizations that supported the recent court H.R. 2028 would undermine the long- Post, William Raspberry, who I am challenge to the constitutionality of includ- standing constitutional rights of religious ing ‘‘under God’’ in the Pledge of Allegiance, minorities to seek redress in the federal sure most people would describe as organizations that opposed that challenge, courts in cases involving mandatory recita- being fairly liberal on most issues, and organizations that took no position on tion of the Pledge. As a result, this legisla- when he was writing about an issue the matter. We are united, however, in be- tion will seriously harm religious minorities similar to this, he said ‘‘Is it not just

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.018 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7457 possible that anti-religious bias, course, violates Marbury versus Madi- H.R 2028 Undermines the Federal Judiciary: masquerading as religious neutrality, son, which has stated and been the law If H.R. 2028 is enacted, it would constitute the has cost this Nation far more than we of the land since 1803. Never in these first and only time Congress has ever enacted have been willing to acknowledge?’’ 201 years has any Congress ever legislation totally eliminating any federal court Mr. Chairman, I spent 71⁄2 years as a brought a measure like this to the from considering the constitutionality of federal circuit court judge or State trial judge floor of the House. legislation—in this case, the Pledge of Alle- in the State of Tennessee. For years, I In Marbury, Justice Harlan said, ‘‘it giance. have heard and read Federal judges is emphatically the role of the court to Adoption of the bill will result in the balkani- complaining about how Congress is determine what the law is.’’ And so we zation of our judiciary and would eliminate any putting too much into the Federal violate the very basic fundamental possibility of operating under a single uniform courts, expanding their jurisdiction too part of the role of the Judiciary in the Supreme Court. This is inconsistent with the much, and how overworked they are, Constitution. It violates the separation very words of the Pledge of Allegiance, name- and how there should be more limits on of powers principle because it denies ly that we are ‘‘one Nation under God, indivis- the jurisdiction of these courts and the Supreme Court its historical role of ible, with liberty and justice for all.’’ Dividing that we should stop taking so many final authority on the constitu- our nation into 50 different legal regimes, cases away from State courts. This is a tionality of our laws. where the Pledge is permitted in some juris- very minimal limitation on the juris- Who wants 50 different decisions dictions and not in others, is the very antith- diction of the Federal courts. Very coming from the several courts of the esis of this sacred principle. minimal. A very reasonable limitation. States? It violates freedom of speech It is no wonder that principled conservatives As the gentleman from Indiana (Mr. and religion. And we have Supreme like former Senator Barry Goldwater found PENCE) pointed out a few moments ago, Court cases, West Virginia State Board court stripping legislation to be so repugnant. there is almost no question that it is of Education versus Barnett, and just When court stripping legislation was proposed within the scope of congressional juris- this year the Third Circuit held in in the 1970’s concerning school prayer, abor- diction, or Congressional power to Pennsylvania that the mandated reci- tion, and busing, Senator Goldwater opposed limit the jurisdiction of the Federal tation of the Pledge of Allegiance was them, warning that the ‘‘frontal assault on the courts. unconstitutional. independence of the Federal courts is a dan- Alexander Hamilton, writing many Now, I know what you are trying to gerous blow to the foundations of a free soci- years ago in Federalist paper number accomplish by this gross distortion of ety.’’ 81 said, ‘‘To avoid all inconveniences, it constitutional history, but ultimately Robert Bork, a former Yale Law professor will be safest to declare generally that someone has to decide, and we have and Reagan appointee for the D.C. Circuit the Supreme Court shall possess appel- been deciding for 201 years. To make Court of Appeals, also is strongly opposed to late jurisdiction that shall be subject sure it is constitutional, some minds court-stripping measures, arguing, ‘‘[y]ou’d to such exceptions and regulations as reason, we should strip the jurisdiction have 50 different constitutions running around the national legislature may prescribe. of the subject from the court. What is out there, and I’m not sure even the conserv- This will enable the government to next: guns, freedom of choice, ter- atives would like the results.’’ modify it in such a manner as will best rorism? Our former colleague Bob Barr has written, answer the ends of public justice and We cannot proceed as a democratic the principal problem with court stripping bills security.’’ nation without very emphatically join- is ‘‘that it sets a harmful precedent for the fu- And Thomas Jefferson, in a letter ing with Senator Barry Goldwater, and ture. Our healthy democracy depends on hav- written in September of 1820, said this, Robert Bork, and our former Judiciary ing three separate and independent branches responding to the argument that Fed- colleague, Bob Barr. of government . . . I am concerned about eral judges should be the final inter- I rise in strong opposition to H.R. 2028, the having a Congress or President unchecked by preters of the Constitution. Thomas so-called ‘‘Pledge Protection Act’’. This bill is the independent judiciary established by the Jefferson wrote this: ‘‘You seem to not only unconstitutional, it undermines our Constitution.’’ consider the Federal judges as the ulti- federal judiciary and is totally unnecessary. If we allow H.R. 2028 to pass into law, it mate arbiters of all constitutional H.R. 2028 is Unconstitutional: This bill vio- truly could be open season on our precious questions, a very dangerous doctrine lates just about every principle in our constitu- rights and liberties. This was our prediction indeed and one which would place us tion and bill of rights. First, it violates separa- when the Majority was contemplating the Mar- under the despotism of an oligarchy. tion of powers principles because it denies the riage Protection Act, and here we are again. Our judges are as honest as other men Supreme Court its historical role as the final Today I ask, where will this all end? Why in and not more so. They have with others authority on the constitutionality of our laws. the world would we exempt these laws from the same passions for party, for power, This is a doctrine that was established more federal judicial review and not laws concerning and the privilege of their corps. Their than 200 years ago in the landmark Marbury terrorism, or child pornography? power is the more dangerous, as they v. Madison decision, and which has served as H.R. 2028 is unnecessary: What is most are in office for life and not responsible the cornerstone of our system of checks and amazing to me is that we are taking up this bill as the other functionaries are to the balances. at a time when the Supreme Court—which is elective control. The Constitution has Second, it violates Freedom of Speech and dominated by Republican appointees—has not erected no such single tribunal.’’ Religion. This is because it makes it far more issued a single opinion in any way under- Mr. Chairman, I am sorry my time difficult for persons who feel they are being mining the Pledge of Allegiance. has run out. I urge support for this coerced into reciting the pledge to have ac- Why do we have to take up this bill now very reasonable, very minimal limita- cess to the courts. These cases are not hypo- when the death toll of our men and women tion on the Federal Courts’ jurisdic- thetical. Sixty years ago, the Supreme Court fighting for our right to be free from terror has tion. issued the West Virginia State Board of Edu- reached record limits and continues to rise Mr. NADLER. Mr. Chairman, I yield cation v. Barnett decision, which held that it every single day. A recent report from the 3 minutes to the gentleman from was unlawful to expel religious minorities from Center for American Progress shows an Michigan (Mr. CONYERS), the very dis- school if they refused to recite the pledge of alarming number of suicides this year among tinguished ranking member of the allegiance. Just this year the Third Circuit held U.S. troops serving in Iraq. Yet, at a time Committee on the Judiciary. a Pennsylvania law which mandated recitation when our troops are working hard to answer (Mr. CONYERS asked and was given of the Pledge of Allegiance was unconstitu- the Nation’s call, their own needs remain permission to revise and extend his re- tional. unmet—put at the bottom of the list of prior- marks.) Third, it violates the equal protection clause. ities. Mr. CONYERS. Mr. Chairman, I This is because it imposes an undue burden Conclusion: Just as I opposed the ill-consid- thank the gentleman for yielding me on a specific class of individuals—religious mi- ered Marriage Protection Act two months ago, this time. norities—without a rational basis, other than I must oppose this court stripping bill. These My colleagues, we have before us a fear of independent judges. Just read the efforts to deny our citizens access to the fed- measure that is unconstitutional, that 1996 Roemer decision, which held it unlawful eral courts constitute nothing less than a mod- undermines the Federal Judiciary, and to pass a law excluding gay and lesbians from ern day version of ‘‘court packing.’’ Just as is totally unnecessary. The bill, of legal protections. President Roosevelt’s efforts to control the

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4634 Sfmt 9920 E:\CR\FM\K23SE7.022 H23PT1 H7458 CONGRESSIONAL RECORD — HOUSE September 23, 2004 outcome of Supreme Court decisions by pack- National Council of Jewish Organizations the courts must not be slammed shut—espe- ing it with loyalists was rejected by Congress National Council of Women’s Organiza- cially by laws that will block the federal in the 1930’s, thereby preserving the inde- tions courthouse doors. H.R. 2028, the so-called National Family Planning and Reproduc- ‘‘Pledge Protection Act,’’ will do exactly pendence of the federal judiciary, so too must tive Health Association that—deny Constitutional rights to religious this modern day effort to show the courts Planned Parenthood Federation of Amer- minorities by stripping the courts of juris- ‘‘who is boss’’ fail as well. ica diction. Mr. Chairman, I insert for the Unitarian Universalist Association of LCCR strongly opposes any proposal that RECORD letters from organizations op- Congregations. would eliminate access to the federal judici- posing this bill: ary for any group of Americans. For over 50 years, the federal courts have played an in- SEPTEMBER 20, 2004. HUMAN RIGHTS CAMPAIGN, dispensable role in the interpretation and en- Oppose the ‘‘Pledge Protection Act,’’ H.R. September 22, 2004. forcement of civil rights laws. When Con- 2028 DEAR REPRESENTATIVE: On behalf of the Human Rights Campaign, the nation’s larg- gress has sought to prevent the courts from U.S. House of Representatives, est lesbian, gay, bisexual and transgender exercising this role, such efforts ultimately Washington, DC. (LGBT) civil rights organization, and its tend to do little more than enshrine dis- DEAR REPRESENTATIVE: We, the under- 600,000 members nationwide, I write to ex- crimination in the law. Fortunately, in most signed organizations dedicated to protecting press our opposition to H.R. 2028, the ‘‘Pledge instances, cooler heads prevail. In the 1970s, women’s reproductive health and rights, Protection Act.’’ The Human Rights Cam- for example, some members of Congress un- write to urge you to oppose H.R. 2028, the so- paign (HRC) opposes this dangerous piece of successfully sought to strip the courts of ju- called ‘‘Pledge Protection Act.’’ The implica- legislation, as well as any other piece of leg- risdiction to hear cases involving desegrega- tions of this bill go far beyond the context of islation that would undermine the critical tion efforts such as busing—legislation that the Pledge of Allegiance. This bill would set separation of powers that supports the ele- would have done nothing but preserve racial a dangerous precedent that would disrupt gant system of government that the framers inequality. More recently, however, at the the traditional separation of powers and un- of the United States Constitution envi- height of anti-immigrant sentiment in 1996, dermine the longstanding role of the federal sioned. Congress succeeded in enacting immigration judiciary in safeguarding constitutional H.R. 2028 would strip all federal courts, in- laws that stripped courts of the ability to rights, including the right of reproductive cluding the Supreme Court, of jurisdiction hear appeals by legal immigrants who were choice. over cases involving the Pledge of Alle- challenging harsh new deportation laws— H.R. 2028 would deny all federal courts—in- giance. This would preclude religious minori- laws that were so extreme that the Supreme cluding the U.S. Supreme Court—the juris- ties from being able to have their ‘‘day in Court ultimately had no choice but to step diction to hear any cases concerning the in- court’’, if their claims happen to involve the in and scale them back. terpretation or constitutionality of the The judicial branch has often been the sole Pledge. This blocking of access to the courts Pledge of Allegiance. The bill would irrep- protector of the rights of minority groups is offensive to principles of both equal pro- arably alter the relationship between the ju- against the will of the popular majority. Any tection and due process. While HRC does not dicial branch and the two other branches of proposal to interfere with this role through have an official position on the Pledge, we do the federal government by depriving the fed- ‘‘court-stripping’’ proposals would set a dan- have a position against hampering the abil- eral courts of their traditional role as inter- gerous precedent that would harm all Ameri- ity of any branch of government to protect preters of the U.S. Constitution. Even more cans. Allowing the courthouse doors to be the rights of political minorities. The fram- disturbing, unlike other previous versions of closed to one minority group, as H.R. 2028 ers of the United States Constitution laid court-stripping legislation, H.R. 2028 de- would do to religious minorities, is not only out a tripartite system of government and prives even the U.S. Supreme Court of juris- unjustified in itself, but will also set a dan- involved co-equal branches and a delicate diction, divesting the Court of its historical gerous precedent that will ultimately weak- system of checks and balances. This system role as the final authority on the U.S. Con- en the rights of any other groups that may necessarily includes the ability of the federal stitution. be forced to turn to the courts for justice. courts to invalidate any piece of congres- We are deeply concerned about legislation Further, H.R. 2028 threatens the separation sional legislation that violates basic con- like H.R. 2028 that strips federal courts of of powers established by the Constitution, stitutional protections. H.R. 2028 does vio- their important role in safeguarding con- and undermines the unique function of the lence to this system of government and its stitutional rights and freedoms. While the federal courts to interpret Constitutional associated guarantees of liberty and justice. target today is a controversial view of the law. This legislation deprives the federal Disturbingly, H.R. 2028, when seen in con- Pledge of Allegiance and the separation of courts of the ability to hear cases involving junction with H.R. 3313 (The Marriage Pro- church and state (a view that the Supreme religious and free speech rights of students, tection Act), appears to be a part of a larger Court has not endorsed), there can be no parents, and other individuals. The denial of attack on the independence of the Judiciary. doubt that anti-choice lawmakers and their a federal forum to plaintiffs to vindicate HRC urges you to vote ‘‘NO’’ on H.R. 2028 allies in Congress intend to use this strategy their Constitutional rights would force when it is considered by the floor of the to achieve other policy goals that they are plaintiffs out of federal courts, which are House of Representatives. Quite simply, we unable to accomplish without toppling the specifically suited for the vindication of fed- believe that the very patriotism that in- delicate constitutional balance of powers eral interests, and into state courts, which spired the Pledge of Allegiance would de- that has served this country for more than may be hostile or unsympathetic to these mand a defense of the ideals of equity and 200 years. Recently, House Majority Leader federal claims, and which may lack expertise justice that inspired it. This patriotism is in- Tom DeLay told reporters that he plans to and independent safeguards provided to fed- compatible with the Pledge Protection Act. use ‘‘jurisdiction stripping’’ measures to eral judges under Article III of the Constitu- Thank you for the opportunity to com- achieve other social policy goals. While he tion. It is in apparent recognition of this ment and for your consideration of our con- claimed that the time is ‘‘not quite ripe’’ to concern that no federal bill withdrawing fed- cerns. If you have any questions, please do apply this legislative tactic to the issue of eral jurisdiction in cases involving funda- not hesitate to contact Praveen Fernandes, abortion, in fact, anti-choice lawmakers mental Constitutional rights has become law on my staff, at 202.216.1559. have already made the attempt—in 2002, since the Reconstruction period. Sincerely, when considering the Federal Abortion Ban. H.R. 2028 would deny access to the federal WINNIE STACHELBERG, Although that particular effort failed, pas- courts in cases to enforce existing constitu- Political Director. sage of H.R. 2028 would set a dangerous tional rights for religious minorities. Over precedent for future attempts to strip federal sixty years ago, the Supreme Court decided LEADERSHIP CONFERENCE ON courts of jurisdiction to hear cases regarding the case of West Virginia State Board of Edu- CIVIL RIGHTS, reproductive choice. The federal courthouse cation v. Barnette, 319 U.S. 624 (1943). In Washington, DC, September 21, 2004. doors should not be closed to women seeking Barnette, the Supreme Court struck down a to vindicate their right to obtain critical re- OPPOSE THE ‘‘PLEDGE PROTECTION ACT OF West Virginia law that mandated school- productive health services. 2003’’ (H.R. 2028): IT THREATENS CONSTITU- children to recite the Pledge of Allegiance. For these reasons, we urge you to oppose TIONAL PROTECTIONS AND CIVIL RIGHTS Under the West Virginia law, religious mi- H.R. 2028. DEAR REPRESENTATIVE: On behalf of the norities faced expulsion from school, and Sincerely, Leadership Conference on Civil Rights could be subject to prosecution and fined, if American Association of University (LCCR), the nation’s oldest, largest, and convicted of violating the statute’s provi- Women most diverse civil rights coalition rep- sions. In striking down that statute, the Center for Reproductive Rights resenting people of color, women, children, Court reasoned: ‘‘To believe that patriotism Choice USA older Americans, persons with disabilities, will not flourish if patriotic ceremonies are Feminist Majority gays and lesbians, major religious organiza- voluntary and spontaneous instead of a com- Legal Momentum (the new name of NOW tions, labor unions, and civil and human pulsory routine is to make an unflattering Legal Defense and Education Fund) rights groups, we urge you to vote against estimate of the appeal of our institutions to NARAL Pro-Choice America H.R. 2028, the ‘‘Pledge Protection Act of free minds . . . If there is any fixed star in National Abortion Federation 2003.’’ LCCR firmly believes that access to our Constitutional constellation, it is that

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.023 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7459 no official, high, or petty can prescribe what claims of the resolution’s authors, it is un- introduced in Congress since 1789, the Con- shall be orthodox in politics, nationalism, re- clear whether a state would be prohibited stitution has been amended only 27 times in ligion or other matters of opinion.’’ (319 U.S. from passing laws permitting civil unions or 215 years—a testament to its vitality and to at 639–40) domestic partnerships and providing state- Congressional restraint. We urge you to ex- LCCR urges you to vote against H.R. 2028 conferred benefits to the couples involved. ercise the same restraint today and oppose because of the dangers to Constitutional pro- There is little doubt, however, that the joint H.J. Res. 56. tections and civil rights laws and enforce- resolution’s lack of clarity will result in ex- Sincerely, ment posed by its enactment. If you have tensive litigation and that its passage and ROBERT J. GREY, Jr. any questions, please feel free to contact Rob adoption will limit the future ability of Randhava, LCCR policy analyst, at (202) 466– states to fashion their own responses to meet PEOPLE FOR THE AMERICAN WAY, 6058, or Nancy Zirkin, LCCR deputy director, the changing needs of their residents. Washington, DC, September 20, 2004. at (202) 263–2880. Thank you for your consid- H.J. Res. 56 also should be opposed because House of Representatives, eration. a constitutional amendment is neither a nec- Washington, DC. Sincerely, essary nor appropriate vehicle for changing DEAR MEMBER OF CONGRESS; On behalf of WADE HENDERSON, our civil marriage laws. The Constitution the more than 675,000 members and activists Executive Director, should not be amended absent urgent and of People For the American Way, we write to NANCY ZIRKIN, compelling circumstances, and it certainly urge you to oppose H.R. 2028, the ‘‘Pledge Deputy Director. should not be amended to call a halt to Protection Act of 2003.’’ This legislation democratic debate within the states or to would violate the First Amendment, and AMERICAN BAR ASSOCIATION, promote a particular ideology. As Bob Barr, would set a terrible precedent against the Chicago, IL, September 20, 2004. former U.S. Representative from Georgia, separation of powers embodied in our Con- DEAR REPRESENTATIVE: We understand succinctly stated in testimony before the stitution that protects the fundamental that efforts are underway to bring H.J. Res. Senate Judiciary Committee this past rights of all Americans. 56, the Federal Marriage Amendment, to the spring, ‘‘We meddle with the Constitution to As amended, H.R. 2028 would eliminate any House floor for a vote during the next few our own peril. If we begin to treat the Con- role for the federal courts, including the U.S. weeks. While we have taken no position ei- stitution as our personal sandbox, in which Supreme Court, in challenges concerning the ther favoring or opposing laws that would to build and destroy castles as we please, we constitutionality of the Pledge of Alle- allow same-sex couples to enter into civil risk diluting the grandeur of having a Con- giance. This would have an immediate and marriages, the American Bar Association is stitution in the first place.’’ dramatic impact on the ability of individual staunchly opposed to this proposed amend- It particularly does not make sense for the Americans to be free from government-co- ment. Regardless of your personal views on House to pursue the Family Marriage erced speech or religious expression. For ex- same-sex marriage, we urge you to reject Amendment during these busy, final weeks ample, this legislation would bar the federal this attempt to use the constitutional of the 108th Congress since there is no urgent courts from enforcing the U.S. Supreme amendment process to impose on the states need for immediate action and, clearly, no Court’s 1943 decision in West Virginia State a particular moral viewpoint about a con- national consensus has emerged over the Board of Education v. Barnette which barred troversial issue and to vote against the pro- legal ramifications of same-sex unions. In- a local school district from forcing children posed amendment, which tramples on the deed, Congress, through enactment of the to recite the Pledge of Allegiance over their traditional authority of each state to estab- Defense of Marriage Act in 1996, has already religious objections. Apart from being unwise as a matter of lish its own laws governing civil marriage. denied same-sex couples the more than 1,000 The authority to regulate marriage and federal benefits that extend to heterosexual policy, H.R. 2028 appears to be an unconstitu- tional overreach of Congress’ power under other family-related matters has resided married couples and relieved states of their article III regarding the federal judiciary, with the states since the founding of our obligation to accord full faith and credit to particularly in light of the Fifth Amend- country and is rooted in principles of fed- same-sex marriages sanctioned by other ju- ment’s due process clause and the Four- eralism. This has enabled states to enact di- risdictions. Therefore, this proposed amend- teenth Amendment’s equal protection verse marriage laws that respect and reflect ment would only affect state laws governing clause. Further, it would contradict common the unique needs and views of their resi- marriage and same-sex unions and attending sense, and more than 200 years of constitu- dents. Our federal system also gives states judicial interpretations. During your delib- tional history, to allow Congress to cir- the authority to adopt their own state con- erations over the next week, we hope you cumvent the words ‘‘Congress shall make no stitutions and to interpret its provisions to will not loose sight of the fact that, at law’’ by eliminating effective enforcement of accord greater protection to individual present, 49 states grant civil marriage li- the First Amendment by the courts and the rights than are granted under similar provi- censes exclusively to heterosexual couples. U.S. Supreme Court. We agree with U.S. Sen- sions of the U.S. Constitution. Over the Clearly, this nation is not facing a crisis of ator Barry Goldwater who stated about a years, we not only have successfully toler- constitutional proportions that requires a similar attempt to strip federal courts of ju- ated the fact that state laws and judicial in- drastic and immediate solution. risdiction over fundamental rights more The ABA Section of Family Law recently terpretations governing marriage are not than twenty two years ago: ‘‘If there is on released a white paper titled An Analysis Of uniform, we have benefited from it. As the independent tribunal to check legislative or The Law Regarding Same-Sex Marriage, late Justice Louis Brandeis famously ex- executive action all the written guarantees plained many years ago: Civil Unions And Domestic Partnership, or rights in the world would amount to noth- To stay experimentation in things social which is available on our website at: http:// ing.’’ and economic is a grave responsibility. De- www.abanet.org/family/whitepaper/ Nor are state courts the appropriate sole nial of the right to experiment may be fullreport.pdf. (Printed copies may be ob- and final venue for enforcement of federal fraught with serious consequences to the Na- tained by emailing Denise Cardman, Senior constitutional rights. Indeed, H.R. 2028 raises tion. It is one of the happy incidents of the Legislative Counsel in our Governmental Af- the prospect of 50 different interpretations of federal system that a single courageous fairs Office, at [email protected].) the First Amendment. Guarantees of such State may . . . serve as a laboratory; and try This thorough compilation of activity within fundamental rights as freedom of religion, novel social experiments without risk to the the 50 states amply demonstrates that courts freedom of speech and freedom from govern- rest of the country. and legislatures already have enacted or mental religious coercion should not and Variations among the state laws governing issued hundreds of statutes, local ordinances cannot properly be relegated to such juris- same-sex unions have provided the oppor- and court opinions to address the myriad prudential uncertainty. We note that the tunity to examine the effect different laws complex issues and ramifications arising Reagan Administration, hardly an opponent have on society, increased each state’s expo- from this relatively new public policy debate of federalism, rejected historical and textual sure to new ideas, and served as guidance to and are continuing to address the issues vig- arguments for removing jurisdiction over those states that seek to modify their laws. orously. We hope that the report will help federal constitutional questions to state Adoption of H.J. Res. 56 would deprive the you in your review of this proposed amend- courts: nation of these benefits. ment. ‘‘Nor does it seem likely that the [Con- While the proposed amendment is far too Allowing the states to craft their own solu- stitutional] Convention would have devel- vague to ascertain its full meaning with cer- tions in this area requires both confidence oped the Exceptions Clause as a check on the tainty, its adoption would have sweeping and humility: confidence in the wisdom of Supreme Court in such a manner that an ex- consequences for the states that extend well the people and their representatives, and hu- ercise of power under the Clause to remove beyond invalidating or prohibiting same-sex mility to understand, in the words of the Supreme Court appellate jurisdiction would civil marriages. For instance, it would for- late Judge Learned Hand, that ‘‘[t]he spirit . . . vest [the power] in the state courts. ever prohibit a state from adopting its own of liberty is the spirit that is not too sure Hamilton regarded even the possibility of constitutional amendment to establish civil that it is right.’’ If the Constitution is to multiple courts of final jurisdiction as unac- unions or extending to unmarried couples— continue to embody the spirit of liberty for ceptable.’’ heterosexual or gay—legal protections, such future generations, we must not seek to use In addition, H.R. 2028 expressly sets the as health insurance, that the state provides it to enshrine still-evolving societal views. precedent for future Congresses to com- to married spouses if the state constitutions Despite the fact that more than 11,000 pro- pletely bar U.S. citizens from raising any ju- so require, as in Vermont. And, despite the posed constitutional amendments have been dicial challenge to federal action. State

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.027 H23PT1 H7460 CONGRESSIONAL RECORD — HOUSE September 23, 2004 courts can only assert jurisdiction over the In addition, as drafted, the bill would seem Under Section 2, Congress may have lim- federal government if it consents to be sued. to deny access to the federal courts—even ited authority to limit the types of cases Failing that consent, individuals would be the Supreme Court—for cases in which indi- over which the Supreme Court may exercise left without recourse to unconstitutional ac- viduals seek redress in cases involving man- its appellate jurisdiction. Although the ex- tions of the Congress or the executive datory recitation of the Pledge. As a result, tent of this authority is in dispute and has branch. Unreviewable federal power to in- this legislation will seriously undermine been the subject of academic commentary fringe on fundamental individual rights of constitutional guarantees of freedom of over the years, there are clear limits to the American citizens is alien to our republic. speech and religion. There is no question authority of Congress to limit the jurisdic- Finally, H.R. 2028 threatens to disrupt the that coercing students to say the Pledge of tion of the federal courts based on other ap- framework of checks and balances on govern- Allegiance—or any portion thereof—is con- plicable provisions of the Constitution. The mental power embodied in the U.S. Constitu- trary to the very principles of freedom of Pledge Protection Act would do just that, in tion through the separation of powers by set- conscience that are at the core of our Con- that it would entirely deprive every federal ting the precedent for Congress to remove stitution, and for which the Pledge stands. court from hearing any constitutional chal- legislation from constitutional review by the See the U.S. Supreme court’s landmark deci- lenge to government-mandated recitation of judicial branch. For all practical purposes, sion in West Virginia State Board of Edu- the Pledge of Allegiance, in violation of due Congress could become the sole arbiter of cation v. Barnett, 319 U.S. 624 (1943) (striking process and separation of powers principles. constitutionality on any subject within its down a West Virginia law that mandated THE PLEDGE PROTECTION ACT WOULD VIOLATE powers—or indeed outside its powers since it schoolchildren to recite the Pledge of Alle- DUE PROCESS RIGHTS AND UNDERMINE THE could legislate away any challenge to con- giance) and, more recently, the decision of a SEPARATION OF POWERS gressional interpretation of its own author- federal appellate court in Circle School v. Basic due process demands an independent ity. Litigation over the meaning of article Pappert, No. 03–3285 (3rd Cir. Aug. 19, 2004) judicial forum capable of determining federal III, a necessary part of the inevitable court (holding that a Pennsylvania law mandating constitutional rights. This legislation de- challenge to H.R. 2028, could in of itself re- recitation of the Pledge, even when it pro- prives the federal courts of the ability to sult in a constitutional crisis deeply dam- vided a religious exception, violated the Con- hear cases involving fundamental free exer- aging to the separation of powers. stitution because it violated the free speech cise and free speech rights of students, par- H.R. 2028 would set a terrible precedent for of the students). But, astonishingly, H.R. ents, and other individuals. Congress’ denial separation of powers and protection of indi- 2028 appears to remove from the federal of a federal forum to plaintiffs in a specified vidual rights. We urge you to reject the courts the jurisdiction to hear these types of class of cases would force plaintiffs out of premise that Congress is above the Constitu- cases. federal courts, which are specially suited for tion and vote no on this legislation. For all these reasons, the American Jewish the vindication of federal interests, and into Sincerely, Committee urges, in the strongest terms, state courts, which may be hostile or unsym- RALPH G. NEAS, that you vote against this misguided and un- pathetic to federal claims, and which may President. wise legislation. lack expertise and independent safeguards MARGE BAKER, Tbank you for your consideration of our provided to federal judges under Article III Director of Public Pol- views on this important matter. of the Constitution. It is in apparent rec- icy. Respectfully, ognition of this concern that no federal bill RICHARD T. FOLTIN, withdrawing federal jurisdiction over cases THE AMERICAN JEWISH COMMITTEE, Legislative Director and Counsel. involving fundamental constitutional rights Washington, DC, September 20, 2004. with respect to a particular substantive area DEAR REPRESENTATIVE: I write on behalf of AMERICANS UNITED FOR SEPARATION has become law in decades. the American Jewish Committee, a national OF CHURCH AND STATE, Political frustration with controversial organization with more than 125,000 members Washington, DC, September 21, 2004. court decisions during the second half of the and supporters represented by 33 chapters, to Re Reject efforts to slam federal courthouse twentieth century provoked Congress to pro- urge you to oppose H.R. 2028, the ‘‘Pledge doors on religious minorities and vote pose a number of court-stripping measures Protection Act of 2003.’’ ‘‘no’’ on H.R. 2028. designed to overturn court decisions touch- This misguided legislation—which would DEAR REPRESENTATIVE: Americans United ing on a wide variety of issues, including: strip all federal courts, including the Su- for Separation of Church and State urges anti-subversive statutes, apportionment in preme Court, of the jurisdiction to hear First you to vote ‘‘No’’ on passage of H.R. 2028, the state legislatures, ‘‘Miranda’’ warnings, bus- Amendment challenges to the Pledge of Alle- ‘‘Pledge Protection Act,’’ which is expected ing, school prayer, abortion, racial integra- giance—threatens the separation of powers to reach the floor of the House of Represent- tion, and composition of the armed services. that is a fundamental aspect of our constitu- atives later this week. Americans United All of these measures failed to pass Congress. tional structure. Further, while H.R. 2028 os- represents more than 70,000 individual mem- In each instance, bipartisan concerns over tensibly responds to the controversy sur- bers throughout the fifty states and in the threats to the American system of govern- rounding inclusion of the phrase ‘‘under District of Columbia, as well as cooperating ment and constitutional order gave way to a God’’ in the Pledge of Allegiance, this legis- houses of worship and other religious bodies recognition of these court-stripping meas- lation sweeps far more broadly, with poten- committed to the preservation of religious ures for what they truly were: attempts to tially severe constitutional implications for liberty. H.R. 2028 is an extreme and unwise circumvent the careful process required for religious minorities and others who are ad- proposal that will undermine the crucial sep- amendments to the U.S. Constitution. As versely affected when the government aration of powers at the heart of our govern- Professor Michael J. Gerhardt stated in his impermissibly seeks to mandate recitation ment and deny religious minorities from testimony regarding the ‘‘Constitution Res- of the Pledge. seeking enforcement of their longstanding toration Act of 2004’’ before the Sub- It should be emphasized that the American constitutional rights in the federal courts. committee on Courts on September 13, 2004: Jewish Committee did not take a position in H.R. 2028 would deprive all federal courts— ‘‘Efforts, taken in response to or retaliation the recent case in which a challenge was including the U.S. Supreme Court—of their against judicial decisions, to withdraw all brought to the constitutionally of including ability to hear cases involving the Pledge of federal jurisdiction or even jurisdiction of ‘‘under God’’ in the Pledge of Allegiance. Allegiance and to enforce longstanding con- inferior federal courts on questions of con- Whatever the merits of that case, however, stitutional rights against coerced recitation stitutional law are transparent attempts to we are strongly committee to the principle of the Pledge. Americans United firmly be- influence, or displace, substantive judicial that, in our constitutional system, the fed- lieves that the text, history and structure of outcomes. For several decades, the Congress, eral courts must be available to hear cases in the Constitution, together with important for good reason, has refrained from enacting which individuals challenge what they be- policy considerations, should lead the House such laws.’’ Like so many failed court-strip- lieve to be incursions on their religious and of Representatives to soundly defeat this ping measures that have come before it, the free speech rights. dangerous and misguided bill, as well as any Pledge Protection Act represents yet an- It would be a terrible—and virtually un- other court-stripping proposal. other illegitimate short cut to amending the precedented—distortion of that system for THE PLEDGE PROTECTION ACT IS Constitution, is against the weight of his- the U.S. Congress to deprive students, par- UNCONSTITUTIONAL tory, and must fail. ents, and other individuals of their access for Article III, Section 1 of the United States THE PLEDGE PROTECTION ACT IS EXTREME, a specific class of cases to the branch of gov- Constitution creates the Supreme Court and UNWISE AND REPRESENTS MISGUIDED POLICY ernment crafted to vindicate constitutional provides the Congress with the power to es- As drafted, the bill would slam the court- claims. Moreover, such an action would un- tablish ‘‘such inferior Courts as the Congress house doors to religious minorities trying to dermine public confidence in the federal may from time to time establish.’’ Section 2 gain protection for their fundamental con- courts by expressing outright hostility to- of Article III delineates sets of cases that the stitutional religious and free speech rights. ward them, threaten the legitimacy of future Federal courts may hear, provides for areas Over sixty years ago, the Supreme Court de- congressional action by removing the federal of original jurisdiction of the U.S. Supreme cided the case of West Virginia State Board of courts as a neutral arbiter, and reject the Court, and also provides for the appellate ju- Education v. Barnette, 319 U.S. 624 (1943). In unifying function of the federal judiciary by risdiction of the Supreme Court in other Barnette, the Supreme Court struck down a denying federal courts the opportunity to in- areas ‘‘with such Exceptions, and under such West Virginia law that mandated school- terpret the law. Regulations as the Congress shall make.’’ children to recite the Pledge of Allegiance.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.032 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7461 Under the West Virginia law, religious mi- of future congressional action by removing H.R. 2028 would set a dangerous precedent for norities faced expulsion from school and the federal courts as a neutral arbiter, and responses by Members of Congress to court could be subject to prosecution and fined, if rejects the unifying function of the federal decisions with which they disagree. In this convicted of violating the statute’s provi- judiciary by denying federal courts the op- session alone, Congress is considering court- sions. In striking down that statute, the portunity to interpret the law. H.R. 2028 stripping legislation related to the Pledge of Court reasoned: ‘‘To believe that patriotism would deny the U.S. Supreme Court its his- Allegiance, religious displays/Ten Command- will not flourish if patriotic ceremonies are torical role as the final authority on resolv- ments, marriage and another dealing with voluntary and spontaneous instead of a com- ing differing interpretations of federal con- all cases related to religion and the acknowl- pulsory routine is to make an unflattering stitutional rights. As a result, each of the 50 edgement of God. estimate of the appeal of our institutions to state supreme courts would be a final au- Over the years, Congress has considered free minds . . . If there is any fixed star in thority on these federal constitutional ques- legislation designed to strip court jurisdic- our constitutional constellation, it is that tions. This would potentially create a situa- tion on the issues such as public school bus- no official, high, or petty can prescribe what tion where we could have as many as 50 dif- ing, voluntary prayer and abortion. Fortu- shall be orthodox in politics, nationalism, ferent interpretations of any relevant federal nately, none of those proposals was adopted religion, or other matters of opinion.’’ 319 constitutional question. by Congress because legislators understood U.S. at 639–40. It is in apparent recognition of many of that setting a precedent for stripping the Moreover, just recently, a panel of the U.S. these concerns that no federal bill with- courts of their jurisdiction over a particular Court of Appeals for the Third Circuit held drawing federal jurisdiction in cases involv- issue might, in the future, be used by some that a Pennsylvania law mandating recita- ing fundamental constitutional rights has other group of advocates, when in the major- tion of the Pledge, even when it provided a become law since the Reconstruction period. ity, to establish its views as the law of the religious exception, violated the Constitu- Federal courts were established to interpret land, safely out of the reach of the courts. tion because it violated the free speech of federal law and to ensure that the states and We urge members of this Congress to oppose the students. Circle School v. Pappert, No. 03– the government did not violate the protec- passage of H.R. 2028 and not to abandon this 3285 (3rd Cir. Aug. 19, 2004). In Pappert, the tions in the federal constitution. An effort to tradition of thoughtfulness and restraint. court found that: ‘‘It may be useful to note deny them jurisdiction over the very sort of Sincerely, our belief that most citizens of the United claim they were established to hear—that LAURA W. MURPHY, States willingly recite the Pledge of Alle- government conduct violates a constitu- Director. giance and proudly sing the national an- tional right—is the most extreme attack TERRI A. SCHROEDER, them. But the rights embodied in the Con- possible on the role of federal courts in our Legislative Analyst. stitution, particularly the First Amendment, system of checks and balances. It strikes at protect the minority—those persons who the very purpose of the Founders in creating THE CONSTITUTION PROJECT, march to their own drummers. It is they who federal courts in the first place. Washington, DC, September 15, 2004. need the protection afforded by the Constitu- While the supporters of this bill see it as DEAR MEMBERS OF THE JUDICIARY COM- tion and it is the responsibility of federal an appropriate response to recent court deci- MITTEE: I write on behalf of the Constitution judges to ensure that protection.’’ Pappert, sions that they dislike concerning the words Project to urge you to oppose committee Slip Op. at 14. ‘‘under God’’ in the Pledge, the impact of passage of H.R. 2028, the ‘‘Pledge Protection The Pledge Protection Act is an attack on H.R. 2028 would NOT be limited merely to Act of 2003.’’ our very system of government. Americans that issue. This bill would remove jurisdic- The Constitution Project, based at George- United strongly urges you to leave the inde- tion over ALL constitutional claims, related town University’s Public Policy Institute, pendence of the federal judiciary in tact, to the pledge, from ALL federal courts. This specializes in creating bipartisan consensus protect longstanding constitutional rights of could potentially undermine decades of well- on a variety of legal and governance issues, religious minorities in the federal courts, established Supreme Court precedents by de- and promoting that consensus to policy- and respect free speech rights of countless nying access to the federal courts in cases makers, opinion leaders, the media, and the individuals by rejecting this misguided legis- brought to enforce existing constitutional public. We have initiatives on the death pen- lation. rights for religious minorities. For example, alty, liberty and national security, war pow- Sincerely, over sixty years ago, the Supreme Court de- ers, and judicial independence (our Courts REV. BARRY W. LYNN, cided the case of West Virginia State Board of Initiative), among others. Each of our initia- Executive Director. Education v. Barnette, 319 U.S. 624 (1943). In tives is directed by a bipartisan committee Barnette, the Supreme Court struck down a of prominent and influential businesspeople, AMERICAN CIVIL LIBERTIES UNION, West Virginia law that mandated school- scholars, and former public officials. Washington, DC, September 21, 2004. children to recite the Pledge of Allegiance. Our Courts Initiative works to promote Re Don’t shut the federal courthouse doors Under the West Virginia law, religious mi- public education on the importance of our to religious minorities; oppose passage of norities faced expulsion from school and courts as protectors of Americans’ essential H.R. 2028. could be subject to prosecution and fined, if constitutional freedoms. Its co-chairs are the DEAR REPRESENTATIVE: The American Civil convicted of violating the statute’s provi- Honorable Mickey Edwards, John Quincy Liberties Union strongly urges you to oppose sions. In striking down that statute, the Adams Lecturer at the John F. Kennedy H.R. 2028, ‘‘the Pledge Protection Act of Court reasoned: ‘‘To believe that patriotism School of Government at Harvard University 2004.’’ H.R. 2028 is an extreme measure that will not flourish if patriotic ceremonies are and former chair of the House of Representa- would remove jurisdiction from all federal voluntary and spontaneous instead of a com- tives Republican Policy Committee (R–OK), courts, including the Supreme Court, over pulsory routine is to make an unflattering and the Honorable Lloyd Cutler, a prominent any constitutional claim involving the estimate of the appeal of our institutions to Washington lawyer and White House counsel Pledge of Allegiance or its recitation. This free minds . . . If there is any fixed star in to Presidents Carter and Clinton. bill is expected to be on the House floor later our constitutional constellation, it is that In 2000, the Courts Initiative created a bi- this week. no official, high, or petty can prescribe what partisan Task Force to examine and identify H.R. 2028 was amended significantly in shall be orthodox in politics, nationalism, basic principles as to when the legislature Committee and is now the same as H.R. 3313, religion, or other matters of opinion.’’ 319 acts unconstitutionally in setting the powers the Marriage Protection Act, except it deals U.S. at 639–40. and jurisdiction of the courts. The Task with jurisdiction over all constitutional Just last month, a panel of the U.S. Court Force was unanimous in its conclusion that claims related to the pledge instead of the of Appeals for the Third Circuit held that a some legislative acts restricting the powers Defense of Marriage Act. Prior to mark-up, Pennsylvania law mandating recitation of and jurisdiction of the courts are unconstitu- H.R. 2028 limited the jurisdiction of lower the Pledge, even when it provided a religious tional. The Task Force also concluded that federal courts over First Amendment claims exception, violated the Constitution because some legislative actions, even if constitu- related to the Pledge, but left intact the Su- it violated the free speech rights of the stu- tional, are undesirable. (The Task Force’s preme Court’s jurisdiction. dents. Circle School v. Pappert, No. 03–3285 findings and recommendations are published H.R. 2028 would slam shut the federal court (3rd Cir. Aug. 19, 2004). In Pappert, the court in Uncertain Justice: Politics and America’s house doors to religious minorities, parents, found that: ‘‘It may be useful to note our be- Courts 2000.) schoolchildren and others who seek nothing lief that most citizens of the United States The work of our Task Force resulted in more than to have their religious and free willingly recite the Pledge of Allegiance and seven consensus recommendations, including speech claims heard before the courts most proudly sing the national anthem. But the the following, which are relevant to consid- uniquely suited to entertain such claims. rights embodied in the Constitution, particu- eration of the legislation at hand: Further, by entirely stripping all federal larly the First Amendment, protect the mi- 1. Congress and state legislatures should courts of jurisdiction over a particular class nority—those persons who march to their heed constitutional limits when considering of cases, H.R. 2028 raises serious legal con- own drummers. It is they who need the pro- proposals to restrict the powers and jurisdic- cerns, violating principles of separation of tection afforded by the Constitution and it is tion of the courts. powers, equal protection and due process. the responsibility of federal judges to ensure 2. Legislatures should refrain from re- The bill undermines public confidence in the that protection.’’ Pappert, Slip Op. at 14. stricting court jurisdiction in an effort to federal courts by expressing outright hos- First comes marriage then comes the control substantive judicial decisions in a tility toward them, threatens the legitimacy Pledge . . . Where will it end? Passage of manner that violates separation of powers,

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00017 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.034 H23PT1 H7462 CONGRESSIONAL RECORD — HOUSE September 23, 2004 due process, or other constitutional prin- decisions, even those made in good faith, trust that the courts will continue to do so. ciples. have become more rampant. Politicians are We ask you to reject H.R. 2028. 3. Legislatures should not attempt to con- responding to unpopular decisions and liti- Sincerely, trol substantive judicial decisions by enact- gants by attempting to restrict courts’ pow- J. BRENT WALKER, ing legislation that restricts court jurisdic- ers in certain kinds of cases. However, Amer- Executive Director. tion over particular types of cases. icans have much to lose if we do not exercise K. HOLLYN HOLLMAN, 4. Legislatures should refrain from re- self-restraint and instead choose short-term General Counsel. stricting access to the courts and should political gain at the expense of judicial inde- take necessary affirmative steps to ensure pendence. The independence of our judiciary BOB BARR, adequate access to the courts for all Ameri- is, as Chief Justice Rehnquist described, Atlanta, GA, July 19, 2004. cans. ‘‘one of the crown jewels of our system of Re Upcoming vote on the Marriage Protec- Specifically, our Task Force was unani- government.’’ tion Act, H.R. 3313. mous in its view that there are some con- In conclusion, while Article III of our Con- DEAR REPRESENTATIVE: I would like to stitutional limits on the authority of the stitution gives Congress the power to regu- take this opportunity to express my con- legislature to restrict court jurisdiction in late federal court jurisdiction, this power is cerns with the Marriage Protection Act, H.R. an effort to control substantive judicial deci- not unlimited, and Congress should not—and 3313, which I understand may be on the sions. In particular, separation of powers, in some instances may not—use its power to House floor as early as this week. While I un- due process, and other constitutional provi- restrict federal court jurisdiction in ways derstand and appreciate the reason that sup- sions limit such authority. Task Force mem- that infringe upon separation of powers, vio- porters of this bill are trying to pass this bers had differing views about the scope and late individual rights and equal protection, legislation, I respectfully disagree on the source of the constitutional limit on the leg- or offend federalism. H.R. 2028 is poised to do need for the bill and see the potential of a islature’s power in this area. (For instance, all three by stripping federal courts of the bad precedent for future legislation. For some believed that restrictions on jurisdic- authority to hear cases involving the Pledge these reasons, I urge that members vote tion become unconstitutional when they de- of Allegiance, including when such cases in- against H.R. 3313. stroy the essential role of the Supreme volve claims of free speech and religious H.R. 3313 would preclude federal courts, in- Court. Others relied on a reading of the Vest- freedom. Such jurisdiction-stripping threat- cluding the Supreme Court, from reviewing ing Clause of Article III, which places judi- ens the critical and unique role that the fed- the constitutionality of the cross-state rec- cial power—the power to decide cases—in the eral courts play in constitutional balance of ognition section of the Defense of Marriage hands of the courts alone.) Nonetheless, all powers, protecting individual rights, and in- Act (‘‘DOMA’’). If H.R. 3313 is enacted, each believed that constitutional limitations ex- terpreting constitutional law. of the 50 state supreme courts would be a ists. For the reasons stated above, as well as final authority on the constitionality of Apart from the constitutionality of laws those detailed our Task Force’s findings and DOMA, with no opportunity for either a restricting federal court jurisdiction, the recommendations, we at the Constitution state (as a defendant) or a plaintiff to appeal Task Force was also unanimous in its view Project urge you to oppose H.R. 2028. Thank a decision to the Supreme Court. that legislative acts stripping courts of juris- As the principal author and lead sponsor of you for your consideration. diction to hear particular types of cases in DOMA, I completely share the views of the Sincerely, an effort to control substantive judicial deci- supporters of H.R. 3313 who view DOMA as KATHRYN A. MONROE, sions are undesirable and inappropriate in a critical to our federalist system of govern- Director, Courts Initiative. democratic system with co-equal branches of ment, and as integral to the proper resolu- government. Legislative restriction of juris- tion of the difficult questions raised by any diction in response to particular substantive BAPTIST JOINT COMMITTEE, state extending marriage rights to same-sex decisions unduly politicizes the judicial Washington, DC, September 14, 2004. couples. DOMA is an important law that will process, and attempts by legislatures to con- DEAR REPRESENTATIVE: The Baptist Joint help each state in the nation retain its own trol substantive outcomes by curtailing judi- Committee (BJC) urges you to vote No on sovereignty over the fundamental state issue cial jurisdiction are inappropriate, even if H.R. 2028, the so-called ‘‘Pledge Protection of who is married under its laws. believed constitutional. (Indeed, it was strik- Act.’’ The BJC is a nearly 70-year-old organi- However, where I differ with the supporters ing that members of Citizens for Independent zation committed to the principle that reli- of H.R. 3313 is in my confidence that the Su- Courts reflecting a broad ideological range— gion must be freely exerecised, neither ad- preme Court will not invalidate DOMA. Dur- from, for example, Leonard Leo of the Fed- vanced nor inhibited by government. We op- ing the lengthy consideration of DOMA, the eralist Society to Steven Shapiro of the pose any legislation that seeks to strip the House of Representatives heard detailed tes- American Civil Liberties Union—agreed that federal courts of their fundamental role in timony on the constitionality of DOMA. A restrictions on jurisdiction to achieve sub- protecting individual liberties. parade of legal experts—including the Jus- stantive changes in the law are unwise and The existence of an independent judiciary, tice Department—determined that DOMA is undesirable policy.) free from political or public pressure, has fully constitutional. Although there were a The Task Force was also unanimous that been essential to our nation’s success in pro- few naysayers and wishful thinkers who legislation that restricts access to the courts tecting religious liberty for all Americans. opined that DOMA is unconstitutional, the and precludes individuals from using a judi- Indeed, the role of the federal courts has overwhelming weight of authority was clear cial forum to vindicate rights is undesirable long been recognized as essential in the bat- that DOMA is constitutional. Based on the and unconstitutional. Rights are meaning- tle for full religious liberty. As Justice Jack- exhaustive review of these opinions, Con- less without a forum in which they can be son stated in the case of West Virginia State gress overwhelmingly passed DOMA and it vindicated. Therefore, access to the courts at Board of Education v. Barnett: ‘‘The very was signed into law by President Clinton. both the federal and state levels is essential purpose of a Bill of Rights was to withdraw DOMA remains good law. It has never been in order for rights to have effect. Legisla- certain subjects from the vicissitudes of po- invalidated by any court anywhere in the tures have the duty to ensure meaningful ac- litical controversy, to place them beyond the country. It is a sound and valid exercise of cess to the courts and legislative actions reach of majorities and officials and to es- congressional authority, pursuant to the that preclude this are undesirable and un- tablish them as legal principles to be applied Full Faith and Credit Clause of the Constitu- constitutional. by the courts. One’s right to life, liberty, and tion. Our Task Force reached these conclusions property, to free speech, a free press, free- Some supporters of H.R. 3313 point to the and recommendations rightly. From its be- dom of worship and assembly, and other fun- Supreme Court’s opinion last year in Law- ginning, our system of constitutional democ- damental rights may not be submitted to rence v. Texas, in which the Court invali- racy has depended on the independence of vote; they depend on the outcome of no elec- dated a state sodomy law, as reason for con- the judiciary. Judges are able to protect citi- tions.’’ 319 U.S. 624, 639 (1943). cern that the Court could invalidate DOMA. zens’ basic rights and decide cases fairly only Moreover, the result of any particular case However, I believe the Supreme Court jus- if free to make decisions according to the does not undermine the important role of the tifiably would see a world of difference be- law, without regard to political or public judiciary. The misnamed ‘‘Pledge Protection tween a sodomy law that applied only to ho- pressure. Similarly, the judiciary can main- Act’’ represents a dangerous attack on our mosexual relations, and a federal law allow- tain the checks and balances essential to tradition of religious freedom, on the con- ing the enforcement of nearly uniform state preserving a healthy separation of powers stitutional separation of powers and indeed policies prohibiting cross-state recognition only if able to resist overreaching by the po- our system of government. It represents an of marriages of same-sex couples. Moreover, litical branches. Indeed, the cornerstone of unwarranted attempt to restrict the power when the Supreme Court correctly invali- American liberty is the power of the courts of the federal judicial system. dated a racially discriminatory marriage law to protect individual rights from momentary Whatever the motivation, there is insuffi- in Loving v. Virginia, it applied the highest excesses of political and popular majorities. cient basis to depart from a long-standing level judicial scrutiny to the state’s mar- In recent years, as part of the polarization congressional custom against using jurisdic- riage law. The Supreme Court always applies and posturing that increasingly characterize tion-stripping to control the federal courts. the highest level of scrutiny to race claims, our national and state politics, threats to ju- Federal judicial review has consistently sup- but minimal level to sexual orientation dicial independence have become more com- ported the proper separation of church and claims. Serious legal scholars do not see that monplace. Attacks on judges for unpopular state so vital to all Americans, and we must changing.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00018 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.036 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7463 Moreover, because H.R. 3313 does not strip tion related to the Defense of Marriage Act, the operation of federal programs by directly state courts of jurisdiction to hear chal- and if so I sincerely apologize. There are con- controlling the actions of federal officers.’’ lenges to the cross-state recognition section ceivably two other situations which could Martin H. Redish, Constitutional Limita- of DOMA, the result will be that each of the give rise to possibly serious constitutional tions on Congressional Power to Control 50 state supreme courts will be the final au- problems, and I write this letter in order to Federal Jurisdiction: A Reaction to Pro- thority on the constitutionality of a federal provide you with my views on those in- fessor Sager, 77 Nw. U. L. Rev. 143, 158–159 law. The chaotic result could be 50 different stances. (1982). Thus, under my reading of this line of interpretations reached by state supreme First, it is quite clear that Congress lacks cases, if Congress so desired it could revoke courts, with no possibility of the U.S. Su- constitutional authority to vest the federal the limits on state court power imposed by preme Court reversing any incorrect inter- courts with jurisdiction to apply or enforce the Tarble line of cases, simply by explicitly pretation of the federal DOMA. The potential the Defense of Marriage Act while simulta- vesting in the state courts the power to con- for mischief by these courts is obvious. Iron- neously restricting those courts’ jurisdiction trol federal officers through the issuance of ically, I fear an increased likelihood of an either to interpret or to review the constitu- the writs previously mentioned. Absent such adverse decision on DOMA’s constitu- tionality of that legislation. As famed juris- explicit congressional directive, however, tionality if H.R. 3313 becomes law. diction scholar Henry Hart wrote many the rule of Tarble, closing the state courts However, the principal problem with H.R. years ago, ‘‘the difficulty involved in assert- for this limited purpose, would remain in- 3313 is not just that it is protecting a wholly ing any judicial control in the face of a total tact. constitutional law that needs no additional denial of jurisdiction doesn’t exist if Con- The issue becomes more complicated protection, but that it sets a harmful prece- gress gives jurisdiction but puts strings on where, as here, Congress considers excluding all federal court power to review the con- dent for the future. Our healthy democracy it. . . . [I]f Congress directs an Article III stitutionality of federal officer behavior. depends on having three separate and inde- court to decide a case, I can easily read into There are respected scholars—particularly pendent branches of government. I have long Article III a limitation on the power of Con- Professor Paul Bator and other revisers of been concerned about a runaway judiciary, gress to tell the court how to decide it.’’ the Hart and Wechsler text—who believe but I am also concerned about having a Con- Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exer- that were Congress to automatically exclude gress or President unchecked by the inde- all federal court jurisdiction to enforce con- pendent judiciary established by the Con- cise in Dialectic, 66 Harv. L. Rev. 1362, 1372– 1373 (1953) (emphasis in original). For a de- stitutional rights and interests, the state stitution. court bar imposed by the Tarble line of cases H.R. 3313 will needlessly set a dangerous tailed discussion of my views on this issue, see Martin H. Redish, Federal Jurisdiction: would automatically be revoked. However, I precedent for future Congresses that might do not agree. I believe that unless Congress want to protect unconstitutional legislation Tensions in the Allocation of Judicial Power 47–52 (2d ed. 1990). simultaneously and expressly revokes the from judicial review. During my time in Con- limit on state court authority to issue di- gress, I saw many bills introduced that Second, to the extent even the total exclu- sion of federal court jurisdiction were im- rectly controlling writs to federal officers, would violate the Takings Clause, the Sec- its exclusion of federal court power to issue ond Amendment, the Tenth Amendment, and posed, there may be a constitutional problem if, in order to enforce and protect underlying such writs inexorably leads to a violation of many other constitutional protections. My due process. For in such a situation, neither main concern with H.R. 3313 is that it will constitutional rights, a reviewing court would have to directly control the actions of the state courts nor federal courts would be lay the path for the sponsors of such uncon- available to protect constitutional rights, stitutional legislation to simply add the lan- a federal officer through the writs of habeas corpus, mandamus or injunction. For while and the due process right to an independent guage from H.R. 3313 to their bills. The fun- it has long been understood that state courts judicial forum for enforcement of constitu- damental protections afforded by the Con- provide an adequate forum to protect and en- tional rights would therefore have been vio- stitution would be rendered meaningless if force federal rights, it is also well estab- lated. others follow the path set by H.R. 3313. lished—in a line of cases beginning in 1821— It is true, of course, that normally a re- For these reasons, I urge you to vote viewing court will assume that Congress did that state courts lack authority directly to against this well-intentioned, but unneces- not intend to violate constitutional rights. control the actions of federal officers. See sary legislation. The Congress should keep in Therefore one might reason that the closing McClung v. Silliman, 19 U.S. (6 Wheat.) 598 place the separation of powers outlined in off of the federal courts should automati- (1821) (mandamus); Tarble’s Case, 80 U.S. (13 the Constitution, rather than act hastily in cally be taken as an opening of the state Wall.) 397 (1871) (habeas corpus). While there fear of an outcome on DOMA that is unlikely courts. However, I believe that before Con- exists no definitive Supreme Court decision in the first instance. gress closes off all federal court authority to denying state courts power to issue injunc- Thank you for your attention to this issue, review the constitutionality of a statute and tions to federal officers, there does exist a and with warm regards, I remain. to control federal office actions in order to strong line of cases in the lower federal Very truly yours, protect particular constitutional rights, it BOB BARR, courts to this effect. See, e.g., Kennedy v. must be aware of certain facts. First, Con- Member of Congress, 1995–2003. Bruce, 298 F.2d 860 (1962). Moreover, the logic gress must recognize that some adequate and which led the Supreme Court to deny state independent judicial forum must be available JULY 13, 2004. courts the power to issue mandamus or ha- to control federal officers in order to protect Hon. JERROLD NADLER, beas relief to federal officers logically ap- constitutional rights. Second, it must be House of Representatives, plies with the same force to writs of injunc- aware that once it has closed all federal Washington, DC. tion. Thus, if a federal right may only be en- courts for this purpose, the only courts that DEAR CONGRESSMAN NADLER: I am happy to forced through issuance of a directly control- will be available to control federal officer ac- respond to your inquiry of July 9, asking for ling order to a federal officer, exclusion of tion through issuance of appropriate writs elaboration of my testimony before the Sub- all federal court jurisdiction could arguably will be the state courts—without any oppor- committee on the Constitution of the Judici- give rise to a serious constitutional problem, tunity for policing or unifying review in any ary Committee of the House of Representa- because the state courts would be simulta- federal court, including the Supreme Court. tives, concerning the constitutionality of neously closed to the issuance of such relief. If Congress wishes to create such an unstable congressional power to control federal court While there does exist some language in situation, I believe it has power to do so jurisdiction on the interpretation and review Supreme Court doctrine (particularly in (though once again I should note that cer- of the Defense of Marriage Act. Tarble’s Case) suggesting that state courts tain language in Tarble suggests that the I cannot emphasize strongly enough that inherently lack such power as a constitu- limit imposed on state court power derives while I believe that Congress’s power to reg- tional matter, it is difficult to believe this from the Constitution, rather than congres- ulate federal court jurisdiction is broad, the conclusion would be adhered to today. In sional will; if such reasoning were to be Constitution places clear limits on that light of the Madisonian Compromise’s inher- adopted today, then the issue would be taken power which must be observed. As I believe I ent assumption that if Congress declined to from Congress’s hands and the closing of the made clear in both my written and oral tes- exercise its discretion under Article III, sec- federal courts to the issuance of such di- timony, nothing in Article III provides Con- tion 1 to create lower federal courts state rectly controlling writs would necessarily gress with the power to exclude from all courts could perform the exact same func- violate due process). Absent express revoca- independent judicial review the constitu- tions, it is highly unlikely that the framers tion of the limits imposed on state court ju- tionality of any governmental action, state intended to impose such an absolute con- risdiction imposed by the Tarble line of or federal. However, as long as the state stitutional bar to state court power to di- cases, I believe, Congress will not have courts remain open and available for this rectly control the actions of federal officers. evinced the requisite consideration of these purpose, due process would not be violated In my scholarship, therefore, I have argued important issues. In this sense, the rule of by congressional exclusion of the jurisdic- that the reasoning of Tarble’s Case can be re- interpretation that I have advocated in simi- tion of either the lower federal courts or the worked ‘‘into simply an inference of congres- lar to the ‘‘clear statement’’ rule presently Supreme Court. sional intent to exclude state court power in invoked by the Supreme Court for congres- I see from your inquiry, however, that I the face of congressional silence . . . be- sional revocation of state sovereign immu- may have failed to anticipate in my testi- cause, were Congress actually to consider nity. mony several other potential permutations the question, it likely would not want state I must emphasize the uncertainty that sur- and combinations of jurisdictional restric- courts . . . to have the authority to impair rounds the Tarble line of cases. First, it is

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00019 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.038 H23PT1 H7464 CONGRESSIONAL RECORD — HOUSE September 23, 2004 unclear whether the Supreme Court there in- alienable rights, and among these is a bill that said we are going to clear tended to erect a constitutional barrier to life, liberty and the pursuit of happi- the undergrowth from the forest of the state court issuance of directly controlling ness. And it goes on to say the job of Black Hills. That, of course, is against writs to federal officers, and if so whether it would still be adhered to today. Second, as- government is to protect those rights. environmental law, but the problem is suming the barrier is not deemed to be of The three-part formula is that there is that all that undergrowth was fueling constitutional status, it is unclear whether a God; God grants all people every- forest fires. This particular gentleman congressional exclusion of federal judicial where certain basic fundamental made the comment and put it into law, power to issue such writs would be taken rights; and it is the job of government regardless of what any Federal court automatically to revoke the Tarble restric- to protect those rights. says, we are going to clear the under- tion on state court power over federal offi- Now, if we allow activist judges to growth. Another use of the limitation cers. There simply is no case law on that start creating law and say it is wrong of the appellate jurisdiction of the issue. Moreover, as already mentioned, my to somehow allow school children to view that express congressional revocation courts. There are numerous cases to of the Tarble barrier is required to render say ‘‘under God’’ in the Pledge, we that regard. Certainly, these charges the congressional exclusion of federal court have emasculated the very heart of are completely and factually inac- power to issue the directly controlling writs what America has always been about. curate. of mandamus, habeas corpus and injunction This is quite simply a matter of Mr. NADLER. Mr. Chairman, I yield constitutional has been challenged by other judges turning the first amendment up- 2 minutes to the gentleman from Mary- respected scholars. Nevertheless, the only side down. The first amendment was land (Mr. HOYER), the Democratic whip way that Congress could be certain, at this supposed to be about free speech, reli- of the House. point, that its exclusion of all federal court gious or political free speech, and now Mr. HOYER. Mr. Chairman, 2 min- power directly to control federal officer be- these judges are censoring our very havior when constitutional rights are at utes is obviously not sufficient time to stake would satisfy due process is at the Pledge of Allegiance and telling school respond to simplistic arguments. The same time to expressly authorize state kids they cannot say the Pledge. If we previous speaker said he has heard sim- courts to issue these writs to federal officers. allow activist judges to go there, what ple legal arguments. He talked about Absent such an express congressional au- is next? why people came to America. thorization, the constitutionality of the re- Behind me, set in brass above the I chaired the Commission on Secu- striction on federal court review power Speaker’s desk, ‘‘In God we trust.’’ Is rity and Cooperation in Europe, the would at the very least be in doubt, and, in this a sense of the co-equal power of Helsinki Commission, and I went to nu- my opinion, unconstitutional. the branches of government that the I apologize for so complex an answer to merous countries in which the judici- court can next step in here and take your question, but I am afraid I see no means ary was not independent, where it was ‘‘In God we trust’’ off that? Are they of explaining the potential pitfalls facing dictated to by the legislature and the going to tell us we cannot have chap- Congress in any simpler manner. In any executive departments if the judiciary event, I hope you find this response helpful. lains? Are they going to go to the Jef- did not do what the legislature and the If I can be of assistance in any other way, ferson Monument that has in stone executive wanted them to do. That is please do not hesitate to contact me. that God that gave us life, gave us lib- the perverseness of this legislation. Sincerely yours, erties, and can the liberties of the peo- ARTIN EDISH That is the demagoguery of this legis- M H. R , ple be secure if we remove the convic- Northwestern University School of Law. lation. This is the simplistic approach tion that those liberties are the gift of that this legislation takes. b 1215 God? Is that going to be plastered over? Mr. SENSENBRENNER. Mr. Chair- Are we going to get rid of the Gettys- Let me say, I believe that ‘‘under man, I yield 5 minutes to the gen- burg Address? How far will we let them God’’ in the Pledge of Allegiance is ab- solutely appropriately there. It is con- tleman from Missouri (Mr. AKIN), the go? author of the bill. Yet my colleagues have been arguing stitutional, and it ought to be there. Mr. AKIN. Mr. Chairman, we have that anything the court says; it is un- And frankly, if the Supreme Court heard a lot of legalese this morning, constitutional to challenge the Su- ruled it was unconstitutional, I would and perhaps trying to make a subject preme Court. In my State of Missouri, vote for a constitutional amendment to that is not very complicated a lot more the Dred Scott decision was brought, ensure its presence. complicated. The simple question is and the Supreme Court said black peo- The gentleman is correct; Thomas whether or not school kids are going to ple are not actually people. That was a Jefferson intoned those compelling be able to say the Pledge of Allegiance dumb decision, and we need to be able words that we get our rights not from the way we have done it for the last 50 to tell the Supreme Court or any other the legislature, not from the executive, years. court that makes ridiculous decisions not even from the majority. Those Some may say that is not that im- they are wrong. Yet we are hearing it basic rights are within us as children of portant an issue, but I would ask this is off base to try to check their author- God. That is the difference between question: If Members were asked, and ity. It is the job of the other two this country. That is what Marbury v. perhaps it would be one of these big old branches of government to draw up Madison meant. It meant a legislature, TV cameras, and somebody came up short the judiciary when they exceed irrespective of its animus, irrespective and said, you have lived in America all their constitutional authority. And of the prejudice that it wanted to in- these years, how would you, in the sim- legislating from the bench and using clude, not in this instance but in other plest form, describe what is the glue the first amendment as a tool of cen- instances, could be overseen by the that holds us all together as Ameri- sorship certainly qualifies that we courts of this United States. cans? What is the heart of America? If, should weigh in. The gentleman mentioned the Dred like an onion, we peeled off the layers Mr. Chairman, I would close by say- Scott decision. It was not the legisla- and got to the very center, what is it ing that I have heard a number of as- ture that overturned that decision or that makes America such a unique and sertions that there is absolutely no the majority of Americans that over- special place? What is it that made precedent to use article III section 2. turned that decision; it was the Su- people from all different nationalities And yet, if Members were to simply preme Court of the United States ulti- come here and call themselves Ameri- check with the congressional research mately that said that is wrong. The cans? What is it that makes illegal im- people, as our office has done, they gentleman is absolutely correct; the migrants try to come here? What is it would tell Members they cannot print Supreme Court said separate is not that makes America special? them all out there are so many exam- equal. But had they been precluded I think the answer can be found in ples. In the 107th Congress, most of us from having the jurisdiction over that our birthday document, our Declara- voted for the PATRIOT Act. The PA- case, we would still have segregated tion of Independence. It sets out essen- TRIOT Act has article III section 2 lan- schools. We would still have separate tially a three-part formula. It says we guage in it, and we have it used in all but equal, but it was the courts that hold these truths to be self-evident, kinds and numbers of ways. stepped in and made sure that the that all men are created equal and en- A certain prominent Senator from dream of America was the reality of dowed by their creator with certain in- South Dakota made an amendment to America.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00020 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.076 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7465 Defeat this legislation. There is no (Mr. GREEN of Texas asked and was cause they got the decision they want- case pending. It has been dismissed by given permission to revise and extend ed in 2000. the Supreme Court. his remarks.) This is a bill that destroys the Con- No court in this Nation has pre- Mr. GREEN of Texas. Mr. Chairman, stitution as we know it. Article III of cluded. Every child in America now I include my statement for the RECORD the U.S. Constitution vests the judicial stands and proudly stands, as we do in supporting the Watt amendment, and power of the United States in one Su- this chamber, and pledges allegiance to also supporting the original Protect preme Court. How can we eliminate the our flag and to this Nation under God, the Pledge Act. appellate jurisdiction of the Article III indivisible with liberty and justice for Mr. Chairman, I rise today in support of the courts and the Supreme Court that all. But we have found through the cen- Watt amendment to H.R. 2028, the Protect the leaves all of America a lack of oppor- turies that justice, justice, justice is Pledge Act. This amendment is plain and sim- tunity to address their grievances no protected by our independent judiciary. ple; it would restore H.R. 2028 to its original matter who they are? Let us keep it that way for all Ameri- language. I pledge allegiance to the flag. I re- cans. Defeat this legislation. I strongly support the Pledge of Allegiance. spect the language ‘‘under God,’’ but it Mr. SENSENBRENNER. Mr. Chair- In fact, in the last Congress I introduced H.J. is the right of the American people to man, I yield 2 minutes to the gen- Res. 103, an amendment to the Constitution at least go into the courts to address tleman from New Jersey (Mr. GAR- that would affirm that the Pledge of Allegiance their grievances. RETT). in no way violates the First Amendment. Un- And what about religion? If one has a Mr. GARRETT of New Jersey. Mr. fortunately, Congress did not pass the resolu- religion that gives them the instruc- Chairman, I rise today in proud sup- tion before it adjourned for the 107th Con- tion to not recite that kind of lan- port of H.R. 2028, the Pledge Protection gress. As an original cosponsor of H.R. 2028, guage, that individual has the right, as Act, introduced by the gentleman from I had hoped that it would protect the Pledge an expression of their right of religious Missouri (Mr. AKIN). We are here today of Allegiance from unnecessary court battles freedom, to do so or to seek redress of because, once again, activist judges without infringing on the rights of the people. grievances in the courts. Again, this is have taken it upon themselves to dic- However, with H.R. 2028 in its current form political opportunity, but I would join tate law in this country, believing they Congress has lost its balance between our my colleagues in eliminating the know better than all Americans, they constitutional rights and the law. rights of the Federal courts and the know better than the State legisla- The Pledge of Allegiance is an important Supreme Court to decide any election tures or the Federal legislature, and symbol of the privileges and rights that our case so we will not have the biased de- they know better than the Founding founding fathers fought so desperately to pre- cision that was rendered in the Bush v. Fathers themselves, they think. serve. Although the major controversy sur- The Pledge Protection Act defends Gore decision of 2000. If they join me on rounding the pledge rests on the words ‘‘under the constitutionality of reciting the that, maybe we will have a sense of God,’’ H.R. 2028 blatantly ignores the words Pledge of Allegiance by simply re- fairness. Today, we do not. stricting the jurisdictions of some ‘‘with liberty and justice for all.’’ I stand with the Constitution which Every citizen has the right to due process lower Federal courts. This body here is says we have a right to be able to ad- under the law. By stripping the Supreme Court more than within our bounds to limit dress our grievances in the courts of of jurisdiction to hear cases pertaining to the the role of Federal court jurisdiction. the United States of America. We have The power of Congress is granted in Pledge, we take away the basic right for ev- the right to freedom of religion. We article III of the Constitution. The eryone to have their case heard before the should vote down this bill as one that clause states, ‘‘The judicial power of highest court in the land. Article III of the Con- puts a stain on the Constitution of the the United States shall be vested in stitution states that Congress has the power to United States of America. Remember— one Supreme Court and in such inferior define the jurisdiction of the Federal district our history—that of minorities in this courts as the Congress may from time and appellate courts, but we do not have the country—was only made better many to time ordain and establish.’’ power to decide which cases the Supreme times by the decisions of the Federal Accordingly, the Constitution pro- Court can and cannot hear. courts. vides that the lower courts are entirely The Watt amendment restores the Protect Mr. SENSENBRENNER. Mr. Chair- creatures of Congress, as is the juris- the Pledge Act to its original language. I urge man, I yield myself 30 seconds. diction of the Supreme Court. my colleagues to support this amendment and Mr. Chairman, I beg to disagree with Just as this Congress is checked protect our constitutional rights. the gentlewoman from Texas (Ms. every so often by the power of the Mr. NADLER. Mr. Chairman, I yield JACKSON-LEE). It was not the Supreme Presidential veto, and we are checked 2 minutes to the gentlewoman from Court that gave her and her ancestors every 2 years by re-elections, we in Texas (Ms. JACKSON-LEE). their freedom; it was the 600,000 people turn have the ability to check or rein (Ms. JACKSON-LEE of Texas asked who died during the Civil War that did in abusive and out-of-line courts. and was given permission to revise and that and allowed the Congress to pass The Pledge closely reflects the no- extend her remarks.) three constitutional amendments blest intentions of our Founding Fa- Ms. JACKSON-LEE of Texas. Mr. which guaranteed freedom for former thers and the inspiration that has led Chairman, obviously, I stand here slaves and their descendants. to the creation of this great Nation, today formerly a second-class citizen Mr. Chairman, I yield 2 minutes to and that is why I can confidently say in America, and if it had not been for the gentleman from Florida (Mr. that nothing in the reciting of the the courts of the United States of STEARNS). Pledge discriminates against any reli- America, article III courts and the (Mr. STEARNS asked and was given gious minorities or abuses any rights. United States Supreme Court, I would permission to revise and extend his re- The phrase ‘‘under God’’ simply ac- still be in a place with nowhere to be marks.) knowledges that our Founding Fathers, able to seek redress of my grievances. b 1230 who were leaders in the fight for our Let me make it clear that I voted to independence and the authors of our retain the language ‘‘under God’’ in the Mr. STEARNS. Mr. Chairman, I Nation’s framework, did so with the in- Pledge of Allegiance, and I did so be- would say to the 30-second speech by spiration and their belief in a divine cause I believe it is protected by the the chairman of the Committee on the being. first amendment. That amendment al- Judiciary, Amen to what he just said. We all know this House starts each lows us to exercise our freedom of reli- Let me give a hypothetical example morning with the Pledge as we begin gion, but this is at best political chica- to the people on this side of the aisle our business, and I believe that right nery. This is a joke, and the reason is, who are predominately against this should not be taken away from the I would ask my colleagues on the other amendment. Let us say that it turned children of this country as well. side of the aisle why they did not put out that the Supreme Court wanted to Mr. NADLER. Mr. Chairman, I yield this kind of legislation to eliminate take the words ‘‘In God We Trust’’ off for the purpose of a making a unani- the right of the Federal courts and the the marble slab that stands on top of mous consent request to the gentleman Supreme Court to engage in the over- the flag in the Speaker’s rostrum. At from Texas (Mr. GREEN). sight of election laws? The reason, be- what point would you as a Member of

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00021 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.025 H23PT1 H7466 CONGRESSIONAL RECORD — HOUSE September 23, 2004 Congress get up and say enough is Under Article III, Section 2 of the Constitu- me and others coming in here and talk- enough for the Supreme Court to do tion, we have the right—some would say the ing about stripping them of their abil- this? I mean, at what point does your duty—to limit the jurisdiction of the federal ity to make constitutional decisions. side have to be so upset to get involved courts. The court-stripping proposed in this to really exercise what the Constitu- It is not like it hasn’t been done before. bill would destroy the Supreme Court’s tion allows? In the 1868 landmark case of Ex parte historical function as the interpreter It has been repeated many times McCardle, the U.S. Supreme Court agreed and ultimate arbiter of what the Con- under article III, section 2 of the Con- that Congress had the constitutional right to stitution requires. This misguided leg- stitution, we in this body have the remove jurisdiction from the court in a pending islation to strip the Supreme Court of right, and some would say we have the case. its appellate jurisdiction also would duty, to limit the jurisdiction of Fed- More recently, Senate Minority Leader TOM have seriously damaging implications eral courts. I certainly would hope if DASCHLE inserted a provision in legislation to for the relationships among our three they tried to strip ‘‘In God We Trust’’ prohibit the courts from hearing cases about branches of government. This bill and off the Speaker’s rostrum that they on brush clearing in South Dakota. other court-stripping bills proposed by that side of the aisle would stand up And in July, we passed the ‘‘Marriage Pro- the Republicans would be laughable if and say enough is enough and agree tection Act,’’ removing the federal court’s juris- the results of enacting this bill were that we would allow Congress to exer- diction from questions arising under the De- not so tragic and not so threatening to cise its prerogative under article III, fense of Marriage Act. the constitutional rights of our people section 2 of the Constitution. Frankly, isn’t marriage and the Pledge more and the independence of the Federal ju- Also, I brought this up before, all of important than forests? diciary. those on this side of the aisle know I am honored to support this bill and to pro- If H.R. 2028 were passed into law, it that TOM DASCHLE, the minority lead- tect the Pledge of Allegiance from further judi- would constitute the first and only er, inserted a provision in legislation cial interference. time Congress has enacted legislation to prohibit the courts from hearing Mr. Chairman, for years the Federal Courts totally eliminating any Federal court cases about brush clearings in South have been taking jurisdiction away from Con- from considering the constitutionality Dakota. gress. It is only proper that we exercise our of Federal legislation, in this case the Pledge of Allegiance. POINT OF ORDER constitutional right to limit their jurisdiction. Mr. NADLER. Mr. Chairman, I yield Mr. SENSENBRENNER. Mr. Chair- Ms. PELOSI. Mr. Chairman, I make a myself such time as I may consume. man, I reserve the balance of my time. point of order. The reference to Senator DASCHLE Mr. NADLER. Mr. Chairman, I yield Mr. Chairman, the gentleman was was not true. We rebutted it in the de- 1 minute to the distinguished gen- referencing activities as far as the bate last time. I will reference some- tleman from Washington (Mr. INSLEE). other body is concerned, naming a Sen- thing for the RECORD so we do not (Mr. INSLEE asked and was given ator by name. Is that not out of order waste time on this untruth anymore permission to revise and extend his re- by this body? now. marks.) Mr. SENSENBRENNER. Mr. Chair- Mr. INSLEE. Mr. Chairman, yes, we Brush Clearing Rider: Most notably, the man, on the point of order, the gen- are one Nation under God, and we are tleman from Florida was referencing a Majority claims that a rider to the 2002 Sup- plemental Appropriations Act authored by one Nation under the Constitution, provision in a conference report that the senior senator from South Dakota ap- until today. was adopted by this body as well as by proving logging and clearance measures by I voted some time ago to keep the the other body and became law. the Forest Service in the Black Hills of words ‘‘under God’’ in the Pledge, and I The CHAIRMAN pro tempore. All South Dakota serves as a precedent for the will vote today to keep the Supreme Members should refrain from improper enactment of these types of court-stripping Court in its constitutional business of references to Members of the other measures. enforcing the Bill of Rights. The Re- body. The problem with this argument is that, publican Party today intends to treat Mr. STEARNS. Mr. Chairman, I did while the rider restricted ‘‘judicial review’’ of ‘‘any [logging or clearance] action’’ by the the Bill of Rights the way the Soviet mention in my speech about a provi- Forest Service, it did not restrict federal ju- Union operated during their long tyr- sion in legislation that was inserted; so dicial review of the rider itself or its con- anny. Because in the Soviet Union, one I thought that was important. stitutionality. Indeed, the federal courts did could go next to Lenin’s grave and see In July we passed the Marriage Pro- review the validity of the rider, and explic- their beautiful bill of rights nicely illu- tection Act, removing the Federal itly found that the ‘‘challenged legislation’s minated, looked fine. But the Soviet courts’ jurisdiction from questions jurisdictional bar did not apply to preclude Union lacked one thing: they stripped arising under the Defense of Marriage Court of Appeals’ review as to the legisla- their courts of the ability to enforce Act. Frankly, is marriage not more im- tion’s validity’’ their own bill of rights. And today the portant than the forests that I men- Mr Chairman, I yield 2 minutes to Republican Party intends to do the tioned previously that was inserted in the distinguished gentlewoman from same thing in America. legislation? California (Ms. WATERS). In America we should not abandon So I am honored to support this bill Ms. WATERS. Mr. Chairman, if any- what we learned as kids in school, that and to protect the Pledge of Allegiance one had told me that coming to the checks and balances are necessary to from further judicial interference. Congress of the United States of Amer- our fundamental liberties. And some- I will include my entire statement in ica, representing my district, I would times the Supreme Court gets it wrong, the RECORD. have to be on the floor of Congress de- but heaven help the day that one trusts Mr. Chairman, for decades, activist judges fending the constitutional rights of the liberty to Congress, where the day that have been free to impose their own beliefs on Supreme Court to make constitutional Congress is in session, their life and the American people with impunity. rulings, I would have told them they liberty is in danger. We have got to de- We have had to endure egregious decisions are crazy. This is absolutely out- pend on the U.S. Supreme Court. about abortion, obscenity, school prayer and rageous. The gentleman just asked Mr. NADLER. Mr. Chairman, I yield homosexual ‘‘marriage,’’ to name but a few when do we get so angry that we agree 1 minute to the gentlewoman from issues. to strip the Court of its constitutional California (Ms. PELOSI), Democratic On each of these issues, the vast majority responsibility. leader. of the American people took the exact oppo- Mr. Chairman, I have disagreed with Ms. PELOSI. Mr. Chairman, with our site position as the federal court. any number of decisions of the Su- troops in harm’s way and a deterio- This was especially true when the 9th Cir- preme Court. I disagree with the fact rating situation in Iraq and with our cuit Court of Appeals declared that the words that the Dred Scott decision said sepa- country facing the clear and present ‘‘under God’’ in the Pledge of Allegiance are rate was all right, separate but equal. danger of terrorism, there are grave unconstitutional. And in the last 2002 election, I dis- and great issues that Congress must But I am glad to note that Congress has re- agreed with the fact that the Supreme address. cently been exercising its constitutional pre- Court gave the Presidency to George But what are we doing here today? rogative to limit the federal courts. W. Bush. But my colleagues did not see Are we debating the 9/11 Commission

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00022 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.028 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7467 recommendations to secure our Na- than that commitment on both sides of the American people from the Repub- tion? Are we providing health insur- the aisle. licans’ record of failure. ance to millions of Americans who This bill not only does not protect Mr. Chairman, let us honor the have lost their insurance under this the Pledge; it violates the spirit of the pledge by keeping faith with its spirit. President, providing jobs to the mil- Pledge by professing a lack of faith in Let us pledge to be one Nation under lions of unemployed Americans and the constitutional framework. It has God, indivisible, with liberty and jus- fully funding our schools? been a settled principle since Chief tice for all. No, Mr. Chairman. Instead, we are Justice John Marshall’s opinion in 1803 This bill has been brought to the gathering here to once again debate in Marbury v. Madison that ‘‘it is em- floor to embarrass some Members, so I undermining the Constitution of the phatically the province and the duty of respect whatever decisions they have United States and dishonoring the oath the judicial department to say what to make in light of the motivation be- of office that we take to protect and the law is.’’ The Federalist Papers, sub- hind it. I just want the record to show defend the Constitution. sequent decisions of the Court, and the why I so strongly oppose this legisla- The bill before us claims to protect judicial branch’s role as a co-equal tion. the Pledge of Allegiance. But protect branch all strongly suggest that Con- Mr. NADLER. Mr. Chairman, I yield the Pledge from what? Our Supreme gress cannot prohibit courts from de- myself the balance of my time. Court has not undermined the con- termining constitutional questions. Mr. Chairman, 1,800 years ago, Chris- stitutionality of the Pledge. There is no question that this bill tians were persecuted because they With the reversal of the Newdow does not pass constitutional muster. would not worship the Roman emperor case, there is only one major appeals But that does not deter the bill’s pro- as a god; 450 years ago St. Thomas court decision that has addressed the ponents. The gentleman from Indiana, Moore lost his head because he would constitutionality of the Pledge; and the author of the last court-stripping not swear an oath that king and par- that court, the seventh circuit, has bill and a key advocate for this bill, liament commanded that violated his upheld the Pledge. has even outdone his statement 2 Catholic belief. This is a piece of legislation in search months ago that 200 years of precedent But the United States is different. of a solution for a problem that does in Marbury v. Madison establishing ju- Our Constitution prohibits test oaths. not exist. dicial review was ‘‘wrongly decided.’’ Our Constitution protects the rights of Millions of Americans daily and The gentleman from Indiana (Mr. Jehovah’s Witnesses’ children to refuse proudly pledge ‘‘one Nation under God, HOSTETTLER) amazingly asserted in the to recite a pledge that we hold dear but indivisible, with liberty and justice for markup of the bill last week that ‘‘the that violates the tenets of their faith. all.’’ Let me be clear. I defer to no one notion of an independent judiciary is a Or at least the United States was dif- in my defense of the voluntary recita- flawed notion . . . the notion of an ferent. This bill would leave to the tion of the Pledge. I strongly believe independent judiciary does not bear States, as the gentleman from Wis- that the phrase ‘‘under God’’ and the out actually in the Constitution.’’ consin (Mr. SENSENBRENNER) says, the Pledge itself is an uplifting expression The notion of an independent judici- decision whether that religious liberty of support for the United States. I love ary is not contained in our Constitu- would be protected or not. the Pledge. tion? This is a principle that we as a The issue, Mr. Chairman, in this bill The distinguished chairman of the power of example of our country try to is not the Pledge of Allegiance. The Committee on the Judiciary referenced convey to emerging democracies that issue in this bill is whether we strip the Civil War in response to a state- central to democracy is an independent the courts of the power to protect our ment made by the gentlewoman from judiciary. And advocates for this legis- liberties against perhaps transient ma- Texas (Ms. JACKSON-LEE) and said it lation say that that is not contained in jorities and legislative bodies. The was not the Supreme Court that in- our Constitution. issue is whether we eliminate the only creased freedom in our country for all Is this what the leadership of this final protection of our liberties, of our Americans; it was the Civil War and House and the chairman of the Com- religious and other liberties, that we the amendments that followed it. That mittee on the Judiciary really believe? have evolved. If we pass this bill and go certainly was an important part of it. I suggest that they read James Madi- in this direction, the United States will But absent the Brown v. The Board of son and Alexander Hamilton’s writings be a very different and a much, much Education decision, we would not be in the Federalist Papers. This radical less free country. enjoying the freedoms we have for all concept is completely counter to our I urge the defeat of this bill. Americans today. history and our values. Mr. Chairman, I yield back the bal- But since the gentleman referenced Two months ago, some assured us ance of my time. the Civil War, I want to call to our col- that the court-stripping efforts would Mr. SENSENBRENNER. Mr. Chair- leagues’ attention a quote that is fa- stop once they got their wanted De- man, I yield myself the balance of my miliar to all of them. It is from Lin- fense of Marriage Act. But as the gen- time. coln’s second inaugural address: ‘‘With tleman from Michigan (Mr. DINGELL), The CHAIRMAN pro tempore (Mr. malice toward none, with charity for distinguished dean of the House, so elo- LATHAM). The gentleman is recognized all, with firmness in the right as God quently warned us in July, ‘‘We should for 3 minutes. gives us to see the right, let us strive expect to see this dangerous approach Mr. SENSENBRENNER. Mr. Chair- to finish the work we are in, to bind up repeated on a wide range of other legis- man, on September 17, 1937, President our Nation’s wounds.’’ President Lin- lation.’’ Franklin D. Roosevelt gave a Constitu- coln called upon God. tion day address, and in that speech Another of my favorite inaugural ad- b 1245 President Roosevelt said in part, ‘‘Lay dresses is that of President Kennedy Today his prediction has come true, rank and file can take cheer from the and his inaugural address. He said: and there is no pretense that this will historic fact that every effort to con- ‘‘With good conscience our only re- end. What is next? Voting rights? Laws strue the Constitution as a lawyer’s ward, with history the final judge of that prohibit racial discrimination? contract rather than a layman’s char- our deeds, let us go forth to lead the Civil liberties? Our rights to privacy? ter has ultimately failed. Whenever le- land we love, asking His blessing and As we consider this bill, we must re- galistic interpretation has clashed with His help and knowing that here on member our history and protect our contemporary sense on great questions Earth God’s work must truly be our Constitution to ensure our liberty. We of broad national policy, ultimately own.’’ must protect the ability of the Federal the people and the Congress have had So evoking God’s will and calling judiciary to safeguard our freedoms their way.’’ upon Him to guide us in our work is and ensure access to the courts by all. This was a statement that was made something that is very important to all This bill is an assault on our cher- by what is conceded on both sides of Members of Congress on both sides of ished Constitution and the independent the aisle as the greatest Democratic the aisle. I resent the comments made judiciary for its part for partisan pur- President in the history of this coun- by some that there is anything less poses, and it is an attempt to distract try.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00023 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.031 H23PT1 H7468 CONGRESSIONAL RECORD — HOUSE September 23, 2004 In the last Congress, both the House rageous assault on our fundamental constitu- If the right wing had been in control of the and the Senate passed and the Presi- tional framework. Personally, I do not think in- Republican Party in the 1960s, we wouldn’t dent signed public law 107–206. Section dividual liberties are threatened by the words have desegregation or Miranda warnings, as 706(j) of that law says, ‘‘Any action au- ‘‘under God’’ in the Pledge of Allegiance. Re- there were court-stripping proposals on those thorized by this section shall not be gardless, this remains a decision that should subjects, too. subject to judicial review by any court be made in federal courts—not here in Con- Mr. Speaker, everyone here realizes that if of the United States.’’ gress. The very notion of this legislation is un- Congress could just pass whatever laws it Now, where were all of the Members constitutional. It should be fundamentally and wanted and throw in a line to keep them from who are complaining about this bill decisively rejected today. being held unconstitutional, our Constitution when that legislation came up, because Mr. DINGELL. Mr. Chairman, I rise in strong and Separation of Powers would be rendered it took away the right of the Federal opposition to H.R. 2028. Here we are again meaningless. So let’s just admit what this is courts to review legal issues relating to considering needless court-stripping legislation really about: rallying the base and attacking trees in South Dakota. If Congress can that would destroy our constitutional system of defenseless Americans. deny all the Federal courts the author- checks and balances. This time we wrap it in Shame on any Member of this body who will ity to hear a class of cases to protect the flag and call it the Pledge Protection Act. trample on our Constitution just to score a few trees, it certainly can do so to protect This is another extraordinary piece of arro- political points. If the Oath we all took to ‘‘sup- the States’ policy regarding the Pledge gance on the part of the House of Represent- port and defend the Constitution of the United of Allegiance. That is why this bill atives to pass legislation which would strip States’’ means anything to you, you will vote ought to be passed. American citizens of their right to access the ‘‘no’’ on this election-year ploy. Mr. ALLEN. Mr. Chairman, I rise in strong federal courthouse. Can you imagine anything Mr. HOLT. Mr. Chairman, I rise in opposition opposition to H.R. 2028, the so-called Pledge more shameful than telling an American cit- to H.R. 2028, which would prevent federal Protection Act. izen you cannot go into court to have your courts and the Supreme Court from hearing I believe that the phrase ‘‘under God’’ concerns addressed regarding Constitutional any claim that the recitation of the Pledge of should remain as part of the Pledge of Alle- rights, or to have those rights heard by the Allegiance violates the first amendment of the giance, and I believe that the statute that fixed courts of your Nation? Constitution. I do not believe that we should strip the fed- that phrase as part of the Pledge is constitu- The Constitution—perhaps the greatest in- eral courts of jurisdiction when it comes to tional. But I cannot support this misguided vention in history—has been the source of our issues related to the Equal Protection Clause congressional power grab that would prevent freedom in this great country for more than of the Constitution. It drastically interferes with the federal courts from interpreting a law two centuries. The framework of government it the separation of powers between the three established has allowed our diverse people to passed by Congress, or deciding its constitu- branches of our government. live together, to balance our various interests, tionality. While I will always defend the autonomy and to thrive. It has provided each citizen with In the name of custom, our Republican col- and the power of the legislative branch, the leagues disregard 200 years of legal and con- broad, basic rights. principle of judicial review that Chief Justice The judiciary was designed to be the one stitutional customs and precedent just to score John Marshall set out in the 1803 decision branch of the federal government that is not political points in an election year. Marbury v. Madison is law. This landmark influenced or guided by political forces. This Despite its name, this legislation does not case established that the Supreme Court has independent nature enables the judiciary to protect the Pledge of Allegiance. It does, how- the right to pass on the constitutionality of an thoughtfully and objectively review laws en- ever, undermine the very foundation of our act of Congress. To whittle away one of the acted by the legislative branch to ensure that system of government. bedrock powers of the judicial branch is wrong federal law is in line with the Constitution. We teach our children to respect the work of for the Union and wrong for our citizenry. Throughout the development of our nation, the Founders and the Constitution’s system of Tinkering with the foundation of our judicial this check has been vital to protecting the checks and balances. Judicial review is a vital branch could come back to haunt us. You can rights of minorities. component of that system. Unfortunately, the be almost certain with the passage of this leg- Although the Constitution gives Congress so-called conservative Republican majority islation that there are interests out there decid- the power to limit the jurisdiction of the federal shows no respect today for the traditional role ing what other rights can be stripped of Amer- judiciary and the appellate jurisdiction of the of our federal courts. ican citizens because we disagree with them. Supreme Court, I am certain that the founding The bizarre effect of this bill would be to Maybe a future Congress will want to strip fathers did not intend for Congress to use this allow fifty different state courts to interpret the court challenges to gun control legislation by power to shape the jurisdiction of the courts United States Constitution in fifty different gun owners or sportsmen. along ideological lines. This legislation will set ways. Never in our history has a state court Mr. Speaker, we live in one nation, under a dangerous precedent by allowing Congress had the final say on interpreting the U.S. Con- God, with liberty and justice for all. If we pass to insulate itself from judicial review so that it stitution. That is the role and duty of the fed- this bill, we begin to hollow out the true mean- can pass legislation that it thinks may be un- eral judiciary by history, custom and law. ing of the pledge, the Constitution and what it constitutional. This is a clear misuse of Con- But for the Majority, there is no tradition, no means to live in this great nation. gressional authority and it is a cynical attempt custom, no practice, no matter how broadly I strongly oppose this legislation and urge to question the patriotism of Members of this accepted, that is immune from Republican as- my colleagues to do the same. institution. sault. Mr. STARK. Mr. Chairman, I rise in opposi- Like every member of this body, I am proud The Framers, our original revolutionaries, tion to H.R. 2028, the So-Called ‘‘Pledge Pro- to recite the Pledge of Allegiance as a way to were wiser and more tolerant. Reject this elec- tection Act.’’ This potentially unconstitutional express my loyalty to this Nation and its tion year stunt. piece of legislation speaks volumes about the founding principles. I share the view of many Mr. BLUMENAUER. Mr. Chairman, this res- uncontrollable extremism of the Republican Members that the current text of the Pledge of olution represents the third time in as many Party and its desperation to look ‘‘conserv- Allegiance is constitutional including the years that the House has brought needless ative’’ in the face of $400 billion deficits and phrase ‘‘under God’’. I expressed my support legislation to the floor to ‘‘protect’’ the Pledge nation-building in Iraq. for the Pledge in its current form when I joined of Allegiance. At a time when we should be The fact that the Supreme Court already many of my colleagues in voting for a resolu- discussing issues of great consequence, like threw out the decision striking ‘‘Under God’’ tion that expressed the opinion of Congress the genocide occurring in Sudan, the imple- from the Pledge of Allegiance makes this bill that the Ninth Circuit’s decision in Newdow v. mentation of the recommendations of the 9/11 irrelevant with regard to the Pledge, and all U.S. Congress was erroneous, This was an Commission, and the use of our federal sur- the more frightening with regard to the true in- appropriate forum for me, as a Member of face transportation dollars, the House leader- tentions of the Republicans. In the interest of Congress, to express my belief in the constitu- ship has again decided to bring up this stale politics, they would unravel our system of tionality of the Pledge of Allegiance. topic. This time, however, the legislation is not checks and balances and close the court- Unfortunately, those who support this legis- simply frivolous; it is downright dangerous. house doors to religious minorities. They lation do seek to alter our delicate system of This bill, which will purportedly protect the would set a new, disastrous precedent of let- checks and balances and make their own de- Pledge of Allegiance, is the continuation of a ting 50 different state courts be the final arbi- cisions infallible. They are attempting to alter reckless and destructive pattern to strip courts ters of our laws. They prefer that state judges, the intended framework of our government, of their ability to determine the constitutionally rather than federal judges confirmed by the which has met the needs of a diverse popu- of the Pledge of Allegiance. This is an out- Senate, make Constitutional law. lation and allowed us to remain indivisible in

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00024 Fmt 4634 Sfmt 9920 E:\CR\FM\K23SE7.032 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7469 times of crisis for more than 200 years. They The role of Congress has always been clear The bill fails to protect the pledge because ignore the fact that we are a political institution on the limitation of jurisdiction of the federal even if it becomes law people who don’t like guided by public opinion that is constantly fluc- judiciary. Integral to our American Constitu- the way the pledge is worded would still be tuating and believe that this institution is better tional system is each branch of government’s able to bring lawsuits in state courts—and the equipped than the judiciary to evaluate what responsibility to use its powers to prevent Supreme Court could not review how state’s laws violate the Constitution. overreaching by the other branches. Passage courts ruled on those suits. It is unclear to me where the supporters of of H.R. 2028, will send a strong signal to the So, while Colorado’s courts might uphold this legislation will end in restricting an individ- federal judiciary that the will of the people will the current wording, the courts of other states ual’s ability to seek redress. In July, we prevail against judicial activism on the Pledge might reach a different conclusion—meaning passed legislation that denied individuals the of Allegiance. there would no longer be a single Pledge of ability to question the constitutionality of the In a Nation where the vast majority of Amer- Allegiance, but different pledges for different Defense of Marriage Act. Today we are debat- icans believe in a divine power, it is un-Amer- states, and the First Amendment’s meaning ing legislation that limits an individual’s ability ican to place our pledge in the hands of the would vary based on state lines. to bring a claim regarding the Pledge of Alle- Federal Judiciary. I believe that reciting the And that would be directly contrary to the giance. What law will the Majority party Pledge of Allegiance is not only a right, but very idea of the United States as ‘‘one nation’’ choose next to put above the process of judi- also a responsibility. While no one is forced to that should remain ‘‘indivisible’’ and whose de- cial review? At what point will the Majority recite it, neither should anyone be prohibited fining characteristics are devotion to ‘‘liberty party stop adding exceptions to the right to from pledging allegiance to our great country. and justice for all’’—that is, to the very Repub- due process? It is wrong for any court to impose its will on lic (symbolized by the American flag) to which A vote against this bill signifies a desire to whether the overwhelming majority of Ameri- we pledge allegiance when we recite the make the words of the Pledge of Allegiance a cans can publicly express a fundamental be- pledge this bill pretends to ‘‘protect.’’ living reality and not a hollow promise. A vote lief. The people have spoken through their How ironic—and how pathetic. As national for this legislation is a vote against the values elected representatives on both the federal legislators, as Untied States Representatives, that are embedded in our Constitution. I urge and state levels on this issue. we can and should do better. We should reject my colleagues to oppose this legislation. I urge passage of this legislation to send a this bill. strong message of judicial restraint, and of Mr. OSE. Mr. Chairman, I rise today to re- Ms. LEE. Mr. Chairman, I rise in strong op- luctantly voice my opposition to H.R. 2028, the position to H.R. 2028, the Pledge Protection empowerment of the people in their own gov- ernment, to protect the Pledge of Allegiance Pledge Protection Act. Act. As a cosponsor of the original legislation, I for all Americans. I am outraged that my colleagues on the am disheartened to see changes that have re- other side of the aisle would give serious con- Mr. UDALL of Colorado. Mr. Chairman, this moved necessary civil rights protections. In sideration to this legislation that infringes on bill seeks to prevent any federal court—includ- the course of a Committee mark up, the origi- the First Amendment, and blurs the Separa- ing the Supreme Court—from considering nal Pledge Protection Act was stripped and re- tion of Powers. ‘‘any question pertaining to the interpretation written to exclude the Supreme Court from ju- This bill is just another misguided election of, or the validity under the Constitution of, the risdiction from hearing cases surrounding the year ploy designed to score political points. Pledge of Allegiance . . . or its recitation.’’ Pledge of Allegiance. H.R. 2028 threatens a fundamental aspect As we all know, introduction of the bill was I strongly believe that if a citizen of the of our constitutional structure and would set a prompted by the 2002 decision of the Court of United States has a grievance of a federal na- dangerous precedent by stripping federal Appeals for the Ninth Circuit in what is known ture, that individual deserves his or her day in courts of judicial independence and pave the as the ‘‘Newdon’’ case. That decision held that federal court. By removing the Supreme Court way to preventing federal judges from ruling the 1954 legislation adding ‘‘under God’’ to the from jurisdiction to hear Pledge cases, the on other controversial social issues. pledge and a California school district’s policy Pledge Protection Act effectively removed a It is unacceptable and unconstitutional to of daily recitation of the pledge with those citizen’s day in federal court. As such, I can propose stripping powers from the judicial words were both unconstitutional. (That court not support this legislation in its current form. branch every time we disagree with a decision later modified the decision to apply only to the Mr. POMEROY. Mr. Chairman, I rise in op- they make. school district’s recitation policy.) position to H.R. 2028, the Pledge Protection Regardless of race or creed, we should all The school district and the United States Act. have the right to access the federal courts to both appealed to the Supreme Court—and on I strongly believe that the Pledge of Alle- challenge a particular policy or piece of legis- June 14th the Supreme Court reversed the giance, including the phrase, ‘‘under God’’ is a lation. By denying this right, this bill is both decision, on the grounds that the plaintiff did constitutional expression of patriotism. I recall bigoted and backwards. not have legal standing to challenge the reciting the Pledge of Allegiance in school as By bringing this legislation to the Floor, the school district’s policy. a child growing up in Valley City, North Da- Republican Leadership has demonstrated But the Republican leadership of the House kota, and I believe that it plays an important again that they are more concerned with mak- evidently is afraid that somebody else might role in unifying our country and celebrating our ing political headlines than making headway bring a similar lawsuit—and that prospect that national identity. on substantial legislation—like the VA–HUD is so alarming to them that they have brought Like my colleagues, I was outraged by past appropriations bill or the National Affordable forward this bill, which would prevent any fed- court decisions that erroneously declared the Housing Trust Fund. eral court from hearing a lawsuit like that. Pledge of Allegiance unconstitutional. That is My constituents who have serious needs— I cannot support such legislation. It may or why on March 20, 2003, I voted in favor of H. like housing, jobs, education, and affordable may not be constitutional—on that I defer to Res. 132, which urged the Supreme Court ‘‘to heath care. How can I explain the Repub- those with more legal expertise than I can correct the constitutionally infirm and incorrect lican’s misplaced priorities? claim. But I think it clearly is not just unneces- holding’’ by the 9th Circuit Court of Appeals in And I must explain how the Leadership of sary but misguided and destructive. its revised decision on the Newdow v. U.S. this body decided to waste another legislative I have no objection to the current wording of Congress case. This resolution also expressed day on political legislation like this bill. the Pledge of Allegiance. After the court of ap- the sense of the House of Representatives We need to get back to the people’s busi- peals announced its decision in the Newdon that the recitation of the Pledge is a ‘‘patriotic’’ ness and deal with some of the real pressing case I voted for a resolution—approved by the act rather than a religious one, that phrase issues that face our country. House by a vote of 416 to 3—affirming that ‘‘One Nation, under God’’ should remain in the I urge my colleagues to oppose this unnec- ‘‘the Pledge of Allegiance and similar expres- Pledge and that the practice of voluntarily re- essary legislation and vote against H.R. 2028. sions are not unconstitutional expressions of citing the Pledge in public school classrooms Mr. SULLIVAN. Mr. Chairman, I rise in religious belief’’ and calling for the case to be should be encouraged by the policies of Con- strong support of H.R. 2028, the Pledge Pro- reheard. gress. Furthermore, on July 22, 2003, I voted tection Act of 2004. H.R. 2028 is a common- But this bill is a different matter. in favor of the amendment offered by Rep. sense piece of legislation that reserves to the The bill may be called the ‘‘Pledge Protec- HOSTETTLER to H.R. 2799, the Commerce, state courts the authority to decide whether tion Act,’’ but that is not accurate. In reality, it Justice and State and Related Agencies Ap- the Pledge of Allegiance is valid within each not only fails to protect the pledge but also propriations bill, which barred the use of any state’s boundaries. It will place final authority would undercut the very thing to which those of the funds appropriated by the bill to ‘‘en- over a state’s pledge policy in the hands of who recite the pledge are expressing alle- force the judgment’’ in the Newdow v. U.S. the states themselves, where it belongs. giance. Congress.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00025 Fmt 4634 Sfmt 9920 E:\CR\FM\A23SE7.082 H23PT1 H7470 CONGRESSIONAL RECORD — HOUSE September 23, 2004 During the 107th Congress, I also voted in Court’s jurisdiction. The Framers intended a bill that would block the courts from hearing favor of H. Res. 459, which expressed the Congress to use the power to limit jurisdiction Constitutional challenges to the Defense of view of the House of Representatives that the as a check on all federal judges, including Su- Marriage Act and again today we considered 9th Circuit Court of Appeals’ original decision preme Court judges, who, after all, have life- legislation to tie the courts’ hands. What’s in Newdow v. U.S. Congress to strike the time tenure and are thus unaccountable to the next? words ‘‘under God’’ from the Pledge of Alle- people. While the courts may, from time to time, giance was incorrectly decided. Similarly, I Ironically, the author of the pledge of alle- produce a ruling we question, the principle of strongly supported S. 2690, legislation that re- giance might disagree with our commitment to judicial review is essential to maintaining the affirms the language of the Pledge of Alle- preserving the prerogatives of state and local integrity of our system of checks and balances giance, including the phrase ‘‘one Nation governments. Francis Bellamy, the author of and I fear the path we appear to be on. We under God.’’ the pledge, was a self-described socialist who are a Nation under God, and in Him we trust. I am concerned that the passage of H.R. wished to replace the Founders’ constitutional Mr. WELDON of Florida. Mr. Chairman, I 2028 would deny the Supreme Court its histor- republic with a strong, centralized welfare rise in strong support of the Pledge Protection ical role as the final authority on the constitu- state. Bellamy wrote the pledge as part of his Act because it upholds the rights of the over- tionality of federal laws and nullify the separa- efforts to ensure that children put their alle- whelming majority of American people who tion of powers set forth in the United States giance to the central government before their support the phrase ‘‘under God’’ in the Pledge Constitution. Furthermore, H.R. 2028 sets a allegiance to their families, local communities, of Allegiance. dangerous precedent for future Congresses. state governments, and even their creator! In H.R. 2028, of which I am a cosponsor, re- By adding language from H.R. 2028 to uncon- fact, the atheist Bellamy did not include the moves from the jurisdiction of the Federal stitutional legislation, a future Congress could words ‘‘under God’’ in his original version of courts questions regarding the constitutionality enact laws that are clearly contrary to key te- the pledge. That phrase was added to the of the Pledge of Allegiance. It does so utilizing nets of the Constitution while preventing the pledge in the 1950s. the powers of Congress clearly expressed in Supreme Court from ever considering their va- Today, most Americans who support the article III of the Constitution. Article III re- lidity. Given these considerable problems with pledge reject Bellamy’s vision and view the serves for the Congress the power to regulate H.R. 2028, I intend on voting against this pledge as a reaffirmation of their loyalty to the or completely eliminate the Supreme Court’s measure. Framers’ vision of a limited, federal republic appellate jurisdiction over a class of cases. Mr. PAUL. Mr. Chairman, I am pleased to that recognizes that rights come from the cre- Chief Justice Rehnquist of the U.S. Su- support, and cosponsor, the Pledge Protection ator, not from the state. In order to help pre- preme Court stated that the court has already erected ‘‘a novel prudential principle in order Act (H.R. 2028), which restricts federal court serve the Framers’ system of a limited federal to avoid reaching the merits of the constitu- jurisdiction over the question of whether the government and checks and balances, I am tional claim’’ that the phrase ‘‘under God’’ vio- phrase ‘‘under God’’ should be included in the pleased to support H.R. 2028, the Pledge Pro- lates the Establishment Clause. It is clear from pledge of allegiance. Local schools should de- tection Act. I urge my colleague to do the this precedent that the U.S. Supreme Court is termine for themselves whether or not stu- same. most likely to rule the phrase ‘‘under God’’ un- dents should say ‘‘under God’’ in the pledge. Mr. SHAYS. Mr. Chairman, I voted against constitutional should a case reach the high The case finding it is a violation of the First H.R. 2028, the Pledge Protection Act. court. Amendment to include the words ‘‘under God’’ The phrase ‘‘under God’’ belongs in our Pledge of Allegiance to the Flag of the United Liberal activist judges are consistently work- in the pledge is yet another example of federal States of America and the words ‘‘In God We ing to remove the mention of ‘‘God’’ from the judges abusing their power by usurping state Trust’’ belong on our currency. The Ninth Cir- public realm. As a Nation that affirms in its and local governments’ authority over matters cuit Court of Appeals made a serious error in own Declaration of Independence that God is such as education. Congress has the constitu- Newdow v. U.S. Congress when they declared the source of our rights, it is absolutely appro- tional authority to rein in the federal court’s ju- our Pledge unconstitutional. priate for Congress to act on this important risdiction and the duty to preserve the states’ When the phrase ‘‘under God’’ was added issue. republican forms of governments. Since gov- to the Pledge of Allegiance in 1954, I was in Mr. SENSENBRENNER. Mr. Chair- ernment by the federal judiciary undermines elementary school and remember feeling the man, I yield back the balance of my the states’ republican governments, Congress phrase belonged there. It appropriately reflects time. has a duty to rein in rogue federal judges. I the fact that a belief in God motivated the The CHAIRMAN pro tempore. All am pleased to see Congress exercise its au- founding and development of our great Nation. time for general debate has expired. thority to protect the states from an out-of-con- The Declaration of Independence states, Pursuant to the rule, the committee trol judiciary. ‘‘We hold these truths to be self-evident, that amendment in the nature of a sub- Many of my colleagues base their votes on all men are created equal, that they are en- stitute printed in the bill shall be con- issues regarding federalism on whether or not dowed by their Creator with certain inalienable sidered as an original bill for the pur- they agree with the particular state policy at rights . . .’’ Our forefathers understood it was pose of amendment under the 5-minute issue. However, under the federalist system not they, but He, who had bestowed upon all rule and shall be considered read. The text of the committee amend- as protected by the Tenth Amendment to the of us those most cherished rights to life, liberty ment in the nature of a substitute is as United States Constitution, states have the au- and the pursuit of happiness upon which our follows: thority to legislate in ways that most members model of government is based. of Congress, and even the majority of he citi- At Gettysburg, President Abraham Lincoln H.R. 2028 zens of other states, disapprove. Consistently acknowledged we were a Nation under God Be it enacted by the Senate and House of Rep- upholding state autonomy does not mean ap- and, during his Second Inaugural Address, he resentatives of the United States of America in Congress assembled, proving of all actions taken by state govern- mentioned our Creator 13 times. ments; it simply means acknowledging that the SECTION 1. SHORT TITLE. Those historic speeches, the Pledge of Alle- This Act may be cited as the ‘‘Pledge Protec- constitutional limits on federal power require giance, our currency and the Declaration of tion Act of 2004’’. Congress to respect the wishes of the states Independence are not prayers or parts of a re- SEC. 2. LIMITATION ON JURISDICTION. even when the states act unwisely. I would re- ligious service. They are a statement of our (a) IN GENERAL.—Chapter 99 of title 28, mind my colleagues that an unwise state law, commitment as citizens to our great Nation United States Code, is amended by adding at the by definition, only affects the people of one and the role God plays in it. end the following: state. Therefore, it does far less damage than Our founders envisioned a government that ‘‘§ 1632. Limitation on jurisdiction a national law that affects all Americans. would allow, not discourage or punish, the free ‘‘No court created by Act of Congress shall While I will support this bill even if the lan- exercise of religion and we are living their have any jurisdiction, and the Supreme Court guage removing the United States Supreme dream. shall have no appellate jurisdiction, to hear or Court’s jurisdiction over cases regarding the I voted against the Pledge Protection Act decide any question pertaining to the interpre- pledge is eliminated, I am troubled that some because I have faith in our Constitution and tation of, or the validity under the Constitution of my colleagues question whether Congress of, the Pledge of Allegiance, as defined in sec- do not believe we should preclude judges from tion 4 of title 4, or its recitation.’’. has the authority to limit Supreme Court juris- hearing issues of social relevance, simply be- (b) CLERICAL AMENDMENT.—The table of sec- diction in this case. Both the clear language of cause we may disagree with their ultimate de- tions at the beginning of chapter 99 of title 28, the United States Constitution and a long line cisions. United States Code, is amended by adding at the of legal precedents make it clear that Con- The tactic of restricting courts’ jurisdiction is end the following new item: gress has the authority to limit the Supreme spiraling out of control. In July, I voted against ‘‘1632. Limitation on jurisdiction.’’.

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00026 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.093 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7471 The CHAIRMAN pro tempore. No cases involving the Pledge. I urge its branches of government, and it served amendment to the committee amend- adoption. us pretty darn well for the last 200 ment is in order except those printed in Mr. Chairman, I reserve the balance years. We have a free country that House Report 108–693. of my time. lives under law. Each amendment may be offered only Mr. NADLER. Mr. Chairman, I yield This bill actually would try to re- in the order printed in the report, by a myself such time as I may consume. move the judicial branch from its job Member designated in the report, shall Mr. Chairman, on this side of the of interpreting the law, and, most im- be considered read, shall be debatable aisle we do not oppose the amendment. portantly, making sure that the laws for the time specified in the report, Mr. Chairman, I yield 1 minute to the that the Congress passes and the ac- equally divided and controlled by the gentleman from Virginia (Mr. SCOTT). tions that the executive takes meet up proponent and an opponent, shall not Mr. SCOTT of Virginia. Mr. Chair- with the standards in the Constitution be subject to amendment, and shall not man, I applaud the chairman of the of the United States. be subject to a demand for division of committee for offering the manager’s Now, I have been listening to the de- the question. amendment that grants to the D.C. bate of the proponents of this bill with It is now in order to consider amend- residents the same rights that apply to some concern. Some of the things that ment No. 1 printed in House Report residents of the 50 States under this have been said, I wonder, can they be 108–693. bill, that is, the right to have some re- that dumb, or are they being venal, or AMENDMENT NO. 1 OFFERED BY MR. course in a local, non-Federal court. is it both? Absolutely we know there is SENSENBRENNER However, the manager’s amendment a difference between passing a statute Mr. SENSENBRENNER. Mr. Chair- still does nothing to address the same and having that statute interpreted to man, I offer an amendment. problem with respect to U.S. citizens see whether the statute meets con- The CHAIRMAN pro tempore. The who are residents of the U.S. Virgin Is- stitutional muster. Clerk will designate the amendment. lands, Northern Mariana Islands, and Clearly, Congress has the ability to The text of the amendment is as fol- Guam. do all kinds of things with the courts. lows: This amendment just goes to show We can set statutes of limitation, we Amendment No. 1 offered by Mr. SENSEN- that the majority was so busy stripping can provide for direct appeal to the Su- BRENNER: the courts of jurisdiction that it inad- preme Court. What we cannot do is say In section 1632 of title 28, United States vertently stripped jurisdiction from all that the Federal courts, that the Su- Code, as added by section 2(a) of the bill, in- the courts, just as they did last week preme Court, cannot review what we do sert the following after ‘‘or its recitation.’’: in a tort reform bill allowing foreign to see whether it meets the require- ‘‘The limitation in this section shall not ments of the Federal Constitution. apply to the Superior Court of the District of corporations to escape all liability for injuries to American citizens because That is what we are trying to do today. Columbia or the District of Columbia Court Now, if we succeed, if we pass this, the bill, in some cases, provided no of Appeals.’’. we will either change fundamentally United States jurisdiction in which the The CHAIRMAN pro tempore. Pursu- the free country that we enjoy, or else case could be brought. ant to House Resolution 781, the gen- we will promote a constitutional crisis. Mr. SENSENBRENNER. Mr. Chair- tleman from Wisconsin (Mr. SENSEN- Maybe we could get a Marbury-II. BRENNER) and a Member opposed each man, I yield myself such time as I may But I think there is another reason will control 5 minutes. consume. for this bill today. I think we are here Mr. NADLER. Mr. Chairman, I ask Mr. Chairman, the reason that this today for political purposes. We are unanimous consent to control the time amendment does not include the local here so that certain Members of this in opposition, though I do not oppose courts in Puerto Rico and the terri- House who try and protect the Con- the amendment. tories is that those courts are not cre- stitution will be subject to 30-second The CHAIRMAN pro tempore. With- ated by Act of Congress, so residents of political ads. I think that is a misuse out objection, the gentleman from New Puerto Rico and the territories will be of our processes here. Either radicals York (Mr. NADLER) will be recognized able to file suits regarding the Pledge have taken over the Congress, or venal- for 5 minutes. in the courts that have been created by ity has hit a new low, and we would There was no objection. their respective legislatures pursuant trash our system of government for po- The CHAIRMAN pro tempore. The to the organic Act that Congress has litical purposes. I think either is a dis- gentleman from Wisconsin (Mr. SEN- previously passed. grace. SENBRENNER) is recognized for 5 min- Mr. SCOTT of Virginia. Mr. Chair- Mr. NADLER. Mr. Chairman, I yield utes. man, will the gentleman yield? the balance of my time to the distin- Mr. SENSENBRENNER. Mr. Chair- Mr. SENSENBRENNER. I yield to guished gentleman from New York (Mr. man, I yield myself such time as I may the gentleman from Virginia. WEINER). consume. Mr. SCOTT of Virginia. Mr. Chair- Mr. WEINER. Mr. Chairman, I thank Mr. Chairman, this amendment is man, I would say to the chairman, I the gentleman for yielding me time. simple. Currently the bill prevents think I agree with him on Puerto Rico, Mr. Chairman, first of all, I know the Federal courts, including courts cre- but disagree with regard to the Virgin author of the bill came to the floor a ated by an act of Congress, from strik- Islands and others. If we could agree few moments ago, the gentleman from ing down ‘‘under God’’ in the Pledge, that the legislative intent is to make Missouri, and said we are trying to while reserving to the State courts the sure there will be some recourse, we confuse this issue with legality. authority to hear cases involving the could have that fixed in conference. I am actually confused by a couple of Pledge. Mr. SENSENBRENNER. Mr. Chair- things. One, those of us who want The District of Columbia, however, man, reclaiming my time, I agree with ‘‘God’’ in the Pledge of Allegiance, we due to its unique constitutional posi- the comments made by the gentleman won. You would think from this debate tion, does not have State courts. In- from Virginia (Mr. SCOTT). that this morning when we took the stead, its courts that are the equiva- Mr. Chairman, I yield back the bal- Pledge of Allegiance, we did not say lent of State courts are created by an ance of my time. ‘‘God.’’ You would think that that act of Congress. Mr. NADLER. Mr. Chairman, I yield crazy court in California that came up So, to preserve a judicial forum for 21⁄2 minutes to the gentlewoman from with the wrong decision was not re- District residents regarding challenges California (Ms. LOFGREN). versed. We won that case. to the Pledge, this amendment simply Ms. LOFGREN. Mr. Chairman, the The second thing I am curious about, adds the following section to the bill: amendment is fine, but it does not fix what is it about bills and issues that ‘‘The limitation in this section shall the problem with the bill. Marbury you do not strip review from that you not apply to the Superior Court of the versus Madison, 1803, was when the like less than this? How come when District of Columbia or the District of great decision was made that the judi- you say that there should be no abor- Columbia Court of Appeals.’’ cial branch would interpret the law. tions for women in this country, that This sentence preserves the author- Since that time, we have had, like we you do not strip the review of that? ity of the District’s courts to hear all learned in 8th grade, the three How come when you do your budget,

VerDate jul 14 2003 02:11 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00027 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.034 H23PT1 H7472 CONGRESSIONAL RECORD — HOUSE September 23, 2004 you do not strip your review of that? b 1300 Mr. Chairman, I rise today in support How come when you do all of the other The CHAIRMAN pro tempore (Mr. of the Watt amendment which would bills around, do not you love them as LATHAM). It is now in order to consider restore the Supreme Court’s jurisdic- much? Are they not equally as impor- amendment No. 2 printed in House Re- tion over questions relating to the tant to you? port 108–693. Pledge of Allegiance, changing the bill I am shocked there is any legislation AMENDMENT NO. 2 OFFERED BY MR. WATT back to the way it read when I and 224 you bring to this floor that you do not Mr. WATT. Mr. Chairman, I offer an other Members cosponsored it. strip the review of the courts, because, amendment. Congress clearly has the authority frankly, by your interpretation of the The CHAIRMAN pro tempore. The under article III of the Constitution to Constitution, the court has no role Clerk will designate the amendment. define the jurisdiction of the Federal there. The text of the amendment is as fol- district and appellate courts, and the The final question I have, and I hate lows: original H.R. 2028 was perfectly sup- to vex my opponents on the other side Amendment No. 2 offered by Mr. WATT: portable on this point. But this new with talk of legality, but if not the In section 1632 of title 28, United States bill strips the Supreme Court jurisdic- courts are interpreting the Constitu- Code, as added by section 2(a) of the bill, tion, and I cannot support that. strike ‘‘, and the Supreme Court shall have Mr. Chairman, in our more than 200- tion of the United States, who is going no appellate jurisdiction,’’. to do it? What is your suggestion? Are year history as a Nation, there is no di- The CHAIRMAN pro tempore. Pursu- we going to have like a reality show, rect court precedent in which the Su- ant to House Resolution 781, the gen- where maybe we let 12 people on an is- preme Court is cut off entirely from re- tleman from North Carolina (Mr. land come up with the decision? And view of a constitutional issue. Congress WATT) and a Member opposed each will what if you do not have Federal courts wisely has chosen not to test its power control 10 minutes. to deny Supreme Court review of laws doing it, you just have the State The Chair recognizes the gentleman courts? Congress has passed; that is until H.R. from North Carolina (Mr. WATT). 3313 and this amended version of H.R. Maybe I guess then the 14th Amend- Mr. WATT. Mr. Chairman, I yield ment is a bit troublesome. I guess 2028. myself 1 minute. I know that the gentleman from Wis- there are no uniform constitutional Mr. Chairman, my amendment would consin (Chairman SENSENBRENNER) rights in this country, no uniform right restore the bill to its original form. cited Ex Parte McCardle as authority to bear arms, no uniform right to The original bill that was introduced, under article III to make exceptions to speech and to practice religion. H.R. 2028, actually stripped only the the appellate jurisdiction of the Su- If anyone can answer any of those lower courts, not the Supreme Court, preme Court. But in McCardle, the three points, I will gladly vote for this of jurisdiction to hear these cases. My court recognized that other avenues bill. colleague, the gentlewoman from Illi- and at least some level of review were Mr. CONYERS. Mr. Chairman, while I com- nois (Mrs. BIGGERT), who was an origi- available on a constitutional chal- mend Chairman SENSENBRENNER for heeding nal supporter and sponsor of the origi- lenge. the advice of Representative BOBBY SCOTT nal bill, both of us submitted amend- I would caution my colleagues to and offering an amendment that will allow DC ments to the Committee on Rules ask- think twice before tampering with au- residents to have their day in court, I am con- ing the Committee on Rules to restore thorities clearly granted in the Con- cerned that the amendment does not grant the bill to its original intention, and stitution. The issue today may be the similar protections to residents of U.S. terri- the Committee on Rules decided it Pledge, but what if the issue tomorrow tories. would make my amendment in order, I is second amendment rights, civil This is because the local courts in the U.S. guess so that it would not send a signal rights, environmental protection or a to the Republicans that this is a bipar- Virgin Islands (codified at 48 U.S.C. § 1611, host of other issues that Members may tisan amendment. population 110,000 residents); the Northern hold dear. I would ask my colleagues, Mariana Islands (codified at 48 U.S.C. § 1821, So I want to offer this amendment to restore the jurisdiction of the United do we really need 50 different versions population 78.000); and Guam (codified at 48 of the Pledge of Allegiance? I certainly U.S.C. § 1424, population 160,000); were all States Supreme Court to determine constitutionality. do not think so. created by acts of Congress, not the local leg- Mr. AKIN. Mr. Chairman, I claim the I believe that ‘‘under God’’ are two of islatures. time in opposition to the amendment, the most important words in the Since this bill provides that ‘‘[n]o court cre- and I yield myself such time as I may Pledge. I also believe that the Supreme ated by an Act of Congress’’ shall have any consume. Court should be the final arbiter of all jurisdiction to hear cases concerning the con- Mr. Chairman, the reason why we Federal questions. That is why I urge stitutionality of the Pledge of Allegiance, the should vote against this amendment is my colleagues to support the Watt net result is that under H.R. 2028, no judicial fairly basic and pretty simple mathe- amendment to the Pledge Protection review would be available for Pledge of Alle- matics, and that is, in the last deci- Act. giance cases for the nearly 350,000 combined sion, when the Newdow case was Mr. AKIN. Mr. Chairman, I yield 2 residents of these territories. thrown out on standing, that decision minutes to my good friend, the gen- As the majority’s own witness, Martin made it clear that there are only three tleman from South Carolina (Mr. BAR- Redish, concluded at the Committee’s hearing chief justices who support the Pledge RETT). on court stripping legislation: of Allegiance, and three is not enough Mr. BARRETT of South Carolina. . . . as long as the state courts remain avail- to keep ‘‘under God’’ in the pledge. Mr. Chairman, I thank the gentleman able and adequate forums to adjudicate fed- Now, what this amendment is going for yielding me this time. eral law and protect federal rights, it is dif- to do is it is going to allow the Su- Mr. Chairman, exactly what we are ficult to see how the Due Process Clause preme Court to hear additional or any talking about is limiting the appellate would restrict congressional power to ex- future challenges to the Pledge of Alle- jurisdiction of the Supreme Court, and clude federal judicial authority to adjudicate giance. And when the current court let me just read my colleagues a couple a category of cases, even one that is sub- of things. According to constitutional stantively based. hears that challenge, we are struck with that simple mathematics, that experts, under article III of the Con- Unfortunately, under the Chairman’s amend- there are only three votes on the Su- stitution, Congress clearly has the ment, such a local court review would not be preme Court that would keep ‘‘under ability to limit the appellate jurisdic- possible in Guam, the Virgin Islands, and the God’’ in the Pledge. tion of the Supreme Court to review Northern Mariana Islands. As a result, the bill Mr. Chairman, I reserve the balance certain cases. Now, this is satisfied by would continue to be unconstitutional with re- of my time. constitutional experts, and who are gard to these territories. Mr. WATT. Mr. Chairman, I yield 2 these constitutional experts? Well, jus- The CHAIRMAN pro tempore. minutes to the gentlewoman from Illi- tices of the Supreme Court. The question is on the amendment nois (Mrs. BIGGERT). In the decision Wiscart v. Dauchy, offered by the gentleman from Wis- Mrs. BIGGERT. Mr. Chairman, I the Court ruled, ‘‘If Congress has pro- consin (Mr. SENSENBRENNER). thank the gentleman for yielding me vided no rule to regulate our pro- The amendment was agreed to. this time. ceedings, we cannot exercise appellate

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00028 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.037 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7473 jurisdiction; and if the rule is provided, Mr. HOSTETTLER. Mr. Chairman, I in a government in which they are sep- we cannot depart from it.’’ thank the gentleman for yielding me arated from each other, the judiciary is Let me read another decision, Martin this time. beyond comparison the weakest of the v. Hunters’ Lessee. The Court ruled, I rise in opposition to the gentle- three departments of power. It has no ‘‘Congress is able to regulate and re- man’s amendment from North Carolina influence over either the sword or the strain appellate jurisdiction of the U.S. and in support of the base bill that is purse, no direction either of the Supreme Court as public necessity re- being considered. strength or of the wealth of the society quires.’’ As I listen to the debate on this bill, and can take no active resolution And one last decision, United States I cannot help but remember the note whatever. It may truly be said to have v. Bitty. The Court ruled, ‘‘Congress written in the margin of the pastor’s neither force nor will but merely judg- holds the wisdom and authority to es- sermon where he reminds himself dur- ment and must ultimately depend upon tablish exceptions and regulations con- ing a particularly questionable part of the aid of the executive arm, even for cerning the court’s appellate jurisdic- theology where he says, ‘‘pound pulpit the efficacy of its judgments. That is, tion.’’ hard here; argument weak.’’ And that from the natural feebleness of the judi- What we are doing here, I say to my is what we see here from the other side, ciary, it is in continual jeopardy of colleagues, is letting our State courts a very weak argument, because the being overpowered, awed or influenced take a look at this and not Federal ac- suggestion that is being made by sev- by its coordinate branches.’’ tivist judges. eral of the folks on the other side is Now, does that sound like an inde- Let us leave these decisions up to our something we are trying to do is un- pendent judiciary? I am not sure how State courts and not our Federal court constitutional. radical, I have heard the word ‘‘rad- system. Let us not gut the Sensen- In the markup of this bill in the ical’’ today, radical Alexander Ham- brenner amendment, and I urge Mem- Committee on the Judiciary, I was in- ilton was. But we do know that what bers to vote no against the Watt trigued by the attempt by the other Hamilton, Madison, Jefferson, Wash- amendment. side to continue to ask Americans to ington, all of the founders, all of the 1 Mr. WATT. Mr. Chairman, I yield 1 ⁄2 leave the Constitution alone. A col- framers of the Constitution wanted was minutes to the gentleman from New league of mine on the other side of the to have these very important decisions, Hampshire (Mr. BASS). aisle repeatedly said, leave the Con- fundamental decisions about incul- Mr. BASS. Mr. Chairman, I thank the stitution alone. What he meant by that cating in our children the values of our gentleman for yielding me this time. I was, stop reading the Constitution. Be- families as being Americans, that they thank my colleague, the gentlewoman gave this opportunity, this ability to from Illinois, for joining him in offer- cause if you read the Constitution, you will find that in article III section 2 of the people through their elected rep- ing what I consider to be a bipartisan resentatives. amendment. the Constitution, you find the basis for the legislation, the policy that the gen- Mr. WATT. Mr. Chairman, I yield 3 I would only point out that Newdow minutes to the gentleman from New on its face was based on a procedural tleman from Missouri seeks to put into law. York (Mr. WEINER). issue of standing, and the math might Mr. WEINER. Mr. Chairman, the au- be quite different if the decision was In article III section 2, after referring to all of the types of cases that shall thor of the base bill, the gentleman based upon substance rather than from Missouri, is a friend of mine, but standing. come under the jurisdiction of the Fed- eral judiciary, it says, ‘‘In all cases af- apparently there is a second Congress- I rise in support of this amendment man AKIN around here somewhere. Per- offered by my friend, the gentleman fecting ambassadors, other public min- isters and consuls, and those in which a haps he was the one who wrote the bill. from North Carolina (Mr. WATT). I The original version of the bill says, State shall be a party, the Supreme sponsored H.R. 2028, along with 225 or with respect to the jurisdiction of Fed- Court shall have original jurisdiction. so other Members of Congress, because eral courts inferior to the Supreme In all of the other cases before men- I believe that we should have ‘‘under Court, and says that the Supreme tioned,’’ all the other cases before men- God’’ in the Pledge of Allegiance, and I Court shall be able to hear these cases. tioned, ‘‘the Supreme Court shall have voted on three other occasions in the That was what the author of the bill appellate jurisdiction both as to law, in same fashion. said. There are two other issues involved fact, with such expects and under such Now, the reason the author origi- here. The first is whether or not we regulations as the Congress shall nally included that language, although want to make sure that we have ‘‘under make.’’ he is now opposed to having it re- God’’ in the Pledge of Allegiance, and The notion of an independent judici- inserted, the reason he put it in is be- the second issue is, do we want to take ary, and it has been quoted by several cause we do need someone to be the on a fundamental issue that has been folks here, my statement in the mark- final arbiter of the interpretation of debated in this country for over 200 up, the notion of an independent judici- free speech, freedom of religion cases, years? And that is whether or not the ary fails the Constitution test. The of all cases, among the different Supreme Court has standing in appel- simple fact is, the framers of the Con- States. late jurisdiction for issues that may be stitution did not want an unelected, Imagine if we had a United States of unconstitutional. unaccountable, life-tenured body, America envisioned by the gentleman I come down on the side of the prece- namely, the judiciary, to be able to, by from Indiana, where every State court dent that we have had in this country writ large, enact policy across the was free to kind of come up with their for the last 200 years. I support the country when the people themselves own interpretation of the Constitution Watt amendment because I support would not have an obligation or an of the United States. What incentive passage of the bill and the signing of ability to reverse it. But they gave would there be on the parts of folks in the bill by the President of the United that authority in the Constitution to Missouri, for example, or the folks in States. I want ‘‘under God’’ in the the people’s representatives in the Con- New York to have consistent constitu- Pledge of Allegiance. I want to make gress. tional values in this country? policy. As a colleague of mine on the The gentlewoman from California, Now, I have heard again and again, Republican side said yesterday, let us the minority leader, requested that let us refer to the Constitution of the make policy, not make statements. Members of the House of Representa- United States. I will freely confess one Vote for the Watt amendment and tives read the Federalist Papers, and thing. Nowhere is judicial review in the pass the bill. especially Hamilton, to understand the Constitution. It was the creation of a Mr. AKIN. Mr. Chairman, I yield 4 importance of the Congress’ role vis-a- great man that all of us went on record minutes to my distinguished colleague, vis the judiciary. And as she said that paying tribute to just last month. the gentleman from Indiana (Mr. I was inspired to do just that thing, When John Marshall came up with this HOSTETTLER). and I pulled out from Alexander Ham- concept, it has been sacrosanct (Mr. HOSTETTLER asked and was ilton, Federalist No.78, ‘‘Whoever at- throughout jurisprudence since then. given permission to revise and extend tentively considers the different de- But I ask my colleagues again and his remarks.) partments of power must perceive that again, if not judicial review, then

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00029 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.041 H23PT1 H7474 CONGRESSIONAL RECORD — HOUSE September 23, 2004 what? Who is it that guarantees me as in this body and we put our hands up ernment for over 200 years. And now a member of the minority, someone and we take an oath that says that we with the fancy language embodied in who is one person who believes he has will uphold the Constitution. And that this legislation and other pieces of leg- a right to stand up for gun rights, let means that we are one of three co- islation that have been pending, they us say, who guarantees my constitu- equal branches of government. And yet are trying to disrupt that delicate bal- tional right to speak if not the court? today, what I hear people saying is ance of power, the checks and balances that exist that allows the Federal b 1315 with their lips, I like the words ‘‘under God,’’ but I will not lift a finger, in courts from time to time to take a This is the body where the majority fact, I will vote for an amendment to look at the work that we are doing in has its say. We do it every day. The make sure that under God gets stripped this Congress to see whether or not we courts are where the minority, even out the next time this thing takes a are complying with the highest law of the tiniest of minorities, go to have trip to the Supreme Court. the land, the United States Constitu- their day in court. For those of you I guess my question is, how bad does tion. That is what judicial review is all who are concerned about the Pledge of it have to get before we assert our au- about. Allegiance, we won that case. We won. thority? I mean, how far does some ac- What is so ironic about today’s de- We lost the case, by the way on my tivist judge have to go? You just use bate is that the courts have already side, when the Supreme Court over- your imagination, is not there some weighed in and said that the Pledge is turned precedent and appointed a point when we say enough already? The okay, ‘‘under God’’ is okay. So what President. But if we were Republicans fact is historically, the fact that we are we doing here when we have anemic what would we do? Strip the Supreme have a right to recognize that is long economic job growth in the country, Court from any right to decide and let recognized. There was a number of ref- rising health care costs and tuition all 50 States decide who the President erences to Marbury versus Madison, of that is placing college out of the reach is? course that was coming out of Mar- of students. We can do better by the I would conclude with a question. shall’s court. It is just interesting to American people. That is, do you believe that reproduc- note that Chief Justice Marshall recog- Mr. WATT. Mr. Chairman, how much tive rights legislation should be pro- nized our constitutional right to limit time remains? tected from judicial review? If so, in- the appellate jurisdiction of the Su- The CHAIRMAN pro tempore. The clude it in your bill. Do you believe preme Court in Druso versus the U.S. gentleman from North Carolina (Mr. that tax should be subject to judicial So this is clear-cut. It is something WATT) has 2 minutes remaining. The review? If so, then strip the courts in that has always been, but we do not gentleman from Missouri’s time has those cases. want to somehow do our job. We do not expired. Mr. WATT. Mr. Chairman, I yield I would say to the gentleman from want to exercise the authority the Con- myself the balance of my time. Indiana (Mr. HOSTETTLER) since he is stitution gives us. Mr. Chairman, when I was in law on his feet, does he believe that a wom- There are repeated cases, others that school, one of the first things I learned an’s right to choose, or your position, have not been mentioned, Barry versus is that if you win a debate, you sit restricting abortion, is important of Merson. This is one that says the Su- principle, that we in this Congress down and quit arguing about it. preme Court ruled that its appellate The other side has asked us several should strip judicial review? Yes or no. power was limited because Congress The CHAIRMAN pro tempore (Mr. times, well, how far does the Supreme had neither expressly nor implicitly Court have to go, how far does the LATHAM). The gentleman’s time has ex- given the appellate jurisdiction in a pired. court have to go before we step in? class of cases involving the writ of ha- You have won the lawsuit. Newdow Mr. AKIN. Mr. Chairman, I reserve beas corpus in child custody. Then we has been reversed. the balance of my time. have the other one, Wiskert versus Get a grip. You have won and you are Mr. WATT. Mr. Chairman, who has Douchey where it says, if Congress has here asking me, how far the Supreme the right to close? provided no rule to regulate our pro- Court has got to go? The CHAIRMAN pro tempore. The ceedings, we cannot exercise appellate Imagine this, no Supreme Court, no gentleman from North Carolina (Mr. jurisdiction, and if the rule is provided jurisdiction in the Supreme Court, and WATT). we cannot depart from it. the State of South Carolina or New Mr. WATT. Mr. Chairman, I reserve I had a couple of things I wanted to York strips out ‘‘under God.’’ Who the balance of my time. say in closing. That is, there is a cer- would have decided the case? Who Mr. AKIN. Mr. Chairman, I yield my- tain point where the courts go too far. would have decided the case? Nobody self such time as I may consume. We know where the votes are on the would have been there to reverse Mr. Chairman, it is interesting. I Supreme Court. In the last decision Newdow. Fifty different States, 50 dif- have heard a number of people here when Newdow was struck down, it is ferent rules under your bill. professing that they think the words clear, the fact remains that there are What happened to the word ‘‘indivis- ‘‘under God’’ in the Pledge are a good only three votes that are going to up- ible’’ under God? Indivisible. Does indi- thing to have. I have even heard that hold ‘‘under God’’ in the Pledge of Alle- visible not count anymore? Fifty dif- developed even further in references to giance. If you support ‘‘under God’’ in ferent rules, is that indivisibility? Jefferson and to the second inaugural the Pledge of Allegiance, you will have What have we got to do? You won the address of Lincoln which made ref- to vote this amendment down because case. erences to God. And there seems to be what this amendment does is it opens a This bill is not about the Pledge of a pretty good consensus that we want hole that the Supreme Court can take Allegiance. This is an assault on the to leave the Pledge as it is. this case out of State courts. judiciary and on the right of the Amer- But the interesting thing is that this The CHAIRMAN pro tempore. The ican people to a uniform interpretation amendment would clearly not leave the gentleman’s time has expired. of what the law is. It is not the Pledge Pledge as it is. But I guess my question Mr. WATT. Mr. Chairman, I yield 1 that is in need of protection. It is our is, and we are getting to a very funda- minute to the gentleman from Wis- constitutionally established system of mental kind of question about what consin (Mr. KIND). government. As long as you are in con- our job is as legislators here, and the Mr. KIND. Mr. Chairman, I am a trol in asserting it, every time you get question is, is it our responsibility to strong supporter of the Pledge of Alle- a result that you do not like you will be a co-equal branch of government. If giance. I believe ‘‘under God’’ should be be back here. we really believe in the words ‘‘under in the Pledge of Allegiance. But what I Mr. CONYERS. Mr. Chairman, I rise in sup- God’’ in the Pledge, do we assert our- cannot support today is legislation port of this amendment, which would preserve selves or do we roll over if the court de- that basically tells the third branch of Supreme Court review of appeals related to cides they want to take something out our government, go home, no thanks, the constitutionality of the Pledge of Alle- that has been there for 50 years. we do not need you any more. giance. I guess it goes down to the very first Judicial review has been a part of our As presently drafted the legislation pre- day when we come down here to serve democracy in this constitutional gov- cludes any federal judicial review, either by a

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00030 Fmt 4634 Sfmt 9920 E:\CR\FM\K23SE7.043 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7475 lower federal court or the Supreme Court, of The text of the amendment is as fol- times this body has risen because they any constitutional challenge to the Pledge of lows: have decided that there is some kind of Allegiance. Amendment No. 3 offered by Ms. JACKSON- frivolous idea or something that we Aside from the obvious constitutional flaws LEE of Texas: disagree with, and there have been inherent in the bill, the idea of Congress uni- In section 1632 of title 28, United States thoughts about limiting the courts. laterally cutting off constitutional review by the Code, as added by section 2(a) of the bill, in- Many times legislators have sometimes Supreme Court constitutes both a poor and sert after ‘‘recitation’’ the following: ‘‘, ex- been tempted to yank controversial cept in a case in which the claim involved al- matters from the court’s jurisdiction, dangerous legal precedent. As presently draft- leges coerced or mandatory recitation of the ed, the legislation not only degrades the inde- Pledge of Allegiance, including coercion in as The Washington Post has indicated pendence of the federal judiciary and the Su- violation of the protection of the free exer- this morning, but cooler heads have preme Court, but eliminates any possibility of cise of religion, such as that held to be in prevailed. developing a single uniform policy with regard violation of the First Amendment in West We would hope that cooler heads will to the recitation of the Pledge from the 50 Virginia State Board of Education v. prevail now. Whether the Pledge vio- state supreme courts. Barnett, 319 U.S. 624, 638 (1943) and Circle lates the first amendment separation Since H.R. 2028 strips the Supreme Court School v. Pappert (No. 03-3285; 3rd Circuit, from church and State is a legal ques- of the ability to review state court decisions, August 19, 2004)’’. tion. Congress has no business ob- including those involving federal questions, a The CHAIRMAN pro tempore. Pursu- structing the courts from answering it. lack of uniformity in the law is an imminent ant to House Resolution 781, the gen- Is it not a shame that under Marbury threat. One’s federal rights would depend on tlewoman from Texas (Ms. JACKSON- versus Madison, we now want to egre- the vagaries of location. Ultimately, coercing LEE) and a Member opposed each will giously rip away the rights of peti- children to recite the Pledge may be permitted control 5 minutes. tioners in the United States to go into in one state and not in another. This is why it Mr. SENSENBRENNER. Mr. Chair- the court. is so important that we pass the Watt amend- man, I claim the time in opposition. Is it not an outrage that we would ment. The CHAIRMAN pro tempore. The stand here as those listening to the In- The complete, unprecedented, and unnec- Chair recognizes the gentlewoman from terim Prime Minister of Iraq this essary stripping of Supreme Court jurisdiction Texas (Ms. JACKSON-LEE). morning who cried out for justice and inherent in the current bill would be totally at Ms. JACKSON-LEE of Texas. Mr. democracy and free courts and today, odds with the policy of checks and balances Chairman, I yield myself such time as moments after he spoke, we are now envisioned by the Nation’s founders. As a I may consume. stripping away the courts of the United matter of fact, the legislation would bring us Mr. Chairman, my amendment is States. Let me just say one other thing, Mr. far closer to the balkanized scenario envi- very simple, it leaves the door open to Chairman. Let me correct one who de- sioned by the Articles of Confederation, than acknowledge a very sacred and well-be- cides to offer my history to this body. the unified nation brought forth by the Con- lieved amendment of the Constitution. For I live in my skin and I cannot stitution. My amendment seeks to protect that It is ironic that in the very same year that amendment and that is the first change it. And I came to this Nation as Congress celebrated Justice John Marshall by amendment, that Congress shall make a slave. And it may have been those authorizing a commemorative coin in his no law respecting an establishment of who fought in the Civil War that honor, the Judiciary Committee would dispar- religion or prohibiting the free exercise opened the doors, but let me tell you age him by passing legislation such as the bill thereof. that Jim Crow rose his ugly legal head, that is totally inconsistent with Marshall’s sem- Now, many of us have risen to this and for 50 years or more into the 20th inal legal opinion, Marbury v. Madison. floor and wanted to make sure that all century, Jim Crow’s ugly laws kept me We should not use the issue of the constitu- who heard us knew that we stood with as a second class citizen. I could not tionality of the Pledge of Allegiance to perma- the Pledge of Allegiance as it is now vote. I could not go into accommoda- nently damage our courts, our constitution, written. And we have recited it all of tions. I could not go to schools that and Congress. At a time when it is more im- our lives and accepted the language closed their doors. Racism was here in this country and portant that ever that our nation stand out as ‘‘under God.’’ it was not until Brown versus Topeka a beacon of freedom, I cannot support a bill That acceptance by me as an indi- Board of Education that the Supreme which undermines the very protector of those vidual or my colleagues does not, in Court allowed me the opportunity to be freedoms—our independent federal judiciary. any way, give comfort to those who be- I urge my colleagues to vote ‘‘yes’’ on this cause of their religious faith have cho- free in this Nation. I dare anyone to challenge that his- important amendment. sen to express. tory. Slavery may have ended in its The CHAIRMAN pro tempore. The Let me tell of a girl called Hazel who name, but it did not end in its practice. question is on the amendment offered sat along side of me in my elementary And it was the courts of the United by the gentleman from North Carolina school classroom. As we rose every States, the Federal courts that gave (Mr. WATT). morning to pledge allegiance to the The question was taken; and the United States of America, little Hazel me this freedom. Mr. Chairman, I rise to offer an amendment Chairman pro tempore announced that sat in her seat. She was not a terrorist. to the bill before us today, H.R. 2028, the the noes appeared to have it. She was not a radical from the left. Mr. WATT. Mr. Chairman, I demand She was not one trying to overthrow Pledge Protection Act of 2003. The operative a recorded vote, and pending that, I the United States of America. She was language of H.R. 2028 is contained in a single make the point of order that a quorum practicing her faith as her mommy and provision in section 2(a): is not present. her daddy asked her to do. [n]o court created by an Act of Congress shall have any jurisdiction, and the Supreme The CHAIRMAN. Pursuant to clause It was a lonely place. Most of us Court shall have no appellate jurisdiction, to 6 of rule XVIII, further proceedings on looked at Hazel long and hard every hear or decide any question pertaining to the the amendment offered by the gen- day. But we were grateful that there interpretation of, or the validity under the tleman from North Carolina (Mr. was a teacher and a Constitution that Constitution of, the Pledge of Allegiance, as WATT) will be postponed. respected Hazel’s right to freedom of defined in section 4 of title 4, or its recita- The point of no quorum is considered religion. tion. withdrawn. This law as it is presently written The bill precludes any Federal judicial re- The CHAIRMAN pro tempore. It is now says to the American people, you view of any constitutional challenge to recita- now in order to consider amendment cannot practice your faith and you can tion of the Pledge of Allegiance—whether it be No. 3 printed in House Report 108–693. not seek the cases by going into the in the lower Federal courts or in the highest AMENDMENT NO. 3 OFFERED BY MS. JACKSON- courthouse, the appellate courts and court in the land, the U.S. Supreme Court. Ef- LEE OF TEXAS the Supreme Court of the United fectively, if passed, this extremely vague legis- Ms. JACKSON-LEE of Texas. Mr. States of America. lation will relegate all claimants to State courts Chairman, I offer an amendment. It is well known that the courts are to review an challenges to the pledge. This The CHAIRMAN pro tempore. The given to us on the basis of judicial re- possibility will lead to different constitutional Clerk will designate the amendment. view. It is also well-known that many constructions in each of the 50 States.

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00031 Fmt 4634 Sfmt 9920 E:\CR\FM\A23SE7.102 H23PT1 H7476 CONGRESSIONAL RECORD — HOUSE September 23, 2004 The Jackson-Lee amendment provides for pretation and enforcement of civil rights laws. that ‘‘virtually all matters that might an exception to the bill’s preclusion for that in- Bills such as H.R. 2028 and H.R. 3313, the be heard in article III courts could also volves allegations of coerced or mandatory Marriage Protection Act—bills to prevent the be left by Congress to State courts.’’ recitation of the Pledge of Allegiance, includ- courts from exercising their article III functions Justice Brennan was joined in that de- ing coercion in violation of the first amend- only mask discrimination. We cannot allow cision by Justices Marshall, Blackmun, ment. bad legislation such as this to pass in the and Stevens. Closing the doors of the Federal courthouse House. In the 1970s, some Members of Con- Now what, then, could be the harm of doors to claimants will actually amount to a gress unsuccessfully sought to strip the courts adopting this amendment? Plenty. If coercion of individuals to recite the pledge and of jurisdiction to hear desegregation efforts we carve out an exception for cases in its ‘‘under God’’ reference in violation of West such as busing, which would have perpet- which coercion, for example, is in- Virginia State Board of Education v. Barnette. uated racial inequality. volved, we will open the flood gates to In Barnette, the Supreme Court struck down H.R. 2028, as drafted, insulates the Pledge expansive interpretations by the Fed- a West Virginia law that mandated school- of Allegiance as set forth in section 4 of title eral courts that will gut the purpose of children to recite the Pledge of Allegiance. 4 of the United States Code from constitu- the bill. Carving out a coercion exemp- Under the West Virginia law, religious minori- tional challenge in the Federal court. tion will invite the Federal courts, in- ties faced expulsion from school and could be However, the statute and the pledge are cluding the very liberal Ninth Circuit subject to prosecution and fined, if convicted subject to change by future legislative bodies. Court of Appeals, to hold that exces- of violating the statute’s provisions. In striking This means that if some future Congress de- sive coercion exists to pressure a stu- down that statute, Justice Jackson wrote for cides to insert some religiously offensive or dent to recite the Pledge simply when the Court: discriminatory language in the pledge, the a majority of school children choose to To believe in patriotism will not flourish if matter would be immune to constitutional chal- recite it, but one or a few students do patriotic ceremonies are voluntary and spon- lenge in the Federal courts. I also support the not want to. The inevitable claim will taneous instead of a compulsory routine is to Watt amendment to restore Supreme Court be that in the school environment, make an unflattering estimate of the appeal Jurisdiction to this matter. there is no such thing as free will of our institutions to free minds . . . If there whenever the majority of students are is any fixed star in our constitutional con- Mr. Speaker, I ask that my colleagues vote to protect the religious minorities—vote to pro- reciting the Pledge, because those that stellation, it is that no official, high, or do not want to recite it will feel pres- petty can prescribe what shall be orthodox in tect judicial review—vote to protect separation politics, nationalism, religion, or other mat- of powers—vote to protect access to the Fed- sured to recite it simply because other ters of opinion or force citizens to confess by eral courts. I yield back. students are reciting it. Yet again, the word or act their faith therein. Mr. Chairman, I reserve the balance courts will strike a blow to the concept This legislation would strip the parents of of my time. of free will and the concept of personal responsibility if we let them. The those children of the right to go to court and b 1330 defend their children’s religious liberty. If this amendment should be defeated. legislation is passed schools could expel chil- Mr. SENSENBRENNER. Mr. Chair- Mr. Chairman, I reserve the balance of my time. dren for acting according to the dictates of man, I yield myself such time as I may Ms. JACKSON-LEE of Texas. Mr. their faith and Congress will have slammed consume. Mr. Chairman, this amendment was Chairman, may I ask how much time is the courthouse door shut in their faces. When remaining. I was a child, I always wondered why when defeated in committee, and it should be defeated here today because it guts the The CHAIRMAN pro tempore (Mr. the rest of the class recited the Pledge of Alle- LATHAM). The gentlewoman from Texas giance, she always sat quietly. Today, I under- bill. First, nothing in H.R. 2028 would (Ms. JACKSON-LEE) has 30 seconds re- stand that it was because she was of the 7th maining. Day Adventist faith and therefore reciting the allow State courts to deviate from Su- preme Court precedent prohibiting the Ms. JACKSON-LEE of Texas. Mr. ‘‘under God’’ provision would force her to frus- Chairman, let me first say that this coerced recitation of the Pledge of Al- trate her religious faith. If H.R. 2028 were law amendment was made in order by the legiance. Even when Federal courts are back then, the school administrators could Committee on Rules, and I think that denied jurisdiction to hear certain have forced her to say the pledge and she is extremely important for this body to classes of cases, and those classes of would have no recourse in the Federal courts. know. The Jackson-Lee amendment protects reli- cases are thereby reserved to the State Mr. Chairman, I yield 25 seconds to gious minorities, Mr. Speaker. courts, the previously existing Su- the distinguished gentleman from New preme Court precedents still govern Recently, a panel of the U.S. Court of Ap- York (Mr. WEINER). peals for the Third Circuit held that a Pennsyl- State court determinations. This is re- Mr. WEINER. Mr. Chairman, I thank vania law requiring recitation of the pledge, quired by the Supremacy Clause of the the gentlewoman for the time. even when it provided a religious exception, Constitution; and in West Virginia I guess what it comes down to is a violated the Constitution because it violated Board of Education v. Barnette, the person’s view of where an individual the free speech of the students. Supreme Court held it is unconstitu- who is in the minority on an issue, In Circle School v. Pappert, the court found tional to require individuals to salute even an issue that is protected in the that: the flag. Constitution, where does that person It may be useful to note our belief that In that case, the Supreme Court held, go to have their rights protected? What most citizens of the United States willingly ‘‘If there is any fixed star in our con- if 435 of us believe one way about the recite the Pledge of Allegiance and proudly stitutional constellation, it is that no Constitution, where does that one lone sing the national anthem. But the rights em- official, high or petty, can prescribe individual go? bodied in the Constitution, particularly the what shall be orthodox in politics, na- first Amendment, protect the minority— If we do not allow them access to the those persons who march to their own drum- tionalism, religion, or other matters of court, and one highest court, to medi- mers. It is they who need the protection af- opinion or force citizens to confess by ate disputes between the various forded by the Constitution and it is the re- word or act their faith therein.’’ Under States, we simply do not have the sys- sponsibility of federal judges to ensure that H.R. 2028 as written, that decision will tem that we have today, and that protection. preclude State courts from allowing should be the lesson of this effort. Again, under H.R. 2028, such a coercive coerced recitations of the Pledge. Every school child in America who had speech case could never reach the Federal State courts are not second-class forgotten what the courts were sup- courts. courts, and they are equally capable of posed to be should be reminded of that Article III of the U.S. Constitution vests ‘‘the deciding Federal constitutional ques- by this amendment. Judicial Power of the United States . . . in one tions. The Supreme Court has clearly Mr. SENSENBRENNER. Mr. Chair- supreme court.’’ The laundry list of areas rejected claims that State courts are man, I yield myself the balance of the which the Federal courts have the power to less competent to decide Federal con- time. hear and decide under section 2 of article III, stitutional issues than Federal courts. Mr. Chairman, I will just repeat my- establishes the doctrine of the ‘‘separation of Even Justice William Brennan wrote in self. The issue is settled law. There powers.’’ For over 50 years, the Federal Northern Pipeline Construction Com- cannot be a coerced or forced recita- courts have played a central role in the inter- pany v. Marathon Pipe Line Company tion of the Pledge. This bill does not

VerDate jul 14 2003 01:46 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00032 Fmt 4634 Sfmt 0634 E:\CR\FM\A23SE7.096 H23PT1 September 23, 2004 CONGRESSIONAL RECORD — HOUSE H7477 change that. The amendment allows recorded vote on the amendment of- Bishop (UT) Hall Peterson (MN) the courts to determine what coercion fered by the gentleman from North Blackburn Harris Peterson (PA) Blunt Hart Petri shall be. That has far-reaching con- Carolina (Mr. WATT) on which further Boehner Hastings (WA) Pickering sequences. I think that the best vote to proceedings were postponed and on Bonilla Hayes Pitts prevent unintended consequences from which the noes prevailed by voice vote. Boozman Hayworth Platts occurring is ‘‘no’’ on this amendment. I Boyd Hefley Pombo The Clerk will redesignate the Bradley (NH) Hensarling Porter urge that it be defeated. amendment. Brady (TX) Herger Portman Mr. CONYERS. Mr. Chairman, the Jackson- The Clerk redesignated the amend- Brown (SC) Herseth Putnam Brown-Waite, Hobson Lee amendment is needed to make sure that ment. Radanovich the bill does not prevent religious minorities Ginny Hoekstra Rahall RECORDED VOTE Burgess Holden who are coerced into reciting the Pledge, in Ramstad The CHAIRMAN pro tempore. A re- Burns Hostettler Regula violation of their religious beliefs from having Burr Hulshof Rehberg access to the Federal courts. corded vote has been demanded. Burton (IN) Hunter Renzi As presently drafted, the bill would prevent A recorded vote was ordered. Buyer Hyde Reynolds Calvert Isakson not only persons who believe that voluntary The vote was taken by electronic de- Rogers (AL) Camp Issa Rogers (KY) recitation of the Pledge is unconstitutional vice, and there were—ayes 202, noes 217, Cantor Istook Rogers (MI) from seeking relief in Federal courts, but also not voting 14, as follows: Capito Jenkins Ros-Lehtinen Carson (OK) John Ross those persons who assert that they are being [Roll No. 466] Carter Johnson (IL) forced into recitation of the Pledge in violation Royce AYES—202 Chabot Johnson, Sam Ryan (WI) Chandler Jones (NC) of their religious beliefs. Abercrombie Green (TX) Napolitano Ryun (KS) Chocola Keller Cases of this nature are not infrequent. For Ackerman Greenwood Sandlin Neal (MA) Coble Kelly Allen Grijalva Saxton example, in the landmark Supreme Court deci- Oberstar Cole Kennedy (MN) Andrews Gutierrez Schrock sion of West Virginia State Board of Education Obey Collins King (IA) Baca Harman Sensenbrenner Olver Costello King (NY) v. Barnett; the Supreme Court struck down a Baird Hastings (FL) Sessions Ortiz Cox Kingston West Virginia law that mandated school- Baldwin Hill Shadegg Ose Cramer Kline Bass Hinchey Shaw children to recite the Pledge of Allegiance. Otter Crane Knollenberg Becerra Hinojosa Sherwood Under the West Virginia law, religious minori- Owens Crenshaw LaHood Bell Hoeffel Shimkus Pallone Cubin Latham ties faced expulsion from school and could be Berkley Holt Shuster Pascrell Culberson LaTourette subject to prosecution and fined, if convicted Berman Honda Skelton Pastor Cunningham Lewis (CA) Biggert Hooley (OR) Smith (MI) of violating the statute’s provisions. In striking Payne Davis (TN) Lewis (KY) Bishop (NY) Houghton Smith (NJ) down that statute, Justice Jackson wrote for Pelosi Davis, Jo Ann Linder Blumenauer Hoyer Smith (TX) Pomeroy Deal (GA) LoBiondo the Court: Boehlert Inslee DeLay Lucas (OK) Souder If there is any fixed star in our constitu- Bono Israel Price (NC) DeMint Manzullo Stearns Boswell Jackson (IL) Pryce (OH) tional constellation, it is that no official, Diaz-Balart, L. Marshall Stenholm Boucher Jackson-Lee Rangel high, or petty can prescribe what shall be or- Diaz-Balart, M. Matheson Sullivan Brady (PA) (TX) Reyes thodox in politics, nationalism, religion, or Doolittle McCotter Sweeney Brown (OH) Jefferson Rodriguez other matters of opinion or force citizens to Duncan McCrery Tancredo Brown, Corrine Johnson (CT) Rohrabacher Dunn McHugh Taylor (MS) confess by word or act their faith therein. Butterfield Johnson, E. B. Rothman Edwards McInnis Taylor (NC) Capps Jones (OH) Roybal-Allard To argue that the State courts would still be Ehlers McIntyre Terry Capuano Kanjorski Ruppersberger bound by this precedent as the Chairman as- Emerson McKeon Thomas Cardin Kaptur Rush Everett Mica Thornberry serts, misses the point. Unless the State Cardoza Kennedy (RI) Ryan (OH) Feeney Miller (MI) Tiahrt courts know the Supreme court can and will Carson (IN) Kildee Sabo Ferguson Miller, Gary Tiberi Case Kilpatrick Sa´ nchez, Linda enforce its precedent, the State courts are free Flake Mollohan Toomey Castle Kind T. to ignore it. And there will be no further ap- Forbes Moran (KS) Turner (OH) Clay Kirk Sanchez, Loretta Franks (AZ) Murphy Turner (TX) peal. Clyburn Kolbe Sanders Frelinghuysen Musgrave Walden (OR) Moreover, just this year, in striking down a Conyers Kucinich Schakowsky Gallegly Myrick Walsh Cooper Lampson Schiff Pennsylvania law mandating recitation of the Garrett (NJ) Neugebauer Wamp Crowley Langevin Pledge as violating free speech the Third cir- Scott (GA) Gerlach Ney Weldon (FL) Cummings Lantos Scott (VA) Gibbons Northup Weldon (PA) cuit in Circle School v. Pappert court found: Davis (AL) Larsen (WA) Serrano Gillmor Norwood Weller Davis (CA) Larson (CT) The rights embodied in the Constitution, Shays Gingrey Nunes Whitfield Davis (FL) Leach particularly the First Amendment, protect Sherman Goode Nussle Wicker Davis (IL) Lee the minority—those persons who march to Simmons Goodlatte Osborne Wilson (NM) Davis, Tom Levin their own drummers. It is they who need the Simpson Gordon Oxley Wilson (SC) DeFazio Lewis (GA) protection afforded by the Constitution and Slaughter Granger Paul Wolf DeGette Lipinski Snyder Green (WI) Pearce Young (AK) it is the responsibility of federal judges to Delahunt Lofgren ensure that protection. Solis Gutknecht Pence Young (FL) DeLauro Lowey Spratt As presently drafted, the bill would strip the Deutsch Lynch Stark NOT VOTING—14 Dicks Majette Strickland Bishop (GA) Kleczka Smith (WA) parents of those children of the right to go to Dingell Maloney Stupak Bonner Lucas (KY) Tauzin court and defend their children’s religious lib- Doggett Markey Tanner Cannon Miller (FL) Dooley (CA) Matsui Thompson (MS) erty. If this legislation is passed, schools could Tauscher Goss Nethercutt Doyle McCarthy (MO) Vitter expel children for acting according to the dic- Thompson (CA) Graves Quinn Dreier McCarthy (NY) Tierney tates of their faith and Congress will have Emanuel McCollum ANNOUNCEMENT BY THE CHAIRMAN PRO Towns slammed the courthouse door shut in their Engel McDermott TEMPORE English McGovern Udall (CO) faces. We need this amendment to make sure Udall (NM) The CHAIRMAN pro tempore (Mr. religious minorities continue to have access to Eshoo McNulty Etheridge Meehan Upton LATHAM) (during the vote). There are 2 the Federal courts in cases of religious coer- Evans Meek (FL) Van Hollen minutes remaining in this vote. cion. Farr Meeks (NY) Vela´ zquez For these reasons I urge my colleagues to Fattah Menendez Visclosky b 1401 Waters vote ‘‘yes’’ on this amendment. Filner Michaud Mr. HOLDEN and Mr. GERLACH Foley Millender- Watson Mr. SENSENBRENNER. Mr. Chair- Ford McDonald Watt changed their vote from ‘‘aye’’ to ‘‘no.’’ man, I yield back the balance of my Fossella Miller (NC) Waxman Ms. DEGETTE and Mr. ROHR- time. Frank (MA) Miller, George Weiner ABACHER changed their vote from The CHAIRMAN pro tempore. The Frost Moore Wexler ‘‘no’’ to ‘‘aye.’’ Gephardt Moran (VA) Woolsey question is on the amendment offered Gilchrest Murtha Wu So the amendment was rejected. by the gentlewoman from Texas (Ms. Gonzalez Nadler Wynn The result of the vote was announced JACKSON-LEE). as above recorded. The amendment was rejected. NOES—217 The CHAIRMAN pro tempore. The Aderholt Baker Barton (TX) AMENDMENT NO. 2 OFFERED BY MR. WATT question is on the committee amend- Akin Ballenger Beauprez The CHAIRMAN pro tempore. The Alexander Barrett (SC) Berry ment in the nature of a substitute, as pending business is the demand for a Bachus Bartlett (MD) Bilirakis amended.

VerDate jul 14 2003 04:55 Sep 24, 2004 Jkt 029060 PO 00000 Frm 00033 Fmt 4634 Sfmt 0634 E:\CR\FM\K23SE7.050 H23PT1 H7478 CONGRESSIONAL RECORD — HOUSE September 23, 2004 The committee amendment in the Ehlers Kirk Renzi Miller (NC) Reyes Spratt nature of a substitute, as amended, was Emerson Kline Reynolds Miller, George Rodriguez Stark English Knollenberg Rogers (AL) Moore Rohrabacher Strickland agreed to. Etheridge LaHood Rogers (KY) Moran (VA) Rothman Stupak The CHAIRMAN pro tempore. Under Everett Lampson Rogers (MI) Murtha Roybal-Allard Tauscher the rule, the Committee rises. Feeney Latham Ros-Lehtinen Nadler Ruppersberger Thompson (CA) Ferguson LaTourette Napolitano Rush Accordingly, the Committee rose; Ross Tierney Flake Leach Royce Neal (MA) Sabo Towns Oberstar Sa´ nchez, Linda and the Speaker pro tempore (Mr. Foley Lewis (CA) Ryan (OH) Udall (CO) Forbes Lewis (KY) Obey T. THORNBERRY) having assumed the Ryan (WI) Udall (NM) Ford Linder Olver Sanchez, Loretta ATHAM Ryun (KS) Van Hollen chair, Mr. L , Chairman pro tem- Fossella Lipinski Ortiz Sanders Sandlin Vela´ zquez pore of the Committee of the Whole Franks (AZ) LoBiondo Saxton Ose Schakowsky House on the State of the Union, re- Frelinghuysen Lucas (OK) Owens Schiff Visclosky Schrock Waters ported that that Committee, having Gallegly Manzullo Sensenbrenner Pallone Scott (GA) Pascrell Scott (VA) Watson Garrett (NJ) Marshall Sessions had under consideration the bill (H.R. Pastor Serrano Watt Gerlach Matheson Shadegg Payne Shays Waxman 2028) to amend title 28, United States Gibbons McCotter Shaw Gillmor McCrery Pelosi Sherman Weiner Code, with respect to the jurisdiction Sherwood Gingrey McHugh Pomeroy Slaughter Wexler Shimkus of Federal courts inferior to the Su- Goode McInnis Price (NC) Snyder Woolsey Shuster preme Court over certain cases and Goodlatte McIntyre Rangel Solis Wu Simmons Gordon McKeon controversies regarding the Pledge of Simpson Granger Mica NOT VOTING—13 Allegiance, pursuant to House Resolu- Skelton Green (WI) Miller (MI) Bishop (GA) Kleczka Tauzin Smith (MI) tion 781, he reported the bill back to Greenwood Miller, Gary Bonner Lucas (KY) Smith (NJ) Thompson (MS) the House with an amendment adopted Gutknecht Mollohan Cannon Miller (FL) Smith (TX) Vitter Hall Moran (KS) Goss Quinn by the Committee of the Whole. Souder Harris Murphy Graves Smith (WA) The SPEAKER pro tempore. Under Hart Musgrave Stearns the rule, the previous question is or- Hastings (WA) Myrick Stenholm ANNOUNCEMENT BY THE SPEAKER PRO TEMPORE dered. Hayes Nethercutt Sullivan The SPEAKER pro tempore (Mr. Hayworth Neugebauer Sweeney Is a separate vote demanded on the THORNBERRY) (during the vote). Mem- Hefley Ney Tancredo amendment to the committee amend- Hensarling Northup Tanner bers are advised there are 2 minutes re- ment in the nature of a substitute Herger Norwood Taylor (MS) maining in this vote. adopted by the Committee of the Herseth Nunes Taylor (NC) Hobson Nussle Terry b 1420 Whole? If not, the question is on the Hoekstra Osborne Thomas committee amendment in the nature of Holden Otter Thornberry Messrs. REYES, BUTTERFIELD, a substitute. Hostettler Oxley Tiahrt CUMMINGS, ROHRABACHER, and Tiberi The committee amendment in the Houghton Paul GUTIERREZ changed their vote from Hulshof Pearce Toomey nature of a substitute was agreed to. Hunter Pence Turner (OH) ‘‘yea’’ to ‘‘nay.’’ The SPEAKER pro tempore. The Hyde Peterson (MN) Turner (TX) So the bill was passed. question is on the engrossment and Isakson Peterson (PA) Upton The result of the vote was announced Walden (OR) Issa Petri as above recorded. third reading of the bill. Istook Pickering Walsh The bill was ordered to be engrossed Jenkins Pitts Wamp The title of the bill was amended so and read a third time, and was read the John Platts Weldon (FL) as to read: ‘‘A bill to amend title 28, third time. Johnson (CT) Pombo Weldon (PA) United States Code, with respect to the Johnson (IL) Porter Weller The SPEAKER pro tempore. The Johnson, Sam Portman Whitfield jurisdiction of Federal courts over cer- question is on the passage of the bill. Jones (NC) Pryce (OH) Wicker tain cases and controversies involving The question was taken; and the Keller Putnam Wilson (NM) the Pledge of Allegiance.’’. Kelly Radanovich Wilson (SC) A motion to reconsider was laid on Speaker pro tempore announced that Kennedy (MN) Rahall Wolf the ayes appeared to have it. King (IA) Ramstad Wynn the table. King (NY) Regula Young (AK) Mr. SENSENBRENNER. Mr. Speak- f er, on that I demand the yeas and nays. Kingston Rehberg Young (FL) THE ADOPTION TAX RELIEF The yeas and nays were ordered. NAYS—173 The SPEAKER pro tempore. Pursu- GUARANTEE ACT Abercrombie Deutsch Johnson, E. B. ant to clause 8 of rule XX, this 15- Ackerman Dicks Jones (OH) The SPEAKER pro tempore (Mr. minute vote on passage of H.R. 2028 Allen Dingell Kanjorski LATHAM). The unfinished business is will be followed by a 5-minute vote on Andrews Doggett Kaptur the question of suspending the rules Baca Dooley (CA) Kennedy (RI) the motion to suspend the rules and Baird Doyle Kildee and passing the bill, H.R. 1057. pass H.R. 1057. Baldwin Emanuel Kilpatrick The Clerk read the title of the bill. The vote was taken by electronic de- Becerra Engel Kind The SPEAKER pro tempore. The vice, and there were—yeas 247, nays Bell Eshoo Kolbe Berkley Evans Kucinich question is on the motion offered by 173, not voting 13, as follows: Berman Farr Langevin the gentleman from Michigan (Mr. [Roll No. 467] Biggert Fattah Lantos CAMP) that the House suspend the rules Bishop (NY) Filner Larsen (WA) and pass the bill, H.R. 1057, on which YEAS—247 Blumenauer Frank (MA) Larson (CT) Aderholt Boyd Cole Brady (PA) Frost Lee the yeas and nays are ordered. Akin Bradley (NH) Collins Brown (OH) Gephardt Levin This will be a 5-minute vote. Alexander Brady (TX) Costello Brown, Corrine Gilchrest Lewis (GA) The vote was taken by electronic de- Bachus Brown (SC) Cox Butterfield Gonzalez Lofgren Baker Brown-Waite, Cramer Capps Green (TX) Lowey vice, and there were—yeas 414, nays 0, Ballenger Ginny Crane Capuano Grijalva Lynch not voting 19, as follows: Barrett (SC) Burgess Crenshaw Cardin Gutierrez Majette [Roll No. 468] Bartlett (MD) Burns Cubin Cardoza Harman Maloney Barton (TX) Burr Culberson Carson (IN) Hastings (FL) Markey YEAS—414 Bass Burton (IN) Cunningham Case Hill Matsui Abercrombie Barrett (SC) Bishop (UT) Beauprez Buyer Davis (TN) Clay Hinchey McCarthy (MO) Ackerman Bartlett (MD) Blackburn Berry Calvert Davis, Jo Ann Conyers Hinojosa McCarthy (NY) Aderholt Barton (TX) Blumenauer Bilirakis Camp Davis, Tom Cooper Hoeffel McCollum Akin Bass Blunt Bishop (UT) Cantor Deal (GA) Crowley Holt McDermott Alexander Beauprez Boehlert Blackburn Capito DeLay Cummings Honda McGovern Allen Becerra Boehner Blunt Carson (OK) DeMint Davis (AL) Hooley (OR) McNulty Andrews Bell Bonilla Boehlert Carter Diaz-Balart, L. Davis (CA) Hoyer Meehan Baca Berkley Bono Boehner Castle Diaz-Balart, M. Davis (FL) Inslee Meek (FL) Bachus Berman Boozman Bonilla Chabot Doolittle Davis (IL) Israel Meeks (NY) Baird Berry Boswell Bono Chandler Dreier DeFazio Jackson (IL) Menendez Baker Biggert Boucher Boozman Chocola Duncan DeGette Jackson-Lee Michaud Baldwin Bilirakis Boyd Boswell Clyburn Dunn Delahunt (TX) Millender- Ballenger Bishop (NY) Bradley (NH) Boucher Coble Edwards DeLauro Jefferson McDonald

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