Conduct Unbefitting the Congress:
The So-Called Pledge Protection Act Passed by the House of Representatives

To paraphrase the late President Reagan, "there they go again." The House of Representatives last week passed, for the second time in about two months, a bill to strip the federal courts - including the Supreme Court - of jurisdiction to hear certain cases that conservative House members fear will be decided the "wrong" way by "activist" federal judges.

The prior jurisdiction-stripping bill, passed by the House in late July, was called the Marriage Protection Act. It purported to deprive federal courts of the power to hear certain questions pertaining to the recognition of same-sex marriages by the states. As one of us argued in an earlier column, that bill was arguably constitutional. And, in any event, it was written so poorly it would not accomplish its objectives. Happily, that bill has not passed the Senate.

Last week's bill is called the Pledge Protection Act. It is designed to prevent the federal judiciary from hearing any claims that the recitation of the Pledge of Allegiance ever violates the Constitution. In particular, its intent is to preclude federal courts from ruling on the controversy over the Pledge's inclusion of the words "one nation under God."

The Impetus of the Bill - the Supreme Court's Ruling in Newdow

The bill was an apparent reaction to the Supreme Court's decision in June in Newdow v. Elk Grove Unified School District. There, the Court held that Mr. Newdow was not the right plaintiff to challenge the Pledge recited in his daughter's public school class. (In legal parlance, the Court said the plaintiff lacked "standing.") For this reason, the Court neither reached nor rejected the merits of Mr. Newdow's claim that inclusion of the words "one nation under God" violates the Establishment Clause of the First Amendment (a claim about which both of us have our doubts.) Presumably, the supporters of the Pledge protection bill are worried that if and when a similar challenge brought by a claimant with proper standing reaches the Supreme Court, the words "one nation under God" may be struck down.

To avoid such a result, the Pledge Protection Act, says: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance . . . or its recitation."

By its terms, then, this bill (if passed by the Senate and signed by the President) would prevent suits like Michael Newdow's from being filed in federal court. Since his claim raised questions regarding the "validity" of the "recitation" of the Pledge, the bill would require dismissal of the case for lack of jurisdiction. In that sense, the Pledge bill - unlike the proposed Marriage Protection Act - at least prevents federal courts from hearing the kinds of cases that the House members would want to have excluded.

Further, not only would people like Mr. Newdow - who affirmatively filed suit to challenge the current Pledge - be ousted from federal court, so too would people who were being punished for failing to recite the pledge be barred from seeking recourse in the federal courts in response to any disciplinary proceedings brought against them. The bill would prevent federal courts from hearing "any question pertaining to" the "recitation" or "validity" of the Pledge."

Indeed, the bill would preclude not only challenges to the words "one nation under God" in a voluntarily-invited student recitation - as in Newdow's case - it would also foreclose the federal courts from hearing a challenge to a state law that required (rather than merely invited) public school children to recite the Pledge. Thus, the time-honored principle that children may not be compelled to recite the Pledge, established over 50 years ago in West Virginia v. Barnette, would be unenforceable in federal court.

The Problems of Leaving Things to State Courts

Of course, people could still bring challenges in state court. But each state's Supreme Court would have the final say on their claim. And this raises several problems.

The first is disuniformity - do we really want 50 different answers to the meaning of the federal Constitution in this area? Indeed, can the United States Constitution maintain its stature and prominence as Supreme Law when starkly different interpretations of it stand as law in different states over time?

Second, this disuniformity is likely to be particularly pronounced if state courts repudiate existing Supreme Court decisions on the books, and cannot be reversed for doing so. Once freed of the specter of U.S. Supreme Court supervision, state courts might very well feel free to disregard past U.S. Supreme Court precedent. For example, a state court could conclude that Barnette was incorrectly decided and allow its schools to compel children who don't want to recite any of the pledge to recite the Pledge in its entirety. And no federal court, or state court in neighboring states, could do anything about it.

Or, to move to the Establishment Clause issue posed in Newdow - that of invited recitation of the Pledge in public schools -- a state court could decide that the First Amendment's Establishment Clause simply doesn't apply against the states - that it limits only the federal government. This controversial contention - which has some historical support - is foreclosed by existing Supreme Court precedent, but once the Supreme Court is out of the mix, all bets are off.

Happily, most state courts are unlikely to reach radical results like these. But do we really trust state courts more than the Supreme Court here, and if so, why? This brings up one of the biggest puzzles about the Pledge Protection Act (and the Marriage Protection Act as well): where is the evidence that "activist" federal judges on the Supreme Court were going to reach "liberal" results? In Newdow, the only 4 Justices who expressed views on the merits of the case all rejected Mr. Newdow's Establishment Clause challenge; not a single Justice embraced it. We took the message from the Supreme Court to be: "we're getting rid of this case without having to either disturb or justify or clarify the parameters of the tacit equilibrium that exists today with regard to the role of religion in public life, but we're sending a signal that lower courts should not do what the Ninth Circuit did and should leave this incendiary issue well enough alone." If that is the message, do Pledge backers really trust the Supreme Courts of Florida and Massachusetts and New Jersey more than that of the United States?

Federal Courts Would Likely Deem the Act Unconstitutional

In addition to being silly, the Pledge Act is, as Marci Hamilton pointed out in her column last week, likely to be considered unconstitutional by the federal courts themselves. If a federal court thinks that it violates the Establishment Clause to include the words "one nation under god" in a publicly recited pledge, then that court would probably also think it violates the Establishment Clause for Congress to deprive federal courts of the power to hear cases precisely in order to permit the Pledge to be illegally recited. (And if it does not violate the Establishment Clause to include "under God" in the Pledge, the Pledge Act is unnecessary and a gratuitous insult to a coordinate branch of government.)

Moreover, because the Pledge Protection Act purports to strip not just lower federal courts - but all federal courts, including the Supreme Court - of jurisdiction, it likely violates the structural principles underlying the Constitution as well. (For a discussion of this issue, readers may want to consult Jack Balkin's weblog.) It is true that Article III gives the Supreme Court appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make" - the language on which the bill's backers rely. But in over 200 years the Supreme Court has never held that this language permits Congress to withdraw the authority of the entire federal judiciary to hear constitutional claims. Such an interpretation of Article III would allow Congress to escape the primary constraint embedded in the Constitution's structure for preventing the Congress from abridging constitutional guarantees -- an independent judiciary with the authority to hear claims arising under the Constitution.

Further, it is simply too late in the day for conservatives, in particular, to argue that textual language inevitably overrides core structural features of the constitutional system. If text necessarily trumps structure, then the Court's conservative-driven Eleventh Amendment jurisprudence, dealing with immunities that states enjoy from suit, is completely wrong, because it ignores the language of the constitutional text in the name of federalism. If the enforcement of a non-enumerated structural value like state sovereign immunity supersedes constitutional text to the contrary, surely protecting the foundational role of the judiciary in federalism and the separation of powers - a goal that is so essential to the very idea of constitutional government -- warrants equivalent if not greater respect.

The Act Exacerbates a Deteriorating Relationship between the Court and Congress

All that brings us to the biggest problem with the Act; it reaffirms an image in the Court's mind that Congress cannot be trusted to seriously think about and interpret the Constitution. For the past decade or so, the Supreme Court has deferred less and less to the judgments of Congress passing legislation, especially when the judgments Congress has purported to make involve constitutional interpretation and enforcement.

In the cases under section 5 of the Fourteenth Amendment, for example, the Court (with a few recent exceptions) has been very unwilling to let Congress act on its own view of constitutional norms. (This issue is going to come up again in the Partial Birth Abortion Ban Act setting, where a key question is whether the courts should defer to Congress' findings about when health exceptions are constitutionally required in abortion regulation.)

One of us has long thought, and written, that the Court should generally be more deferential to Congress than it currently is (although in certain areas, like abortion rights, deference may not be warranted.) But we both think it is harder to argue that the Court should respect Congress when Congress is so openly disrespectful - downright insulting - to the Court. Perhaps the Court started this fight - we don't know whether Congress' egg came before the Court's chicken or vice versa. But we do know that right now we're in a downward spiral that is not very becoming for either branch.

The Act Exacerbates a Deteriorating International Image of American Government

And it is not only the Court's respect that Congress is losing; there is an international dimension to this issue as well. Many commentators have observed a growing perception in the international community that the United States does not live up to the ideals it espouses. The U.S., it is said, talks the talk of rights and democracy, but when push comes to shove, it won't walk the path its supposed normative commitments suggest it should be traveling.

This view may be cynical and at times unfair. But it is a view that many outside the U.S. hold. So, in the current climate, we should be doing everything we can to demonstrate that we mean what we say about constitutional guarantees.

Whatever one thinks about the merits of Mr. Newdow's suit, and -- as mentioned above -- both of us have misgivings about his substantive arguments, there is no question that Americans should be proud of the way his claims were adjudicated. As an avowed atheist, Mr. Newdow holds different views than most Americans in our diverse, but highly religious, society. He challenged conventional orthodoxy by espousing a controversial position that most Americans rejected. But his claim of constitutional right received fair and careful analysis throughout the adjudicatory process. Although Mr. Newdow is not a regularly practicing attorney, he was permitted to argue his claim before the highest court in the nation where he received a respectful hearing. His arguments rang out as he spoke with passion to the Supreme Court about his rights as a father and a citizen who wanted his beliefs respected.

Newdow did not receive the decision he sought, but he was heard. His claims were taken seriously. And the world saw that the United States takes its Constitution seriously - even when its conventions are challenged by a solitary and unpopular individual. Not many countries would permit a dissenter this kind of an opportunity to challenge the government in open and high court. Only in America do we treat individuals and individual rights with such respect.

At least we used to. But now Congress wants to tarnish that image. At its core, the Pledge Protection Act tells the world that the Constitution does not mean what it says. The independent judiciary really isn't that independent after all. If the government doesn't like the way the courts may interpret the Constitution, it will take away their power to adjudicate constitutional claims. When the lone individual challenges government to its face to live up to constitutional guarantees, rather than meeting his arguments on the merits, government will change the rules of the game to deny dissenters their day in courts of national stature.

Hopefully, the Senate will demonstrate more trust and pride in America than the House did in this ignoble bill.