Today, according to CNN the House of Representatives passed the "Pledge of Protection Act"


At first glance, it seems like this legislation would violate both the separation of powers and establishment clauses of the constitution. I haven't had a chance to research it fully. In addition, it seems to add the unprecedented apportioning to the state judicial system the ability to be the final arbiters in First Amendment cases.

Understanding that this law may have purely political motivation and (as cited), its unlikely the Senate will consider or even pass it, here's the questions for debate:

1) Is this law a violation of the establishment and separation clauses in the U.S. Constitution?

2) What is the potential long term impact of granting state judiciaries exclusive jurisdiction over First Amendment cases?

3) Legal questions aside, has our Federal Government finally cracked by trying to create a precedent in government that allows for the unchecked establishment or enforcement of "majority" opinions? Are marriage and abortion rights next on the agenda?

Doc

Whether i agree with the law or not, i think it is quite pointless. The Supreme Court has the power of judicial review, and can say if the law passed in unconstitutional. What the House is doing is telling the Supreme Court that they cannot do something....and then send the law to the Supreme Court for approval. it was probably just a stunt to make divisions for the elections.

1.)Most definitely-the right of judicial review is not something that can be legislated away by a highly political sub-branch of government that is bound and determined to get politics out of the courts by becoming political themselves. The House is the more hot-headed and less-rational of the legislative making bodies, so it's nice to have the more calm influence of the senate deep-six some of their out of whack bills. Someone should have these people take a civics class over again and re-learn the Marbury vs. Madison decision. The house just really astounds me at times.

Quoting nebraska29:



First of all, the Congress is not some "sub-branch of government." Congress is a branch of government. And they ought to be highly political. That's the nature of the beast. They must be responsive to their consituency. Congress is not intended as some dispassionate, disinterested arbiter of virtue and truth. Congress is the will of the people, political, passionate, and representative.

Secondly, and this the crux, you state "the right of judicial reivew is not something that can be legislated away..."

On this you are wrong. The right of judicial review was established by case precedent in 1801 in the famous (infamous?) Marbury v. Madison case. However, you are confusing the basic issue. This is not an issue of judicial review. This is an issue of jurisdiction stripping, which Congress is EXPRESSLY constitutionally authorized to do.

Article III of the United States Constitution is the source of Congress' power to determine the jurisdiction of federal courts. Article III, Section 1 states:



Emphasis added.

This section has been widely interpreted to mean that Congress has broad power to both set up lower federal courts and to determine what types of cases those courts will be able to hear and decide on. As for the Supreme Court, Section 2 states in part:



Emphasis added.

This part of Section 2 gives the Supreme Court the authority to hear certain cases firsthand, without those cases having to go through the lower courts. It also sets up the Supreme Court's role as an appellate court with the authority to hear cases that have proceeded through the lower courts. The phrase "with such Exceptions, and under such Regulations as the Congress shall make" has been widely understood as giving Congress the power to prevent the Supreme Court from hearing certain types of cases on appeal.

Examples of jurisdiction stripping:

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped federal courts of jurisdiction over Immigration and Naturalization Service (INS) decisions on whether and to whom to grant asylum. Effectively, the INS can decide not to grant an individual asylum, and that decision can no longer be reviewed by a federal court.

Other examples of jurisdiction stripping include the Prison Litigation Reform Act of 1996 (PLRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Briefly, the PLRA restricts the remedies that a judge can provide in civil litigation relating to prison conditions. The AEDPA limits the number of habeas petitions filed by state prisoners in federal courts, in addition to other limits on federal court authority related to such petitions. Habeas petitions are requests a prisoner makes asking a court to determine whether his constitutional rights are being deprived as a result of his incarceration.

This is NOT a case of "judicial review."

This is simply jurisdiction-stripping which the Congress has EXPRESS AUTHORITY to do under Article III of the Constitution.

Checks and balances....

You've made a good point, MrJaggers. Though I'm not sure I completely I agree with some of your Constitutional reading, I do believe in essence you are correct that Congress can prohibit federal courts from hearing such cases. Nonetheless, there may be other ways in which these cases can make it into the US Supreme Court. Couldn't the pledge could go through a state court system? What would happen then? Also, the gay marriage issue always has the element of "due process" (Amendment 14) which the pledge issue doesn't so I'm not sure that could be legislated out of being heard by the judiciary.

As the lower half of the legislative branch, it is a "sub" category if you ask me. That is especially evident when you consider that congressmen leave their comfy seats to run for senate seats, and not vice versa. Yes, it's a good thing to have principles that one should fight for. At the same time, compromise and gravitas are what gets legislation passed. To offer up highly partisan bills that a minority feels to be right, is to alienate the other half which will not go along with such a measure. The house has tried to pass such issues in the past, only to have similar bills die an ungraceful death in the senate. To me, it's just a wasted effort and shows the lack of statesmanship on the part of a good number of highly-partisan republican congressmen and women.

**I've chosen to edit this posting to add a new item that has made the news as of late. It's best if I can back-up the assertion that the House is highly partisan and has to be put in it's place by not only the senate, but the White House as well. Today's (September 29th) New York Times has an article about how the president and his advisors arent' exactly thrilled with the House GOP leadership on the intelligence reform bill.



and...








You are correct instating that I made an error, but you did as well. It turns out that this case is purely a matter regarding the establishment clause and the gross violation of the separation of powers. The supreme court is the ultimate law of the land, and only it has the expressed powers to interpret laws pertaining to the constitution. To state that only state courts have that right, that is-the right to interpret constitutional matters(which is exactly what the pledge issue is about) and that they are the ultimate arbiters of such matters, is to simply put constitutional theory right on it's head.

Not only that, but we are having the establishment of the very thing the founders warned against.

-source

And more on congressional constitutional "shoot-from the hip and wing it theory"

-from the same source. Marci Hamilton, Benjamin Cardozo Law School chair of Public Law.

Ok, so we agree that this is merely jurisdiction-stripping and certainly not an issue of "judicial review." With that side discussion out of the way, I'll try to circle the conversation back into the stated topics and respond to your points with the hope that you'll better understand why Congress is fully able to pass this type of legislation without violating any constitutional principles.

1) Is this law a violation of the establishment and separation clauses in the U.S. Constitution?

This question poses two different subjects, which should be divorced from each other to be discussed intelligently.

Is the Pledge Protection Act a violation of Establishment Clause? Absolutely not. The text of the clause reads: "Congress shall make no law respecting the establishment of religion..." Then the question becomes, does the proposed statute "establish" religion as that term is defined and understood? Hardly. Let's look at it from a historical point of view and from a more modern point of view.

Historically

Historically with respect to the federal government, the First Congress intended the Establishment Clause to forbid just that: the formal establishment of religion. James Madison, the prime architect of the Bill of Rights, made it abundantly clear what he understood the Establishment Clause to prohibit: "the constitution of the U.S. forbids everything like a national establishment of religion."

Let's look at examples of what the founding fathers did NOT think was an establishment:

* sermons preached in the House of Representatives on Sundays (ensuring that ministers of all denominations were represented)

* church services conducted in the Supreme Court's chambers (which President John Adams attended)

* communion services practiced in federal executive branch buildings

* Senate confirmation of a treaty, signed by President Jefferson, with the Kaskaskia Indians providing them with $7,000 for the support of a Catholic priest and $300 for the building of a church

Congressional authorization, from 1789 to 1823 providing up to 12,000 acres of land "for the Society of the United Brethren, for propagating the Gospel among the heathen"

The list of examples from the early acts of the federal government supporting, promoting, and defending religion as an important, even vital, part of public life is a long one.

It would be an utter act of folly to suggest that the founding fathers would be offended by the phrase "under God" in the Pledge of Allegiance, in view of chaplain prayers to begin Congressional sessions, and the proclamation that "God save this Court and the United States" at the beginning of Supreme Court sessions.

More Recent Interpretations

This would not meet the Lemon test for Establishment. You can question the validity of the Lemon factors, but the fact of the matter is that they are still good law until the Supreme Court, by a majority decision, tells us otherwise.

Also, the Supreme Court has ruled that references to God or deity as a concept is not offensive. Thus, Congress can begin with prayer, the Supreme Court may begin by invoking God, and witness still swear on the Bible. These are matters of routine, rather than establishment, and the Supreme Court has held that these practices are not in violation of the First Amendment. It is likely that the Supreme Court would incorporate this view and see the reference to God in the Pledge of Allegiance as not establishing a religion, but rather recognition of a higher power that is not offensive to constitutional principles.

Separation of Powers

This is not a Separation of Powers issue in the least. Congress, as noted above, is fully authorized to strip jurisdiction from the federal courts, as stated in Article III of the Constitution. It is part of the checks and balances on the courts.

As a side note, I think you are confused. "Congress" is a reference to *both* the House and the Senate. Congress is NOT a sub-branch of government. What you were trying to say, is that you view the House as somehow being inferior. I take great exception to that, and so would most students of government. The House holds the purse-strings to the government, and that, sir, is a huge amount of power. The House SHOULD be highly political and highly partisan. It is intended to be that way! Why fault it? This is the marketplace of ideas. This is where debate, discussion, persuasion, and compromise come together to make things happen. I don't fault that at all. I applaud it.

I have no clue what point you are trying to make by citing some NY Times story regarding the Administration's repsonse to Congressional efforts to reform the intelligence community and therefore decline to respond.

2) What is the potential long term impact of granting state judiciaries exclusive jurisdiction over First Amendment cases?

Irrelevant. This is not the implication of this legislation. This is not a valid quesiton, let alone one for discussion. This has never been, and never will be, the case.

3) Legal questions aside, has our Federal Government finally cracked by trying to create a precedent in government that allows for the unchecked establishment or enforcement of "majority" opinions? Are marriage and abortion rights next on the agenda?

This question doesn't even make sense. How has that happened? The same system of checks and balances that has been in place since our country's inception is still in place, and would still be in place even if this piece of legislation passed. Are marriage and abortion rights next? Why wouldn't they be part of the national dialogue? Are the citizens of this great nation forbidden from self-determination on these issues? You'll note that the good citizens of the state of Louisiana amended their state constitution to define marriage as between one man and one woman. The measure passed with 80% (!!!!) of the vote. Are they not permitted to do so? Or are you and other people better than they to tell them what laws they may or may not pass? Good grief.

Congress has at least three checks on the Federal Judiciary: Amending the Constitution (with the states ratifying it), impeachment (House) and removal (Senate), and limitation of authority. Also, the Judiciary has to rely on the Executive to enforce its will.



I would quote Mr. Jefferson on this.


I will quote Mr. Jefferson on this too.


There is one check that has been removed: the State Legislatures check on the Federal government (17th amendment), but that is a topic for another debate.

While I have to applaud you for an excellent and highly detailed post Mr. Jaggers I think there is one very key fact that you are overlooking - The founding fathers designed our government to evolve as society changes and this especially holds true of the Supreme Court.

Who could have guessed during the height of slavery or even the civil rights movement that the Supreme Court could find African Americans to be equal to White citizens based on constitutional principles? It happened because the justices that made that decision interpreted the document based on current conditions in society. You and other strict constitutionalists may not like that, but that is the way the document was designed.

So while you may be absolutely 100% correct that the Supreme Court would not strike down invoking God during legal proceedings and swearing on the bible, it is an undeniable fact that currently our society is moving towards a much more multicultural and secular society. So the courts may not rule on those things now, but when the next justices are on the bench 10 or 20 years from now it is very possible that they will.

So, my answer here is that yes I consider this a violation of the establishment clause, but the justices currently sitting on the bench probbaly will not. We may lose that battle for the time being, but it will be my generation and those that think like me that will be sitting on the bench before too much longer.

Arguments about whether the founding fathers had certain religious beliefs or not is completely irrelevant. In their day being anything but a Christian was practically unheard of and it wasn't too much earlier in history that you could be killed for having such thoughts. I think you'll have to admit that things have changed significantly since those men were alive. Our courts and our laws have changed accordingly.

I completely understand your point re the changing perceptions of the Constitution as our society changes and evolves. And I agree with that to a certain extent.

I briefly summarize my constitutional justifications, as I think those are more fully stated above.

To resolve the question posed: the proposed legislation is likely not in violation of any constitutional principles because:

1. It is not an establishment of religion. In the same vein that we have "...[T]hen conquer we must, when our cause it is just, and this be our motto 'In God is our trust...' " in the national anthem, "In God we Trust" is our national motto and printed on our currency, Congress opens with prayer, and witnesses swear on the Bible. None of these are "establishments" of religion, and I think that is a reasonable conclusion. Likewise, pledging that we are "one nation, under God" is not an establishment of religion by the State.

2. It is not a violation of the principle of separation of powers. It is simply jurisdiction-stripping which Congress is entitled to do. It is one of the checks that Congress wields over the courts.

3. I realize that our society changes. But becoming a more religiously diverse culture does not transform the phrase "one nation, under God" into a state-sanctioned establishment of religion. That's just my opinion, but I'd bet dollars to doughnuts the Nine Supremes would agree with me.

Obviously (since I wrote the question) I disagree. And you fail to provide any reasoning to the contrary why the state and lower courts would not have exclusive jurisdiction in this affair. The reality is that the pledge was Federally managed (collaborated?) as early as 1922 and as recently as 1954 (when Congress & Eisenhower added "Under God"). Who is more likely to check a Federal legislative action? The state courts? I have a serious issue with the Federal Judiciary being pigeon-holed on any First Amendment issue. My beef is not that they are unable to overturn it, its the implication that Congress can so glibly prevent judicial review. Call me an Anti-Federalist, but I think judicial review is a pretty good idea.

Note, I'm not making the logical leap (if you are) that all first amendment cases are removed from Federal jurisdiction as a result of this legislation. I happen to agree that this particular matter likely is not a violation of the establishment clause. I asked the question because some people in the legal profession seem to believe it is a violation of the establishment clause (the 9th Circuit seems to think so). However, I disagree with your cavalier dismissal of it as an issue or question.

It also worries me that this precedent could in fact be codified in other legislation that strips judicial power, like The Protection of Marriage Act. Much like judicial activism, changes to federal jurisdiction should be made with great care, and such sensitivity seems to be lacking in the actions of Congress of late.


If that is directed at me, I take offense to the tone. Nowhere in this question do I imply that the "tyrrany of the majority" is so great that self-determination is now our greatest threat. I fully support the ability of the State of Louisiana and its residents to define marriage however they wish by amending their state constitution. What I do object to is Congress removing the ability of the federal judiciary to review matters that are federal in scope. For example, do you think it an abuse of power if Congress decides in its infinite wisdom that the SC & Federal Judiciary should no longer be able to review legislation related to partial-birth abortions? or on same-sex marriage? (which they've already attemted to do, as noted above) The current legislation related to both of these affairs seems to be at risk from such callous Article III ginsu activities.

Ironically, the implication of my position is quite the opposite of what you presume it to be. You see, I believe that in 1954, Ms. Linda Brown was right to seek the Supreme Court's assistance in telling Congress that segregation was a bad idea. Just as Roe was warranted in asking for review of her ability to obtain an abortion. According to your position, Congress would be justified in removing the SC's ability to even review these concepts. I fully support self-determination, to the extent that I feel *all* abilities to achieve it should be realized. Judicial Review is but one path to that realization.

Read your question again:

What is the potential long term impact of granting state judiciaries exclusive jurisdiction over First Amendment cases?

Yes, you do make the logical leap that all First amendment cases are removed from federal jurisdiction. That's exactly what you do.

Your question asks for the implication of granting the state judiciary exclusive jurisdiction over First Amendment cases. My response to that is that that is very flawed question that does not merit a response, especially in light of the substance of the post - an examination of legislation which would strip jurisdiction of one issue from the federal courts. Yet, your question supposes that the impact of that legislation is the granting to the state courts exclusive jurisdiction over First Amendment jurisprudence. And that is a wild, unsupported supposition and one that cannot be answered, because it is not even within the realm of possibility.



Quite frankly, there's no harm in that. It's a valid exercise of Congressional authority. If you want to prevent Congress from jurisdiction stripping, then please amend the Constitution to do so. Until that time, the Congress is fully authorized to strip the federal judiciary of any issue that they see fit. It's a check and balance.



If you feel that way, then you are entitled to either: 1) amend the Constitution to remove this Congressional check on judicial activism; or 2) elect representatives that conform to your understanding of jurisprudence. But to nakedly state that Congress ought not exercise power that it is validly authorized to exercise in the express text of Article III is arrogant on your part.

3) Legal questions aside, has our Federal Government finally cracked by trying to create a precedent in government that allows for the unchecked establishment or enforcement of "majority" opinions? Are marriage and abortion rights next on the agenda?

I was simply answering the query you posed. The Federal Government has not finally "cracked" and created a precedent that allows for the unchecked establishment of the enforcement of majority opinions. To suggest that it has by passing this particular piece of legislation is nonsensical.

Good gravy man, if *I'm* the one who wrote the question, and I tell you in response that isn't the intent, I think I'm the authority on that particular matter. I basically wrote that point to say "Look, if you think I'm drawing that conclusion, I'm not".

The point made here is that in my opinion Congress has, by removing Federal jurisdiction, given the state courts exclusive jurisdication over this area of First Amendment discourse.


Careful, you're in danger of turning Karl Rove into the green monster with your ability to distort context. I stated clearly there is a balance to be had and that Congress should take just as much care in executing Article III jurisdiction trimming as our courts do in using judicial review to correct tyrranical majority decisions.

Notice I used the word "justified", not valid. I don't question Congress had the ability to do so. I'm arguing they were careless and the latest string of attempts on the pledge and same-sex marriage indicates a propensity to abuse Article III powers. Disagree with my opinion all you like, but calling it non-sensical just doesn't wash.

Doc

I apologize if I misinterpreted your question. But I think you'd agree that your initial question poses a much larger issue than you have now qualified it as. Your initial question supposed that all First Amendment issues were now the exclusive province of the state courts. You have now, in your latest post, qualified it and changed the wording to "this area" of First Amendment discourse. Those are two very different subjects. My response to your first question was entirely appropriate.

So your new question is essentially, "What's the impact on this particular area of jurisprudence if the federal courts are stripped of jurisdiction on this question." That's a more narrow question and one that can be responded to.

My response is still substantively the same as it was in the prior posts: nothing. The courts will view this as merely a form of expression of some egalitarian truth and not as a state-sponsored establishment of religion; just as they have with swearing on the Bible, the national motto and the national anthem. Frankly, opening Congress everyday with a prayer seems much more "establishment-y" (I know it's not a word, just using it) than saying "one nation, under God" in the Pledge of Allegiance.

As to the rest of your post, it is just a normative statement of what you perceive to be justified actions. Reasonable people may certainly disagree on what is a justified exercise of Article III power to strip jurisdiction. I would certainly consider it justified for Congress to strip the federal judiciary of the right to review abortion cases; and leave it up to each state to craft its own policy. You may or may not concur. The question is: is Congress always justified in exercing its power to jurisdiction-strip? I think I would say yes. If they improperly exercise such power, then we can remove them from office. Congress is accountable to their constituency. The courts, however, know no such allegiance.

Judicial review is not an avenue to self-determination. The judiciary is not accountable to the people. They cannot achieve self-determination through the judiciary, and I think it is wrong to theorize that they can. Unfortunately, the courts have become the legislatures of our day. But that is another topic. The questions you posed, in my opinion, have been answered.

By these three powers, Congress can effectively give sole jurisdiction in some issues, including the First Amendment or in this case the Pledge of Allegiance, to the states. The reasons for this might include: Self Determination for the states and/or abuse of power in the Federal Judiciary.

In addition, the Article 3 phases that are bold give Congress the power to tell the Courts how to interpret (I.E. 'Regulations') the Constitution, under penalty of impeachment .