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108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-691

======================================================================



 
                     PLEDGE PROTECTION ACT OF 2004

                                _______
                                

 September 21, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2028]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 2028) to amend title 28, United States Code, with respect 
to the jurisdiction of Federal courts inferior to the Supreme 
Court over certain cases and controversies involving the Pledge 
of Allegiance, having considered the same, report favorably 
thereon with amendments and recommend that the bill as amended 
do pass.

                                CONTENTS

                                                                   Page
The Amendments...................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    50
Committee Consideration..........................................    51
Vote of the Committee............................................    51
Committee Oversight Findings.....................................    53
New Budget Authority and Tax Expenditures........................    53
Congressional Budget Office Cost Estimate........................    53
Performance Goals and Objectives.................................    54
Constitutional Authority Statement...............................    54
Section-by-Section Analysis and Discussion.......................    54
Changes in Existing Law Made by the Bill, as Reported............    55
Markup Transcript................................................    55
Dissenting Views.................................................    91

                             The Amendments

    The amendments are as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Pledge Protection Act of 2004''.

SEC. 2. LIMITATION ON JURISDICTION.

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

``Sec. 1632. Limitation on jurisdiction

    ``No court created by Act of Congress shall have any jurisdiction, 
and the Supreme Court shall have no appellate jurisdiction, to hear or 
decide any question pertaining to the interpretation of, or the 
validity under the Constitution of, the Pledge of Allegiance, as 
defined in section 4 of title 4, or its recitation.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 99 of title 28, United States Code, is amended by adding at the 
end the following new item:

``1632. Limitation on jurisdiction.''.

    Amend the title so as to read:

      A bill to amend title 28, United States Code, with 
respect to the jurisdiction of Federal courts over certain 
cases and controversies involving the Pledge of Allegiance.

                          Purpose and Summary

    The Pledge of Allegiance (``the Pledge''), reads: ``I 
pledge allegiance to the Flag of the United States of America, 
and to the Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'' \1\ When 
Congress passed the bill adding the words ``under God,'' 
Congress stated its belief that those words in no way run 
contrary to the First Amendment but recognize ``only the 
guidance of God in our national affairs.'' \2\
---------------------------------------------------------------------------
    \1\ This text of the Pledge is codified in 4 U.S.C. Sec. 4.
    \2\ H.R. Rep. No. 83-1693.
---------------------------------------------------------------------------
    Two words--``under God''--in the Pledge help define our 
national heritage as the beneficiaries of a constitution sent 
to the states for ratification ``in the Year of our Lord,'' \3\ 
1787, by a founding generation that saw itself guided by a 
providential God. Those two words, and their entirely proper 
presence in a system of government defined by our Constitution, 
have been repeatedly and overwhelmingly reaffirmed by the House 
of Representatives.
---------------------------------------------------------------------------
    \3\ U.S. Const. (``[D]one in Convention by the Unanimous Consent of 
the States present the Seventeenth Day of September in the Year of our 
Lord one thousand seven hundred and Eighty seven . . .) (ratification 
clause).
---------------------------------------------------------------------------
    H.R. 2028 would preclude Federal court jurisdiction over 
cases involving the Pledge of Allegiance and its recitation. 
H.R. 2028 would prevent Federal courts from striking the words 
``under God'' from the Pledge of Allegiance.

                Background and Need for the Legislation

    Congress has repeatedly and overwhelmingly reaffirmed the 
Pledge of Allegiance. On June 27, 2002, during the 107th 
Congress, the House of Representatives passed H. Res. 459, 
expressing the sense of the House of Representatives that 
Newdow v. United States Congress \4\ was erroneously decided, 
and for other purposes, by a vote of 416-3.
---------------------------------------------------------------------------
    \4\ 292 F.3d 597 (9th Cir. 2002), rev'd, 124 S.Ct. 2301 (2004).
---------------------------------------------------------------------------
    That resolution stated:

        Whereas on June 26, 2002, the Ninth Circuit Court of 
        Appeals held that the Pledge of Allegiance is an 
        unconstitutional endorsement of religion, stating that 
        it ``impermissibly takes a position with respect to the 
        purely religious question of the existence and identity 
        of God,'' and places children in the ``untenable 
        position of choosing between participating in an 
        exercise with religious content or protesting.'';

        Whereas the Pledge of Allegiance is not a prayer or a 
        religious practice, the recitation of the pledge is not 
        a religious exercise;

        Whereas the Pledge of Allegiance is the verbal 
        expression of support for the United States of America, 
        and its effect is to instill support for the United 
        States of America;

        Whereas the United States Congress recognizes the right 
        of those who do not share the beliefs expressed in the 
        Pledge to refrain from its recitation;

        Whereas this ruling is contrary to the vast weight of 
        Supreme Court authority recognizing that the mere 
        mention of God in a public setting is not contrary to 
        any reasonable reading of the First Amendment. The 
        Pledge of Allegiance is not a religious service or a 
        prayer, but it is a statement of historical beliefs. 
        The Pledge of Allegiance is a recognition of the fact 
        that many people believe in God and the value that our 
        culture has traditionally placed on the role of 
        religion in our founding and our culture. The Supreme 
        Court has recognized that governmental entities may, 
        consistent with the First Amendment, recognize the 
        religious heritage of America;

        Whereas the notion that a belief in God permeated the 
        founding of our Nation was well recognized by Justice 
        Brennan, who wrote in School District of Abington 
        Township v. Schempp, 374 U.S. 203, 304 (1963) (Brennan, 
        J., concurring), that ``[t]he reference to divinity in 
        the revised pledge of allegiance * * * may merely 
        recognize the historical fact that our Nation was 
        believed to have been founded `under God.' Thus 
        reciting the pledge may be no more of a religious 
        exercise than the reading aloud of Lincoln's Gettysburg 
        Address, which contains an allusion to the same 
        historical fact.''; and

        Whereas this ruling treats any religious reference as 
        inherently evil and is an attempt to remove such 
        references from the public arena: Now, therefore, be it

    Resolved, That it is the sense of the House of 
Representatives that----

        (1) the Pledge of Allegiance, including the phrase 
        ``One Nation, under God,'' reflects the historical fact 
        that a belief in God permeated the founding and 
        development of our Nation;

        (2) the Ninth Circuit's ruling is inconsistent with the 
        United States Supreme Court's First Amendment 
        jurisprudence that the Pledge of Allegiance and similar 
        expressions are not unconstitutional expressions of 
        religious belief;

        (3) the phrase ``One Nation, under God,'' should remain 
        in the Pledge of Allegiance; and

        (4) the Ninth Circuit Court of Appeals should agree to 
        rehear this ruling en banc in order to reverse this 
        constitutionally infirm and historically incorrect 
        ruling.

    On October 8, 2002, also during the 107th Congress, the 
House of Representatives passed S. 2690,\5\ to reaffirm the 
reference to one Nation under God in the Pledge of Allegiance, 
by a vote of 401-5.
---------------------------------------------------------------------------
    \5\ The purpose of S. 2690 is described in H.R. Rep. No. 107-659 
(2002) at 4-13.

---------------------------------------------------------------------------
    The findings in S. 2690 provided:

        Congress finds the following:

        (1) On November 11, 1620, prior to embarking for the 
        shores of America, the Pilgrims signed the Mayflower 
        Compact that declared: ``Having undertaken, for the 
        Glory of God and the advancement of the Christian Faith 
        and honor of our King and country, a voyage to plant 
        the first colony in the northern parts of Virginia.''

        (2) On July 4, 1776, America's Founding Fathers, after 
        appealing to the ``Laws of Nature, and of Nature's 
        God'' to justify their separation from Great Britain, 
        then declared: ``We hold these Truths to be self-
        evident, that all Men are created equal, that they are 
        endowed by their Creator with certain unalienable 
        Rights, that among these are Life, Liberty, and the 
        Pursuit of Happiness''

        (3) In 1781, Thomas Jefferson, the author of the 
        Declaration of Independence and later the Nation's 
        third President, in his work titled ``Notes on the 
        State of Virginia'' wrote: ``God who gave us life gave 
        us liberty. And can the liberties of a nation be 
        thought secure when we have removed their only firm 
        basis, a conviction in the minds of the people that 
        these liberties are of the Gift of God. That they are 
        not to be violated but with His wrath? Indeed, I 
        tremble for my country when I reflect that God is just; 
        that his justice cannot sleep forever.''

        (4) On May 14, 1787, George Washington, as President of 
        the Constitutional Convention, rose to admonish and 
        exhort the delegates and declared: ``If to please the 
        people we offer what we ourselves disapprove, how can 
        we afterward defend our work? Let us raise a standard 
        to which the wise and the honest can repair; the event 
        is in the hand of God!''

        (5) On July 21, 1789, on the same day that it approved 
        the Establishment Clause concerning religion, the First 
        Congress of the United States also passed the Northwest 
        Ordinance, providing for a territorial government for 
        lands northwest of the Ohio River, which declared: 
        ``Religion, morality, and knowledge, being necessary to 
        good government and the happiness of mankind, schools 
        and the means of education shall forever be 
        encouraged.''

        (6) On September 25, 1789, the First Congress 
        unanimously approved a resolution calling on President 
        George Washington to proclaim a National Day of 
        Thanksgiving for the people of the United States by 
        declaring, ``a day of public thanksgiving and prayer, 
        to be observed by acknowledging, with grateful hearts, 
        the many signal favors of Almighty God, especially by 
        affording them an opportunity peaceably to establish a 
        constitution of government for their safety and 
        happiness.''

        (7) On November 19, 1863, President Abraham Lincoln 
        delivered his Gettysburg Address on the site of the 
        battle and declared: ``It is rather for us to be here 
        dedicated to the great task remaining before us--that 
        from these honored dead we take increased devotion to 
        that cause for which they gave the last full measure of 
        devotion--that we here highly resolve that these dead 
        shall not have died in vain--that this Nation, under 
        God, shall have a new birth of freedom--and that 
        Government of the people, by the people, for the 
        people, shall not perish from the earth.''

        (8) On April 28, 1952, in the decision of the Supreme 
        Court of the United States in Zorach v. Clauson, 343 
        U.S. 306 (1952), in which school children were allowed 
        to be excused from public schools for religious 
        observances and education, Justice William O. Douglas, 
        in writing for the Court stated: ``The First Amendment, 
        however, does not say that in every and all respects 
        there shall be a separation of Church and State. 
        Rather, it studiously defines the manner, the specific 
        ways, in which there shall be no concern or union or 
        dependency one on the other. That is the common sense 
        of the matter. Otherwise the State and religion would 
        be aliens to each other--hostile, suspicious, and even 
        unfriendly. Churches could not be required to pay even 
        property taxes. Municipalities would not be permitted 
        to render police or fire protection to religious 
        groups. Policemen who helped parishioners into their 
        places of worship would violate the Constitution. 
        Prayers in our legislative halls; the appeals to the 
        Almighty in the messages of the Chief Executive; the 
        proclamations making Thanksgiving Day a holiday; `so 
        help me God' in our courtroom oaths--these and all 
        other references to the Almighty that run through our 
        laws, our public rituals, our ceremonies would be 
        flouting the First Amendment. A fastidious atheist or 
        agnostic could even object to the supplication with 
        which the Court opens each session: `God save the 
        United States and this Honorable Court.' ''

        (9) On June 15, 1954, Congress passed and President 
        Eisenhower signed into law a statute that was clearly 
        consistent with the text and intent of the Constitution 
        of the United States, that amended the Pledge of 
        Allegiance to read: ``I pledge allegiance to the Flag 
        of the United States of America and to the Republic for 
        which it stands, one Nation under God, indivisible, 
        with liberty and justice for all.''

        (10) On July 20, 1956, Congress proclaimed that the 
        national motto of the United States is ``In God We 
        Trust'', and that motto is inscribed above the main 
        door of the Senate, behind the Chair of the Speaker of 
        the House of Representatives, and on the currency of 
        the United States.

        (11) On June 17, 1963, in the decision of the Supreme 
        Court of the United States in Abington School District 
        v. Schempp, 374 U.S. 203 (1963), in which compulsory 
        school prayer was held unconstitutional, Justices 
        Goldberg and Harlan, concurring in the decision, 
        stated: ``But untutored devotion to the concept of 
        neutrality can lead to invocation or approval of 
        results which partake not simply of that 
        noninterference and noninvolvement with the religious 
        which the Constitution commands, but of a brooding and 
        pervasive devotion to the secular and a passive, or 
        even active, hostility to the religious. Such results 
        are not only not compelled by the Constitution, but, it 
        seems to me, are prohibited by it. Neither government 
        nor this Court can or should ignore the significance of 
        the fact that a vast portion of our people believe in 
        and worship God and that many of our legal, political, 
        and personal values derive historically from religious 
        teachings. Government must inevitably take cognizance 
        of the existence of religion and, indeed, under certain 
        circumstances the First Amendment may require that it 
        do so.''

        (12) On March 5, 1984, in the decision of the Supreme 
        Court of the United States in Lynch v. Donelly, 465 
        U.S. 668 (1984), in which a city government's display 
        of a nativity scene was held to be constitutional, 
        Chief Justice Burger, writing for the Court, stated: 
        ``There is an unbroken history of official 
        acknowledgment by all three branches of government of 
        the role of religion in American life from at least 
        1789 . . . [E]xamples of reference to our religious 
        heritage are found in the statutorily prescribed 
        national motto `In God We Trust' (36 U.S.C. 186), which 
        Congress and the President mandated for our currency, 
        see (31 U.S.C. 5112(d)(1) (1982 ed.)), and in the 
        language `One Nation under God', as part of the Pledge 
        of Allegiance to the American flag. That pledge is 
        recited by many thousands of public school children--
        and adults--every year . . . Art galleries supported by 
        public revenues display religious paintings of the 15th 
        and 16th centuries, predominantly inspired by one 
        religious faith. The National Gallery in Washington, 
        maintained with Government support, for example, has 
        long exhibited masterpieces with religious messages, 
        notably the Last Supper, and paintings depicting the 
        Birth of Christ, the Crucifixion, and the Resurrection, 
        among many others with explicit Christian themes and 
        messages. The very chamber in which oral arguments on 
        this case were heard is decorated with a notable and 
        permanent--not seasonal--symbol of religion: Moses with 
        the Ten Commandments. Congress has long provided 
        chapels in the Capitol for religious worship and 
        meditation.''

        (13) On June 4, 1985, in the decision of the Supreme 
        Court of the United States in Wallace v. Jaffree, 472 
        U.S. 38 (1985), in which a mandatory moment of silence 
        to be used for meditation or voluntary prayer was held 
        unconstitutional, Justice O'Connor, concurring in the 
        judgment and addressing the contention that the Court's 
        holding would render the Pledge of Allegiance 
        unconstitutional because Congress amended it in 1954 to 
        add the words ``under God,'' stated ``In my view, the 
        words `under God' in the Pledge, as codified at (36 
        U.S.C. 172), serve as an acknowledgment of religion 
        with `the legitimate secular purposes of solemnizing 
        public occasions, [and] expressing confidence in the 
        future.' ''

        (14) On November 20, 1992, the United States Court of 
        Appeals for the 7th Circuit, in Sherman v. Community 
        Consolidated School District 21, 980 F.2d 437 (7th Cir. 
        1992), held that a school district's policy for 
        voluntary recitation of the Pledge of Allegiance 
        including the words ``under God'' was constitutional.

        (15) The 9th Circuit Court of Appeals erroneously held, 
        in Newdow v. United States Congress (9th Cir. June 26, 
        2002), that the Pledge of Allegiance's use of the 
        express religious reference ``under God'' violates the 
        First Amendment to the Constitution, and that, 
        therefore, a school district's policy and practice of 
        teacher-led voluntary recitations of the Pledge of 
        Allegiance is unconstitutional.

        (16) The erroneous rationale of the 9th Circuit Court 
        of Appeals in Newdow would lead to the absurd result 
        that the Constitution's use of the express religious 
        reference ``Year of our Lord'' in Article VII violates 
        the First Amendment to the Constitution, and that, 
        therefore, a school district's policy and practice of 
        teacher-led voluntary recitations of the Constitution 
        itself would be unconstitutional.

    S. 2690 was signed by President George W. Bush on November 
13, 2002, and became Public Law No. 107-293.
    During the 108th Congress, on March 20, 2003, following a 
February 28, 2003, decision by the Ninth Circuit Court of 
Appeals, en banc, amending its ruling in this case,\6\ the 
House of Representatives passed H. Res. 132,\7\ expressing the 
sense of the House of Representatives that the Ninth Circuit 
Court of Appeals ruling in Newdow v. United States Congress is 
inconsistent with the Supreme Court's interpretation of the 
first amendment and should be overturned, and for other 
purposes, by a vote of 400-7.
---------------------------------------------------------------------------
    \6\ See 328 F.3d 466 (9th Cir. 2003).
    \7\ The purpose of H. Res. 132 is described in H.R. Rep No. 108-41 
(2003) at 2-20.
---------------------------------------------------------------------------
    H. Res. 132 provided:

        Whereas on June 26, 2002, the Ninth Circuit Court of 
        Appeals, in Newdow v. United States Congress (292 F.3d 
        597; 9th Cir. 2002) (Newdow I), held that the Pledge of 
        Allegiance to the Flag as currently written to include 
        the phrase, ``one Nation, under God'', 
        unconstitutionally endorses religion, that such phrase 
        was added to the pledge in 1954 only to advance 
        religion in violation of the establishment clause, and 
        that the recitation of the pledge in public schools at 
        the start of every school day coerces students who 
        choose not to recite the pledge into participating in a 
        religious exercise in violation of the establishment 
        clause of the first amendment;

        Whereas on February 28, 2003, the Ninth Circuit Court 
        of Appeals amended its ruling in this case, and held 
        (in Newdow II) that a California public school 
        district's policy of opening each school day with the 
        voluntary recitation of the Pledge of Allegiance to the 
        Flag ``impermissibly coerces a religious act'' on the 
        part of those students who choose not to recite the 
        pledge and thus violates the establishment clause of 
        the first amendment;

        Whereas the ninth circuit's ruling in Newdow II 
        contradicts the clear implication of the holdings in 
        various Supreme Court cases, and the spirit of numerous 
        other Supreme Court cases in which members of the Court 
        have explicitly stated, that the voluntary recitation 
        of the Pledge of Allegiance to the Flag is consistent 
        with the first amendment;

        Whereas the phrase, ``one Nation, under God,'' as 
        included in the Pledge of Allegiance to the Flag, 
        reflects the notion that the Nation's founding was 
        largely motivated by and inspired by the Founding 
        Fathers' religious beliefs;

        Whereas the Pledge of Allegiance to the Flag is not a 
        prayer or statement of religious faith, and its 
        recitation is not a religious exercise, but rather, it 
        is a patriotic exercise in which one expresses support 
        for the United States and pledges allegiance to the 
        flag, the principles for which the flag stands, and the 
        Nation;

        Whereas the House of Representatives recognizes the 
        right of those who do not share the beliefs expressed 
        in the pledge or who do not wish to pledge allegiance 
        to the flag to refrain from its recitation;

        Whereas the effect of the ninth circuit's ruling in 
        Newdow II will prohibit the recitation of the pledge at 
        every public school in 9 states, schooling over 9.6 
        million students, and could lead to the prohibition of, 
        or severe restrictions on, other voluntary speech 
        containing religious references in these classrooms;

        Whereas rather than promoting neutrality on the 
        question of religious belief, this decision requires 
        public school districts to adopt a preference against 
        speech containing religious references;

        Whereas the constitutionality of the voluntary 
        recitation by public school students of numerous 
        historical and founding documents, such as the 
        Declaration of Independence, the Constitution, and the 
        Gettysburg Address, has been placed into serious doubt 
        by the ninth circuit's decision in Newdow II;

        Whereas the ninth circuit's interpretation of the first 
        amendment in Newdow II is clearly inconsistent with the 
        Founders' vision of the establishment clause and the 
        free exercise clause of the first amendment, Supreme 
        Court precedent interpreting the first amendment, and 
        any reasonable interpretation of the first amendment;

        Whereas this decision places the ninth circuit in 
        direct conflict with the Seventh Circuit Court of 
        Appeals which, in Sherman v. Community Consolidated 
        School District (980 F.2d 437; 7th Cir. 1992), held 
        that a school district's policy allowing for the 
        voluntary recitation of the Pledge of Allegiance to the 
        Flag in public schools does not violate the 
        establishment clause of the first amendment;

        Whereas Congress has consistently supported the Pledge 
        of Allegiance to the Flag by starting each session with 
        its recitation;

        Whereas the House of Representatives reaffirmed support 
        for the Pledge of Allegiance to the Flag in the 107th 
        Congress by adopting House Resolution 459 on June 26, 
        2002, by a vote of 416-3; and

        Whereas the Senate reaffirmed support for the Pledge of 
        Allegiance to the Flag in the 107th Congress by 
        adopting Senate Resolution 292 on June 26, 2002, by a 
        vote of 99-0: Now, therefore, be it

    Resolved, That it is the sense of the House of 
Representatives that----

        (1) the phrase ``one Nation, under God,'' in the Pledge 
        of Allegiance to the Flag reflects that religious faith 
        was central to the Founding Fathers and thus to the 
        founding of the Nation;

        (2) the recitation of the Pledge of Allegiance to the 
        Flag, including the phrase, ``one Nation, under God,'' 
        is a patriotic act, not an act or statement of 
        religious faith or belief;

        (3) the phrase ``one Nation, under God'' should remain 
        in the Pledge of Allegiance to the Flag and the 
        practice of voluntarily reciting the pledge in public 
        school classrooms should not only continue but should 
        be encouraged by the policies of Congress, the various 
        States, municipalities, and public school officials;

        (4) despite being the school district where the legal 
        challenge to the pledge originated, the Elk Grove 
        Unified School District in Elk Grove, California, 
        should be recognized and commended for their continued 
        support of the Pledge of Allegiance to the Flag;

        (5) the Ninth Circuit Court of Appeals ruling in Newdow 
        v. United States Congress has created a split among the 
        circuit courts, and is inconsistent with the Supreme 
        Court's interpretation of the first amendment, which 
        indicates that the voluntary recitation of the pledge 
        and similar patriotic expressions is consistent with 
        the first amendment;

        (6) the Attorney General should appeal the ruling in 
        Newdow v. United States Congress , and the Supreme 
        Court should review this ruling in order to correct 
        this constitutionally infirm and historically incorrect 
        holding; and

        (7) the President should nominate and the Senate should 
        confirm Federal circuit court judges who interpret the 
        Constitution consistent with the Constitution's text.

    And on July 22, 2003, the House of Representatives agreed 
to an amendment (H. Amdt. 288 (A003)) offered by Rep. 
Hostettler to H.R. 2799, by a vote of 307-119. Rep. 
Hostettler's amendment prohibited any funds from being used to 
enforce the judgment in Newdow v. United States Congress.\8\
---------------------------------------------------------------------------
    \8\ 292 F.3d 597 (9th Cir. 2002).
---------------------------------------------------------------------------

                 THE FUTURE OF THE PLEDGE OF ALLEGIANCE

    As the legislative history outlined above makes clear, the 
House of Representatives has acted to reaffirm the 
constitutionality of the Pledge in the face of multiple 
decisions by the Federal courts that the Pledge is 
unconstitutional. Although the United States Supreme Court 
reversed and remanded the Ninth Circuit's latest holding 
striking down the Pledge as unconstitutional, it did so on the 
grounds that the plaintiff lacked the legal standing to bring 
the case and consequently the Supreme Court did not reach the 
merits of the case. The Supreme Court's decision not to reach 
the merits of the case is apparently an effort to forestall a 
decision adverse to the Pledge, since the dissenting Justices 
concluded that the Court in its decision ``erect[ed] a novel 
prudential standing principle in order to avoid reaching the 
merits of the constitutional claim.'' \9\
---------------------------------------------------------------------------
    \9\ Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301, 
2312 (Rehnquist, C.J., dissenting). That part of Chief Justice 
Rehnquist's dissenting opinion was joined by Justices O'Connor and 
Thomas. Id.
---------------------------------------------------------------------------
    In order to protect the Pledge from Federal court decisions 
that would have the effect of invalidating the Pledge across 
several states, or even nationwide,\10\ H.R. 2028 would reserve 
to the state courts the authority to decide whether the Pledge 
is valid as written within each state's boundaries.
---------------------------------------------------------------------------
    \10\ Nothing in H.R. 2028 would allow deviations from existing 
Supreme Court precedent prohibiting the coerced recitation of the 
Pledge of Allegiance. In West Virginia Board of Education v. Barnette, 
319 U.S. 624 (1943), the Supreme Court held it is unconstitutional to 
require individuals to salute the flag. See id. at 643 (``If there is 
any fixed star in our constitutional constellation, it is that no 
official, high or petty, can prescribe what shall be orthodox in 
politics, nationalism, religion, or other matters of opinion or force 
citizens to confess by word or act their faith therein.'').
---------------------------------------------------------------------------

  AMERICA'S GREATEST LEADERS HAVE LONG BEEN CONCERNED ABOUT LIMITING 
                FEDERAL JUDGES' ABUSE OF THEIR AUTHORITY

    Deep concern that Federal judges might abuse their power 
has long been noted by America's most gifted observers, 
including Thomas Jefferson and Abraham Lincoln.
    Thomas Jefferson lamented that ``the germ of dissolution of 
our Federal Government is in the constitution of the Federal 
judiciary; . . . working like gravity by night and by day, 
gaining a little today and a little tomorrow, and advancing its 
noiseless step like a thief, over the field of jurisdiction, 
until all shall be usurped . . .'' \11\ In Jefferson's view, 
leaving the protection of individuals' rights to Federal judges 
employed for life was a serious error. Responding to the 
argument that Federal judges are the final interpreters of the 
Constitution, Jefferson wrote:
---------------------------------------------------------------------------
    \11\ XV Thomas Jefferson, Writings of Thomas Jefferson, at 331-32 
(Albert E. Bergh, ed. 1903) (letter from Thomas Jefferson to Charles 
Hammond (Aug. 18, 1821)).

        You seem . . . to consider the [federal] judges as the 
        ultimate arbiters of all constitutional questions, a 
        very dangerous doctrine indeed and one which would 
        place us under the despotism of an oligarchy. Our 
        judges are as honest as other men and not more so. They 
        have with others the same passions for party, for 
        power, and the privilege of their corps . . . [T]heir 
        power [is] the more dangerous as they are in office for 
        life and not responsible, as the other functionaries 
        are, to the elective control. The constitution has 
        erected no such single tribunal, knowing that, to 
        whatever hands confided, with the corruptions of time 
        and party its members would become despots.\12\
---------------------------------------------------------------------------
    \12\ XV The Writings of Thomas Jefferson 277-78 (Andrew A. Lipscomb 
and Albert Bergh, eds. 1904) (letter from Thomas Jefferson to William 
C. Jarvis (September 28, 1820)) (emphasis added).

    Jefferson strongly denounced the notion that the Federal 
judiciary should always have the final say on constitutional 
issues:
        If [such] opinion be sound, then indeed is our 
        Constitution a complete felo de se [act of suicide]. 
        For intending to establish three departments, 
        coordinate and independent, that they might check and 
        balance one another, it has given, according to this 
        opinion, to one of them alone, the right to prescribe 
        rules for the government of the others, and to that one 
        too, which is unelected by, and independent of the 
        nation . . . The constitution, on this hypothesis, is a 
        mere thing of wax in the hands of the judiciary, which 
        they may twist and shape into any form they please.\13\
---------------------------------------------------------------------------
    \13\ XV The Writings of Thomas Jefferson (Albert Bergh, ed. 1903) 
at 213 (letter from Thomas Jefferson to Judge Spencer Roane (September 
6, 1819)).

    Abraham Lincoln said in his first inaugural address in 
1861, ``The candid citizen must confess that if the policy of 
the government, upon vital questions, affecting the whole 
people, is to be irrevocably fixed by decisions of the Supreme 
Court . . . the people will have ceased to be their own rulers 
having, to that extent, practically resigned their government 
into the hands of that eminent tribunal.'' \14\
---------------------------------------------------------------------------
    \14\ Abraham Lincoln's First Inaugural Address (March 4, 1861) in 4 
The Collected Works of Abraham Lincoln 268 (Roy P. Basler, ed. 1953).
---------------------------------------------------------------------------

         H.R. 2028 FITS NEATLY WITHIN OUR CONSTITUTIONAL SYSTEM

    A remedy to abuses by Federal judges has long been 
understood to lie, among other places, in Congress's authority 
to limit Federal court jurisdiction. As eminent Federal 
jurisdiction scholar Herbert Wechsler has stated, ``Congress 
has the power by enactment of a statute to strike at what it 
deems judicial excess by delimitations of the jurisdiction of 
the lower courts and of the Supreme Court's appellate 
jurisdiction . . . [E]ven a pending case may be excepted from 
appellate jurisdiction.'' \15\ Indeed, the Supreme Court has 
upheld a statute removing jurisdiction from it in a pending 
case.\16\
---------------------------------------------------------------------------
    \15\ Herbert Wechsler, ``The Courts and the Constitution,'' 65 
Colum. L. Rev. 1001, 1005 (1965).
    \16\ See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).
---------------------------------------------------------------------------
    Regarding the Federal courts below the Supreme Court, 
Article III, Sec. 1, clause 1 of the Constitution provides that 
``The judicial Power of the United States, shall be vested in 
one supreme Court, and in such inferior Courts as the Congress 
may from time to time ordain and establish.'' \17\
---------------------------------------------------------------------------
    \17\ This provision of the Constitution makes clear that the 
Constitution itself vests judicial power in the manner prescribed in 
the Constitution, not that the Constitution mandates Congress to vest 
complete jurisdiction in the Federal courts. The Constitution itself 
``vests'' in the Supreme Court only its limited, original jurisdiction 
``[i]n all cases affecting Ambassadors, other public Ministers and 
consuls, and those in which a State shall be Party . . .'' U.S. 
Constitution, Article III, Sec. 2, clause 2. The word ``shall'' in this 
provision is not addressed to Congress, just as the words ``shall'' in 
the constitutional clauses vesting the legislative and executive 
authorities are not addressed to Congress. See U.S. Constitution, 
Article I , Sec. 1 (``All legislative Powers herein granted shall be 
vested in a Congress of the United States . . .''); Article II, Sec. 1 
(``The executive Power shall be vested in a President of the United 
States of America.''). Similarly, where the Constitution provides that 
``The judicial power shall extend'' to certain cases, it can only mean 
that such power shall extend to such cases insofar as either the 
Constitution vests original jurisdiction in the Supreme Court or as the 
Constitution vests power in Congress to create lower Federal courts and 
Congress has in fact exercised that power by statute. See also U.S. 
Const. Art. I, Sec. 8, clause 9 (``The Congress shall have Power . . . 
To constitute Tribunals inferior to the supreme Court.''). See also 
Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & 
Wechsler's The Federal Courts and the Federal System (4th ed. 1996) at 
348 (``Although Article III states that `the judicial Power of the 
United States shall be vested' (emphasis added), Congress possesses 
significant powers to apportion jurisdiction among state and Federal 
courts and, in doing so, to define and limit the jurisdiction of 
particular courts.'').
---------------------------------------------------------------------------
    Regarding the Supreme Court, the Constitution provides that 
only two types of cases are within the original jurisdiction of 
the Supreme Court.\18\ Article III, Sec. 2, clause 2 provides 
that ``[i]n all cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State shall be 
Party, the supreme Court shall have original Jurisdiction. In 
all the other Cases . . . the supreme Court shall have 
appellate Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations as the Congress shall 
make.'' \19\
---------------------------------------------------------------------------
    \18\ The Constitution does not grant the Supreme Court exclusive 
original jurisdiction. See California v. Arizona, 440 U.S. 59, 65 
(1979); Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); Ohio ex 
rel. Popovici v. Agler, 280 U.S. 379, 383 (1930).
    \19\ Article III, Sec. 2, clause 2's reference to cases in which 
``a State shall be Party'' does not include suits by citizens against 
states. See United States v. Texas, 143 U.S. 621, 643-44 (1892) (``The 
words in the constitution, `in all cases . . . in which a state shall 
be party, the supreme court shall have original jurisdiction' . . . do 
not refer to suits brought against a state by its own citizens or by 
citizens of other states, or by citizens or subjects of foreign states, 
even where such suits arise under the constitution, laws, and treaties 
of the United States, because the judicial power of the United States 
does not extend to suits of individuals against states.'') (emphasis 
added). The Eleventh Amendment provides that ``The judicial power of 
the United States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of any foreign 
state.'' U.S. Const. Amend. XI.
---------------------------------------------------------------------------
    Consequently, the Constitution provides that the lower 
Federal courts are entirely creatures of Congress, as is the 
appellate jurisdiction of the Supreme Court, excluding only 
``cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be Party.'' \20\
---------------------------------------------------------------------------
    \20\ By statute, the original and exclusive jurisdiction of the 
Supreme Court is confined to ``all controversies between two or more 
States.'' 28 U.S.C. Sec. 1251(``(a) The Supreme Court shall have 
original and exclusive jurisdiction of all controversies between two or 
more States. (b) The Supreme Court shall have original but not 
exclusive jurisdiction of: (1) All actions or proceedings to which 
ambassadors, other public ministers, consuls, or vice consuls of 
foreign states are parties; (2) All controversies between the United 
States and a State; (3) All actions or proceedings by a State against 
the citizens of another State or against aliens.'').
---------------------------------------------------------------------------
    The Founders of our Nation carefully crafted a republic in 
the Constitution. They articulated their defense of that 
document to the voters in the ratifying states in a series of 
newspaper articles that became known as the Federalist Papers.
    In Federalist No. 80, Alexander Hamilton made clear the 
broad nature of Congress's authority to amend Federal court 
jurisdiction to remedy perceived abuse. He wrote:

        From this review of the particular powers of the 
        Federal judiciary, as marked out in the Constitution, 
        it appears that they are all conformable to the 
        principles which ought to have governed the structure 
        of that department, and which were necessary to the 
        perfection of the system. If some partial 
        inconveniences should appear to be connected with the 
        incorporation of any of them into the plan, it ought to 
        be recollected that the national legislature will have 
        ample authority to make such EXCEPTIONS, and to 
        prescribe such regulations as will be calculated to 
        obviate or remove these inconveniences.\21\
---------------------------------------------------------------------------
    \21\ Federalist No. 80 (Hamilton) at 481 (Clinton Rossiter ed., 
1961). Hamilton elaborated further in Federalist No. 81, stating that 
``We have seen that the original jurisdiction of the Supreme Court 
would be confined to two classes of causes [cases affecting 
ambassadors, ministers, and consuls, and cases in which a State is a 
party], and those of a nature rarely to occur. In all other cases of 
Federal cognizance, the original jurisdiction would appertain to the 
inferior tribunals; and the Supreme Court would have nothing more than 
an appellate jurisdiction, `with such EXCEPTIONS and under such 
REGULATIONS as the Congress shall make.' '' Federalist No. 81 
(Hamilton) at 488 (Clinton Rossiter ed., 1961).

    Alexander Hamilton also wrote in Federalist No. 81 that 
``To avoid all inconveniencies, it will be safest to declare 
generally, that the Supreme Court shall possess appellate 
jurisdiction [that] shall be subject to such EXCEPTIONS and 
regulations as the national legislature may prescribe. This 
will enable the government to modify it in such a manner as 
will best answer the ends of public justice and security.'' 
\22\
---------------------------------------------------------------------------
    \22\ Federalist No. 81 (Hamilton) at 490 (Clinton Rossiter ed., 
1961).
---------------------------------------------------------------------------
    Roger Sherman, whom eminent historian Clinton Rossiter 
considered one of the most influential members of the 
Constitutional Convention,\23\ also wrote that:
---------------------------------------------------------------------------
    \23\ See Clinton Rossiter, 1787: The Grand Convention, chapter 10 
(1966).

        It was thought necessary in order to carry into effect 
        the laws of the Union, to promote justice, and preserve 
        harmony among the states, to extend the judicial powers 
        of the United States to the enumerated cases, under 
        such regulations and with such exceptions as shall be 
        provided for by law, which will doubtless reduce them 
        to cases of such magnitude and importance as cannot 
        safely be trusted to the final decision of the courts 
        of particular states . . .\24\
---------------------------------------------------------------------------
    \24\ Roger Sherman, Observations on the New Federal Constitution (A 
Citizen of New Haven, II) (December 25, 1788) (emphasis added), 
reprinted in Essays on the Constitution of the United States, at 240-41 
(P. Ford, ed. 1892).
---------------------------------------------------------------------------

FROM THE FIRST JUDICIARY ACT OF 1789 TO THE PRESENT, CONGRESS'S USE OF 
 ITS AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION HAS BEEN CONSISTENT 
                             AND BIPARTISAN

    Congress has always made clear that it can limit the 
jurisdiction of the Federal courts, starting with the Judiciary 
Act of 1789.\25\ As has been observed by the authors of the 
leading treatise on Federal court jurisdiction, ``the first 
Judiciary Act is widely viewed as an indicator of the original 
understanding of Article III and, in particular, of Congress' 
constitutional obligations concerning the vesting of Federal 
jurisdiction.'' \26\
---------------------------------------------------------------------------
    \25\ 1 Stat. 85.
    \26\ Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, 
Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 
1996) at 28.
---------------------------------------------------------------------------
    The first Congress made clear that Federal court 
jurisdiction over constitutional claims was not unlimited. As 
the Congressional Research Service has written:

        There is significant historical precedent . . . for the 
        proposition that there is no requirement that all 
        jurisdiction that could be vested in the Federal courts 
        should be so vested. For instance, the First Judiciary 
        Act implemented under the Constitution, the Judiciary 
        Act of 1789, is considered to be an indicator of the 
        original understanding of the Article III powers. That 
        Act, however, falls short of having implemented all of 
        the ``judicial powers'' which were specified under 
        Article III. For instance, the Act did not provide 
        jurisdiction for the inferior Federal courts to 
        consider cases arising under Federal law or the 
        Constitution. Although the Supreme Court's appellate 
        jurisdiction did extend to such cases when they 
        originated in state courts, its review was limited to 
        where a claimed statutory or constitutional right had 
        been denied by the court below.\27\
---------------------------------------------------------------------------
    \27\ Kenneth Thomas, Congressional Research Service, CRS Report for 
Congress, ``Limiting Court Jurisdiction Over Federal Constitutional 
Issues: `Court-Stripping' '' (updated May 19, 2004) at 7.

    The Judiciary Act of 1789 \28\ provided that the Supreme 
Court, regarding constitutional challenges to Federal law, 
could review only those final decisions of the state courts 
that held ``against [the] validity'' of a Federal statute or 
treaty.\29\ Consequently, under the Judiciary Act of 1789, if 
the highest state court held a Federal law constitutional, no 
appeal was allowed to any Federal court, including the Supreme 
Court. The Supreme Court dismissed a case early in its history 
under such provision.\30\
---------------------------------------------------------------------------
    \28\ 1 Stat. 85.
    \29\ See Martin v. Hunter's Lessee, 14 U.S. 304, 352 (1816).
    \30\ See Gordon v. Caldcleugh, 7 U.S. 268 (1806).
---------------------------------------------------------------------------
    In the Judiciary Act of 1789,\31\ Congress provided no 
general Federal question jurisdiction in the Federal courts 
below the Supreme Court.\32\ The Federal circuit courts were 
vested with jurisdiction according to the nature of the parties 
rather than the nature of the dispute. The Judiciary Act of 
1789 provided ``the circuit courts shall have original 
cognizance . . . of all suits of a civil nature at common law 
or in equity, where the matter in dispute exceeds . . . the sum 
. . . of five hundred dollars, and the United States are 
plaintiffs, or petitioners; or an alien is a party, or the suit 
is between a citizen of the State where the suit is brought, 
and a citizen of another State.'' \33\
---------------------------------------------------------------------------
    \31\ Judiciary Act of 1789, 1 Stat. 85 (1789).
    \32\ See Richard H. Fallon, Daniel J. Meltzer, and David L. 
Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 
(4th ed. 1996) at 33 (stating that in the Judiciary Act of 1789, 
``Congress provided no general Federal question jurisdiction in the 
lower Federal courts'').
    \33\ Judiciary Act of 1789, 1 Stat. 73, Sec. 11 (1789).
---------------------------------------------------------------------------
    Further, Section 25 of the Judiciary Act of 1789 restricted 
the Supreme Court's appellate jurisdiction over state court 
decisions to cases where the validity of a treaty, statute, or 
authority of the United States was drawn into question and the 
state court's decision was against their validity \34\ or where 
a state court construed a United States constitution, treaty, 
statute, or commission and decided against a title, right, 
privilege, or exemption under any of them.\35\ Consequently, 
under the Judiciary Act of 1789, if the highest state courts 
upheld a Federal law as constitutional and decided in favor of 
a right under such Federal statute (and there was no 
coincidental Federal diversity jurisdiction), no appeal 
claiming such Federal law was unconstitutional was allowed to 
any Federal court, including the Supreme Court. The Judiciary 
Act of 1789, therefore, denied the inferior Federal courts 
original jurisdiction and the Supreme Court appellate 
jurisdiction to review the constitutionality of literally 
thousands of laws of Congress in the many and various 
circumstances meeting the criteria just mentioned.
---------------------------------------------------------------------------
    \34\ Judiciary Act of 1789, 1 Stat. 73, Sec. 25 (1789).
    \35\ Id.
---------------------------------------------------------------------------
    As scholars of Federal court jurisdiction have observed, 
``the 1789 Act . . . made no use of the grant of judicial power 
over cases arising under the Constitution or laws of the United 
States . . . In the category of cases arising under Federal 
law, Congress provided no general Federal question jurisdiction 
in the lower Federal courts. Nor, under section 25, did the 
Supreme Court's appellate jurisdiction extend to cases 
originating in the state courts in which the Federal claim was 
upheld.'' \36\
---------------------------------------------------------------------------
    \36\ See Richard H. Fallon, Daniel J. Meltzer, and David L. 
Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 
(4th ed. 1996) at 29 (emphasis in original).
---------------------------------------------------------------------------
    Congress did not grant a more general Federal question 
authority to the lower Federal courts until after the Civil 
War,\37\ and Congress did not grant the Supreme Court the 
authority to review state court rulings upholding a claim of 
Federal right until 1914.\38\ Until 1914, then, a situation 
existed in which the constitutionality of literally thousands 
of Federal laws could not be reviewed in either the inferior 
Federal courts, or the Supreme Court, or both.\39\
---------------------------------------------------------------------------
    \37\ See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470 (1875).
    \38\ See Judiciary Act of 1914, Act of Dec. 23, 1914, ch. 2, 38 
Stat. 790 (1914).
    \39\ The Congressional Research Service, on July 22, 2004, issued a 
memorandum stating its staff was unaware of any precedent for a law 
that would deny the inferior Federal courts original jurisdiction or 
the Supreme Court appellate jurisdiction to review the 
constitutionality of a law of Congress. See Memorandum from Mr. Johnny 
H. Killian, Senior Specialist, American Constitutional Law to House 
Committee on the Judiciary re: ``Precedent for Congressional Bill.'' 
However, on August 16, 2004, in response to a letter from the 
Committee, the Congressional Research Service admitted its error. See 
Memorandum to House Committee on the Judiciary from Johnny H. Killian, 
Senior Specialist, American Constitutional Law, American Law Division 
re: Congressional Control of Jurisdiction of Federal Courts (August 16, 
2004) (``This memorandum responds to your request that we reassess an 
earlier memorandum of ours . . . [Sec. 25 of the Judiciary Act of 1789] 
did operate to preclude any Federal court from deciding the validity of 
a Federal statute from 1789 to 1875. Accordingly, our earlier 
memorandum was incorrect.''). This correspondence is reprinted at 150 
Cong. Rec. E1604-05 (September 13, 2004).
---------------------------------------------------------------------------
    As one commentator has written, ``Under the Judiciary Act 
of 1789, cases could arise that clearly fall within the 
judicial power of the United States but that were excluded from 
the combined appellate and original jurisdiction of the Federal 
courts,'' including cases in which a state court erroneously 
voided a state statute for violating the Federal 
constitution.\40\ In sum, ``the first Congress's allocation of 
jurisdiction in the Judiciary Act is inconsistent with the 
thesis that the Constitution requires the entire judicial power 
of the United States to be vested in the aggregate in the 
Supreme Court and lower Federal courts.'' \41\
---------------------------------------------------------------------------
    \40\ William R. Casto, ``The First Congress's Understanding of Its 
Authority Over the Federal Courts' Jurisdiction,'' 26 B.C.L. Rev. 1101, 
1118 (1985).
    \41\ William R. Casto, ``The First Congress's Understanding of Its 
Authority Over the Federal Courts' Jurisdiction,'' 26 B.C.L. Rev. 1101, 
1120 (1985) (emphasis added).
---------------------------------------------------------------------------
    In the first Congress, fifty-four members had been 
delegates to the Constitutional Convention or their state 
ratification conventions.\42\ That same Congress overwhelmingly 
voted to place significant restrictions on Federal court 
jurisdiction that prevented many constitutional and other 
claims from ever being heard in a Federal court. James Madison, 
for example, spoke in favor of the Judiciary Act of 1789 during 
House debate on the legislation,\43\ and at the conclusion of 
the debate he gave the legislation his endorsement.\44\ 
Although there is no rollcall vote on passage of the Judiciary 
Act of 1789 in the House recorded in the Congressional 
Record,\45\ the Judiciary Act of 1789 passed the Senate by a 
vote of 14-6, with eight of the ten former delegates to the 
Constitutional Convention voting for it.\46\
---------------------------------------------------------------------------
    \42\ Encyclopedia of American History 145 (R. Morris 6th ed. 1982).
    \43\ See 1 Annals of Congress 812-13 (J. Gales ed. 1789).
    \44\ See Gazette of the United States (September 19, 1789) at 3, 
col. 2.
    \45\ See I Debates and Proceedings in the Congress of the United 
States at 928-29 (Thursday, September 17, 1789) (``The bill for 
establishing the Judicial Courts of the United States was read the 
third time and passed.'').
    \46\ See I Debates and Proceedings in the Congress of the United 
States at 52 (Friday, July 17, 1789) (Bassett, Ellsworth, Few, Johnson, 
Morris, Paterson, Read, and Strong voting for, Butler and Langdon 
voting against). While one cannot know from such votes whether those 
voting against it did so because they believed it was unconstitutional, 
surely no one who voted for it did so believing it was 
unconstitutional.
---------------------------------------------------------------------------
    Shortly after the Judiciary Act of 1789 became law, 
Congress asked Edmund Randolph, the first Attorney General of 
the United States, to submit a report and recommendation on 
``matters relative to the administration of justice under the 
authority of the United States.'' \47\ In that report, Attorney 
General Randolph recommended that the Judiciary Act of 1789 be 
amended such that even more cases within the judicial power of 
the United States be prohibited from being filed in Federal 
court and from being appealed to a Federal court, citing the 
broad authority the Constitution granted Congress to limit 
Federal court jurisdiction.\48\
---------------------------------------------------------------------------
    \47\ 2 Annals of Congress 1719 (1790).
    \48\ See William R. Casto, ``The First Congress's Understanding of 
Its Authority Over the Federal Courts' Jurisdiction,'' 26 B.C.L. Rev. 
1101, 1122 (1985).
---------------------------------------------------------------------------
    Indeed, as a leading treatise has pointed out, ``Beginning 
with the first Judiciary Act in 1789, Congress has never vested 
the Federal courts with the entire `judicial Power' that would 
be permitted by Article III.'' \49\
---------------------------------------------------------------------------
    \49\ Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, 
Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 
1996) at 349. Such less-than-full vesting includes statutes that 
preclude Federal review of diversity cases in which the amounts in 
controversy are below statutorily defined minimums. Id. Further, the 
law has generally developed in a variety of additional ways that make 
clear there are many types of cases in which not only are Federal 
courts precluded from conducting constitutional review, but all 
constitutional review is precluded. For example, the Supreme Court has 
found constitutional claims to be beyond judicial review because they 
involve ``political questions.'' See Coleman v. Miller, 307 U.S. 433, 
443-46 (1939); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 
281 U.S. 74, 79-80 (1930). And the doctrine of sovereign immunity 
provides that additional constitutional claims can go unheard. See 
Black's Law Dictionary (8th ed. 2004) (``A government's immunity from 
being sued in its own courts without its consent'').
---------------------------------------------------------------------------
    On both sides of the political spectrum, calls have been 
made to limit the jurisdiction of Federal courts to avoid 
abuses. Senate Minority Leader Daschle has supported provisions 
that would deny all Federal courts jurisdiction over the 
procedures governing timber projects in order to expedite 
forest clearing and save forests from destruction.\50\ Those 
provisions became part of Public Law 107-206.\51\ If Congress 
can deny all Federal courts the authority to hear a class of 
cases to protect trees, certainly it should do so to protect a 
state's policy regarding the Pledge of Allegiance.\52\
---------------------------------------------------------------------------
    \50\ See Audrey Hudson, ``Daschle Seeks to Exempt His State; Wants 
Logging to Prevent Fires,'' The Washington Times (July 24, 2002) at A1 
(`` `As we have seen in the last several weeks, the fire danger in the 
Black Hills is high and we need to get crews on the ground as soon as 
possible to reduce this risk and protect property and lives,' Mr. 
Daschle said in a statement late Monday night after a House-Senate 
conference committee agreed on the language . . . The provision says 
that `due to extraordinary circumstances,' timber activities will be 
exempt from the National Forest Management Act and National 
Environmental Policy Act, is not subject to notice, comment or appeal 
requirements under the Appeals Reform Act, and is not subject to 
judicial review by any U.S. court.''); Michelle Munn, ``Plan to Curb 
Forest Fires Wins Support,'' The Los Angeles Times (August 2, 2002) at 
A16 (``Daschle's amendment authorizes a forest management program in 
Black Hills National Forest without resort to a typically lengthy 
judicial review and appeals process.'').
    \51\ See P.L. 107-206, Sec. 706(j) (``Any action authorized by this 
section shall not be subject to judicial review by any court of the 
United States.''). This provision was addressed by the Tenth Circuit 
Court of Appeals in Biodiversity Associates v. Cables, 357 F.3d 1152 
(10th Cir. 2004), but only to determine whether that provision 
conflicted with a settlement agreement between the Clinton 
Administration and plaintiffs in the case under which it agreed not to 
allow any tree cutting in the Beaver Park Roadless Area. Id. at 1158, 
1160 (``In the waning days of the Clinton Administration, in September 
of 2000, the Forest Service signed a settlement agreement with the 
plaintiff groups, under which it agreed not to allow any tree cutting 
in the Beaver Park Roadless Area, at least until the Service approved a 
new land and resource management plan remedying the defects of the 1997 
plan . . . The question before us is simply whether the settlement 
agreement has continuing validity in the face of Congress's intervening 
act.'').
    \52\ Congress has often acted to preclude judicial review in 
Federal courts in selected cases. For example, the Terrorism Risk 
Insurance Act (P.L. 107-297) precludes judicial review of 
``certifications'' by the Secretary of the Treasury that terrorist 
events have occurred, and the Small Business Liability Relief and 
Brownfields Revitalization Act (P.L. 107-118) precludes judicial review 
of hazardous waste cleanup programs.
---------------------------------------------------------------------------
    Democratic Senator Robert Byrd also introduced an 
amendment, Amendment SU 70, to S. 450 during the 96th Congress. 
The amendment, which was adopted by a Senate controlled by 
Democrats with large bipartisan support,\53\ provided that 
neither the lower Federal courts nor the Supreme Court would 
have jurisdiction to review any case arising out of state laws 
relating to voluntary prayers in public schools and public 
buildings.
---------------------------------------------------------------------------
    \53\ See Congressional Quarterly, Congressional rollcall 1979, at 
10-S (``R 25-12; D 26-28'').
---------------------------------------------------------------------------
    And on July 22, 2004, the House passed, by a vote of 233-
194, H.R. 3313, the Marriage Protection Act, which would 
prevent Federal courts from striking down the provision of the 
Defense of Marriage Act \54\ that provides that no state shall 
be required to accept same-sex marriage licenses granted in 
other states.
---------------------------------------------------------------------------
    \54\ See 28 U.S.C. Sec. 1738C.
---------------------------------------------------------------------------

 SUPREME COURT PRECEDENTS ARE CONSISTENT WITH CONGRESS'S AUTHORITY TO 
                    LIMIT FEDERAL COURT JURISDICTION

    Supreme Court precedents upholding a variety of statutes 
limiting Federal court jurisdiction make clear that Congress 
has the authority to remove jurisdiction over legal issues from 
Federal courts below the Supreme Court, and from the Supreme 
Court as well.
    In Wiscart v. D'Auchy,\55\ Chief Justice Ellsworth, who has 
been a delegate to the Constitutional Convention, upheld a 
denial of Supreme Court jurisdiction, stating broadly that the 
Supreme Court's
---------------------------------------------------------------------------
    \55\ 3 U.S. (3 Dall.) 321 (1796).

        appellate jurisdiction is, likewise, qualified; 
        inasmuch as it is given ``with such exceptions, and 
        under such regulations, as the Congress shall make.'' 
        Here then, is the ground, and the only ground, on which 
        we can sustain an appeal. If Congress has provided no 
        rule to regulate our proceedings, we cannot exercise an 
        appellate jurisdiction; and if the rule is provided, we 
        cannot depart from it. The question, therefore, on the 
        constitutional point of an appellate jurisdiction, is 
        simply, whether Congress has established any rule for 
        regulating its exercise? \56\
---------------------------------------------------------------------------
    \56\ Id. at 328.

    In Turner v. Bank of North America,\57\ the Supreme Court 
upheld the provision of the Judiciary Act \58\ which provided 
that no district or circuit court ``shall have cognisance of 
any suit to recover the contents of any promissory note, or 
other chose in action, in favor of an assignee, unless a suit 
might have been prosecuted in such court, to recover the said 
contents, if no assignment had been made, except in cases of 
foreign bills of exchange.'' As counsel pointed out, Congress 
had passed the statute to prevent contracts between citizens of 
the same state from, through collusion, being made Federal 
issues under the Federal courts' diversity jurisdiction simply 
because one party assigned the benefits of a promissory note to 
a citizen of another state, or to an alien.\59\ Chief Justice 
Ellsworth, during oral argument, asked the counsel asserting 
jurisdiction incredulously, ``How far is it meant to carry the 
argument? Will it be affirmed, that in every case, to which the 
judicial power of the United States extends, the Federal courts 
may exercise a jurisdiction, without the intervention of the 
legislature, to distribute, and regulate, the power?'' \60\ 
Justice Chase agreed, stating:
---------------------------------------------------------------------------
    \57\ 4 U.S. 8 (1799).
    \58\ 1 Stat. 79.
    \59\ 4 U.S. at 8 (``Congress knew, that the English courts have 
amplified their jurisdiction, through the medium of legal fictions; and 
it was readily foreseen, that by the means of a colorable assignment to 
an alien, or to the citizen of another state, every controversy arising 
upon negotiable paper might be drawn into the Federal courts.'') 
(citing argument of counsel). See also 10 Annals of Congress, at 897-99 
(1801) (discussing purpose of assignee provision).
    \60\ Id. at 10, n.a. (citing statement of Chief Justice Ellsworth).

        The notion has frequently been entertained, that the 
        Federal courts derive their judicial power immediately 
        from the constitution; but the political truth is that 
        the disposal of the judicial power (except in a few 
        specified instances) belongs to congress. If congress 
        has given the power to this court, we possess it, not 
        otherwise: and if congress has not given the power to 
        us, or to any other court, it still remains at the 
        legislative disposal. Besides, congress is not bound, 
        and it would, perhaps, be inexpedient, to enlarge the 
        jurisdiction of the Federal courts, to every subject, 
        in every form, which the constitution might 
        warrant.\61\
---------------------------------------------------------------------------
    \61\ Id. at 9, n.a. (citing statement of Justice Case).

    In Cary v. Curtis,\62\ the Supreme Court upheld the 
application of a statute that placed jurisdiction for all 
claims of illegally charged customs duties with the Secretary 
of the Treasury. The Court stated that, under the statute, ``it 
is the Secretary of the Treasury alone in whom the rights of 
the government and of the claimant are to be tested.'' \63\ In 
a broad decision, the Court upheld a Federal statute that 
removed jurisdiction over all such claims from both the state 
and Federal courts and dismissed the case for lack of 
jurisdiction:
---------------------------------------------------------------------------
    \62\ 44 U.S. 236 (1845).
    \63\ Id. at 241 (``To permit the receipts at the customs to depend 
on constructions as numerous as are the agents employed, as various as 
might be the designs of those who are interested; or to require that 
those receipts shall await a settlement of every dispute or objection 
that might spring from so many conflicting views, would be greatly to 
disturb, if not to prevent, the uniformity prescribed by the 
Constitution, and by the same means to withhold from the government the 
means of fulfilling its important engagements . . . We have no doubts 
of the objects or the import of that act; we cannot doubt that it . . . 
has made the head of the Treasury Department the tribunal for the 
examination of claims for duties said to have been improperly paid.'').

        It is contended, however, that the language and the 
        purposes of Congress, if really what we hold them to be 
        declared in the statute of 1839, cannot be sustained, 
        because they would be repugnant to the Constitution, 
        inasmuch as they would debar the citizen of his right 
        to resort to the courts of justice . . . [I]n the 
        doctrines so often ruled in this court that the 
        judicial power of the United States, although it has 
        its origin in the Constitution, is (except in 
        enumerated instances, applicable exclusively to this 
        court) dependent for its distribution and organization, 
        and for the modes of its exercise, entirely upon the 
        action of Congress, who possess the sole power of 
        creating the tribunals (inferior to the Supreme Court) 
        for the exercise of the judicial power, and of 
        investing them with jurisdiction either limited, 
        concurrent, or exclusive, and of withholding 
        jurisdiction from them in the exact degrees and 
        character which to Congress may seem proper for the 
        public good. To deny this position would be to elevate 
        the judicial over the legislative branch of the 
        government, and to give to the former powers limited by 
        its own discretion merely. It follows, then, that the 
        courts created by statute must look to the statute as 
        the warrant for their authority, certainly they cannot 
        go beyond the statute, and assert an authority with 
        which they may not be invested by it, or which may be 
        clearly denied to them. This argument is in no wise 
        impaired by admitting that the judicial power shall 
        extend to all cases arising under the Constitution and 
        laws of the United States. Perfectly consistent with 
        such an admission is the truth, that the organization 
        of the judicial power, the definition and distribution 
        of the subjects of jurisdiction in the Federal 
        tribunals, and the modes of their action and authority, 
        have been, and of right must be, the work of the 
        legislature. The existence of the Judicial Act itself, 
        with its several supplements, furnishes proof 
        unanswerable on this point. The courts of the United 
        States are all limited in their nature and 
        constitution, and have not the powers inherent in 
        courts existing by prescription or by the common 
        law.\64\
---------------------------------------------------------------------------
    \64\ Id. at 244-46 (emphasis added).

    In Barry v. Mercein,\65\ the Supreme Court stated that 
``[b]y the Constitution of the United States, the Supreme Court 
possesses no appellate power in any case, unless conferred upon 
it by act of Congress, nor can it, when conferred be exercised 
in any other form, or by any other mode of proceeding than that 
which the law prescribes.'' \66\
---------------------------------------------------------------------------
    \65\ 46 U.S. (5 How.) 103 (1847).
    \66\ Id. at 119.
---------------------------------------------------------------------------
    In Sheldon v. Sill,\67\ the Supreme Court stated:
---------------------------------------------------------------------------
    \67\ 29 U.S. 441 (1850).

        It must be admitted, that if the Constitution had 
        ordained and established the inferior courts, and 
        distributed to them their respective powers, they could 
        not be restricted or divested by Congress. But as it 
        has made no such distribution, one of two consequences 
        must result--either that each inferior court created by 
        Congress must exercise all the judicial powers not 
        given to the Supreme Court, or that Congress, having 
        the power to establish the courts, must define their 
        respective jurisdictions. The first of these inferences 
        has never been asserted, and could not be defended with 
        any show of reason, and if not, the latter would seem 
        to follow as a necessary consequence. And it would seem 
        to follow, also, that, having a right to prescribe, 
        Congress may withhold from any court of its creation 
        jurisdiction of any of the enumerated controversies. 
        Courts created by statute can have no jurisdiction but 
        such as the statute confers. No one of them can assert 
        a just claim to jurisdiction exclusively conferred on 
        another, or withheld from all . . . Such has been the 
        doctrine held by this court since its first 
        establishment. To enumerate all the cases in which it 
        has been either directly advanced or tacitly assumed 
        would be tedious and unnecessary.\68\
---------------------------------------------------------------------------
    \68\ Id. at 448-49.

    In Mayor v. Cooper,\69\ the Supreme Court held that:
---------------------------------------------------------------------------
    \69\ 73 U.S. (6 Wall.) 247 (1868).

        How jurisdiction shall be acquired by the inferior 
        courts, whether it shall be original or appellate, or 
        original in part and appellate in part, and the manner 
        of procedure in its exercise after it has been 
        acquired, are not prescribed. The Constitution is 
        silent upon those subjects. They are remitted without 
        check or limitation to the wisdom of the legislature . 
        . . As regards all courts of the United States inferior 
        to this tribunal, two things are necessary to create 
        jurisdiction, whether original or appellate. The 
        Constitution must have given to the court the capacity 
        to take it, and an act of Congress must have supplied 
        it. Their concurrence is necessary to vest it . . . It 
        is the right and the duty of the national government to 
        have its Constitution and laws interpreted and applied 
        by its own judicial tribunals. In cases arising under 
        them, properly brought before it, this court is the 
        final arbiter.\70\
---------------------------------------------------------------------------
    \70\ Id. at 251-52.

    In United States v. Klein,\71\ the Supreme Court struck 
down a statute that purported to deny the lower U.S. Court of 
Claims and the Supreme Court, on appeal, the authority to hear 
claims for property brought by those who were pardoned by 
President Lincoln following the Civil War. The Supreme Court 
held the statute unconstitutional for two reasons. First, 
because the statute made having received a pardon proof of 
disloyalty that effectively denied the right to Federal 
judicial review, it found that in forbidding the Court ``to 
give the effect to evidence which, in its own judgment, such 
evidence should have'' and directing the court ``to give it an 
affect precisely contrary,'' Congress had ``inadvertently 
passed the limit which separates the legislative from the 
judicial power.'' \72\ Second, the statute unconstitutionally 
``impair[ed] the effect of a pardon, and thus infring[ed] the 
constitutional power of the Executive.'' \73\
---------------------------------------------------------------------------
    \71\ 80 U.S. 128 (1871).
    \72\ Id. at 147.
    \73\ Id.
---------------------------------------------------------------------------
    In the opinion, however, the Supreme Court made clear that 
``[i]t seems to us that this is not an exercise of the 
acknowledged power of Congress to make exceptions and prescribe 
regulations to the appellate power.'' \74\ Further, the Court 
stated that ``If [the challenged statute] simply denied the 
right of appeal in a particular class of cases, there could be 
no doubt that it must be regarded as an exercise of the power 
of Congress to make `such exceptions from the appellate 
jurisdiction' as should seem to it expedient. But the language 
of the proviso shows plainly that it does not intend to 
withhold appellate jurisdiction except as a means to an end. 
Its great and controlling purpose is to deny to pardons granted 
by the President the effect which this court had adjudged them 
to have.'' \75\ In other words, the denial of Federal court 
jurisdiction would have been upheld  if it had not effectively 
acted to limit the President's constitutional pardon power. 
H.R. 2028 would not conflict with any other constitutional 
authority granted by the Constitution.
---------------------------------------------------------------------------
    \74\ Id. at 146.
    \75\ Id. at 145 (emphasis added).
---------------------------------------------------------------------------
    In The Francis Wright,\76\ the Supreme Court stated:
---------------------------------------------------------------------------
    \76\ 105 U.S. 381 (1881).

        [W]hile the appellate power of this court under the 
        Constitution extends to all cases within the judicial 
        power of the United States, actual jurisdiction under 
        the power is confined within such limits as Congress 
        sees fit to prescribe . . . What those powers shall be, 
        and to what extent they shall be exercised, are, and 
        always have been, proper subjects of legislative 
        control. Authority to limit the jurisdiction 
        necessarily carries with it authority to limit the use 
        of the jurisdiction. Not only may whole classes of 
        cases be kept out of the jurisdiction altogether, but 
        particular classes of questions may be subjected to re-
        examination and review, while others are not.\77\
---------------------------------------------------------------------------
    \77\ The Francis Wright, 105 U.S. 381, 385-86 (1881).

    In Stevenson v. Fain,\78\ the Supreme Court stated that 
``The Supreme Court alone possesses [original] jurisdiction 
derived immediately from the Constitution, and of which the 
legislative power cannot deprive it, but the jurisdiction of 
the circuit courts depends upon some act of Congress.'' \79\
---------------------------------------------------------------------------
    \78\ 195 U.S. 165 (1904).
    \79\ Id. at 167 (quotations and citations omitted).
---------------------------------------------------------------------------
    In Kline v. Burke Construction Co.,\80\ the Supreme Court 
states that:
---------------------------------------------------------------------------
    \80\ 260 U.S. 226 (1922).

        Only the [original] jurisdiction of the Supreme Court 
        is derived directly from the Constitution. Every other 
        court created by the general government derives its 
        jurisdiction wholly from the authority of Congress. 
        That body may give, withhold or restrict such 
        jurisdiction at its discretion, provided it be not 
        extended beyond the boundaries fixed by the 
        Constitution . . . The Constitution simply gives to the 
        inferior courts the capacity to take jurisdiction in 
        the enumerated cases, but it requires an act of 
        Congress to confer it. And the jurisdiction having been 
        conferred may, at the will of Congress, be taken away 
        in whole or in part . . . A right which thus comes into 
        existence only by virtue of an act of Congress, and 
        which may be withdrawn by an act of Congress after its 
        exercise has begun, cannot well be described as a 
        constitutional right.\81\
---------------------------------------------------------------------------
    \81\ Id. at 234.

    In Lauf v. E.G. Shinner & Co.,\82\ the Supreme Court again 
upheld a statute that placed limits on the jurisdiction of the 
lower Federal courts, stating ``the power of the court to grant 
the relief prayed depends upon the jurisdiction conferred upon 
it by the statutes of the United States . . . Section 7 [of the 
Act] declares that `no court of the United States shall have 
jurisdiction to issue a temporary or permanent injunction in 
any case involving or growing out of a labor dispute, as herein 
defined,' [with certain exceptions] . . . There can be no 
question of the power of Congress thus to define and limit the 
jurisdiction of the inferior courts of the United States.''
---------------------------------------------------------------------------
    \82\ 303 U.S. 323 (1938).
---------------------------------------------------------------------------
    In Lockerty v. Phillips,\83\ the Supreme Court similarly 
held, in upholding a statute limiting lower courts' 
jurisdiction over challenges to price controls, that
---------------------------------------------------------------------------
    \83\ 319 U.S. 182 (1943).

        [b]y this statute Congress has seen fit to confer on 
        the Emergency Court (and on the Supreme Court upon 
        review of decisions of the Emergency Court) equity 
        jurisdiction to restrain the enforcement of price 
        orders under the Emergency Price Control Act. At the 
        same time it has withdrawn that jurisdiction from every 
        other Federal and state court. There is nothing in the 
        Constitution which requires Congress to confer equity 
        jurisdiction on any particular inferior Federal court. 
        All Federal courts, other than the Supreme Court, 
        derive their jurisdiction wholly from the exercise of 
        the authority to ``ordain and establish'' inferior 
        courts, conferred on Congress by Article III, Sec. 1, 
        of the Constitution. Article III left Congress free to 
        establish inferior Federal courts or not as it thought 
        appropriate. It could have declined to create any such 
        courts, leaving suitors to the remedies afforded by 
        state courts, with such appellate review by this Court 
        as Congress might prescribe. The Congressional power to 
        ordain and establish inferior courts includes the power 
        of investing them with jurisdiction either limited, 
        concurrent, or exclusive, and of withholding 
        jurisdiction from them in the exact degrees and 
        character which to Congress may seem proper for the 
        public good. In the light of the explicit language of 
        the Constitution and our decisions, it is plain that 
        Congress has power to provide that the equity 
        jurisdiction to restrain enforcement of the Act, or of 
        regulations promulgated under it, be restricted to the 
        Emergency Court, and, upon review of its decisions, to 
        this Court.\84\
---------------------------------------------------------------------------
    \84\ Id. at 187-88 (quotations and citations omitted) (emphasis 
added).

    While some have argued that Federal court jurisdiction is 
necessary to ensure a Federal court exists to decide at least 
constitutional  questions, as eminent Federal jurisdiction 
scholar Martin Redish has observed, ``there is no logical way 
to limit the need for an article III court to police the states 
to cases involving assertions of constitutional rights. If the 
state courts are not to be allowed to undermine the 
establishment of national supremacy, surely these courts must 
also be policed on their interpretation and enforcement of any 
Federal law. The supremacy clause, it should be recalled, is 
not limited in its dictates to matters of constitutional law, 
much less of constitutional right.'' \85\
---------------------------------------------------------------------------
    \85\ Martin H. Redish, ``Constitutional Limitations on 
Congressional Power to Control Federal Jurisdiction: A Reaction to 
Professor Sager,'' 77 N.W.U.L.Rev. 143, 148 (1982).
---------------------------------------------------------------------------
    Further, H.R. 2028 is entirely consistent with Marbury v. 
Madison. Marbury v. Madison \86\ established the principle of 
judicial review and stands for the proposition that the Supreme 
Court has the final say on the issues it decides provided 
either the issues it decides are within its original 
jurisdiction or Congress, by statute, has granted the Supreme 
Court the authority to hear the issue. If a case does not fall 
within the jurisdiction of the Federal courts because Congress 
has not granted the required jurisdiction, Federal courts 
simply cannot hear the case.
---------------------------------------------------------------------------
    \86\ 5 U.S. 137 (1803). In Marbury v. Madison, the Supreme Court 
found that under Article III of the Constitution, a party within the 
Supreme Court's original jurisdiction must be a State or an ambassador 
and that neither Marbury nor Madison was a state or an ambassador. 
Consequently, the Supreme Court held that the original jurisdiction of 
the Supreme Court is fixed by the Constitution and it dismissed the 
case because Congress had exceeded its constitutional authority when it 
granted the Supreme Court original jurisdiction to hear Marbury's case 
in the Judiciary Act of 1789. Id.
---------------------------------------------------------------------------
    The author of Marbury v. Madison  was Chief Justice John 
Marshall, and Chief Justice Marshall himself, after he decided 
Marbury v. Madison, dismissed cases when the Federal courts had 
not been granted jurisdiction by Congress to hear them under 
the Judiciary Act of 1789.\87\
---------------------------------------------------------------------------
    \87\ See Gordon v. Caldcleugh, 7 U.S. 268 (1806) (dismissing case 
for lack of jurisdiction under the Judiciary Act of 1789) (``This court 
has no jurisdiction, under the 25th section of the judiciary act of 
1789, but in a case where a final judgment or decree has been rendered 
in the highest court of law or equity of a state, in which a decision 
in the suit could be had, where is drawn in question, the validity of a 
treaty or statute of, or an authority exercised under the United 
States, and the decision is against their validity, &c.; or where is 
drawn in question, the construction of any clause of the constitution, 
or of a treaty, or statute of, or commission held under the United 
States, and the decision is against the title, right, privilege or 
exemption, specially set up or claimed by either party, under such 
clause of the said constitution, treaty, statute or commission. In the 
present case, such of the defendants as were aliens, filed a petition 
to remove the cause to the Federal circuit court, under the 12th 
section of the same act. The state court granted the prayer of the 
petition, and ordered the cause to be removed; the decision, therefore, 
was not against the privilege claimed under the statute; and, 
therefore, this court has no jurisdiction in the case. The writ of 
error must be dismissed.'').
---------------------------------------------------------------------------

STATE COURTS ARE NOT SECOND-CLASS COURTS, AND THEY ARE EQUALLY CAPABLE 
              OF DECIDING FEDERAL CONSTITUTIONAL QUESTIONS

    Federal legislation that precludes Federal court 
jurisdiction over certain constitutional claims to remedy 
perceived abuses by Federal judges, and to preserve for the 
states and their courts the authority to determine 
constitutional issues, rests comfortably within our 
constitutional system.\88\
---------------------------------------------------------------------------
    \88\ As Martin Redish has observed, the Founders did not intend to 
guarantee a Federal judiciary to ensure uniformity of Federal policy, 
but rather they intended to allow Congress the option  of creating and 
granting jurisdiction to Federal courts if  Congress thought such was 
necessary to police actions by state courts:

      [The Founders'] fear seems to have been that, absent 
      policing by some branch of the Federal Government, state 
      courts might undermine Federal supremacy. Ultimately, the 
      framers chose the judicial branch to perform this policing 
      function. But if the policy-making branches of the Federal 
      Government--Congress and the executive--conclude in a 
      particular instance that there is no need to worry about 
      state court interference, there is, by definition, no 
      possibility of interference with Federal supremacy; the 
      Federal Government has chosen to deem acceptable whatever 
---------------------------------------------------------------------------
      constructions of Federal law the state courts develop.

  Martin H. Redish, ``Constitutional Limitations on Congressional Power 
to Control Federal Jurisdiction: A Reaction to Professor Sager,'' 77 
N.W.U.L.Rev. 143, 146-47 (1982). See also Martin H. Redish, 
``Congressional Power to Regulate Supreme Court Appellate Jurisdiction 
Under the Exceptions Clause: An Internal and External Examination,'' 27 
Villanova L. Rev. 900, 909 (1982) (``[I]f the policy-making branches of 
the Federal Government--Congress and the Executive--conclude that 
whatever interpretations of Federal law given by state courts are 
acceptable, there will be no need for Supreme Court policing of the 
state courts to assure compliance with Federal supremacy . . . What is 
important for purposes of federalism is that Congress have the power  
to check the states, not that such a check be required  of 
Congress.'').
    The Supreme Court has clearly rejected claims that state 
courts are less competent to decide Federal constitutional 
issues than Federal courts.\89\ Even famously liberal Justice 
William Brennan wrote, in Northern Pipeline Construction Co. v. 
Marathon Pipe Line Co.,\90\ that ``virtually all matters that 
might be heard in Art. III courts could also be left by 
Congress to state courts.'' \91\ Justice Brennan was joined in 
that decision by Justices Marshall, Blackmun, and Stevens.
---------------------------------------------------------------------------
    \89\ See Stone v. Rice, 428 U.S. 465, 492 (1976) (``[W]e are 
unwilling to assume that there now exists a general lack of appropriate 
sensitivity to constitutional rights in the trial and appellate courts 
of the several States. State courts, like Federal courts, have a 
constitutional obligation to safeguard personal liberties and to uphold 
Federal law.'').
    \90\ 458 U.S. 50 (1982).
    \91\ Id. at 64 n.15.
---------------------------------------------------------------------------
    And the leading scholars have long noted the constitutional 
alternative of state court resolutions of Federal 
constitutional claims. As Martin Redish has observed, ``The 
state courts have, since the nation's beginning, been deemed 
both fully capable of and obligated (under the supremacy 
clause) to enforce Federal law, including the Constitution . . 
. Congress has complete authority to have constitutional rights 
enforced exclusively in the state courts . . .'' \92\
---------------------------------------------------------------------------
    \92\ Martin H. Redish, ``Constitutional Limitations on 
Congressional Power to Control Federal Jurisdiction: A Reaction to 
Professor Sager,'' 77 N.W.U.L.Rev. 143, 155, 157 (1982) (emphasis 
added).
---------------------------------------------------------------------------
    Article VI of the Constitution states that ``This 
Constitution . . . shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby . . .'' U.S. 
Constitution, Art. VI, Section 2. As Martin Redish has pointed 
out, ``It is all but inconceivable that the framers who had 
vested total discretion in Congress over substantive lawmaking, 
with the possibility that a Congress `biased' towards the 
states could choose to pass no substantive Federal law at all 
and instead defer completely to state control, would have 
fretted significantly over the possibility that Congress would 
take the lesser step of enacting substantive Federal law but 
leaving to the state courts the final authority to interpret 
it.'' \93\
---------------------------------------------------------------------------
    \93\ Martin H. Redish, ``Constitutional Limitations on 
Congressional Power to Control Federal Jurisdiction: A Reaction to 
Professor Sager,'' 77 N.W.U.L.Rev. 143, 148 (1982).
---------------------------------------------------------------------------
    As leading Harvard Law School Federal jurisdiction scholar 
Paul Bator has written, ``If the Constitution means what it 
says, it means that Congress can make the state courts--or, 
indeed, the lower Federal courts--the ultimate authority for 
the decision of any category of case to which the Federal 
judicial power extends . . . Indeed, a powerful case can be 
made that such a plenary power may be essential to making the 
institution of judicial review tolerable in a democratic 
society.'' \94\
---------------------------------------------------------------------------
    \94\ Constitutional Restraints Upon the Judiciary, 97th Cong. 51, 
55 (1981) (statement of Paul M. Bator, Professor, Harvard Law School). 
See also  Paul Bator, ``The State Courts and Federal Constitutional 
Litigation,'' 22 Wm. & Mary L.Rev. 605, 627 (1981) (``We must never 
forget that under our constitutional structure it is the state . . . 
courts that constitute our ultimate guarantee that a usurping 
legislature and executive cannot strip us of our constitutional 
rights.'').
---------------------------------------------------------------------------

         H.R. 2028 IS A PROPER EXERCISE OF CHECKS AND BALANCES

    Far from violating the ``separation of powers,'' 
legislation that reserves to state courts jurisdiction to hear 
and decide certain classes of cases is an exercise of one of 
the very ``checks and balances'' provided for in the 
Constitution.
    As Lord Acton stated, ``Power tends to corrupt and absolute 
power corrupts absolutely.'' No branch of the Federal 
Government can be entrusted with absolute power, certainly not 
a handful of tenured Federal judges appointed for life. The 
Constitution allows the Supreme Court to exercise ``judicial 
power,'' but it does not grant the Supreme Court unchecked 
power to define the limits of its own power. Integral to the 
American constitutional system is each branch of government's 
responsibility to use all its powers to prevent perceived 
instances of overreaching by the other branches.
    Congress's exercise of its authority to remove classes of 
cases from Federal court jurisdiction does not transfer power 
from the Federal judiciary to Congress. Rather, it transfers 
power from the Federal judiciary to the state judiciary. 
Congress's exercise of its authority to remove classes of cases 
from Federal court jurisdiction also does not give Congress the 
power to decide the outcome of cases: that decisional authority 
would rest with the state courts.
    H.R. 2028 does not dictate results: it only places final 
authority over a state's Pledge policy in the hands of the 
states themselves.

 THE FOUNDERS CONSIDERED THE PEOPLE TO BE THE ULTIMATE INTERPRETERS OF 
                            THE CONSTITUTION

    While there is of course a place for judicial review, too 
often it is forgotten that the Founders considered the People, 
and the People through their duly elected representatives, to 
be the ultimate arbiters of the Constitution.
    George Washington complained to his nephew Bushrod (a 
future Justice of the Supreme Court) about the stubborn 
unwillingness of Anti-Federalists to face this fundamental 
point. Washington wrote, ``The power under the Constitution 
will always be in the People. It is entrusted for certain 
defined purposes, and for a certain limited period, to 
representatives of their own chusing . . .'' \95\
---------------------------------------------------------------------------
    \95\ Letter from George Washington to Bushrod Washington (November 
10, 1787), in 8 The Documentary History of the Ratification of the 
Constitution 154 (John P. Kaminski and Gaspare J. Saladino eds. 1981).
---------------------------------------------------------------------------
    Thomas Jefferson, too, urged that ``[w]hen the legislative 
or executive functionaries act unconstitutionally, they are 
responsible to the people in their elective capacity,'' adding 
that ``[t]he exemption of the judges from that is quite 
dangerous enough. I know of no safe depository of the ultimate 
powers of the society but the people themselves . . .'' \96\
---------------------------------------------------------------------------
    \96\ Letter from Thomas Jefferson to William Charles Jarvis 
(September 28, 1820) in 10 The Writings of Thomas Jefferson (Paul 
Leicester Ford ed. 1898) at 179-80.
---------------------------------------------------------------------------
    James Madison wrote that constitutional disputes could not 
ultimately be resolved ``without an appeal to the people 
themselves, who, as grantors of the commission, can alone 
declare its true meaning and enforce its observance.'' \97\ 
Madison also wrote in The Federalist  No. 51 that ``[a] 
dependence on the people is no doubt the primary controul on 
the government.'' \98\ Madison responded to the question ``what 
is to controul Congress'' when it exceeds its constitutional 
authority with the following answer: ``Nothing within the pale 
of the Constitution but sound argument & conciliatory 
expostulations addressed both to Congress & to their 
Constituents.'' \99\ And Madison observed that among the most 
important devices for securing the sovereignty of the People, 
matched only by ``a circulation of newspapers through the 
entire body of the people,'' was ``Representatives going from, 
and returning among every part of them.'' \100\
---------------------------------------------------------------------------
    \97\ The Federalist  No. 49, at 314 (James Madison), The Federalist 
Papers (Clinton Rossiter ed., 1961).
    \98\ The Federalist  No. 51, at 290 (James Madison), The Federalist 
Papers (Clinton Rossiter ed., 1961).
    \99\ Letter from James Madison to Spencer Roane (May 6, 1821), in 
Madison: Writings  772, 774 (Jack N. Rakove, ed., 1999).
    \100\ James Madison, ``Public Opinion,'' in 14 Papers of James 
Madison (Robert A. Rutland et al., eds. 1975) at 179.
---------------------------------------------------------------------------
    Speaker of the House Nathanial Macon, in 1802, responding 
to those who claimed that without judicial review there would 
be civil war, said:

        Whenever we supposed the Constitution violated, did we 
        talk of civil war? No, sir; we depended on elections as 
        the main corner-stone of our safety; and supposed, 
        whatever injury the State machine might receive from a 
        violation of the Constitution, that at the next 
        election the people would elect those that would repair 
        the injury and set it right again; and this in my 
        opinion ought to be the doctrine of us all; and when we 
        differ about Constitutional points, and the question 
        shall be decided against us, we ought to consider it a 
        temporary evil, remembering that the people possess the 
        means of rectifying any error that may be committed by 
        us.\101\
---------------------------------------------------------------------------
    \101\ II Annals of Congress 717 (January 1802).

    As the Dean of Stanford Law School, Larry H. Kramer, has 
written, the Supreme Court was never intended to be the 
ultimate authority on constitutional issues, and only in recent 
decades has the notion that the Supreme Court is the final 
authority on constitutional issues taken hold in popular 
---------------------------------------------------------------------------
opinion. As Dean Kramer describes it, the Founders'

        Constitution remained, fundamentally, an act of popular 
        will: the people's charter, made by the people . . . 
        [I]t was ``the people themselves''--working through and 
        responding to their agents in the government--who were 
        responsible for seeing that it was properly interpreted 
        and implemented. The idea of turning this 
        responsibility over to judges was simply unthinkable . 
        . . This modern understanding [of judicial review] is . 
        . . of surprisingly recent vintage. It reflects neither 
        the original conception of constitutionalism nor its 
        course over most of American history. Both in its 
        origins and for most of our history, American 
        constitutionalism assigned ordinary citizens a central 
        and pivotal role in implementing their Constitution . . 
        . [It was the original understanding that] [n]o one of 
        the branches [of government] was meant to be superior 
        to any other, unless it were the legislature, and when 
        it came to constitutional law, all were meant to be 
        subordinate to the people . . . [I]n a regime of 
        popular constitutionalism it was not the judiciary's 
        responsibility to enforce the constitution against the 
        legislature. It was the people's responsibility: a 
        responsibility they discharged mainly through elections 
        . . . It was the legislature's delegated responsibility 
        to decide whether a proposed law was constitutionally 
        authorized, subject to oversight by the people.\102\
---------------------------------------------------------------------------
    \102\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
7-8, 58.

    Dean Kramer explains why there is not any mention of 
---------------------------------------------------------------------------
judicial review in the Constitution:

        Judicial review was not the question before the 
        [Constitutional] Convention. The question was how best 
        to prevent the enactment of unwise and unconstitutional 
        Federal legislative measures. The answer was an 
        executive veto. (And not just a veto, either. 
        Additional checks on the risk of bad legislation 
        included federalism, bicameralism, and the likelihood 
        that ``the best men in the Community would be comprised 
        in the two branches of [Congress].'') Some delegates 
        were afraid that the executive might be too weak, but a 
        solid majority felt otherwise and were concerned not to 
        involve judges in the lawmaking process. That settled, 
        there was simply no need to say or do anything more . . 
        . This is why courts and judicial review were so rarely 
        featured during ratification: members of the Founding 
        generation had a different paradigm in mind. The idea 
        of depending on judges to stop a legislature that 
        abused its power never even occurred to the vast 
        majority of participants in the debates.\103\
---------------------------------------------------------------------------
    \103\ Id. at 77, 91 (quoting comments of Federal convention 
delegate Elbridge Gerry, in 2 The Record of the Federal Convention 98 
(Max Farrand ed. 1966)).

    According to noted historian Gordon Woods, ``Most 
Americans, even those deeply concerned with the legislative 
abuses of the 1780's, were too fully aware of the modern 
positivist conception of law (made famous by Blackstone in his 
Commentaries of the Laws of England  ), too deeply committed to 
consent as the basis of law, and from their colonial experience 
too apprehensive of the possible arbitrariness and 
uncertainties of judicial discretion to permit judges to set 
aside laws made by the elected representatives of the people.'' 
\104\
---------------------------------------------------------------------------
    \104\ Gordon S. Wood, ``Judicial Review in the Era of the 
Founding,'' in Is the Supreme Court the Guardian of the Constitution? 
153, 158 (Robert A. Licht, ed. 1993).
---------------------------------------------------------------------------
    Even early supporters of something akin to the modern 
notion of judicial review conceded that when the courts, 
including the Supreme Court, were to decide constitutional 
issues, ``In all doubtful cases . . . the Act ought to be 
supported'' and that ``it should be unconstitutional beyond 
dispute before it is pronounced such.'' \105\ As Dean Kramer 
describes it, ``[t]his limiting principle instantly became an 
article of faith among the supporters of judicial review, 
accompanying virtually every statement of the doctrine.'' \106\
---------------------------------------------------------------------------
    \105\ Letter from James Iredell to Richard Dobbs Spaight (Aug. 26, 
1787), in Griffith J. McRee, 2 Life and Correspondence of James Iredell 
(1857), at 172, 175.
    \106\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
65.
---------------------------------------------------------------------------
    James Iredell recorded Justice Wilson and Judge Peters 
agreeing on circuit in United States v. Ravara  that ``tho an 
Act of Congress plainly contrary to the Constitution was void, 
yet no such construction should be given in a doubtful case.'' 
\107\ Justice Chase similarly announced in Calder v. Bull  that 
``if I ever exercise the jurisdiction [to review legislation,] 
I will not decide any law to be void, but in a very clear 
case,'' \108\ reiterating a point he had made previously in 
Hylton v. United States.\109\ Bushrod Washington said much the 
same thing in Cooper v. Telfair, noting that ``[t]he 
presumption, indeed, must always be in favor of the validity of 
laws, if the contrary is not clearly demonstrated.'' \110\ 
William Paterson agreed, observing that ``to authorise this 
Court to pronounce any law void, it must be a clear and 
unequivocal breach of the constitution, not a doubtful and 
argumentative application.'' \111\ The early Supreme Court 
acted accordingly, upholding a Federal tax law in Hylton v. 
United States,\112\ and generally showing great reluctance to 
find even state laws unconstitutional. The only antebellum case 
in which the Court held a state law unconstitutional was Ware 
v. Hylton.\113\ The ``doubtful case'' rule also explains why 
judges invariably illustrated their understanding of judicial 
review with blatantly unconstitutional laws, the most common 
example being a law denying the right to trial by jury 
altogether.\114\ The were, literally, the only kinds of laws 
they could imagine declaring void. The closely divided 5-4 
decisions of the modern Supreme Court striking down legislation 
enacted by duly elected representatives of the People would be 
anathema to the Founders' generation.
---------------------------------------------------------------------------
    \107\ Recollections of James Iredell, quoted in William R. Casto, 
The Supreme Court in the Early Republic: The Chief Justiceships of John 
Jay and Oliver Ellsworth, at 223 (1995). United States v. Ravara is 
found at 2 U.S. (2 Dall.) 297 (C.C.D. Pa. 1793).
    \108\ 3 U.S. (3 Dall.) 386, 395 (1798).
    \109\ 3 U.S. (3 Dall.) 171, 173, 175 (1796).
    \110\ 4 U.S. (4 Dall.) 14, 18 (1800).
    \111\ Id. at 19.
    \112\ 3 U.S. (3 Dall.) 171 (1796).
    \113\ 3 U.S. (3 Dall.) 199 (1796).
    \114\ See, e.g., Kamper v. Hawkins, 3 Va. (I Va. Cases), at 39 
(opinion of Judge Roane); Vanhorne's Lessee v. Dorrance, 2 U.S. (2 
Dall.) 304, 309 (1795); Marbury v. Madison, 5 U.S. (I Cranch) 137, 179 
(1803).
---------------------------------------------------------------------------
    As Dean Kramer has written, for most of American history, 
``[j]udges did not typically intervene unless the 
unconstitutionality of a law was clear beyond doubt, which as a 
practical matter left questions of policy and expediency to 
politics. They also shied away from divisive social conflicts--
at least in their constitutional jurisprudence, and in sharp 
contrast to their handling of private law--striking laws down 
only in the situations where judicial intervention was least 
likely to be controversial. Courts were generally respectful of 
political outcomes, acting in a manner that remained consistent 
with long-standing practices of popular constitutionalism.'' 
\115\ According to William Nelson's study of judicial review in 
the early nineteenth century, ``[o]nce a legislature had 
resolved a conflict in a manner having widespread public 
support, judges would in practice view the resolution as that 
of the people at large . . . at least so long as a finding of 
inconsistency with the constitution was not plain and 
unavoidable.'' \116\ As Dean Kramer has written of the 
antebellum period, ``[a]t the Federal level, the Supreme Court 
systematically deferred to Congress.'' \117\
---------------------------------------------------------------------------
    \115\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
150.
    \116\ William E. Nelson, ``Changing Conceptions of Judicial Review: 
The Evolution of Constitutional Theory in the States, 1790-1860,'' 120 
U.Pa. L. Rev. 1166, 1176 (1972).
    \117\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
150-51.
---------------------------------------------------------------------------
    The reason judges were so reluctant to hold Federal 
statutes unconstitutional unless they were indisputably so was 
because, as Dean Kramer has written, it was widely understood 
that ``judges were no more authoritative on these 
[constitutional] matters than any other public official, and 
their judgments about the meaning of the Constitution, like 
those of everyone else, were still subject to oversight and 
ultimate resolution by the people themselves. This, in fact, is 
all that Marbury v. Madison  actually says or does.'' \118\ 
During the entire antebellum period, the Supreme Court struck 
down only two Federal statutes, one in the notorious Dred Scott 
\119\ decision, and only later did the Court aggressively 
exercise judicial review. As Dean Kramer has written:
---------------------------------------------------------------------------
    \118\ Id. at 114.
    \119\ Dred Scott v. Sanford, 60 U.S. 393 (1856).

        Dred Scott stuck out like a sore thumb partly because 
        it was so unprecedented for the Supreme Court to assert 
        its will over and against Congress . . . Having found 
        only two Federal laws unconstitutional during the 
        entire antebellum period (in Marbury  and Dred Scott  
        ), the Court [then] struck down four Federal statutes 
        in the 1860's alone, followed by seven in the 1870's, 
        four more in the 1880's, and five in the 1890's. While 
        these numbers seem small by comparison to today (the 
        Court struck down thirty Federal laws between 1990 and 
        2000, for example, the most in its history), the change 
        was striking enough to convince some commentators that 
        it was only in this period that judicial review 
        ``really'' became established.\120\
---------------------------------------------------------------------------
    \120\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
213 (citing Congressional Research Service, The Constitution of the 
United States of America: Analysis and Interpretation  (1998)).

    As Dean Kramer has described modern history, ``as Warren 
Court activism crested in the mid-1960s, a new generation of 
liberal scholars discarded opposition to courts and turned the 
liberal tradition on its head by embracing a philosophy of 
broad judicial authority . . . [T]he main body of liberal 
intellectuals put aside misgivings about electoral 
accountability, frankly conceding that judicial review might be 
in tension with democracy while justifying any trade-off on the 
ground that courts could advance the more important cause of 
social justice.'' \121\
---------------------------------------------------------------------------
    \121\ Id. at 223.
---------------------------------------------------------------------------
    As Dean Kramer has written:

        Whatever else one might think, [such a view] plainly 
        represents a profound change from what . . . was 
        historically the case. Neither the Founding generation 
        nor their children nor their children's children, right 
        on down to our grandparents' generation, were so 
        passive about their role as republican citizens. They 
        would not have accepted--did not accept--being told 
        that a lawyerly elite had charge of the Constitution, 
        and they would have been incredulous if told (as we are 
        often told today) that the main reason to worry about 
        who becomes president is that the winner will control 
        judicial appointments. Something would have gone 
        terribly wrong, they believed, if an unelected 
        judiciary were being given that kind of importance and 
        deference. Perhaps such a country could still be called 
        democratic, but it would no longer be the kind of 
        democracy Americans had fought and died and struggled 
        to create . . . We see this in the excessive 
        celebration of Marbury v. Madison, whose bloated 
        significance seems immune to historical correction . . 
        . Marbury  and Brown  loom large in these histories. 
        The judicially inspired prosecutions for sedition, Dred 
        Scott, the dismantling of Reconstruction, the fifty 
        years of opposition to social welfare legislation, 
        Korematsu, complicity in the Red scares, and the 
        current hobbling of Federal power to remedy 
        discrimination all somehow shrink into 
        insignificance.\122\
---------------------------------------------------------------------------
    \122\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
228-29.
---------------------------------------------------------------------------

 THE DEMOCRATIC PARTY, THE PROGRESSIVE PARTY, AND THE PRESIDENCIES OF 
BOTH THEODORE AND FRANKLIN DELANO ROOSEVELT HAVE FOLLOWED THE FOUNDERS' 
UNDERSTANDING THAT THE PEOPLE, NOT THE SUPREME COURT, ARE THE ULTIMATE 
                      ARBITERS OF THE CONSTITUTION

    The Democratic Party, the Progressive Party, and the 
presidencies of both Theodore and Franklin Delano Roosevelt 
have followed the Founders' understanding that the people, and 
not the Supreme Court, are the ultimate arbiters of the 
Constitution.
    Martin Van Buren, one of the founders of the Democratic 
Party, reported the following comments of Senator Hugh Lawson 
White during a Senate debate:

        The honorable Senator [Webster] argues that the 
        Constitution has constituted the Supreme Court a 
        tribunal to decide great constitutional questions . . . 
        and that when they have done so, the question is put at 
        rest, and every other department of the government must 
        acquiesce. This doctrine I deny . . . If different 
        interpretations are put upon the Constitution by the 
        different departments, the people is the tribunal to 
        settle the dispute. Each of the departments is the 
        agent of the people, doing their business according to 
        the powers conferred; and where there is a disagreement 
        as to the extent of these powers, the people 
        themselves, through the ballot-boxes, must settle 
        it.\123\
---------------------------------------------------------------------------
    \123\ Martin Van Buren, Inquiry into the Origins and Courts of 
Political Parties in the United States at 329-30 (1867).

    ``This,'' Van Buren concluded, ``is the true view of the 
Constitution''--taken not only by ``those who framed and 
adopted it,'' but also ``by the founders of the Democratic 
party.'' \124\
---------------------------------------------------------------------------
    \124\ Id. at 330.
---------------------------------------------------------------------------
    Even the 1912 Progressive Party Platform declared that ``We 
hold with Thomas Jefferson and Abraham Lincoln that the people 
are the masters of their Constitution,'' and that ``[i]n 
accordance with the needs of each generation the people must 
use their sovereign power to establish and maintain'' the ends 
of republican government.\125\ It was in accordance with this 
declaration that Progressives demanded ``such restriction of 
the courts as shall leave to the people the ultimate authority 
to determine fundamental questions of social welfare and public 
policy.'' \126\
---------------------------------------------------------------------------
    \125\ Platform of the Progressive Party (August 7, 1912).
    \126\ Id.
---------------------------------------------------------------------------
    Theodore Roosevelt in 1912 argued the American people must 
be made ``the masters and not the servants of even the highest 
court in the land'' and ``the final interpreters of the 
Constitution,'' for ``if the people are not to be allowed 
finally to interpret the fundamental law, ours is not a popular 
government.'' \127\ Theodore Roosevelt stated ``I do not say 
that the people are infallible. But I do say that our whole 
history shows that the American people are more often sound in 
their decisions than is the case with any of the governmental 
bodies to whom, for their convenience, they have delegated 
portions of their power. If this is not so, then there is no 
justification for the existence of our government; and if it is 
so, then there is no justification for refusing to give the 
people the real, and not merely the nominal, ultimate decision 
on questions of constitutional law.'' \128\
---------------------------------------------------------------------------
    \127\ Theodore Roosevelt, A Charter of Democracy--Address before 
the Ohio Constitutional Convention at Columbus, Ohio, Feb. 21, 1912, in 
Social Justice and Popular Rule: Essays, Addresses, and Public 
Statements Relating to the Progressive Movement  119, 141-42 (1926).
    \128\ Id. at 142.
---------------------------------------------------------------------------
    And President Franklin Roosevelt said ``lay rank and file 
can take cheer from the historic fact that every effort to 
construe the Constitution as a lawyer's contract rather than a 
layman's charter has ultimately failed. Whenever legalistic 
interpretation has clashed with contemporary sense on great 
questions of broad national policy, ultimately the people and 
the Congress have had their way.'' \129\
---------------------------------------------------------------------------
    \129\ Franklin D. Roosevelt, Address on Constitution Day, 
Washington, D.C., Sept. 17, 1937, in 6 The Public Papers and Addresses 
of Franklin D. Roosevelt  359, 362-63, 365 (Samuel I. Rosenman ed. 
1941).
---------------------------------------------------------------------------
    As Maryland Representative David J. Lewis explained to the 
House of Representatives in 1935:

        The Constitution has made ample protective provision 
        [for preventing unconstitutional laws]. A bill may be 
        vetoed by a majority in the House or Senate, where it 
        is first proposed; if not vetoed by either House, then 
        by the President. If vetoed by none of these, the 
        people at the next election can elect a new Congress to 
        repeal the act. Here are three successive occasions 
        when responsible officials, sworn to uphold the 
        Constitution, elected by and responsible to the people, 
        may, as they often do, exercise a preventive veto. The 
        unwise or unconstitutional bill is thus stopped before 
        the obligations are fixed on the citizen. From 1789 to 
        1857--68 years--this kind of veto alone obtained. It 
        surely sufficed the Republic through its period of 
        greatest development, a chapter of changes and 
        progress, I venture to affirm, without parallel in the 
        history of nations.\130\
---------------------------------------------------------------------------
    \130\ Franklin D. Roosevelt, Address on Constitution Day, 
Washington, D.C., Sept. 17, 1937, in 6 The Public Papers and Addresses 
of Franklin D. Roosevelt  359, 362-63, 365 (Samuel I. Rosenman ed. 
1941).

---------------------------------------------------------------------------
    As Dean Kramer has written:

        Simply put, supporters of judicial supremacy are 
        today's aristocrats. One can say this without being 
        disparaging, meaning only to connect modern apologists 
        for judicial authority with that strand in American 
        thought that has always been concerned first and 
        foremost with ``the excess of democracy'' . . . Today's 
        democrats, in the meantime, are no less concerned about 
        individual rights than were their intellectual 
        forebears: Jefferson, Madison, and Van Buren. But like 
        these predecessors, those with a democratic sensibility 
        have greater faith in the capacity of their fellow 
        citizens to govern responsibly. They see risk, but are 
        not persuaded that the risks justify circumscribing 
        popular control by overtly undemocratic means. In 
        earlier periods, aristocrats and democrats found 
        themselves on opposite sides of such issues as 
        executive power or federalism. Today, the point of 
        conflict is judicial review, as it was for much of the 
        twentieth century . . . The question Americans must ask 
        themselves is whether they are comfortable handing 
        their Constitution over to the forces of aristocracy: 
        whether they share this lack of faith in themselves and 
        their fellow citizens, or whether they are prepared to 
        assume once again the full responsibility of self-
        government. And make no mistake: The choice is ours to 
        make, necessarily and unavoidably. The Constitution 
        does not make it for us. Neither does history or 
        tradition or law.'' \131\
---------------------------------------------------------------------------
    \131\ Larry D. Kramer, The People Themselves: Popular 
Constitutionalism and Judicial Review (Oxford University Press 2004) at 
247.

---------------------------------------------------------------------------
    As Dean Kramer has summarized:

        The point, finally, is this: to control the Supreme 
        Court, we must first lay claim to the Constitution 
        ourselves. That means publicly repudiating Justices who 
        say that they, not we, possess ultimate authority to 
        say what the Constitution means. It means publicly 
        reprimanding politicians who insist that ``as 
        Americans'' we should submissively yield to whatever 
        the Supreme Court decides . . . What did earlier 
        generations of American do? What did Jefferson, 
        Jackson, Lincoln, the Reconstruction Congress, and 
        Roosevelt do? The Constitution leaves room for 
        countless political responses to an overly assertive 
        Court: Justices can be impeached, the court's budget 
        can be slashed, the President can ignore its mandates, 
        Congress can strip it of jurisdiction or shrink its 
        size or pack it with new members or give it burdensome 
        new responsibilities or revise its procedures. The 
        means are available, and they have been used to great 
        effect when necessary--used, we should note, not by 
        disreputable or failed leaders, but by some of the most 
        admired Presidents and Congresses in American 
        history.\132\
---------------------------------------------------------------------------
    \132\ Id. at 247-49.
---------------------------------------------------------------------------

``UNDER GOD'' IN THE PLEDGE IS ONE OF INNUMERABLE HISTORICAL REFERENCES 
         TO AND ACKNOWLEDGMENTS OF AMERICA'S RELIGIOUS HERITAGE

    Striking down the words ``under God'' in the Pledge--and 
thereby precluding acknowledgment of the religious ideas that 
inspired momentous events in our Nation's history--would 
preclude public recognition of America's most significant 
historical landmarks. What follows is only a partial list of 
religious references in places and events that have defined 
American history.
    Christopher Columbus set sail ``by the Grace of God'' with 
the ``hope[] that by God's assistance some of the continents 
and islands in the oceans will be discovered.'' Rector v. Holy 
Trinity Church, 143 U.S. 457, 465-66 (1892).
    Virginia's first charter granted by King James I commenced 
with the words: ``We, greatly commending, and graciously 
accepting of, their Desires for the Furtherance of so noble a 
Work, which may, by the Providence of Almighty God, hereafter 
tend to the Glory of his Divine Majesty, in propagating of 
Christian Religion to such People, as yet live in Darkness and 
miserable Ignorance of the true knowledge and Worship of God, 
and may in time bring . . . a settled and quiet Government. . . 
.'' Rector v. Holy Trinity Church, 143 U.S. 457, 466 (1892).
    On November 11, 1620, prior to embarking for the shores of 
America, the Pilgrims signed the Mayflower Compact that 
declared: ``Having undertaken, for the Glory of God, and 
Advancement of the Christian Faith, and the Honour of our King 
and Country, a Voyage to plant the first Colony in the northern 
Parts of Virginia; Do by these Presents, solemnly and mutually, 
in the Presence of God and one another, covenant and combine 
ourselves together into a civil Body Politick, for our better 
Ordering and Preservation, and Furtherance of the Ends 
aforesaid.'' Rector v. Holy Trinity Church, 143 U.S. 457, 466 
(1892).
    The Massachusetts 1629 charter declared, ``[O]ur said 
people . . . be so religiously, peaceably, and civilly governed 
as their good life and orderly conversation may win and incite 
the natives . . . to the knowledge and obedience of the only 
true God and Savior of mankind, and the Christian faith, which 
. . . is the principal end of this plantation.'' Documents of 
American History 18 (Henry Steele Commager ed., Meredith 
Publishing Co. 7th ed. 1963).
    In the charter of privileges granted William Penn to 
Pennsylvania in 1701, it is recited, ``Because no People can be 
truly happy, though under the greatest Enjoyment of Civil 
Liberties, if abridged of the Freedom of their Consciences, as 
to their Religious Profession and Worship; And Almighty God 
being the only Lord of Conscience, Father of Lights and 
Spirits; and the Author as well as Object of all divine 
Knowledge, Faith, and Worship, who only doth enlighten the 
Minds, and persuade and convince the Understandings of People, 
I do hereby grant and declare. . . .'' Rector v. Holy Trinity 
Church, 143 U.S. 457, 467 (1892).
    The Fundamental Orders of Connecticut explained that the 
document had been created, ``[W]ell knowing where a people are 
gathered together the word of God requires that to maintain the 
peace and union of such a people, there should be an orderly 
and decent government established according to God.'' Rector v. 
Holy Trinity Church, 143 U.S. 457, 467 (1892); John Fiske, The 
Beginnings of New England 127-28 (Boston, Houghton, Mifflin & 
Co., 1898).
    Alexander Hamilton stated, ``No human laws are of any 
validity if contrary to [the law dictated by God Himself].'' 
Alexander Hamilton, Signer of the Constitution, Papers of 
Alexander Hamilton, Vol. I, at 87 (Harold C. Syrett ed., 
Columbia Univ. Press 1961) (quoting William Blackstone, 
Commentaries on the Laws of England, Vol I, at 41).
    Alexander Hamilton also explained, ``Natural liberty is a 
gift of the beneficent Creator to the whole human race, and 
that civil liberty is founded in that, and cannot be wrested 
from any people without the most manifest violation of 
justice.'' Alexander Hamilton, The Farmer Refuted (February 23, 
1775), in 1 The Papers of Alexander Hamilton 104 (H. Syrett ed. 
1961).
    In our Declaration of Independence, the Founders based 
their right to ``dissolve the Political Bands which have 
connected them with another'' on the ``Laws of Nature and of 
Nature's God.'' They then declared, ``We hold these Truths to 
be self-evident, that all Men are created equal, that they are 
endowed by their Creator with certain unalienable Rights, that 
among these are Life, Liberty, and the Pursuit of Happiness.'' 
They ended, ``We, therefore, the Representatives of the United 
States of America, . . . appealing to the Supreme Judge of the 
World . . . do, . . . with a firm Reliance on the Protection of 
divine Providence, . . . pledge to each other our Lives, our 
Fortunes, and our sacred Honor.'' The Declaration of 
Independence (1776).
    John Witherspoon, who signed the Declaration of 
Independence, stated, ``God grant that in America true religion 
and civil liberty may be inseparable and that the unjust 
attempts to destroy the one may in the issue tend to the 
support and establishment of both.'' John Witherspoon, Signer 
of the Declaration, The Works of John Witherspoon, Vol. IX, at 
231 (Edinburgh, J. Ogle) (1815).
    The Manifesto of the Continental Congress appealed, ``to 
the God who searcheth the hearts of men for the rectitude of 
our intentions; and in His holy presence declare that, as we 
are not moved by any light or hasty suggestions of anger or 
revenge . . . adhere to this our determination.'' 4 Samuel 
Adams, The Writings of Samuel Adams 86 (Harry Alonzo Cushing 
ed., G.P. Putnam's Sons 1904).
    George Washington used the phrase ``under God'' in several 
of his orders to the Continental Army. On one occasion he wrote 
that ``The fate of unborn millions will now depend, under God, 
on the courage and conduct of this army.'' See American Center 
Law and Justice Position Paper on the Pledge of Allegiance, 
available at http://www.aclj.org/resources/pledge/pledge--
postition--paper.pdf. On another occasion, Washington 
encouraged his army, declaring that ``the peace and safety of 
this country depends, under God, solely on the success of our 
arms.'' 3 The Writings of George Washington 301 (John C. 
Fitzpatrick ed., 1931-1944).
    In 1781, Thomas Jefferson, the author of the Declaration of 
Independence and later the Nation's third President, in his 
work titled ``Notes on the State of Virginia'' wrote, ``God who 
gave us life gave us liberty. And can the liberties of a nation 
be thought secure when we have removed their only firm basis, a 
conviction in the minds of the people that these liberties are 
of the Gift of God. That they are not to be violated but with 
His wrath? Indeed, I tremble for my country when I reflect that 
God is just; that his justice cannot sleep forever.'' Thomas 
Jefferson, Notes on the State of Virginia, Query XVIII 169 
(Penguin Books 1999) (1785).
    The formal peace treaty with Great Britain, signed by John 
Adams, Benjamin Franklin, and John Jay on September 3, 1783, in 
its opening line invoked God with the words, ``In the Name of 
the most Holy and undivided Trinity.'' 2 Treaties and Other 
International Acts of the United States of America 151 (Hunter 
Miller ed., Gov't Printing Office 1931).
    James Madison's Memorial and Remonstrance Against Religious 
Assessments: ``It is the duty of every man to render to the 
Creator such homage, and such only, as he believes to be 
acceptable to him. This duty is precedent both in order of time 
and degree of obligation, to the claims of Civil Society. 
Before any man can be considered as a member of Civil Society, 
he must be considered as a subject of the Governor of the 
Universe[.]'' James Madison, Memorial and Remonstrance Against 
Religious Assessments Sec. 1 (1785).
    On May 14, 1787, George Washington, as President of the 
Constitutional Convention, rose to admonish and exhort the 
delegates and declared, ``If to please the people we offer what 
we ourselves disapprove, how can we afterward defend our work? 
Let us raise a standard to which the wise and the honest can 
repair; the event is in the hand of God!'' 4 U.S.C.A. Sec. 4 
(West Supp. 2003) (historical notes). Five weeks later, on June 
28, with Convention delegates ``groping . . . in the dark to 
find political truth,'' Benjamin Franklin pondered ``applying 
to the Father of lights to illuminate our understandings,'' 
famously recalling that, during the Revolutionary War, God had 
``heard, and . . . graciously answered'' the ``daily prayer in 
this room for the divine protection.'' 1 Max Farrand, The 
Records of the Federal Convention of 1787, at 451 (rev. ed. 
1966).
    Benjamin Rush said at the ratifying convention, ``Where 
there is no religion, there will be no morals.'' Benjamin Rush, 
Speech in Pennsylvania Ratifying Convention (Dec. 12, 1787), 
reprinted in Merrill Jensen, ed., 2 Documentary History of the 
Ratification of the Constitution 595 (1976).
    Benjamin Franklin wrote, ``Freedom is not a gift bestowed 
upon us by other men, but a right that belongs to us by the 
laws of God.'' Benjamin Franklin, Maxims and Morals (1789).
    Rufus King, who signed the Constitution, stated, ``The . . 
. law established by the Creator, which has existed from the 
beginning, extends over the whole globe, is everywhere and at 
all times binding upon mankind . . . [This] law is the law of 
God by which he makes his way known to man and is paramount to 
all human control.'' Rufus King, Signer of the Constitution, 
The Life and Correspondence of Rufus King, Vol. VI, at 276 
(Charles King ed., G.P. Putnam's Sons 1900).
    James Wilson, another signer of the Constitution, stated 
``God . . . is the promulgator as well as the author of natural 
law.'' James Wilson, signer of the Constitution, U.S. Supreme 
Court Justice, The Works of the Honourable James Wilson, Vol I, 
at 64 (Bird Wilson ed., Philadelphia, Lorenzo Press 1804). He 
also stated ``All [laws], however, may be arranged in two 
different classes: (1) Divine. (2) Human . . . But it should 
always be remembered that this law, natural and revealed, made 
for men or for nations, flows from the same Divine source: it 
is the law of God . . . Human law must rest its authority 
ultimately upon the authority of that law which is Divine.'' 
Id. at 103-05.
    And Gouvernor Morris stated, ``I believe that religion is 
the only solid base of morals and that morals are the only 
possible support of free governments.'' Gouvernor Morris, 
Penman and Signer of the Constitution, A Diary of the French 
Revolution, Vol II, at 452 (Boston, Houghton Mifflin 1939).
    Article VII in the U.S. Constitution refers to ``the Year 
of Our Lord,'' 1787. U.S. Const. art. VII.
    On July 21, 1789, on the same day that it approved the 
Establishment Clause concerning religion, the First Congress of 
the United States also passed the Northwest Ordinance, 
providing for a territorial government for lands northwest of 
the Ohio River, which declared, ``Religion, morality, and 
knowledge, being necessary to good government and the happiness 
of mankind, schools and the means of education shall forever be 
encouraged.'' The Northwest Ordinance, 1 Stat. 51 (1789).
    The Father of the Country, George Washington, acknowledged 
on many occasions the role of Divine Providence in the Nation's 
affairs. His first inaugural address is replete with references 
to God, including thanksgivings and supplications: ``Such being 
the impressions under which I have, in obedience to the public 
summons, repaired to the present station, it would be 
peculiarly improper to omit in this first official act my 
fervent supplications to that Almighty Being who rules over the 
universe, who presides in the councils of nations, and whose 
providential aids can supply every human defect, that His 
benediction may consecrate to the liberties and happiness of 
the people of the United States a government instituted by 
themselves for these essential purposes, and may enable every 
instrument employed in its administration to execute with 
success the functions allotted to his charge. In tendering this 
homage to the Great Author of every public and private good, I 
assure myself that it expresses your sentiments not less than 
my own, nor those of my fellow-citizens at large less than 
either. No people can be bound to acknowledge and adore the 
Invisible Hand which conducts the affairs of men more than 
those of the United States.'' Speeches of the American 
Presidents 3 (Steven Anzovin & Janet Podell eds., The H.W. 
Wilson Co. 1988).
    President Washington noted in his Farewell Address that 
``reason and experience both forbid us to expect that national 
morality can prevail in exclusion of religious principle.'' 
Speeches of the American Presidents 18 (Steven Anzovin & Janet 
Podell eds., The H.W. Wilson Co. 1988).
    John Jay, the first Chief Justice of the Supreme Court, 
stated, ``The . . . natural law was given by the Sovereign of 
the Universe to all mankind.'' John Jay, First Chief Justice, 
The Life of John Jay, Vol II, at 385, William Jay, editor (New 
York., J & J Harper, 1833).
    The Virginia Act for Religious Freedom provides ``Whereas, 
Almighty God hath created the mind free.'' Va. Code Ann. 
Sec. 57-1 (West 2003). The Act continues by stating that any 
attempt by the government to influence the mind through 
coercion is ``a departure from the plan of the Holy Author of 
our religion, who, being Lord both of body and mind, yet chose 
not to propagate it by coercions on either, as was in his 
Almighty power to do . . .'' Va. Code Ann. Sec. 57-1 (West 
2003).
    Supreme Court Justice Joseph Story stated, ``The 
promulgation of the great doctrines of religion; the being and 
attributes and providence of one Almighty God; the 
responsibility to Him for all actions; founded upon moral 
freedom and accountability; a future state of rewards and 
punishments; the cultivation of personal, social, and 
benevolent virtues;--these can never be a matter of 
indifference in any well-ordered community. It is, indeed, 
difficult to conceive how any civilized society can well exist 
without them.'' Joseph Story, U.S. Supreme Court Justice, 
Commentaries on the Constitution of the United States, Vol. 
III, at 722-23 (Boston, Hillard, Gray & Co.) (1833). ``It yet 
remains a problem to be solved in human affairs whether any 
free government can be permanent where no public worship of God 
and the support of religion constitute no part of the policy or 
duty of the state in any assignable shape.'' Id. at 727.
    As John Quincy Adams, the fifth President of the United 
States, explained in his famous oration, ``The Jubilee of the 
Constitution'': ``[T]he virtue which had been infused into the 
Constitution of the United States . . . was no other than the 
concretion of those abstract principles which had been first 
proclaimed in the Declaration of Independence--namely, the 
self-evident truths of the natural and unalienable rights of 
man . . . always subordinate to the rule of right and wrong, 
and always responsible to the Supreme Ruler of the universe for 
the rightful exercise of that . . . power . . . This was the 
platform upon which the Constitution of the United States had 
been erected.'' John Quincy Adams, The Jubilee of the 
Constitution 54. He continued that ` `The laws of nature and of 
nature's God' . . . of course presupposes the existence of God, 
the moral ruler of the universe, and a rule of right and wrong, 
of just and unjust, binding upon man, preceding all 
institutions of human society and of government.'' Id. at 3-14.
    Robert Winthrop, U.S. Speaker of the House in 1849, stated: 
``All societies of men must be governed in some way or other . 
. . Men, in a word, must necessarily be controlled, either by a 
power within them, or a power without them; either by the word 
of God, or by the strong arm of man; either by the Bible, or by 
the bayonet.'' Gary North & Gary DeMar, Christian 
Reconstruction: What It Is, What It Isn't 188 (1991).
    On November 19, 1863, President Abraham Lincoln delivered 
his Gettysburg Address on the site of the battle and declared, 
``It is rather for us to be here dedicated to the great task 
remaining before us--that from these honored dead we take 
increased devotion to that cause for which they gave the last 
full measure of devotion--that we here highly resolve that 
these dead shall not have died in vain--that this Nation, under 
God, shall have a new birth of freedom--and that Government of 
the people, by the people, for the people, shall not perish 
from the earth.'' Speeches of the American Presidents 193 
(Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 
(There are 14 references to God in the 669 words comprising the 
Gettysburg Address.)
    President Franklin D. Roosevelt said, ``In teaching this 
democratic faith to American children, we need the sustaining, 
buttressing aid of those great ethical religious teachings 
which are the heritage of our modern civilization. For `not 
upon strength nor upon power, but upon the spirit of God' shall 
our democracy be founded.'' Public Papers of the Presidents, 
F.D. Roosevelt, 1940, Item 149, Office of Fed. Reg. (2003).
    On April 28, 1952, in the decision of the Supreme Court of 
the United States in Zorach v. Clauson, 343 U.S. 306 (1952), in 
which school children were allowed to be excused from public 
schools for religious observances and education, Justice 
William O. Douglas, in writing for the Court, stated:

        The First Amendment, however, does not say that in 
        every and all respects there shall be a separation of 
        Church and State. Rather, it studiously defines the 
        manner, the specific ways, in which there shall be no 
        concert or union or dependency one on the other. That 
        is the common sense of the matter. Otherwise the state 
        and religion would be aliens to each other--hostile, 
        suspicious, and even unfriendly. Churches could not be 
        required to pay even property taxes. Municipalities 
        would not be permitted to render police or fire 
        protection to religious groups. Policemen who helped 
        parishioners into their places of worship would violate 
        the Constitution. Prayers in our legislative halls; the 
        appeals to the Almighty in the messages of the Chief 
        Executive; the proclamations making Thanksgiving Day a 
        holiday; ``so help me God'' in our courtroom oaths--
        these and all other references to the Almighty that run 
        through our laws, our public rituals, our ceremonies 
        would be flouting the First Amendment. A fastidious 
        atheist or agnostic could even object to the 
        supplication with which the Court opens each session: 
        ``God save the United States and this Honorable 
        Court.''

        Zorach v. Clauson, 343 U.S. 306, 312-13 (1952).

    President Kennedy exhorted, ``The world is very different 
now . . . And yet the same revolutionary beliefs for which our 
forebears fought are still at issue around the globe--the 
belief that the rights of man come not from the generosity of 
the state but from the hand of God. With good conscience as our 
only sure reward, with history the final judge of our deeds, 
let us go forth to lead the land we love, asking His blessing 
and His help, but knowing that here on earth God's work must 
truly be our own.'' Engel v. Vitale, 370 U.S. 421, 448 (1962) 
(dissenting opinion) (discussing quotes from Presidents 
Washington, Adams, Jefferson, Madison, Lincoln, Cleveland, 
Wilson, Roosevelt, Eisenhower and Kennedy).
    In the decision of the Supreme Court of the United States 
in Abington School District v. Schempp, 374 U.S. 203 (1963), in 
which compulsory school prayer was held unconstitutional, 
Justices Goldberg and Harlan, concurring in the decision, 
stated:

        But untutored devotion to the concept of neutrality can 
        lead to invocation or approval of results which partake 
        not simply of that noninterference and noninvolvement 
        with the religious which the Constitution commands, but 
        of a brooding and pervasive devotion to the secular and 
        a passive, or even active, hostility to the religious. 
        Such results are not only not compelled by the 
        Constitution, but, it seems to me, are prohibited by 
        it. Neither government nor this Court can or should 
        ignore the significance of the fact that a vast portion 
        of our people believe in and worship God and that many 
        of our legal, political, and personal values derive 
        historically from religious teachings. Government must 
        inevitably take cognizance of the existence of religion 
        and, indeed, under certain circumstances the First 
        Amendment may require that it do so.

    Abington School District v. Schempp, 374 U.S. 203, 306 
(1963) (Goldberg, J.,
    concurring).
    Justice Brennan, in Abington School District v. Schempp, 
374 U.S. 203, 304 (1963), offered, ``The reference to divinity 
in the revised pledge of allegiance, for example, may merely 
recognize the historical fact that our Nation was believed to 
have been founded `under God.' Thus reciting the pledge may be 
no more of a religious exercise than the reading aloud of 
Lincoln's Gettysburg Address, which contains an allusion to the 
same historical fact.''
    On March 5, 1984, in the decision of the Supreme Court of 
the United States in Lynch v. Donnelly, 465 U.S. 668, 674-77 
(1984), in which a city government's display of a nativity 
scene was held to be constitutional, Chief Justice Burger, 
writing for the Court, stated:

        There is an unbroken history of official acknowledgment 
        by all three branches of government of the role of 
        religion in American life from at least 1789 . . . 
        [E]xamples of reference to our religious heritage are 
        found in the statutorily prescribed national motto ``In 
        God We Trust,'' which Congress and the President 
        mandated for our currency, [see 31 U.S.C. 
        Sec. 5112(d)(1) (1982),] and in the language ``One 
        Nation under God,'' as part of the Pledge of Allegiance 
        to the American flag. That pledge is recited by 
        thousands of public school children--and adults--every 
        year . . . Art galleries supported by public revenues 
        display religious paintings of the 15th and 16th 
        centuries, predominantly inspired by one religious 
        faith. The National Gallery in Washington, maintained 
        with Government support, for example, has long 
        exhibited masterpieces with religious messages, notably 
        the Last Supper, and paintings depicting the Birth of 
        Christ, the Crucifixion, and the Resurrection, among 
        many others with explicit Christian themes and 
        messages. The very chamber in which oral arguments on 
        this case were heard is decorated with a notable and 
        permanent--not seasonal--symbol of religion: Moses with 
        Ten Commandments. Congress has long provided chapels in 
        the Capitol for religious worship and meditation.

    On June 4, 1985, in the decision of the Supreme Court of 
the United States in Wallace v. Jaffree, 472 U.S. 38 (1985), in 
which a mandatory moment of silence to be used for meditation 
or voluntary prayer was held unconstitutional, Justice 
O'Connor, concurring in the judgment and addressing the 
contention that the Court's holding would render the Pledge of 
Allegiance unconstitutional because Congress amended it in 1954 
to add the words ``under God,'' stated, ``In my view, the words 
`under God' in the Pledge, as codified at 36 U.S.C. Sec. 172, 
serve as an acknowledgment of religion with `the legitimate 
secular purposes of solemnizing public occasions, [and] 
expressing confidence in the future.' '' Wallace v. Jaffree, 
472 U.S. 38, 78 n.5 (1985) (O'Connor, J., concurring).
    On November 20, 1992, the United States Court of Appeals 
for the 7th Circuit, in Sherman v. Community Consolidated 
School District 21, 980 F.2d 437 (7th Cir. 1992), held that a 
school district's policy for voluntary recitation of the Pledge 
of Allegiance including the words ``under God'' was 
constitutional.
    In President Bush's 2003 State of the Union address, he 
ended with these words: ``Americans are a free people, who know 
that freedom is the right of every person and the future of 
every nation. The liberty we prize is not America's gift to the 
world; it is God's gift to humanity. We Americans have faith in 
ourselves, but not in ourselves alone. . . . We do not claim to 
know all the ways of Providence, yet we can trust in them, 
placing our confidence in the loving God behind all of life and 
all of history. May He guide us now, and may God continue to 
bless the United States of America.'' Weekly Compilation of 
Presidential Documents, Vol. 39, No. 5, at 116 (Office of the 
Federal Register, February 3, 2003).
    God is Recognized in Our Highest Federal Offices and 
National Monuments
    The First Congress not only acknowledged a proper role for 
religion in public life, but it did so at the very time it 
drafted the Establishment Clause. Just 3 days before Congress 
sent the text of the First Amendment to the states for 
ratification, it authorized the appointment of legislative 
chaplains. Marsh v. Chambers, 463 U.S. 783, 788 (1983).
    Both Houses of Congress open their daily sessions with 
prayer and, in recent years, recitation of the Pledge. See 
Senate Rule IV.1, Standing Rules of the Senate, S. Doc. No. 
107-1, at 4 (2002); House Rule XIV.1, Constitution, Jefferson's 
Manual, and Rules of the House of Representatives, H.R. Doc. 
No. 106-320, at 620 (2001).
    Manifestations of the religious faith of our forebears 
appear throughout the Nation's Capital. The Senate Chamber is 
inscribed with the words ``In God We Trust'' and the Latin 
phrase ``Annuit Coeptis'' or ``God has favored our 
undertakings.'' S. Doc. No. 82-20, at 27 (1951); 4 U.S.C.A. 
Sec. 4 (West Supp. 2003) (historical notes). The Main Reading 
Room of the Library of Congress prominently displays the 
Biblical quotation: ``The heavens declare the Glory of God, and 
the firmament showeth His handiwork'' (Psalms 19:1). John Y. 
Cole, On These Walls 35 (1995). Friezes on the North and South 
walls of the Supreme Court chamber depict a procession of 
historical lawgivers including Moses and Confucius. See County 
of Allegheny v. ACLU, 492 U.S. 573, 652-53 (1989) (Stevens, J., 
concurring in part and dissenting in part).
    In the Rotunda of the Capitol Building, there are paintings 
with religious themes, such as the Apotheosis of Washington, 
depicting the ascent of George Washington into Heaven, and the 
Baptism of Pocahontas, portraying Pocahontas being baptized by 
an Anglican minister. A wall in the Cox Corridor of the Capitol 
is inscribed with this line from Katharyn Lee Bates's Hymn, 
America the Beautiful, ``America! God shed his grace on Thee, 
and crown thy good with brotherhood from sea to shining sea.'' 
In the prayer room of the House chamber, is inscribed the 
following prayer ``preserve me, O God--for in thee do I put my 
trust.''
    On July 20, 1956, Congress proclaimed that the national 
motto of the United States is ``In God We Trust,'' and that 
motto is inscribed above the main door of the Senate, behind 
the Chair of the Speaker of the House of Representatives, and 
on the currency of the United St ates. 4 U.S.C. Sec. 4 (1998) 
(historical notes) (Congressional finding (10)).
    Virtually every President in the past thirty years has 
closed his speeches to the nation with the words ``God bless 
America.''
    The Supreme Court opens each session with ``God save the 
United States and this Honorable Court.'' See Zorach v. 
Clauson, 343 U.S. 306, 313 (1952).
    The very chamber in which oral arguments are heard before 
the Supreme Court ``is decorated with a notable and permanent--
not seasonal--symbol of religion: Moses with Ten 
Commandments.'' Lynch v. Donnelly, 465 U.S. 668, 677 (1984).
    Our courtrooms include the oath, ``so help me God.'' Zorach 
v. Clauson, 343 U.S. 306, 313 (1952).
    The Tomb of the Unknown Soldier is engraved with the words: 
``Here rests in honored glory an American soldier known but to 
God.'' See Lieutenant Colonel H. Wayne Elliott, The Third 
Priority: The Battlefield Dead, 1996 Army Law. 3, 20.
    Arlington National Cemetery maintains thousands of 
religious inscriptions on state-owned property.
    Our National holidays (``holy days'') include Christmas 
(Christ Mass), Thanksgiving and the National Day of Prayer. 
Lynch v. Donnelly, 465 U.S. 668, 676 (1952). Our children 
celebrate St. Valentine's Day and St. Patrick's Day in school. 
St. Valentine was a Christian martyr. St. Patrick was a 
Catholic bishop. St. Patrick, Encarta Encyclopedia (2003). The 
three leaf clover represents the Holy Trinity. Id. ``Santa 
Claus'' is derived from St. Nicholas (``Santa'' means ``saint'' 
and ``Claus'' is short for ``Nicolaus''), the archbishop of 
Myra, known for distributing his inherited wealth to the needy 
by anonymously throwing bags of gold coins through windows. 
Santa Claus, Encarta Encyclopedia (2003).
    Our cities bear religious names, such as St. Petersburg, 
San Francisco, Los Angeles, St. Paul, St. Augustine, Santa 
Barbara, Santa Clara, San Diego, Santa Fe (``Holy Faith'').
    Some of our most patriotic songs, such as ``God Bless 
America'' affirm a belief in God. The fourth stanza of the 
statutorily prescribed National Anthem includes in part the 
following, ``Blest with victory and peace, may the heaven-
rescued land, Praise the Power that hath made and preserved us 
a nation. Then conquer we must, when our cause is just, And 
this be our motto: `in God is our trust.' '' See 36 U.S.C. 
Sec. 301(a).
    Art galleries subsidized by public revenues display 
religious paintings. Lynch v. Donnelly, 465 U.S. 668, 676 
(1952).
    Our churches and clergymen enjoy tax exemptions. Walz v. 
Tax Comm'n of the City of New York, 397 U.S. 664, 679-80 
(1970).

               RECOGNITION OF GOD IN STATE CONSTITUTIONS

    In addition, several of the States explicitly provided for 
religious education in their State constitutions.
    The Pennsylvania Constitution of 1776, for example, 
provided that ``all religious societies or bodies of men 
heretofore united or incorporated for the advancement of 
religion or learning . . . shall be encouraged and protected.'' 
Pa. Const. of 1776, Sec. 45.
    The Vermont Constitution provides that ``all religious 
societies or bodies of men that have or may be hereafter united 
and incorporated, for the advancement of religion and learning, 
shall be encouraged and protected.'' Vt. Const. of 1777, Ch. II 
Sec. XLI.
    The Massachusetts Constitution provides: ``The people of 
this Commonwealth have the right to invest their legislature 
with power to authorize and require . . . the several towns . . 
. or religious societies to make suitable provision at their 
own expense . . . for the support and maintenance of public 
protestant teachers of piety, religion and morality.'' Mass. 
Const. of 1780, Pt. I Sec. 3.
    New Hampshire's Constitution authorized the legislature to 
``make adequate provision at their own expense for the support 
and maintenance of public protestant teachers of piety, 
religion and morality'' because ``morality and piety . . . will 
give the best and security to government . . .'' N.H. Const. of 
1784, Pt. I Sec. 5.
    The Nebraska Constitution provides that ``Religion, 
morality, and knowledge, however, being essential to good 
government, it shall be the duty of the Legislature . . . to 
encourage schools and the means of instruction.'' Nebr. Const. 
Art. 1, Sec. 4.
    Further, every one of the original States, and nearly every 
one of the current fifty, continues to acknowledge God in its 
constitution.
    The preamble to California's constitution is typical: ``We, 
the people of California, grateful to Almighty God for our 
freedom, in order to secure and perpetuate its blessings, do 
establish this Constitution.'' Cal. Const. of 1879, Preamble, 
reprinted in Francis Newton Thorpe, 1 The Federal and State 
Constitutions 412 (William S. Hein & Co. 1993) (1909).
    The Massachusetts Constitution of 1780 provided for 
``public instructions in piety, religion and morality'' because 
``the happiness of a people, and the good order and 
preservation of civil government, essentially depend upon . . . 
the public worship of God.'' Mass. Const. of 1780, Pt. 1, Art. 
3, reprinted in 1 Thorpe 1888, 1889-90. Although Massachusetts 
eliminated its established church in 1833, its constitution 
continues to recognize that ``the public worship of GOD and 
instructions in piety, religion and morality, promote the 
happiness and prosperity of a people and the security of a 
republican government.'' Mass. Const., Amend. XI (ratified Nov. 
11, 1833), reprinted in 3 Thorpe 1888, 1914, 1922.
    Many of the state constitutions recognize that the public 
worship of God is a duty of mankind, even while they expressly 
protect against formal sectarian establishments and provide for 
the free exercise of religion. See, e.g., Del. Const. of 1897, 
Art. I, Sec. 1, reprinted in 1 Thorpe 600, 601 (``Although it 
is the duty of all men frequently to assemble together for the 
public worship of Almighty God; . . . yet no man shall or ought 
to be compelled to attend any religious worship'') (Virtually 
identical language first appeared in the Delaware Constitution 
of 1792, Art. 1, Sec. 1, reprinted in 1 Thorpe 568.); Md. 
Const. of 1970, Art. 36 (``That as it is the duty of every man 
to worship God in such manner as he thinks most acceptable to 
Him, all persons are equally entitled to protection in their 
religious liberty''); Mass. Const. of 1780, Pt. I, Art. II, 
reprinted in 3 Thorpe 1888, 1889 (``It is the right as well as 
the Duty of all men in society, publickly, and at stated 
seasons, to worship the Supreme Being, the great Creator and 
Preserver of the universe.'').
    Because of the mechanism by which new states are added to 
the national union, see U.S. Const., Art. IV, sec. 3, we can 
assess whether Congress viewed state constitutional provisions 
that invoked God or encouraged public worship as contrary to 
the First Amendment.
    The first Congress, comprised of the same elected officials 
who drafted the First Amendment, admitted Vermont as a new 
State, with a constitution that provided: ``every sect or 
denomination of Christians ought to observe the Sabbath or 
Lord's day, and keep up some sort of religious worship, which 
to them shall seem most agreeable to the revealed will of 
God.'' Vt. Const. of 1786, Ch. 1, Art. 3, reprinted in 6 Thorpe 
3749, 3752.
    If one looks instead to the time period of the adoption of 
the 14th Amendment (which is the more relevant time period, 
given that the 14th Amendment, via the Incorporation Doctrine, 
is the means by which the Supreme Court made the Establishment 
Clause applicable to the states), the same holds true.
    Nebraska's Constitution of 1866 contains the following 
preamble: ``We, the people of Nebraska, grateful to Almighty 
God for our freedom, do establish this constitution.'' Nebr. 
Const. of 1866, Preamble, reprinted in 4 Thorpe 2349. Even more 
significantly, the Nebraska Bill of Rights, after recognizing 
freedom of conscience, contains the following passage, modeled 
after the Northwest Ordinance: ``Religion, morality, and 
knowledge, however, being essential to good government, it 
shall be the duty of the legislature to pass suitable laws to 
protect every religious denomination in the peaceable enjoyment 
of its own mode of public worship and to encourage schools and 
the means of instruction.'' Nebr. Const. of 1866, Art. I, sec. 
16, reprinted in 4 Thorpe 2350. The language was repeated 
verbatim in the 1875 constitution, after adoption of the 
Fourteenth Amendment. See Nebr. Const. of 1875, Art. 1, sec. 4, 
reprinted in 4 Thorpe 2361, 2362. These passages are 
particularly significant because the enabling act for Nebraska 
specifically required that the state's constitution ``shall not 
be repugnant to the Constitution of the United States and the 
principles of the Declaration of Independence,'' and ``that 
perfect toleration of religious sentiment shall be secured.'' 
Enabling Act for Nebraska, 38th Cong., 1st Sess., sec. 4, 
reprinted in 4 Thorpe 2343, 2344.
    Explicit religious invocations are also found in the 
``reconstruction'' constitutions of the southern states, 
adopted after passage of the Fourteenth Amendment by Congress 
as those states were petitioning the same Congress for 
readmission to the Union. Georgia's 1868 Constitution, for 
example, ``acknowledg[es] and invok[es] the guidance of 
Almighty God, the author of all good government,'' in its 
preamble, even while protecting ``perfect freedom of religious 
sentiment.'' Ga. Const. of 1868, Preamble; Art. I, sec. 6, 
reprinted in 2 Thorpe 822. The preamble to North Carolina's 
1868 Constitution reads like a prayer: ``[G]rateful to Almighty 
God, the sovereign ruler of nations, for the preservation of 
the American Union and the existence of our civil, political, 
and religious liberties, and acknowledging our dependence upon 
Him for the continuance of those blessings to us and our 
posterity.'' N.C. Const. of 1868, Preamble, reprinted in 5 
Thorpe 2800. See also, e.g., Va. Const. of 1870, Preamble, 
reprinted in 7 Thorpe 3871, 3873 (``invoking the favor and 
guidance of Almighty God''); Ala. Const. of 1867, Preamble, 
reprinted in 1 Thorpe 132 (same).
    Thus Congress--the very Congress that adopted the 
Fourteenth Amendment--saw no Establishment Clause problem with 
state constitutions that acknowledged God, gave thanks to God, 
and even encouraged the public worship of God, nor did it see 
such acknowledgments as inconsistent with the Free Exercise and 
Establishment clauses of the U.S. Constitution or with 
comparable clauses in the states' own constitutions. Nor have 
subsequent Congresses or Presidents.
    All of the states created out of the Dakota Territory in 
1889 were admitted with constitutions containing similar 
acknowledgments of God and similar prohibitions of 
establishment. The people of Idaho, for example, announced in 
their first constitution that they were ``grateful to Almighty 
God for [their] freedom,'' even though the constitution also 
provided that ``no person shall be required to attend or 
support any ministry or place of worship, religious sect or 
denomination, or pay tithes against his consent.'' Const. of 
1889, Preamble; Art. 1, sec. 4, reprinted in 2 Thorpe 913, 918. 
Congress admitted Idaho to statehood on July 3, 1990, after 
finding that the proposed constitution was ``republican in form 
and . . . in conformity with the Constitution of the United 
States''--a constitution that had included the Fourteenth 
Amendment for more than twenty years. See An Act to provide for 
the admission of the State of Idaho into the Union (July 3, 
1890), reprinted in 2 Thorpe 913, 918. Wyoming's constitution 
announced that its people were ``grateful to God'' for their 
``civil, political, and religious liberties,'' even while it 
declared that ``the free exercise and enjoyment of religious 
profession and worship without discrimination or preference 
shall be forever guaranteed in this State.'' Wy. Const. of 
1889, Preamble; Art. 1, sec. 18, reprinted in 7 Thorpe 4118. 
Congress admitted Wyoming to statehood after finding that its 
constitution was ``in conformity with the Constitution of the 
United States.'' Act of July 10, 1890, reprinted in 7 Thorpe 
4111, 4112. Montana, South Dakota, and Washington were all 
admitted to statehood in 1889 by Presidential proclamation 
rather than directly by act of Congress. Before the President 
was authorized to issue the proclamation of statehood, however, 
he had to find that their constitutions were ``not repugnant to 
the Constitution of the United States and the principles of the 
Declaration of Independence.'' See Act of Feb. 22, 1889, 25 
Stat. 676. Montana's preamble expressed gratitude ``to Almighty 
God for the blessings of liberty'' even while the constitution 
elsewhere barred ``preference . . . to any religious 
denomination or mode of worship.'' Mt. Const. of 1889, 
Preamble; Art. III, sec. 4, reprinted in 4 Thorpe 2300, 2301. 
President Benjamin Harrison found the constitution consistent 
with the United States Constitution and proclaimed Montana a 
state on November 8, 1889. See Proclamation of Nov. 8, 1889, 
reprinted in 4 Thorpe 2299-2300. Similar provisions are found 
in the first constitutions of South Dakota and Washington. S.D. 
Const. of 1889, Preamble and Art. VI, sec. 3, reprinted in 6 
Thorpe 3357, 3370; Wash. Const. of 1889, Preamble and Art. I, 
sec. 11, reprinted in 7 Thorpe 3973, 3974. Both received 
Presidential approval. Proclamation of Nov. 2, 1889, reprinted 
in 6 Thorpe 3355-57 (admitting South Dakota to statehood); 
Proclamation of Nov. 11, 1889, reprinted in 7 Thorpe 3971-73 
(admitting Washington to statehood).
    The Utah Constitution of 1895 contained one of the most 
strongly-worded anti-establishment provisions: ``The rights of 
conscience shall never be infringed. The State shall make no 
law respecting an establishment of religion or prohibiting the 
free exercise thereof, . . . There shall be no union of church 
and state, nor shall any church dominate the State or interfere 
with its functions.'' Utah Const. of 1895, Art. I, sec. 4, 
reprinted in 6 Thorpe 3702. Despite this strong anti-
establishment language, the preamble of the same constitution 
acknowledges that the people of Utah were ``grateful to 
Almighty God for life and liberty.'' Utah Const. of 1895, 
Preamble, reprinted in 6 Thorpe 3702. President Grover 
Cleveland accepted Utah to statehood after finding that ``said 
constitution is not repugnant to the Constitution of the United 
States and the Declaration of Independence.'' Proclamation of 
January 4, 1896, reprinted in 6 Thorpe 3700. Neither the 
President nor Congress found such public acknowledgments of God 
to be contrary to the Establishment Clause, well after adoption 
of the Fourteenth Amendment.

             THANKSGIVING PROCLAMATIONS HAVE RECOGNIZED GOD

    On September 25, 1789, the First Congress unanimously 
approved a resolution calling on President George Washington to 
proclaim a National Day of Thanksgiving for the people of the 
United States by declaring, ``a day of public thanksgiving and 
prayer, to be observed by acknowledging, with grateful hearts, 
the many favors of Almighty God, especially by affording them 
an opportunity peaceably to establish a constitution of 
government for their safety and happiness.'' See Wallace v. 
Jaffree, 472 U.S. 38, 101 (1985) (Rehnquist, J., dissenting).
    In Washington's Proclamation of a Day of National 
Thanksgiving, he wrote that it is the ``duty of all Nations to 
acknowledge the providence of Almighty God, to obey his will, 
to be grateful for his benefits, and humbly to implore his 
protection and favor. . . .'' 30 The Writings of George 
Washington from the Original Manuscript Sources 1745-1799, at 
427 (John C. Fitzpatrick ed., Gov't Printing Office 1939). His 
proclamation of a day of thanksgiving, which we still 
celebrate, is an elegant national prayer, requested by the very 
Congress that drafted the Establishment Clause of the First 
Amendment:

        Whereas it is the duty of all Nations to acknowledge 
        the providence of Almighty God, to obey his will, to be 
        grateful for his benefits, and humbly to implore his 
        protection and favor, and Whereas both Houses of 
        Congress have by their joint Committee requested me 
        ``to recommend to the People of the United States a day 
        of public thanks-giving and prayer to be observed by 
        acknowledging with grateful hearts the many signal 
        favors of Almighty God, especially by affording them an 
        opportunity peaceable to establish a form of government 
        for their safety and happiness.'' Now therefore I do 
        recommend and assign Thursday the 26th day of November 
        next to be devoted by the People of these States to the 
        service of that great and glorious Being, who is the 
        beneficent Author of all the good that was, that is, or 
        that will be. That we may then all unite in rendering 
        unto him our sincere and humble thanks, for his kind 
        care and protection of the People of this country 
        previous to their becoming a Nation, for the signal and 
        manifold mercies, and the favorable interpositions of 
        his providence, which we experienced in the course and 
        conclusion of the late ware, for the great degree of 
        tranquility, union, and plenty, which we have since 
        enjoyed, for the peaceable and rational manner in which 
        we have been enabled to establish constitutions of 
        government for our safety and happiness, and 
        particularly the national One now lately instituted, 
        for the civil and religious liberty with which we are 
        blessed, and the means we have of acquiring and 
        diffusing useful knowledge and in general for all the 
        great and various favors which he hath been pleased to 
        confer upon us. And also that we may then unite in most 
        humbly offering our prayers and supplications to the 
        great Lord and Ruler of Nations and beseech him to 
        pardon our national and other transgressions, to enable 
        us all, whether in public or private stations, to 
        perform our several and relative duties properly and 
        punctually, to render our national government a 
        blessing to all the People, by constantly being a 
        government of wise, just and constitutional laws, 
        discreetly and faithfully executed and obeyed, to 
        protect and guide all Sovereigns and Nations 
        (especially such as have shown kindness unto us) and to 
        bless them with good government, peace, and concord. To 
        promote the knowledge and practice of true religion and 
        virtue, and the encrease of science among them and us, 
        and generally to grant unto all Mankind such a degree 
        of temporal prosperity as he alone knows to be best.

        30 The Writings of George Washington from the Original 
        Manuscript Sources 1745-1799, at 427-28 (John C. 
        Fitzpatrick ed., Gov't Printing Office 1939).

    John Adams declared in 1799, ``As no truth is more clearly 
taught in the Volume of Inspiration, nor any more fully 
demonstrated by the experience of all ages, than that a deep 
sense and due acknowledgment of the governing providence of a 
Supreme Being and of the Accountableness of men to Him as the 
searcher of heart and righteous distributor of rewards and 
punishments are conducive equally to the happiness and 
rectitude of individuals and to the well-being of communities . 
. . I do hereby recommend . . . to be observed throughout the 
United States as a day of solemn humiliation, fasting, and 
prayer. . . .'' 9 The Works of John Adams 172 (Charles F. Adams 
ed., 1850-56) (reprint by Books for Librarians Press, 1969).
    President James Madison, on July 9, 1812, proclaimed that 
the third Thursday in August ``be set apart for the devout 
purposes of rendering the Sovereign of the Universe and the 
Benefactor of Mankind the public homage due to His holy 
attributes . . .'' 2 James D. Richardson, A Compilation of the 
Messages and Papers of the Presidents 498 (Bureau of National 
Literature, Inc.).
    President James Madison, on March 4, 1815 declared ``a day 
of thanksgiving and of devout acknowledgments to Almighty God 
for His great goodness manifested in restoring to them the 
blessing of peace. No people ought to feel greater obligations 
to celebrate the goodness of the Great Disposer of Events and 
of the Destiny of Nations than the people of the United 
States.'' 2 James D. Richardson, A Compilation of the Messages 
and Papers of the Presidents 546 (Bureau of National 
Literature, Inc.).
    Andrew Johnson proclaimed ``on the occasion of the 
obsequies of Abraham Lincoln, late President of the United 
States'' that ``a special period be assigned for again humbling 
ourselves before Almighty God. . . .'' 8 James D. Richardson, A 
Compilation of the Messages and Papers of the Presidents 3504 
(Bureau of National Literature, Inc.) (Proclamation of April 
25, 1865).
    President Woodrow Wilson, on October 19, 1917, proclaimed 
that ``Whereas, the Congress of the United States, . . . 
requested me to set apart by official proclamation a day upon 
which our people should be called upon to offer concerted 
prayer to Almighty God for His divine aid . . . And, Whereas, 
it behooves a great free people, nurtured as we have been in 
eternal principles of justice and of right, a nation which has 
sought from the earliest days of its existence to be obedient 
to the divine teachings which have inspired it in the exercise 
of its liberties, to turn always to the supreme Master and cast 
themselves in faith at His feet, praying for His aid and succor 
. . .'' 17 James D. Richardson, A Compilation of the Messages 
and Papers of the Presidents 8377 (Bureau of National 
Literature, Inc.) (Proclamation of Oct. 19, 1917).
    President Roosevelt's 1944 Thanksgiving Proclamation 
declared: ``[I]t is fitting that we give thanks with special 
fervor to our Heavenly Father for the mercies we have received 
individually and as a nation and for the blessings He has 
restored, through the victories of our arms and those of our 
Allies, to His children in other land . . . To the end that we 
may bear more earnest witness to our gratitude to Almighty God, 
I suggest a nationwide reading of the Holy Scriptures during 
the period from Thanksgiving to Christmas.'' Lynch v. Donnelly, 
465 U.S. 668, 675 n.3 (1984) (citing Proclamation No. 2629, 9 
Fed. Reg. 13,099 (1944)).
    Official announcements proclaiming Christmas, Thanksgiving, 
and other national holidays are, to this day, made in religious 
terms. President Bush, in his 2002 Thanksgiving Day 
Proclamation, stated, ``We also thank God for the blessings of 
freedom and prosperity; and, with gratitude and humility, we 
acknowledge the importance of faith in our lives.'' Weekly 
Compilation of Presidential Papers, Vol. 38, No. 47, at 2072 
(November 25, 2002).
    Recognition of God in the Presidential Oath of Office and 
Inaugural Addresses
    Every President of the United States, since Washington, has 
taken the Oath of Office with his hand placed upon the Bible. 
See Engel v. Vitale, 370 U.S. 421, 436 (1962). Every President 
has ended his Oath with, ``So help me, God.'' Id. at 436.
    Every President, without exception, has acknowledged God 
upon entering office:
    George Washington, 1st, ``that Almighty Being who rules 
over the universe . . .'' Speeches of the American Presidents 3 
(Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    John Adams, 2nd, ``that Being who is supreme over all, the 
Patron of Order, the Fountain of Justice . . .'' Speeches of 
the American Presidents 28 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988).
    Thomas Jefferson, 3rd, ``And may that Infinite Power which 
rules the destinies of the universe lead our councils to what 
is best, and give them a favorable issue for your peace and 
prosperity.'' Speeches of the American Presidents 40 (Steven 
Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    James Madison, 4th, ``that Almighty Being whose power 
regulates the destiny of nations, whose blessings have been so 
conspicuously dispensed to this rising republic, and to whom we 
are bound to address our devout gratitude for the past, as well 
as our fervent supplications and best hopes for the future.'' 
Speeches of the American Presidents 51 (Steven Anzovin & Janet 
Podell eds., The H.W. Wilson Co. 1988).
    James Monroe, 5th, ``with a firm reliance on the protection 
of Almighty God . . .'' Speeches of the American Presidents 69 
(Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    John Quincy Adams, 6th, ``knowing that `except the Lord 
keep the city the watchman waketh but in vain' with fervent 
supplications for His favor. . . .'' Inaugural Addresses of the 
Presidents of the United States, S. Doc. No. 101-10, at 60 
(1989).
    Andrew Jackson, 7th, ``my most fervent prayer to that 
Almighty Being before whom I now stand . . .'' Speeches of the 
American Presidents 95 (Steven Anzovin & Janet Podell eds., The 
H.W. Wilson Co. 1988).
    Martin Van Buren, 8th, ``the Divine Being whose 
strengthening support I humbly solicit, and whom I fervently 
pray to look down upon us all.'' Speeches of the American 
Presidents 108 (Steven Anzovin & Janet Podell eds., The H.W. 
Wilson Co. 1988).
    William Henry Harrison, 9th, ``the Beneficent Creator has 
made no distinction amongst men . . .'' Speeches of the 
American Presidents 116 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988).
    John Tyler, 10th, ``the all-wise and all-powerful Being who 
made me . . .'' 4 James D. Richardson, A Compilation of the 
Messages and Papers of the Presidents 1890 (Bureau of National 
Literature, Inc.).
    James Polk, 11th, ``I fervently invoke the aid of that 
Almighty Ruler of the Universe in whose hands are the destinies 
of nations and of men . . .'' Inaugural Addresses of the 
Presidents of the United States, S. Doc. No. 101-10, at 100 
(1989).
    Zachary Taylor, 12th, ``to which the goodness of Divine 
Providence has conducted our common country.'' Inaugural 
Addresses of the Presidents of the United States, S. Doc. No. 
101-10, at 114 (1989).
    Millard Fillmore, 13th, ``I have to perform the melancholy 
duty of announcing to you that it has pleased Almighty God to 
remove from this life Zachary Taylor . . .'' Philip Kunhardt, 
Jr., The American President 218-223 (Riverhead Books 1999); ``I 
rely upon Him who holds in His hands the destinies of nations . 
. .'' 6 James D. Richardson, A Compilation of the Messages and 
Papers of the Presidents 2600 (Bureau of National Literature, 
Inc.) (Special Message, July 10, 1850).
    Franklin Pierce, 14th, ``there is no national security but 
in the nation's humble, acknowledged dependence upon God and 
His overruling providence . . .'' Speeches of the American 
Presidents 153 (Steven Anzovin & Janet Podell eds., The H.W. 
Wilson Co. 1988).
    James Buchanan, 15th, ``In entering upon this great office 
I must humbly invoke the God of our fathers . . .'' Inaugural 
Addresses of the Presidents of the United States, S. Doc. No. 
101-10, at 125 (1989).
    Abraham Lincoln, 16th, ``Intelligence, patriotism, 
Christianity, and a firm reliance on Him who has never yet 
forsaken this favored land, are still competent to adjust in 
the best way all our present difficulty.'' Speeches of the 
American Presidents 181 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988).
    Andrew Johnson, 17th, ``Duties have been mine; consequences 
are God's.'' 8 James D. Richardson, A Compilation of the 
Messages and Papers of the Presidents 3504 (Bureau of National 
Literature, Inc.).
    Ulysses S. Grant, 18th, ``I ask the prayers of the nation 
to Almighty God in behalf of this consummation.'' Speeches of 
the American Presidents 225 (Steven Anzovin & Janet Podell 
eds., The H.W. Wilson Co. 1988).
    Rutherford B. Hayes, 19th, ``Looking for the guidance of 
that Divine Hand by which the destinies of nations and 
individuals are shaped . . .'' Inaugural Addresses of the 
Presidents of the United States, S. Doc. No. 101-10, at 159 
(1989).
    James Garfield, 20th, ``They will surely bless their 
fathers and their fathers' God that the Union was preserved, 
that slavery was overthrown . . .'' Speeches of the American 
Presidents 251 (Steven Anzovin & Janet Podell eds., The H.W. 
Wilson Co. 1988).
    Chester Arthur, 21st, ``I assume the trust imposed by the 
Constitution, relying for aid on divine guidance . . .'' 10 
James D. Richardson, A Compilation of the Messages and Papers 
of the Presidents 4621 (Bureau of National Literature, Inc.).
    Grover Cleveland, 22nd, ``And let us not trust to human 
effort alone, but humbly acknowledging the power and goodness 
of Almighty God, who presides over the destiny of nations. . . 
..'' Inaugural Addresses of the Presidents of the United 
States, S. Doc. No. 101-10, at 173 (1989).
    Benjamin Harrison, 23rd, ``invoke and confidently expect 
the favor and help of Almighty God, that He will give to me 
wisdom . . .'' Speeches of the American Presidents 277 (Steven 
Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    Grover Cleveland, 24th, ``I know there is a Supreme Being 
who rules the affairs of men and whose goodness and mercy have 
always followed the American people, and I know He will not 
turn from us now if we humbly and reverently seek His powerful 
aid.'' Speeches of the American Presidents 274 (Steven Anzovin 
& Janet Podell eds., The H.W. Wilson Co. 1988).
    William McKinley, 25th, ``Our faith teaches that there is 
no safer reliance than upon the God of our fathers . . .'' 
Speeches of the American Presidents 291 (Steven Anzovin & Janet 
Podell eds., The H.W. Wilson Co. 1988).
    Theodore Roosevelt, 26th, ``with gratitude to the Giver of 
Good who has blessed us with the conditions which have enabled 
us . . .'' Speeches of the American Presidents 324 (Steven 
Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    Howard Taft, 27th, ``. . . support of my fellow citizens 
and the aid of the Almighty God in the discharge of my 
responsible duties.'' Speeches of the American Presidents 362 
(Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988).
    Woodrow Wilson, 28th, ``I summon all honest men, all 
patriotic, all forward-looking men, to my side. God helping me, 
I will not fail them, if they will but counsel and sustain 
me!'' Speeches of the American Presidents 380 (Steven Anzovin & 
Janet Podell eds., The H.W. Wilson Co. 1988).
    Warren G. Harding, 29th, ``that passage of Holy Writ 
wherein it is asked: `What doth the Lord require of thee . . .' 
'' Speeches of the American Presidents 420 (Steven Anzovin & 
Janet Podell eds., The H.W. Wilson Co. 1988).
    Calvin Coolidge, 30th, ``[America] cherishes no purpose 
save to merit the favor of Almighty God . . .'' Speeches of the 
American Presidents 433 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988). Calvin Coolidge also stated, ``Our 
government rests upon religion. It is from that source that we 
derive our reverence for truth and justice, for equality and 
liberty, and for the rights of mankind. Unless the people 
believe in these principles, they cannot believe in our 
Government.'' ``Coolidge Declares Religion Our Basis,'' N.Y. 
Times, Oct. 16, 1924 (October 15, 1924, address in connection 
with the unveiling of an equestrian statue of Francis Asbury.)
    Herbert Hoover, 31st, ``I ask the help of Almighty God in 
this service to my country to which you have called me.'' 
Inaugural Addresses of the Presidents of the United States, S. 
Doc. No. 101-10, at 267 (1989). Also according to President 
Hoover, ``Our Founding Fathers did not invent the priceless 
boon of individual freedom and respect for the dignity of men. 
That great gift to mankind sprang from the Creator and not from 
governments.'' ``The Protection of Freedom,'' Address by 
Herbert Hoover, West Branch, Iowa, Aug. 10, 1954.
    Franklin D. Roosevelt, 32nd, ``In this dedication of a 
nation we humbly ask the blessing of God.'' Speeches of the 
American Presidents 489 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988).
    Harry S. Truman, 33rd, ``all men are created equal because 
they are created in the image of God.'' Inaugural Addresses of 
the Presidents of the United States, S. Doc. No. 101-10, at 286 
(1989).
    Dwight D. Eisenhower, 34th, ``At such a time in history, 
we, who are free, must proclaim anew our faith. This faith is 
the abiding creed of our fathers. It is our faith in the 
deathless dignity of man, governed by eternal moral and natural 
laws. This faith defines our full view of life. It establishes, 
beyond debate, those gifts of the Creator that are man's 
inalienable rights, and that make all men equal in His sight! . 
. . The enemies of this faith know no god but force, no 
devotion but its use. . . . Whatever defies them, they torture, 
especially the truth. Here, then, is joined no pallid argument 
between slightly differing philosophies. This conflict strikes 
directly at the faith of our fathers and the lives of our sons. 
. . . This is the work that awaits us all, to be done with 
bravery, with charity--and with prayer to Almighty God.'' 
Speeches of the American Presidents 566, 568 (Steven Anzovin & 
Janet Podell eds., The H.W. Wilson Co. 1988).
    John F. Kennedy, 35th, ``the rights of man come not from 
the generosity of the state but from the hand of God.'' 
Speeches of the American Presidents 604 (Steven Anzovin & Janet 
Podell eds., The H.W. Wilson Co. 1988).
    Lyndon B. Johnson, 36th, ``We have been allowed by Him to 
seek greatness with the sweat of our hands and the strength of 
our spirit. . . . [W]e learned in hardship . . . that the 
judgment of God is harshest on those who are most favored.'' 
Inaugural Addresses of the Presidents of the United States, S. 
Doc. No. 101-10, at 313 (1989).
    Richard M. Nixon, 37th, ``as all are born equal in dignity 
before God, all are born equal in dignity before man.'' 
Speeches of the American Presidents 662 (Steven Anzovin & Janet 
Podell eds., The H.W. Wilson Co. 1988).
    Gerald Ford, 38th, ``to uphold the Constitution, to do what 
is right as God gives me to see the right . . .'' Speeches of 
the American Presidents 698 (Steven Anzovin & Janet Podell 
eds., The H.W. Wilson Co. 1988).
    Jimmy Carter, 39th, ``what doth the Lord require of thee, 
but to do justly, and to love mercy, and to walk humbly with 
thy God.'' Inaugural Addresses of the Presidents of the United 
States, S. Doc. No. 101-10, at 328 (1989).
    Ronald Reagan, 40th, ``We are a nation under God, and I 
believe God intended for us to be free.'' Speeches of the 
American Presidents 749 (Steven Anzovin & Janet Podell eds., 
The H.W. Wilson Co. 1988).\133\
---------------------------------------------------------------------------
    \133\ When awarded the Presidential Medal of Freedom, President 
Reagan stated, ``History comes and goes, but principles endure and 
ensure future generations to defend liberty--not a gift of government, 
but a blessing from our Creator.'' ``For the Record,'' The Washington 
Post (January 15, 1993) at A22.
---------------------------------------------------------------------------
    George Bush, 41st, ``Heavenly Father, we bow our heads and 
thank You for Your love.'' Inaugural Addresses of the 
Presidents of the United States, S. Doc. No. 101-10, at 346 
(1989).
    Bill Clinton, 42nd, ``with God's help, we must answer the 
call.'' Public Papers of the Presidents of the United States, 
William J. Clinton, 1993, Book 1, at 3 (Gov't Printing Office 
1994).
    George W. Bush, 43rd, ``We are not this story's Author, who 
fills time and eternity with his purpose. . . . God bless you 
all, and God bless America.'' Public Papers of the Presidents 
of the United States, George W. Bush, 2001, Book 1, at 3 (Gov't 
Printing Office 2003).

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on ``Limiting Federal Court Jurisdiction to Protect 
Marriage for the States'' on June 24, 2004, which focused on 
Congress's constitutional authority to limit the jurisdiction 
of the Federal courts. Testimony was received from Phyllis 
Schlafly, President, Eagle Forum; Martin H. Redish, Professor, 
Northwestern University School of Law; Michael Gerhardt, 
Professor, William & Mary Law School; William E. Dannemeyer, 
former U.S. Representative, with additional material submitted 
by individuals and organizations.

                        Committee Consideration

    On September 15, 2004, the Committee met in open session 
and ordered favorably reported the bill H.R. 2028 with 
amendments by a recorded vote of 17 to 10, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 2028.
    1. A second degree amendment to the Sensenbrenner amendment 
in the nature of a substitute was offered by Mr. Watt that 
would have stricken the provision eliminating the Supreme 
Court's jurisdiction over cases involving the Pledge of 
Allegiance. By a rollcall vote of 9 yeas to 16 nays, the 
amendment was defeated.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              9              16
----------------------------------------------------------------------------------------------------------------

    2. A second degree amendment to the Sensenbrenner amendment 
in the nature of a substitute was offered by Ms. Jackson Lee 
that would have precluded application of the bill to cases in 
which a ``claim alleges religious coercion.'' By a rollcall 
vote of 7 yeas to 17 nays, the amendment was defeated.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................                                           Pass
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              17          1 Pass
----------------------------------------------------------------------------------------------------------------

    3. Final Passage. The motion to report favorably the bill 
H.R. 2028, with an amendment in the nature of a substitute was 
agreed to by a rollcall vote of 17 yeas to 10 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             17              10
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2028, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 17, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2028, the Pledge 
Protection of Privacy Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 2028--Pledge Protection Act of 2004.
    H.R. 2028 would amend federal law to eliminate the federal 
court jurisdiction and Supreme Court appellate jurisdiction on 
questions relating to the interpretation and constitutionality 
of the Pledge of Allegiance. CBO estimates that implementing 
H.R. 2028 would not have a significant effect on the federal 
budget.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford, who can be reached at 226-2860. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2028 would prevent Federal courts from considering cases 
involving the constitutionality of the Pledge of Allegiance.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, Sec. 8; article III, Sec. 1, 
clause 1; and article III, Sec. 2, clause 2.

               Section-by-Section Analysis and Discussion

    This discussion describes the bill as reported by the 
Committee.
    Sec. 1. Short title. Section 1 provides that this Act may 
be cited as the ``Pledge Protection Act of 2004.''
    Sec. 2. Limitation on Jurisdiction. Section 2 provides that 
no court created by Act of Congress shall have any 
jurisdiction, and the Supreme Court shall have no appellate 
jurisdiction, to hear or decide any question pertaining to the 
interpretation of, or the validity under the Constitution of, 
the Pledge of Allegiance, as defined in section 4 of title 4, 
or its recitation.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

               CHAPTER 99 OF TITLE 28, UNITED STATES CODE

                     CHAPTER 99--GENERAL PROVISIONS

Sec.
1631. Transfer to cure want of juridiction.
1632. Limitation on jurisdiction.

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Sec. 1632. Limitation on jurisdiction

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

                           Markup Transcript



                            BUSINESS MEETING

                     WEDNESDAY, SEPTEMBER 15, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 2028, the ``Pledge Protection Act of 2003,'' for 
purposes of markup, and move its favorable recommendation to 
the House.
    Without objection, the bill will be considered as read and 
open for amendment at any point.
    [The bill, H.R. 2028, follows:]
      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the bill.
    The Pledge of Allegiance reads, ``I pledge allegiance to 
the flag of the United States of America, and to the Republic 
for which it stands, one Nation under God, indivisible, with 
liberty and justice for all.''
    Two words in the pledge, ``under God,'' help define our 
national heritage as beneficiaries of a Constitution sent to 
the States for ratification, as the Constitution itself states, 
``In the year of our Lord, 1787,'' by a founding generation 
that saw itself guided by a providential God.
    These two words and their entirely proper presence in the 
system of Government defined by our Constitution have been 
repeatedly and overwhelmingly reaffirmed by the House of 
Representatives, most recently twice in the 107th Congress by 
votes of 416 to 3 and 401 to 5, and in this Congress by a vote 
of 400 to 7.
    On July 4, 1776, our forbearers justified to the world our 
separation from Great Britain, declaring, ``We hold these 
Truths to be self-evident, that all Men are created equal, that 
they are endowed by their Creator with certain Unalienable 
Rights.''
    The First Congress not only acknowledged a proper role for 
religion in public life, but it did so at the very time it 
drafted the establishment clause in the first amendment. Just 3 
days before Congress sent the text of the first amendment to 
the States for ratification, it authorized the appointment of 
legislative chaplains.
    And on November 19, 1863, President Abraham Lincoln 
delivered the Gettysburg Address and declared in the words now 
inscribed in one of our most beloved national monuments, ``We 
here highly resolve that these dead shall not have died in 
vain, that this Nation, under God, shall have a new birth of 
freedom.''
    Although the United States Supreme Court recently reversed 
and remanded the ninth circuit's latest holding striking down 
the Pledge as unconstitutional, the Court did so on the 
questionable grounds that the plaintiff lacked legal standing 
to bring the case. The Court's decision did not reach to the 
merits of the case is apparently an effort to forestall a 
decision adverse to the Pledge, since the dissenting Justices 
concluded the Court in its decision ``erected a novel 
prudential standing principle in order to avoid reaching the 
merits of the constitutional claim.''
    In order to protect the Pledge from Federal Court decisions 
that would have the effect of invalidating the Pledge across 
several States, H.R. 2028 was introduced by Representative Todd 
Akin. As introduced, it would have precluded the lower Federal 
courts from hearing cases involving the Pledge. However, in 
light of the Newdow decision, the bill's sponsor and I agree 
that the bill should be expanded to also include the Supreme 
Court.
    The amendment in the nature of a substitute to H.R. 2028 
that I will offer would reserve to the State courts the 
authority to decide whether the Pledge is valid within each 
State's boundaries. It would place final authority over a 
State's Pledge policy in the hands of the States themselves.
    The amendment in the nature of a substitute is identical to 
H.R. 3318, the Marriage Protection Act, which the House passed 
just prior to the August recess, except that it addresses the 
Pledge rather than DOMA. If different States come to different 
decisions regarding the constitutionality of the Pledge, the 
effects of such decisions will be felt only within those 
States, and a few Federal judges sitting hundreds of miles away 
from your State or mine will not be able to rewrite your State 
and my State's Pledge policy.
    A remedy to abuses by Federal judges has long been 
understood to lie, among other places, in Congress' authority 
to limit Federal court jurisdiction. The Constitution clearly 
provides the lower Federal courts are entirely creatures of 
Congress, as is the appellate jurisdiction of the Supreme 
Court, excluding only its very limited original jurisdiction 
over cases involving ambassadors and cases in which States have 
legal claims against each other.
    As the leading treatise on Federal court jurisdiction has 
pointed out, ``Beginning with the first Judiciary Act in 1789, 
Congress has never vested the Federal courts with the entire 
judicial power that would be permitted by Article III of the 
Constitution.''
    Justice Brennan, writing for the Supreme Court, said, 
``Virtually all matters that might be heard in Article III 
courts could also be left by Congress to State courts.''
    Far from violating the separation of powers, legislation 
that leaves State courts with jurisdiction to decide certain 
classes of cases would be an exercise of one of the very checks 
and balances provided for in the Constitution. Therefore, I 
would urge Members to support this legislation.
    Who wishes to be recognized?
    The gentleman from New York, Mr. Nadler, is recognized for 
5 minutes.
    Mr. Nadler. Mr. Chairman, thank you.
    Mr. Chairman, I really hate to be an ``I told you so.'' 
actually, I don't hate it. But when this Committee started on 
its first effort to strip the Federal courts of jurisdiction--
legislation to strip Federal courts of the jurisdiction to hear 
cases challenging the Defense of Marriage Act, I warned there 
would be no end to it.
    Our former colleague Bob Barr, whose legislation Congress 
is purporting to protect, said no thanks. He wrote, ``This bill 
will needlessly set a dangerous precedent for future Congresses 
that might want to protect unconstitutional legislation from 
judicial review. During my time in Congress, I saw many bills 
introduced that would violate the takings clause, the second 
amendment, the 10th amendment and many other constitutional 
protections. The fundamental protections afforded by the 
Constitution would be rendered meaningless if others followed 
the paths set by H.R. 3313.''
    Bob Barr was right, and you can quote me.
    Today it is the turn of the religious minorities. Remember, 
before I get into that, remember the Soviet Constitution of 
1936; freedom of speech, freedom of the press, freedom of 
assembly, freedom to petition government, freedom of religious 
and antireligious propaganda, as they quaintly put it, all 
right there. Of course, you couldn't enforce it because there 
were no courts to enforce it. It wasn't worth the paper it was 
written on.
    Bills like this will make the Bill of Rights as worthless 
as the Soviet Constitution, and this bill is intended to do 
just that. Today it is the turn of the religious minorities.
    Remember how we got here. Once upon a time a student could 
be expelled from school for refusing to recite the Pledge. In 
1943, the Supreme Court in West Virginia Board of Education v. 
Barnett held that the children had a first amendment right not 
to be compelled to swear an oath against their beliefs, in this 
case Jehovah's Witnesses who objected on religious grounds.
    There is a reason for these provisions of the Constitution. 
Remember the ``testos'' that King Henry used to enforce. 
Remember St. Thomas More, who went to his death because he 
wouldn't take the proper oath. Under this bill, we could do 
that again.
    Justice Jackson wrote, ``If there is any fixed star in our 
constitutional constellation, it is that no official, high or 
petty, can describe what should be orthodox in politics, 
nationalism, religion or other matters of opinion or force 
citizens to confess by word or act their faith therein.''
    This legislation, of course, would strip the parents of 
those children of the right to go to court and defend their 
children's religious liberty, their right not to recite a 
religious statement ``under God'' with which they disagree. 
Schools could expel children for acting according to the 
dictates of their faith, and Congress will have slammed the 
courthouse doors in their faces.
    As despicable as this legislation is, even for an election 
season, it is part of a more general attack on our system of 
Government. You don't need a law degree to understand this. You 
should have learned about this in elementary school.
    Just to recap, we have an independent judiciary whose job 
it is to interpret the Constitution, even if those decisions 
are really unpopular. It is right there in Article III of the 
Constitution.
    Sometimes we don't like what the Court says. I don't like 
the decisions that struck down parts of the Violence Against 
Women Act or the Gun-Free Safe School Zones Act. I don't like 
the fact of misapplying the commerce clause in the 11th 
amendment to gut our civil rights law. I really don't like it 
that they stole an election and put someone in the White House 
that got more than half a million votes less than its other 
candidate. I especially don't like the Supreme Court's decision 
in Employment Division v. Smith, in which Justice Scalia wrote, 
``It may fairly be said that leaving accommodation to the 
political process will place at a relative disadvantage those 
religious practices that are not widely engaged in, but that is 
an inevitable consequence of democratic Government.''
    As wrong-headed as I find the current Court on many issues, 
I understand that we cannot maintain our system of Government 
and we cannot enforce or give any meaning whatsoever to the 
Bill of Rights if the independent judiciary cannot enforce 
those rights, even if the majority doesn't like it.
    To return to Justice Jackson in the flag salute case, ``The 
very purpose of the Bill of Rights was to withdraw certain 
subjects from the vicissitudes of political controversy, to 
place them beyond the reach of majorities and officials and to 
establish them as legal principles to be applied by the courts. 
One's right to life, liberty and property, to free speech and 
free press, freedom of worship and assembly and other 
fundamental rights may not be submitted to a vote. They depend 
on the outcome of no elections.''
    Does any of this ring a bell with anyone? High school 
civics, maybe?
    As to the complaints about unelected judges, I would refer 
my colleagues back to their high school civics textbooks. We 
have an independent judiciary precisely to rule against the 
wishes of the majority, especially when it comes to the rights 
of unpopular minorities, even atheist minorities. That is our 
system of Government, and it is a good one.
    As Alexander Hamilton said in Federalist 78, ``The complete 
independence of the courts of justice is peculiarly essential--
''
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. Mr. Speaker, I ask--Mr. Speaker--Mr. Chairman, 
I ask for an additional 2 minutes.
    Chairman Sensenbrenner. Thanks for the promotion, and 
without objection.
    Mr. Nadler. Thank you. You are welcome.
    ``the complete independence of the courts of justice is 
peculiarly essential in a limited Constitution. By a limited 
Constitution, I understand one which contains certain specified 
exceptions to the legislative authority, such, for instance, as 
it shall pass no bills of attainment and no ex post facto laws 
and the like. Limitations of this kind can be preserved and 
practiced no other way than through the medium of courts of 
justice, whose duty it must be to declare all acts contrary to 
the manifest tenor of the Constitution void. Without this, all 
reservations and particular rights and privileges would amount 
to nothing.''
    I would point out that the Chairman says that the Judiciary 
Act of 1789 limited the jurisdiction of the courts. It is true. 
But the Judiciary Act of 1789 predated the Bill of Rights, 
which guarantees everyone in the fifth amendment, in the 14th 
amendment, the right to due process of law, the right to equal 
protection, those rights which cannot be enforced if the 
Legislature, if the Congress, can strip the courts of the right 
to enforce those.
    We are playing with fire here. Is demagoging a case that 
you won really worth it? Do you really hate the Bill of Rights 
so much that you are willing to destroy it?
    I urge my conservative colleagues to shape up and act like 
conservatives for once. We live in a free society that protects 
unpopular minorities, even if a majority hates them. Feel free 
to hate if you must, but leave our Constitution alone. Destroy 
this bill, not the Constitution.
    Thank you. I yield back.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Without objection, all Members may insert opening 
statements in the record at this time.
    Are there amendments?
    The Chair recognizes himself for purposes of offering an 
amendment in the nature of a substitute, which the clerk will 
report.
    The Clerk. Amendment in the nature of a substitute to H.R. 
2028 offered by Mr. Sensenbrenner.
    [The amendment follows:]
      
      

  


      
      

  


    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    The Chair recognizes himself for 5 minutes.
    Because I have already described the substance of this 
amendment in the nature of a substitute in my opening 
statement, I will not consume further Committee time by 
repeating myself. I simply ask the Members support its 
adoption, and yield back the balance of my time.
    Are there any second degree amendments to the amendment in 
a nature of a substitute offered by the Chair?
    The gentleman from California.
    Mr. Schiff. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. Mr. Chairman and Members, last month we had 
legislation to strip the Federal courts of the jurisdiction 
over DOMA. This we took up and passed out of this Committee, 
notwithstanding the fact that all of the witnesses who were 
invited to testify on the constitutionality of DOMA believed 
that DOMA was constitutional and DOMA would be upheld by the 
Court.
    So we stripped the jurisdiction of the courts to decide a 
question that the experts told us they believed the Federal 
courts would decide the way the Committee believed it should be 
decided.
    Not content with that, last week we removed jurisdiction of 
State courts to determine issues of venue in their own 
courthouses. Now we move the assault on the judiciary further 
this week by moving to strip the Federal courts from the 
district court to the Supreme Court of jurisdiction over the 
Pledge of Allegiance in an area, in a case, on an issue where 
the courts have already done what this Committee would like 
them to do, and that is thrown out a challenge to the inclusion 
of ``under God'' in the Pledge of Allegiance.
    Now, I think ``under God'' belongs in the Pledge of 
Allegiance, and I think the ninth circuit court was wrongly 
decided. But the courts remedied the error of the ninth circuit 
when the Supreme Court threw out the case.
    Interestingly, it is not enough, I guess, for the Committee 
or for this body that the Supreme Court threw out this 
challenge to the inclusion of ``under God'' in the Pledge of 
Allegiance. It is not enough that they prevailed in the case, 
because they did not prevail on the merits, they prevailed on 
an issue of procedure, of standing.
    But when you look at why we prevailed on the issue of 
standing, we that believe ``under God'' should be in the Pledge 
of Allegiance, it is interesting that we attacked the Court on 
this, because what the Supreme Court found in the Newdow case 
was that the mother had full legal custody of the child who was 
at issue in the Pledge of Allegiance case. The father, the 
Court found, did not have the standing to raise this issue of 
the religious education of his daughter. The mother had sole 
custody.
    As the mother evidently intervened and the Court made 
clear, the daughter is a Christian who believes in God and has 
no objection either to reciting or hearing others recite the 
Pledge of Allegiance or its reference to God. So the mother 
wanted the daughter exposed to the Pledge of Allegiance with 
``under God,'' and the Supreme Court found that the father, who 
lacked any legal custody, didn't have the right to challenge 
the mother's view of her daughter's religious education.
    And we are critical of that decision. We are not only 
critical of it, but we wanted to strip the Court of any 
jurisdiction over the entire issue, because they held a mother 
with legal custody had the right to allow her daughter to 
recite the Pledge of Allegiance, including ``under God.''
    This seems an extraordinary result for this Committee, 
implicitly disapproving of a decision upholding the mother's 
right, the sole legal custodian's right, to have her daughter 
recite ``under God'' in the Pledge of allegiance. That is 
effectively what we are doing. We are chastising the Court that 
threw out a case that we thought should be thrown out because 
they didn't throw it out on the basis we would have liked, but 
nonetheless a very legally supportable basis.
    The question is, I guess, is, what next? Where do we go 
after we have stripped the courts of jurisdiction over a law, 
DOMA, that we thought they were going to decide the right way. 
We have stripped the Court's jurisdiction over an issue where 
they have already decided it the right way. What is next?
    Again, I think the peril is one that my colleague pointed 
out and that our former colleague Mr. Barr pointed out, and 
that is there is no limit to what we are undertaking, and while 
it may seem advantageous from a certain political point of view 
to press it now, what will prevent those who are arguing for 
Court-stripping now if later others make the argument that we 
should strip the Federal courts of the ability to resolve cases 
involving not the first amendment, as here, but the second 
amendment; or maybe not the second amendment, but the fourth 
amendment right to be free of unreasonable searches and 
freedoms, or the ninth amendment's protection of the right of 
privacy? What will prevent us from undertaking those Court-
stripping measures that may lead to results very different than 
the majority wants at this moment?
    Mr. Chairman, I urge the Committee to reject this bill.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Are there any second degree amendments?
    The gentlewoman from California.
    Ms. Lofgren. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I likely will not consume the entire 5 
minutes, because I think the constitutional issues were very 
ably outlined by our Ranking Member Mr. Nadler. I will say, 
however, it is clear to me that this bill is unconstitutional. 
It would reverse Marbury v. Madison, a case which has led our 
country to a separation of powers and freedom for over 200 
years.
    I would also like to just observe that I think it is 
unlikely that this bill will ever become law. If it were to 
become law, it would be overturned by the courts, which would 
prompt an unnecessary constitutional conflict.
    So the question is really why are we going through this 
exercise? I think it is very much about the election season. I 
am one, as Mr. Schiff mentioned, who believes that ``under 
God'' belongs in the Pledge of Allegiance, and my votes on the 
floor of the House reflect that opinion. I believe that the 
courts will ultimately, if they are squarely faced with the 
decision, reach the same conclusion.
    I question why, other than politics, the majority would be 
bringing up this issue 50 days before the election, and I think 
it shows that really radicals have taken over the Congress, 
people who are willing to essentially toss the system of checks 
and balances that protects our freedom in America for a 
temporary political gain. I think that is sad and also 
dangerous, and I notice that we have not tremendous press 
attention here today, but I think we could ask them to let them 
know that radicals have taken over the Congress. The public has 
a right to know.
    I yield back.
    Mr. Chabot. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. First of all, I will be brief in my comments, 
but I think it is interesting to look at some of the terms that 
we have heard thrown around this morning already. For example, 
``radicals'' having taken over the Congress, and that old 
favorite, ``stole the election.'' We have heard that we ``hate 
the Bill of Rights,'' ``assault on the judiciary,'' all this 
kind of terminology. I think it is kind of interesting.
    If we get back to the issue of what we are really talking 
about here, I want to express my support for this particular 
Pledge Protection Act.
    When the issue of limiting Federal court jurisdiction was 
raised during the discussions of the Marriage Protection Act, 
our Subcommittee held a hearing examining Congress' authority 
to do just what we are doing here today. Although there was 
mixed opinion on whether Congress should exercise its 
authority, there was consensus that Congress did and does, in 
fact, have the authority under Article III of the Constitution 
to determine which issues were heard by the Supreme Court under 
its appellate jurisdiction and by the lower Federal courts.
    So saying this is unconstitutional, all the experts 
indicated that Congress does have this power. Obviously, there 
may be a difference as to whether we should do this or not, 
just like whether we should have passed the legislation we 
talked about a month ago relative to DOMA. But whether we can 
do it or whether we are authorized under the Constitution, 
really there is not much argument about that.
    The Pledge of Allegiance, as our Chairman said, deserves 
protection. It not only defines our national heritage, but also 
unites our society each time that it is recited in schools 
around the country and public events, and we cannot let a few 
rogue Federal judges redefine our country's history and the 
basis from which our Founding Fathers found guidance when 
constructing our country's Government.
    So, I think we all ought to be very careful in the terms 
that we use here this morning, because I think oftentimes we 
throw these phrases around much too loosely. Let us talk about 
the merits rather than talking about stealing elections and 
that sort of thing.
    I yield back my time.
    Chairman Sensenbrenner. Are there any second degree 
amendments to the amendment in the nature of a substitute?
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I am trying to strike the last word, Mr. 
Chairman.
    Chairman Sensenbrenner. Some Members do have to get out of 
town. That is why I am trying to move this along.
    The gentlewoman from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. Mr. Chairman, thank you.
    I just wanted to clear the air, because my good friend from 
Ohio was citing words that he thought might not have been 
descriptive of what we are doing today. Let me just briefly say 
nor do I believe the description of the Federal judiciary as 
``rogue judges'' can in any way do any justice or add any 
contributory aspect to this debate.
    Let me just say that I am sure that the Congress has many 
powers. It might be even said that we have the power to abolish 
ourselves, to abolish the Government. But there is a question 
of wisdom in using one's power. There is a question of abuse in 
using one's power.
    Frankly, I believe that the previous legislation passed on 
DOMA was reckless, and I believe that this legislation is 
equally so.
    I would only offer to my colleagues to say that when a 
Judiciary Committee or an oversight Committee of the United 
States Congress begins to take the Constitution and eliminate 
rights, then I think we are on dangerous ground. When we begin 
to close the door of the courthouse, the appellate court, the 
Supreme Court, then frankly I am frightened.
    I will not throw words around recklessly. I will not 
suggest without some basis in fact that we are nearing the 
terrible times of the 1950's and McCarthysim when no one could 
speak, when everyone had to be silenced. That is not the role 
of this Congress.
    The courts have not in any way rendered decisions that 
should suggest they are rogue or runaway courts. Our justice 
system works. What we are doing today does not work, and I rise 
to oppose both the legislation and the substitute, and I would 
argue that we are misusing the Congress' time unwisely.
    I will have an amendment in short order, but I rise to 
oppose the substitute.
    Mr. Hostettler. Mr. Chairman, I move to strike the last 
word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I listened with great 
interest to the statement by Mr. Nadler, and I heard that he 
began by suggesting that the notion of a independent judiciary 
is found in Article III, right there. We can look at it and 
read it. Then he ended his comments by admonishing us to leave 
the Constitution alone.
    I think that seeming contradiction is very important for 
the case that the other side is making, because if they tell us 
that the notion of an independent judiciary is found in Article 
III, then they are going to have to require us to leave the 
Constitution alone, including not actually read the 
Constitution, because if you actually read Article III, you 
will find that the notion of an independent judiciary is a 
flawed notion, at best.
    Article III, section 1, ``The judicial power of the United 
States shall be vested in one Supreme Court and such inferior 
courts as the Congress may from time to time establish. The 
judges, both of the Supreme Court and inferior courts, shall 
hold their offices during good behavior,'' and who determines 
good behavior, and what process determines good or bad 
behavior? It is the impeachment and removal from office process 
that is solely the prerogative of the legislative branch.
    It also talks about, ``Shall at stated times receive for 
their service a compensation.'' set by whom? The Congress.
    It goes on to say it will not be diminished during their 
continuance in office. So there is that form of independence in 
the judiciary.
    But if you go on and read section 2 where it talks about 
the types of judicial power and the cases that may be 
considered, we come to the point that it says, ``In all the 
other cases before mentioned, the Supreme Court,'' and it is 
saying all the other courts except for the two cases that the 
Chairman mentioned, ``with such exceptions and under such 
regulations as'' who? ``the Congress shall make.'' that doesn't 
sound very independent to me.
    The next paragraph says, ``The trial of all crimes, except 
in cases of impeachment, shall be by jury, and such trials 
shall be held in the State where the said crimes shall have 
been committed, but when not committed within the State, the 
trial shall be at such place or places as'' who says? ``the 
Congress may by law have directed.'' not the court, but the 
Congress shall direct where the trial is in that particular 
case.
    Then it goes on in Article III, section 3 to say that ``the 
Congress shall have power to declare the punishment of 
treason.'' not the court, but the Congress.
    So, the notion of an independent judiciary, and I listened 
to Mr. Nadler's dissertation very closely and found the term 
``independent'' or a derivative of the word ``independent'' 
several times, it just does not bear out actually in the 
Constitution.
    But it does prove the adage that is long-time established 
that there is nothing so absurd, but if repeated often enough, 
people will believe it. And people have asserted the notion of 
an independent judiciary for so long and asked us as a country 
and as a citizenry to leave the Constitution alone, including 
don't read it, that many folks have begun to believe this 
absurd notion of an independent judiciary, when, if you 
actually read the Constitution, you will find out that they are 
not an independent judiciary, that, in fact, Congress at every 
turn has the authority, according to the Constitution, 
according to the document that many claim they are trying to 
preserve, that the Constitution itself gives the Congress the 
authority to curb the influence of the courts, because, as we 
know, the courts are unelected and, therefore, unaccountable to 
the people.
    You know, if what we are doing today is so outlandish, 
according to the will of the people, do you know who gets to 
finally be the arbiter of the actions of a radical Congress? I 
think I heard that word? The people themselves.
    But those are exactly the people that folks on the other 
side don't want to have make the final decision in these 
questions, because they know that these people want to actually 
allow their children in public schools to recite the Pledge of 
Allegiance and have the authority and have the ability to do 
that.
    That is what they don't want. They don't want the people to 
make this decision. They would much rather have five people, 
unelected, unaccountable, life-tenured, to make these 
decisions, and ask the rest of us to please leave the 
Constitution alone, and, by all means, don't read it. If you 
read it, then you may feel that you have some power or some 
authority through your elected officials to make a change.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Are there any second degree amendments to the amendment in 
the nature of a substitute?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, to save a little time, I would 
like to incorporate by reference the debate we had on the DOMA 
amendment, just to save a little time. I would want to comment, 
however, on a different recollection I have on the hearing that 
we had.
    I thought the question was whether we actually had the 
constitutional authority, and they seemed to be a little 
ambivalent about whether we had the authority or not, but I 
thought there was a consensus we should not exercise it.
    By incorporating by reference, I remind you that most of us 
thought that Marbury v. Madison had been correctly decided, but 
we found out that apparently there are a lot of people who 
think it was wrongly decided. Now we have found that the idea 
of an independent judiciary is a flawed concept.
    Mr. Chairman, the gentleman from New York pointed out under 
``I told you so'' that this kind of idea would become 
boilerplate language, and here we have it on another bill.
    Lastly, Mr. Chairman, by incorporating by reference, we are 
reminded how happy we are that nobody thought of this scheme 
back in the 1960's when rogue, unelected, lifetime-appointed 
Federal judges required Virginia, against the will of the 
people, to recognize marriages of people of different races. 
Had someone come up with a scheme and had some kind of DOMA 
legislation, if it had been found constitutional, those rogue, 
unelected, lifetime Federal judges would not have been able to 
do that in Virginia. Also if they decided in the 1950's, they 
could have had a barrier to judges reviewing pupil placement 
plans before Brown v. Board of Education.
    But, Mr. Chairman, speaking about this bill, this bill is 
not limited to just ``under God.'' there are a lot of 
constitutional issues involving the Pledge of Allegiance. The 
gentleman from New York and others have mentioned the West 
Virginia case, where we could not coerce students against their 
religion to recite a pledge. It has free speech, freedom of 
association implications. This legislation would prevent all of 
those cases from being considered.
    Present law prohibits a coerced recitation of the Pledge of 
Allegiance against one's religious views. I don't know what 
implication this bill would have on even enforcing that present 
state of the law.
    Finally, but not finally, one other comment, we have 
several letters here I would like unanimous consent to 
introduce, one from Americans United for Separation of Church 
and State, and the other from a long list of civil rights 
organizations which I would ask unanimous consent to introduce 
for the record.
    Chairman Sensenbrenner. Without objection.
    [The information referred to follows:]

    
    
    Mr. Scott. Both opposed to the bill. But Barry Lynn, the 
president and leader of the Americans United for Separation of 
Church and State, has said, ``Far from protecting the Pledge, 
this bill insults the very democratic principles embodied in 
that affirmation.''
    Finally, Mr. Chairman, the way I read the bill, there is an 
additional gratuitous insult for the residents of Washington, 
D.C., in that apparently they will be totally left out without 
any court to file in.
    Yesterday we helped foreign corporations escape liability 
from American courts by developing a scheme whereby there may 
be no court that someone may file in within the United States. 
This bill, I think, does the same for Washington, D.C., 
residents, because apparently my reading of it is there is no 
court in D.C. that you could bring the case in.
    For those reasons, Mr. Chairman, I would hope that we would 
defeat the legislation.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Are there second degree amendments? Does the gentleman from 
North Carolina have a second degree amendment?
    Mr. Watt. The Chairman will be happy to know that I have an 
amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2028 offered by Mr. Watt of North Carolina. 
Page 1, line 10 to 11, strike the following: ``, and the 
Supreme Court shall have no appellate jurisdiction,''.
    [The amendment follows:]

    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Let me start by tamping down some of the rhetoric and 
actually complimenting the Chairman. As I read the Chairman's 
amendment in the nature of a substitute, it is substantially 
better at accomplishing the avowed purpose of what some people 
would like to accomplish than the original version of the bill 
and does address some of the concerns expressed by Mr. Nadler 
in his opening statement. For that, I think the Chairman should 
be applauded, and I want to publicly applaud him.
    On the other hand, nothing I say to applaud either the 
original bill or the amendment in the nature of a substitute 
should be taken by any Member of this Committee or the public 
as an endorsement of the undertaking.
    But for the fact that I was going to introduce this 
amendment, I probably would have struck the last word for about 
30 seconds, only long enough to say that the only way I could 
constructively debate the bill or the amendment in the nature 
of a substitute would be to mock, mock, my colleagues, and I 
refuse to do that, or to just take it so lightly and dismiss it 
that the only comment would be laughter into the record, or to 
get so emotional about this that it would run up my blood 
pressure, which I am not inclined to do today either.
    I think if you are going to do this, you should limit it to 
what you have the capacity to do, which is I think we would 
concede constitutionally you could strip the jurisdiction of 
courts that you have created. I am not sure that you can 
constitutionally strip the jurisdiction of the Supreme Court to 
hear appeals. And even if you can, I certainly don't believe 
that would be advisable, because the result of that would be to 
leave each State and its highest courts with the final word on 
this and leave an absolute hodgepodge of final opinions, which 
I just think would be a terrible public policy result.
    So, my amendment would restore or remove the part of the 
amendment in the nature of a substitute that strikes the 
jurisdiction of the Supreme Court to hear these cases on 
review. I think--well, maybe I am naive, but it seems to me 
that we need a final arbiter in the court system and hierarchy, 
and while I have not always agreed throughout history, 
throughout the 22 years I practiced law or the 12 years I have 
been in Congress, with a lot of decisions of the United States 
Supreme Court, I think it is an integral part of our system of 
justice, and we need a final arbiter, and the Supreme Court is 
that.
    So I would ask my colleagues to join me in trying to make 
this bill constitutional if you really believe in it. If you 
just want the political issue, then vote against my amendment.
    I will yield back the balance of my time.
    [11:05 a.m.]
    Chairman Sensenbrenner. Gentleman from Ohio Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman. Move to strike the 
last word.
    Chairman Sensenbrenner. Gentleman is recognized for 5 
minutes.
    Mr. Chabot. And I will be brief.
    Just two points. Does Congress have the authority to do 
that under the Constitution? The answer to that is yes. Under 
Article III, section 1, it states that the judicial power of 
the United States shall be vested in one Supreme Court, and 
then goes on to say, and the lower courts we established. 
Article III, section 2, clause 2 further provides, in all cases 
affecting ambassadors, other public ministers and consuls and 
those in which a State shall be a party, the Supreme Court 
shall have original jurisdiction. In all other cases, the 
Supreme Court shall have appellate jurisdiction both as to law 
and fact with exceptions and under such regulations as the 
Congress shall make.
    So we clearly have the authority to do this. The second 
question is should we. Consistent with the Marriage Protection 
Act, we want to make sure that the Supreme Court essentially 
can't rewrite the 50 States' policies on the Pledge of 
Allegiance. Our goal here was to allow the States to determine 
their own Pledge policy within their own State and not to be 
undercut by any other court. For that reason, I would urge my 
colleagues to oppose this amendment.
    Chairman Sensenbrenner. The gentleman from New York Mr. 
Nadler.
    Mr. Nadler. I would simply point out that what the 
gentleman from Ohio just said and what the distinguished 
Chairman said earlier about the States determining their own 
policy is one reason why this entire bill should be defeated. 
By stripping the Supreme Court of power of jurisdiction, what 
you are saying is that the 50 State courts are the final 
authorities in their States as to what is constitutional and 
what is not in Federal law. That means the Federal law will 
have 50 different versions in each State, and what is 
constitutional in one State will not be constitutional in 
another.
    One of the reasons we have a Supreme Court is we have a 
uniform interpretation of the Constitution, and then your 
constitutional rights don't depend on what State you are in; 
they are guaranteed by the Bill of Rights, by the Constitution, 
and they are the same wherever you are.
    Your rights under the Federal Constitution should not 
depend on what State you are in. This would essentially reverse 
the Civil War. What you are saying is you would have 50 
different countries, not one country. The case of Martin v. 
Sumter back in 1819 which the Supreme Court was given the right 
to declare or establish the right to declare State laws 
unconstitutional is so that we didn't have 50 different States 
having different interpretations of what they could do under 
the Federal Constitution essentially would be undone. And if we 
want one country and not 50 countries, you have to have a 
uniform interpretation of the law and a uniform interpretation 
of the Federal Constitution and not 50 different 
interpretations.
    Mr. Chabot. We are only saying that with respect to one 
thing, and that is Pledge of Allegiance.
    Mr. Nadler. Reclaiming my time. With all due respect, if 
this bill passes, you will be saying with respect to two things 
so far, since this is the second bill----
    Mr. Chabot. So far.
    Mr. Nadler. Exactly. That is the point. So far. What we are 
really saying here, what this bill is, what the previous bill 
is, what the next bill will be is that whenever there is a law 
that the majority likes that it fears may be declared 
unconstitutional by the Supreme Court will have a court-
stripping bill, and we will end up over course of years--and 
the majority may not always be a right-wing majority or a left-
wing majority or a Republican majority. It will change from 
time to time. And we will do this on all sorts of issues and 
all sides of the viewpoint and will end up where you have no 
uniform Constitution and no uniform Federal law, and the 50 
States start going their separate ways. And it is not what we 
wanted to do since--that is why we have the Constitution and 
not the Articles of Confederation. This bill, the approach of 
this bill, future bills like it, will ultimately destroy the 
national unity of the American people.
    Mr. Weiner. Would the gentleman yield? If I am correct, 
though, in the argument the gentleman from Indiana makes and 
the gentleman from Ohio makes, that if the majority of a 
legislature believes something to be constitutional, then it de 
facto is. It becomes constitutional.
    Mr. Nadler. Reclaiming my time. That is exactly what they 
are saying, because they are saying that if they think it is 
constitutional, the majority of the legislature and the 
majority of Congress, they will strip the courts of the ability 
to decide that question, and, therefore, the final 
decisionmaker is the Congress.
    It is essentially what Mr. Hostettler said. That is why he 
denies that there is an independent judiciary, because who 
needs it, because the Congress, being a coordinated branch of 
Government, by stripping the courts of the ability to make that 
decision will make the final decision on constitutionality for 
itself. And with all due respect, what that means is that 
constitutionality and individual rights depend on who wins the 
elections. That is exactly why we have courts and why we have a 
Bill of Rights, because your freedom of religion and your 
freedom of speech should not depend on your popularity or your 
ability to win an election.
    Mr. Hostettler. Mr. Chairman----
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment to the amendment in the nature of a substitute 
offered by the gentleman from North Carolina Mr. Watt. Those in 
favor will say aye.
    Opposed, no.
    The noes appear to have it.
    Ms. Jackson Lee. Mr. Chairman----
    Chairman Sensenbrenner. rollcall will be ordered. The 
question is on agreeing to the amendment by the gentleman from 
North Carolina Mr. Watt to the amendment in the nature of a 
substitute offered by the Chair. Those in favor will, as your 
names are called, answer aye; those opposed, no. And the clerk 
will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart.
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter.
    Mr. Carter. No.
    The Clerk. Mr. Carter, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mrs. Blackburn.
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no.
    Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Yes.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin.
    [No response.]
    The Clerk. Mr. Wiener.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the Chamber who wish to 
cast or change their vote.
    Gentleman from Virginia Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. Further Members in the Chamber who 
wish to cast or change their vote? If there are none, the clerk 
will report.
    The Clerk. Mr. Chairman, there are 9 ayes and 16 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the amendment 
by the gentlewoman from Texas.
    Ms. Jackson Lee. It is handwritten with, in the amendment 
in the nature of a substitute.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2028 offered by Ms. Jackson Lee. Page 1----
    [The amendment follows:]

    
    
    Chairman Sensenbrenner. Without objection, the amendment 
will be considered as read.
    The gentlewoman from Texas will be recognized for 5 
minutes.
    Ms. Jackson Lee. This amendment was amended to conform to 
the amendment in the nature of a substitute. Thank you very 
much, Mr. Chairman. I think my colleagues have very eloquently 
cast the light of this particular legislative initiative in the 
framework of the Constitution that we are here to protect.
    I think one of the most dangerous aspects of this 
legislation is the fact that it has now begun to set precedent 
and seems as if from day to day and month to month, we will 
have these kinds of initiatives that simply attempt to shut the 
courthouse door.
    I say to those who are listening to us, beware 
multinational corporations, beware school districts, beware 
State and local governments, beware those of you who would 
believe that your issues are untouchable, for it seems that 
these kinds of legislative initiatives which are closing the 
courthouse door may be subject to the whims of those who are in 
the majority.
    My legislation clearly speaks to the personalness of this 
idea of closing the courthouse doors. Like my colleague, I 
voted to leave ``under God'' in the Pledge of Allegiance, and I 
think we should be reminded that that language was only put 
into the Pledge of Allegiance in the 1950's. The original 
authors of the Pledge did not have ``under God.'' but I do 
believe that you have a first amendment right to recite the 
Pledge of Allegiance, and if you desire not to recite it 
because of your religious beliefs, and you have the right not 
to recite as I have the right to recite it.
    My amendment says if you are in a position that you are 
being coerced against your religious beliefs, such as the 
Jehovah Witnesses, you should be allowed to go into the 
courthouse and petition and protest that coercion.
    Let me tell you about a little girl who sat next to me in 
my elementary school class. I will call her Hazel. And I 
wondered as a child why Hazel never stood up to say the Pledge 
of Allegiance. I am glad at that time that, one, we were wise 
enough in our school to leave Hazel alone, or the school 
district understood or the teacher understood that Hazel had 
the right under the first amendment to express her religious 
belief. Hazel was a Jehovah Witness.
    This amendment speaks to that diversity of religious 
belief. This amendment suggests that if you are coerced, there 
is no reason why you should not be able to go into the 
courthouse. In the 1943 case of West Virginia Board of 
Education v. Barnett, the Supreme Court held that children had 
a first amendment right not to be compelled to swear on an oath 
against their beliefs. In that case there was a group of 
Jehovah Witnesses who objected on religious grounds. Justice 
Jackson wrote, if there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can 
prescribe what shall be orthodox in politics, nationalism, 
religion or other matters of opinion or force citizens to 
confess by word or act their faith therein.
    That is the protection of the first amendment, and are you 
going to tell me that this legislation then would prohibit 
these individuals from going into the courthouse and going to 
the Supreme Court? There is no question that this legislation 
would strip the parents of those children of their right to go 
to court and defend their children's religious liberty.
    Mr. Chairman, we must not slam the courthouse doors shut to 
victims of religious persecution, but I would hope that as this 
debate concludes, that those who are listening to this would 
really have a sense that the House is on fire, that the 
Judiciary Committee of the United States Congress is now 
passing legislation again to close the courthouse doors. It is 
both a travesty and a tragedy, and, I might add, an extra 
outrage that we sit here in this Committee room closing the 
courthouse doors. I would hope that we would not close it on 
those who would be coerced into saying the Pledge of Allegiance 
and have no reprieve and nowhere to go and be barred from going 
into the courthouse on their grievance. I ask my colleagues to 
support my amendment, and I yield back.
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes in opposition to the amendment. This amendment should 
be defeated because it would gut the bill. First, nothing in 
H.R. 2028 would allow State courts to deviate from Supreme 
Court precedent prohibiting the coerced recitation of the 
Pledge of Allegiance. Even when Federal courts are denied 
jurisdiction to hear certain classes of cases and those classes 
of cases are thereby reserved to the State courts, the 
previously existing Supreme Court precedent still governs State 
court determinations. This is required by the supremacy clause 
of the Constitution.
    And in West Virginia Board of Education v. Barnett, the 
Supreme Court held it is unconstitutional to require 
individuals to salute the flag. In that case, the Supreme Court 
held, quote, if there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can 
prescribe what should be orthodox in politics, nationalism, 
religion or other matters of opinion or force citizens to 
confess by word or act or faith therein, unquote. Under H.R. 
2028 as written, that decision will preclude State courts from 
allowing coerced recitations of the Pledge of Allegiance.
    Even if it weren't required by the supremacy clause, State 
courts are not second-class courts, and they are equally 
capable of deciding Federal constitutional questions. The 
Supreme Court has clearly rejected claims that State courts are 
less competent to decide Federal constitutional issues than the 
Federal courts. Justice William Brennan wrote in the Northern 
Pipeline Construction Company v. Marathon Pipeline Company 
that, quote, virtually all matters that might be heard in 
Article III courts could also be left by Congress to the State 
courts. Justice Brennan was joined in that decision by Justices 
Marshall, Blackmun and Stevens, a hardly right wing contingent 
of judges in office at the time, I might add.
    Now, what, then would be the harm of adopting this 
amendment? Plenty. If we carve out an exception for cases in 
which coercion is involved, we will open the floodgates to 
expansive interpretation by the Federal courts that will gut 
the purpose of the bill. Carving out a coercion exemption will 
invite the Federal courts, including the liberal Ninth Circuit 
Court of Appeals, to hold that excessive coercion exists to 
pressure a student to recite the Pledge simply when a majority 
of the schoolchildren choose to recite it, but one or a few 
students do not want to. The inevitable claim will be that in 
the school environment, there is no such thing as free will 
whenever the majority of students are reciting the pledge, 
because those who don't want to recite it will feel pressure to 
recite it simply because other students are reciting it.
    Yet again the courts will strike another blow to the 
concept of free will and personal responsibility if we let 
them. We must not let them, so this amendment must be defeated, 
and I yield back the balance of my time.
    Gentleman from Virginia Mr. Scott.
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. Gentleman is recognized for 5 
minutes.
    Mr. Scott. I can't understand how a child could possibly 
vindicate their rights to not to say the Pledge under the 
coercion of religion if this amendment is not adopted. I mean, 
any court can kind of distinguish a new fact situation and say 
this kind of coercion doesn't apply. You don't have any appeal 
to the Federal courts. You don't have an appeal to the Supreme 
Court because we just rejected the Watt amendment. To suggest 
that a State court is going to follow the exact precedent set 
by the Supreme Court, maybe in that exact same case, but they 
will distinguish it, and you will have 50 different rulings as 
to what children will have the freedom of religion and which 
ones won't.
    I would hope that we would at least allow this amendment to 
come forth so you can at least maintain present law in the 
Federal court system under the Barnett decision. I yield back.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment by the gentlewoman from Texas Ms. Jackson Lee to the 
amendment in the nature of a substitute offered by the Chair. 
Those in favor will say aye.
    Opposed, no.
    Noes appear to have it.
    Ms. Jackson Lee. rollcall.
    Chairman Sensenbrenner. rollcall will be ordered. Those in 
favor of the amendment by the gentlewoman from Texas Ms. 
Jackson Lee to the amendment in the nature of a substitute 
offered by the Chair will, as your names are called, answer 
aye; those opposed, no. And the clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    [No response.]
    The Clerk. Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart.
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter.
    Mr. Carter. No.
    The Clerk. Mr. Carter, no.
    Mr. Feeney?
    [No response.]
    The Clerk. Mrs. Blackburn.
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no.
    Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Wiener.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Pass.
    The Clerk. Mr. Schiff, pass.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the Chamber wish to cast 
or change their vote?
    Gentleman from North Carolina Mr. Coble.
    Mr. Coble. No.
    Chairman Sensenbrenner. Gentleman from Florida Mr. Feeney?
    Mr. Feeney. No.
    Chairman Sensenbrenner. Further Members in the Chamber who 
wish to cast or change their vote? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 7 ayes, 17 noes and 1 
pass.
    Chairman Sensenbrenner. And the amendment to the amendment 
in the nature of a substitute is not agreed to.
    Are there further second degree amendments to the amendment 
in the nature of a substitute? If not, the question occurs on 
the amendment in the nature of a substitute. All in favor will 
say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
in the nature of a substitute is agreed to.
    A reporting quorum is present. The question occurs on the 
motion to report the bill, H.R. 2028, favorably as amended. All 
in favor will say aye.
    Opposed, no.
    The ayes appear to have it.
    rollcall will be ordered. The question is on ordering the 
bill reported favorably as amended. Those in favor will, as 
your names are called, answer aye; those opposed, no. And the 
clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye.
    Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no.
    Mr. Wiener.
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass.
    Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the Chamber who wish to 
cast or change their vote?
    Gentleman from Alabama Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. Gentleman from California Mr. 
Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Chairman Sensenbrenner. Gentleman from New York Mr. Wiener.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Chairman Sensenbrenner. Further Members in the Chamber who 
wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. There are 17 ayes and 10 noes.
    Chairman Sensenbrenner. And the motion to report the bill 
favorably as amended is agreed to. Without objection, the bill 
will be reported favorably to the House in the form of a single 
amendment in the nature of a substitute incorporating the 
amendments adopted here today.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules.
    Without objection, the staff is directed to make any 
technical and conforming changes. And all Members will be given 
2 days as provided by the House rules in which to submit 
additional dissenting supplemental or minority views.
    The Chair also would like to announce the meeting of the 
Constitution Subcommittee relative to issuing a subpoena 
directed at the Civil Rights Commission has been postponed 
until next week. The Chair thanks the Members for their 
patience today, and the Committee stands adjourned.
    [Whereupon, at 11:30 a.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    We strongly dissent from H.R. 2028, the so-called ``Pledge 
Protection Act of 2003.'' The legislation is unconstitutional, 
unnecessary, and undermines our judiciary.
    We do not oppose the legislation because we believe that 
voluntary recitation of the Pledge of Allegiance is 
unconstitutional. As a matter of fact, the House overwhelmingly 
passed a resolution stating that voluntary recitation of the 
Pledge of Allegiance is constitutional.\1\ However, we do not 
believe that the appropriate reaction to the issue of the 
constitutionality of the Pledge of Allegiance is to undermine 
the whole of the federal judiciary, as the present bill does.
---------------------------------------------------------------------------
    \1\ H. Res. 132, 108th Cong., 2d Sess. (2004). The resolution 
passed by a vote of 400-7, with 15 members voting ``Present.''
---------------------------------------------------------------------------
    Ironically, the very idea of balkanizing our judiciary and 
eliminating the possibility of operating under a single uniform 
Supreme Court, as H.R. 2028 would do, is inconsistent with the 
very words of the Pledge of Allegiance, namely that we are 
``one Nation under God, indivisible, with liberty and justice 
for all.'' Dividing our nation into 50 different legal regimes, 
where the Pledge is permitted in some jurisdictions and not in 
others, is the very antithesis of this sacred principle. 
Enactment of such legislation would constitute a very 
undesirable precedent and would no doubt lead to further 
assaults on the judiciary.
    The Pledge Protection Act, along with the Marriage 
Protection Act taken up by the House two months ago,\2\ 
represents yet another effort by the Majority to use wedge 
social issues to divide our nation for political gain. Why else 
would the Majority schedule this legislation for floor action 
without the benefit of a single legislative hearing or 
subcommittee markup? Why else would the Majority bring up 
legislation deep in an election year when it has no chance of 
passage by the Senate?
---------------------------------------------------------------------------
    \2\ H.R. 3313, the ``Marriage Protection Act,'' precluded any 
federal judicial review, either by a lower federal court or the Supreme 
Court, of any constitutional challenge to DOMA's validity or the 
legislation itself. H.R. 3313, 108th Cong., 2d Sess. (2004). H.R. 3313 
passed the House on July 22, 2004, by a vote of 233-194.
---------------------------------------------------------------------------
    If H.R. 2028 is passed into law, it would constitute the 
first and only time Congress has enacted legislation totally 
eliminating any federal court from considering the 
constitutionality of federal legislation--in this case, the 
Pledge of Allegiance. At a time when the highest court in our 
land has not issued a single opinion undermining the 
constitutionality of the Pledge, we believe it is inexcusable 
for Congress to attack the federal judiciary in an effort to 
score political points.
    The operative language of H.R. 2028 consists of a single 
sentence. It amends the Federal judicial code to provide:

        [n]o court created by an Act of Congress shall have any 
        jurisdiction, and the Supreme Court shall have no 
        appellate jurisdiction, to hear or decide any question 
        pertaining to the interpretation of, or the validity 
        under the Constitution of, the Pledge of Allegiance, as 
        defined in section 4 of title 4, or its recitation.\3\
---------------------------------------------------------------------------
    \3\ 4 U.S.C. Sec. 4 speaks to the manner and delivery of the Pledge 
of Allegiance. It reads: ``I pledge allegiance to the Flag of the 
United States of America, and to the Republic for which it stands, one 
Nation under God, indivisible, with liberty and justice for all'', 
should be rendered by standing at attention facing the flag with the 
right hand over the heart. When not in uniform men should remove any 
non-religious headdress with their right hand and hold it at the left 
shoulder, the hand being over the heart. Persons in uniform should 
remain silent, face the flag, and render the military salute.

As such, the legislation effectively precludes any federal 
judicial review, either by a lower federal court or the Supreme 
Court, of any constitutional challenge to the Pledge of 
Allegiance, including challenges relating to religious and 
other forms of coercion. Instead, the bill relegates state 
courts to review any challenges to the Pledge, creating the 
very real possibility of having differing legal constructions 
across the 50 states. Even worse, the legislation precludes any 
and all residents of our Nation's capital and territories of 
the United States from bringing any claim concerning the Pledge 
of Allegiance.
    It is ironic that in the very same year that Congress 
celebrated Justice John Marshall by authorizing a commemorative 
coin in his honor,\4\ the Judiciary Committee would disparage 
him by passing legislation such as the Pledge Protection Act 
and the Marriage Protection Act that are totally inconsistent 
with Marshall's seminal legal opinion, Marbury v. Madison.\5\ 
We should not use the issue of the constitutionality of the 
Pledge of Allegiance to permanently damage our courts, our 
constitution, and Congress. At a time when it is more important 
than ever that our nation stand out as a beacon of freedom, we 
cannot countenance a bill which undermines the very protector 
of those freedoms--our independent federal judiciary.
---------------------------------------------------------------------------
    \4\ John Marshall Commemorative Coin Act, H.R. 2768, 108th Cong. 
(2004). In support of the legislation, the bill's sponsor, 
Representative Spencer Bachus (R-AL), said, ``John Marshall served as 
Chief Justice of the United States Supreme Court from 1801 to 1835, 
much of that time spent in this very building, holding the longest 
tenure of any Chief Justice in the Nation's history. He authored more 
than 500 opinions, including virtually all of the most important cases 
that the Court decided during his tenure. Under his leadership, the 
Supreme Court gave shape to the fundamental principles of the 
Constitution.'' 150 Cong. Rec. H5781 (July 14, 2004).
    \5\ Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
---------------------------------------------------------------------------
    H.R. 2028 appears to be a response to the 9th Circuit's 
decision in Newdow v. U.S. Congress.\6\ In that case, the 9th 
Circuit held that daily voluntary \7\ recitation of the pledge 
violated the Establishment Clause of the Constitution.\8\ In 
Elk Grove Unified School Dist. v. Newdow, the Supreme Court, 
led by a 5-3 majority, reversed the decision in the 9th Circuit 
case, holding that Mr. Newdow lacked the proper standing to 
file his lawsuit on behalf of his elementary school aged 
daughter.\9\ The only other Circuit to have considered the 
question, the 7th Circuit, has upheld the language of the 
Pledge, including the 1954 amendment.\10\
---------------------------------------------------------------------------
    \6\ 328 F. 3d 466 (CA9 2003).
    \7\ Mandatory recitation of the Pledge was struck down by the 
Supreme Court in West Virginia State Board of Education v. Barnette, 
319 U.S. 624 (1943).
    \8\ The Court wrote, ``[t]he Pledge, as currently codified, is an 
impermissible government endorsement of religion because it sends a 
message to unbelievers `that they are outsiders, not full members of 
the political community, and an accompanying message to adherents that 
they are insiders, favored members of the political community.' '' 
Newdow at 469. The 9th Circuit, relying on the Supreme Court's 
voluntary school prayer jurisprudence stated, ``the phrase `one nation 
under God' in the context of the Pledge is normative. To recite the 
Pledge is not to describe the United States; instead, it is to swear 
allegiance to the values for which the flag stands: unity, 
indivisibility, liberty, justice, and--since 1954--monotheism. The text 
of the official Pledge, codified in federal law, impermissibly takes a 
position with respect to the purely religious question of the existence 
and identity of God. A profession that we are a nation `under God' is 
identical, for Establishment Clause purposes, to a profession that we 
are a nation `under Jesus,' a nation `under Vishnu,' a nation `under 
Zeus,' or a nation `under no god,' because none of these professions 
can be neutral with respect to religion.'' Id. at 470.
    \9\ Elk Grove Unified School Dist. v. Newdow, 542 U.S. XXX (2004).
    \10\ Sherman v. Community Consolidated School District 21, 980 F.2d 
437 (7th Cir. 1992).
---------------------------------------------------------------------------
    This unnecessary and dangerous legislation is strongly 
opposed by a variety of organizations, including the Leadership 
Conference on Civil Rights; the American Civil Liberties Union; 
People for the American Way; the Human Rights Campaign; 
Americans United for Separation of Church and State; American 
Jewish Committee; Anti-Defamation League; Baptist Joint 
Committee; National Council of Jewish Women; Union for Reform 
Judaism; U.S. Action; Human Rights Watch; the Unitarian 
Universalist Association; the Anti-Defamation League; the 
Interfaith Alliance; and the Constitution Project; among 
numerous others.\11\
---------------------------------------------------------------------------
    \11\ See Letter to Representative F. James Sensenbrenner and 
Representative John Conyers, Jr. from Rev. Barry W. Lynn, Executive 
Director, Americans United for Separation of Church and State 
(September 14, 2004); Letter to Members of the Judiciary Committee from 
Kathryn A. Monroe, Director, The Constitution Project (September 15, 
2004); Letter to Representative F. James Sensenbrenner and 
Representative John Conyers, Jr. from American Civil Liberties Union, 
American Humanist Association, American Jewish Committee, Americans for 
Religious Liberty, Americans United for Separation of Church and State, 
Anti-Defamation League, Baptist Joint Committee, Central Conference of 
American Rabbis, Committee for Judicial Independence, Human Rights 
Campaign, The Interfaith Alliance, Jewish Reconstructionist Federation, 
Leadership Conference on Civil Rights, National Council of Jewish 
Women, National Senior Citizen Law Center, People for the American Way, 
Union for Reform Judaism, Unitarian Universalist Association of 
Congregations, U.S. Action (September 14, 2004) [hereinafter Group 
Sign-On Letter].
---------------------------------------------------------------------------
    For these and the other reasons set forth herein, we 
dissent from H.R. 2028.

                    I. H.R. 2028 IS UNCONSTITUTIONAL

    H.R. 2028 is an unconstitutional and unnecessary court 
stripping bill that would eliminate access to the federal 
judiciary for a specific group of claims. For over 200 years, 
the federal courts have played an indispensable role in the 
interpretation and enforcement of the rights guaranteed under 
our constitution.

    While it is clear that Congress has the authority to 
regulate federal court jurisdiction,\12\ it is also clear that 
such power is not plenary. Rather, the power is subject to 
other overarching constitutional rights, such as freedom of 
speech, freedom of religion, equal protection and due process 
and separation of powers. In this regard, one of the preeminent 
treatises on Constitutional Law concludes:
---------------------------------------------------------------------------
    \12\ Article III of the Constitution authorizes Congress to 
establish judicial power in lower federal courts, and to regulate the 
Supreme Court's appellate jurisdiction.

          There is little doubt that other constitutional 
        provisions, like the equal protection clause, limit 
        Congress's power under the Exceptions Clause. For 
        example, Congress could not constitutionally provide 
        that Republicans, but no one else, may have access to 
        the Supreme Court. Such a provision would violate the 
        first amendment and thus would be independently 
        unconstitutional.\13\
---------------------------------------------------------------------------
    \13\ Stone, Seidman, et al., Constitutional Law 85 (3d ed.) 
(emphasis added).

    At the Committee's prior hearing on court stripping 
legislation concerning the Defense of Marriage Act, both of the 
constitutional scholars that testified agreed with this 
conclusion. The Minority witness, Professor Michael J. Gerhardt 
of William & Mary Law School, testified that ``Congress cannot 
exercise any of its powers under the Constitution--not the 
power to regulate interstate commerce, not the Spending power, 
and not the authority to define federal jurisdiction--ina 
manner that violates the Constitution.'' \14\ Similarly, the Majority's 
witness, Prof. Martin H. Redish of Northwestern University School of 
Law, acknowledged that there were limits on Congress' Article III 
powers:
---------------------------------------------------------------------------
    \14\ Limiting Federal Court Jurisdiction to Protect Marriage for 
the States: Hearing Before the Subcomm. on the Const. of the House 
Comm. on the Judiciary, 108th Cong., 2d Sess. (June 24, 2004) 
(testimony of Professor Michael Gerhardt) [hereinafter Federal Court 
Jurisdiction Hearing].

          To be sure, several other guarantees contained in the 
        Constitution--due process, separation of powers, and 
        equal protection--may well impose limitations on the 
        scope of congressional power. The Due Process Clause of 
        the Fifth Amendment requires that a neutral, 
        independent and competent judicial forum remain 
        available in cases in which the liberty or property 
        interests of an individual or entity are at stake. . . 
        . The constitutional directive of equal protection 
        restricts congressional power to employ its power to 
        restrict jurisdiction in an unconstitutionally 
        discriminatory manner.\15\
---------------------------------------------------------------------------
    \15\ Federal Court Jurisdiction Hearing (statement of Professor 
Martin Redish at 3-4).
---------------------------------------------------------------------------

A. Separation of powers

    The legislation intrudes upon the long-standing principle 
of separation of powers between the branches of government. By 
denying the Supreme Court its historical role as the final 
authority on the constitutionality of federal laws, H.R. 2028 
unnecessarily and unconstitutionally usurps the Court's power. 
As a practical matter, to the extent that H.R. 2028 strips 
federal courts of jurisdiction to adjudicate claims that acts 
of Congress are unconstitutional, the legislation unnecessarily 
provokes an inter-branch confrontation. This is destructive of 
comity between branches and places undue tensions on the 
separation of powers framework of government.
    Since the Supreme Court's historic ruling in Marbury v. 
Madison, the separation of powers doctrine has been well 
established. Marbury concerned the validity of a judicial 
commission that was signed, but not delivered prior to the end 
of John Adams' presidency. Justice Marshall agreed with 
President Jefferson that the commission should not be given 
effect, but he did so only by declaring unconstitutional the 
provision of the Judiciary Act of 1789 granting courts mandamus 
powers over these commissions. In so doing, the Court 
enunciated the principle of federal judicial review of federal 
laws. Marshall's opinion included the now famous declaration 
that ``it is emphatically the province and duty of the judicial 
department to say what the law is.'' \16\
---------------------------------------------------------------------------
    \16\ Marbury v. Madison, 5 U.S. (1 Cr.) at 178 (emphasis added).
---------------------------------------------------------------------------
    In the more than 200 years that have passed since this 
legal decision was issued, judicial review has served as the 
very touchstone of our constitutional system and our democracy. 
As the Congressional Research Service's chief authority on 
separation of powers stated, ``Marbury v. Madison is famous for 
the proposition that the [Supreme] Court is supreme on 
constitutional questions.'' \17\
---------------------------------------------------------------------------
    \17\ Louis Fisher, American Constitutional Law 42 (5th ed. 2003).
---------------------------------------------------------------------------
    Unfortunately, the concept of separation of powers and the 
independence of the judiciary are both being challenged by H.R. 
2028. At the Committee's markup of this legislation, Rep. John 
N. Hostettler (R-IN) admitted that he disagreed with Marbury's 
long established principle of federal judicial review and 
explained that ``. . . the notion of an independent judiciary 
is a flawed notion, at best'' \18\
---------------------------------------------------------------------------
    \18\ H.R. 2028 Markup (Statement of Representative John 
Hostettler).

          Mr. Hostettler: The notion of an independent 
        judiciary . . . just does not bear out actually in the 
        Constitution. But it does prove the adage that is long-
        time established that there is nothing so absurd, but 
        if repeated often enough, people will believe it. And 
        people have asserted the notion of an independent 
        judiciary for so long and asked us as a country and as 
        a citizenry to leave the Constitution alone . . . that 
        many folks have begun to believe this absurd notion of 
        an independent judiciary. . . .\19\
---------------------------------------------------------------------------
    \19\ Id.

    Historical precedent, the very bedrock and cornerstone of 
our judicial system, proves that it is in fact Representative 
Hostettler's argument that is flawed, at best. The failure of 
Congress to enact legislation totally eliminating federal 
judicial jurisdiction to review the constitutionality of 
federal statutes is evidence of the long deference and respect 
maintained by Congress for the principle of federal judicial 
review. In addition, several of the Supreme Court's own 
subsequent decisions reaffirm that Congress may not contravene 
the doctrine of judicial review.
    Not too long after Marbury, the need for some federal 
judicial review in all cases was further confirmed by Justice 
Story in Martin v. Hunter's Lessee, when he wrote, ``the whole 
judicial power of the United States should be, at all times, 
vested in an original or appellate form, in some courts created 
under its authority.\20\ That is to say, a federal court ought 
to be empowered to exercise judicial power on behalf of the 
United States.
---------------------------------------------------------------------------
    \20\ 14 U.S. (1Wheat.) 304 (1816).
---------------------------------------------------------------------------
    H.R. 2028 also contradicts existing precedent on Congress' 
ability to restrict the power of the judiciary. For example, in 
United States v. Klein,\21\ the only case in which the Supreme 
Court addressed directly the question whether the Congress 
could impose a legislative restriction on court power if framed 
in jurisdictional terms, the Court made clear that ``the 
language [of the challenged law] shows plainly that it does not 
intend to withhold appellate jurisdiction except as a means to 
an end. . . . We believe that Congress has inadvertently passed 
the limit which separates the legislative from the judicial 
power.'' \22\
---------------------------------------------------------------------------
    \21\ 80 U.S. 128, 178 (1872).
    \22\ 80 U.S. at 145.
---------------------------------------------------------------------------
    In an analogous vein, in City of Boerne v. Flores, the 
Court held that it is improper and unconstitutional for 
Congress to attempt to legislate its view of the free exercise 
clause of the First Amendment.\23\ Also, in Dickerson v. United 
States, the Court struck down a federal statute narrowing the 
scope of statements held inadmissable under Miranda v. Arizona, 
384 U.S. 436 (1966).\24\ It is telling that as recently as this 
term, the Supreme Court rebuffed an attempt by the Executive 
Branch unilaterally to withdraw certain habeas corpus cases 
from the jurisdiction of the federal courts.\25\
---------------------------------------------------------------------------
    \23\ 521 U.S. 507 (1997).
    \24\ 530 U.S. 428, 432 (2000) (``Congress enacted 18 U.S.C. 3501, 
which in essence laid down a rule that the admissibility of such 
statements should turn only on whether or not they were voluntarily 
made. We hold that Miranda, being a constitutional decision of this 
Court, may not be in effect overruled by an Act of Congress, and we 
decline to overrule Miranda ourselves.'').
    \25\ Rasu v. Bush, 542 U.S. ___ (2004); Hamdi v. Rumsfeld, 542 U.S. 
___ (2004); Rumsfeld v. Padilla, 542 U.S. ___ (2004).
---------------------------------------------------------------------------
    Numerous esteemed legal scholars have emphasized that it 
would be a constitutional violation of separation of powers 
principles for Congress to completely strip federal courts of 
jurisdiction over constitutional claims. The most noted of 
these views was put forth by Stanford Law Professor Henry Hart 
when he concluded that under Marbury, restrictions on federal 
jurisdiction are unconstitutional when ``they destroy the 
essential role of the Supreme Court in the constitutional 
system.'' \26\ More recently, Yale Law Professor Akhil Amar 
concluded that article III requires that ``all'' cases arising 
under federal law must be vested, either as an original or 
appellate matter, in a federal court.\27\
---------------------------------------------------------------------------
    \26\ Henry Hart, The Power of Congress to Limit the Jurisdiction of 
Federal Courts: An Exercise in Dialectic, 66 Harv L. Rev. 1362 (1953).
    \27\ Akhil Amar, A Neo-Federalist View of Article III: Separating 
the Two Tiers of Federal Jurisdiction, 65 Boston Univ. L. Rev. 205 
(1985).
---------------------------------------------------------------------------
    The views of these legal scholars concerning complete 
federal court stripping are consistent with the findings of the 
Task Force of the Courts Initiative of the Constitution 
Project, a bipartisan nonprofit organization that seeks 
consensus on controversial legal and constitutional issues. The 
Constitution Project concluded ``legislation precluding court 
jurisdiction that prevents the judiciary from invalidating 
unconstitutional laws is impermissible. Neither Congress nor 
state legislatures may use their powers to prevent courts from 
performing their essential functions of upholding the 
Constitution.'' \28\
---------------------------------------------------------------------------
    \28\ Report of the Citizens for Independent Courts Task Force on 
the Role of the Legislature in Setting the Power and Jurisdiction of 
the Courts, reprinted in: The Century Foundation, Uncertain Justice: 
Politics in America's Courts 206, 217 (2002).
---------------------------------------------------------------------------
    Other independent and respected legal experts have reached 
the same conclusion. For example, the Washington, D.C. law firm 
of Covington & Burling found that, ``H.R. 2028 would violate 
the Constitution, place congress above the Federal judiciary, 
and set a dangerous precedent.'' \29\ Specifically, they found 
that not only will this bill violate the First Amendment by 
closing the federal courts to claims that the Pledge is 
unconstitutional,\30\ thereby abridging the right to petition, 
but the bill will also repudiate the principle of separation of 
powers by placing an action by Congress beyond federal court 
review.\31\
---------------------------------------------------------------------------
    \29\ Memorandum from David H. Remes, Partner, Covington & Burling, 
prepared at the request of People for the American Way (September 17, 
2004).
    \30\ Id. at 3.
    \31\ Id. at 5.
---------------------------------------------------------------------------

B. Freedom of speech and establishment

    If H.R. 2028 is passed into law, it would totally eliminate 
any federal court from considering any claim that any aspect of 
any governmental entity's use or application--whether coerced 
or otherwise--of the Pledge of Allegiance violates the First 
Amendment or any other constitutional limitation.
    Given the importance of developing a single national 
standard on constitutional questions it seems particularly odd 
that the Majority would seek to strip federal courts of their 
power in thecontext of the Pledge. As Americans United for the 
Separation of Church and State and other non-profit advocacy groups 
noted in their letter to members of the Judiciary Committee:

          H.R. 2028 would undermine the longstanding 
        constitutional rights of religious minorities to seek 
        redress in the federal courts in cases involving 
        mandatory recitation of the Pledge. As a result, this 
        legislation will seriously harm religious minorities 
        and the constitutional free speech rights of countless 
        individuals. . . . Americans United strongly urges 
        [Congress] to protect longstanding constitutional 
        rights of religious minorities to seek redress in the 
        federal courts, and respect free speech rights of 
        countless individuals by rejecting this misguided 
        legislation.\32\
---------------------------------------------------------------------------
    \32\ Group Sign-On Letter. It is particularly puzzling that the 
Majority is so intent on undermining federal judicial power with 
respect to constitutional law interpretations, while in other contexts 
it seeks to expand federal judicial power at the expense of state 
courts over matters such as state class action claims, state drug laws, 
and state abortion laws.

    An additional concern is that the legislation operates to 
deny federal court review involving religious coercion in 
violation of the First Amendment. Such a case was present over 
sixty years ago in West Virginia State Board of Education v. 
Barnett \33\ when the Supreme Court struck down a West Virginia 
law that mandated schoolchildren to recite the Pledge of 
Allegiance. Under the West Virginia law, religious minorities 
faced expulsion from school and could be subject to prosecution 
and fined, if convicted of violating the statute's provisions. 
In striking down that statute, Justice Jackson wrote for the 
Court:
---------------------------------------------------------------------------
    \33\ 319 U.S. 624, 638 (1943).

        To believe patriotism will not flourish if patriotic 
        ceremonies are voluntary and spontaneous instead of a 
        compulsory routine is to make an unflattering estimate 
        of the appeal of our institutions to free minds . . . 
        If there is any fixed star in our constitutional 
        constellation, it is that no official, high, or petty 
        can prescribe what shall be orthodox in politics, 
        nationalism, religion, or other matters of opinion or 
        force citizens to confess by word or act their faith 
        therein.\34\
---------------------------------------------------------------------------
    \34\ Id. at 639-640.

Had H.R. 2028 been law, the Supreme Court would have never been 
able to issue this landmark ruling protecting religious 
liberty.
    Moreover, just recently, a panel of the U.S. Court of 
Appeals for the Third Circuit held that a Pennsylvania law 
mandating recitation of the Pledge, even when it provided a 
religious exception, violated the Constitution because it 
violated the free speech of the students.\35\ In Circle School 
v. Pappert, the court found that:

    \35\ Circle School v. Pappert, No. 03-3285 (3rd Cir., Aug. 19, 
2004).
---------------------------------------------------------------------------
          It may be useful to note our belief that most 
        citizens of the United States willingly recite the 
        Pledge of Allegiance and proudly sing the national 
        anthem. But the rights embodied in the Constitution, 
        particularly the First Amendment, protect the 
        minority--those persons who march to their own 
        drummers. It is they who need the protection afforded 
        by the Constitution and it is the responsibility of 
        federal judges to ensure that protection.\36\
---------------------------------------------------------------------------
    \36\ Id. Slip Op. at 14.

Again, under H.R. 2028, such a coercive speech case could never 
reach the federal courts.
    It is also important to note that as H.R. 2028 is drafted, 
it insulates the Pledge of Allegiance as set forth in section 4 
of title 4 of the United States Code from constitutional 
challenge in the federal courts. However, the statute and the 
Pledge are subject to change by future legislative bodies. This 
means that were some future Congress to insert in the pledge 
some objectionable language, concerning overt discrimination or 
favoring one specific religious text, that would be immune to 
constitutional challenge in the federal courts.

C. Equal protection and due process

    H.R. 2028 would also violate the Fifth Amendment's 
guarantee of equal protection under the law,\37\ in that it 
imposes an undue burden on a specific class of individuals 
without a rational basis. The critical case in this regard is 
Roemer v. Evans, a 1996 Supreme Court decision invalidating a 
Colorado law preventing the state or any political subdivision 
from enacting legislation to protect gay and lesbian citizens 
from discrimination.\38\
---------------------------------------------------------------------------
    \37\ The Fifth Amendment Due Process has long been interpreted to 
include a requirement of equal protection parallel to the requirement 
of the Equal Protection Clause of the Fourteenth Amendment. See, e.g., 
Adarand Contractors, Inc. v. Pena, 515 U.S. 200 (1995).
    \38\ 517 U.S. 620 (1996).
---------------------------------------------------------------------------
    Roemer held in a 6 to 3 decision by Justice Kennedy that it 
was unacceptable for the state of Colorado to exclude a class 
of individuals from legal protections:

          Central both to the idea of the rule of law and to 
        our own Constitution's guarantee of equal protection is 
        the principle that government and each of its 
partsremain open on impartial terms to all who seek its assistance. . . 
. A law declaring that in general it shall be more difficult for one 
group of citizens than for all others to seek aid from the government 
is itself a denial of equal protection of the laws in the most literal 
sense.\39\
---------------------------------------------------------------------------
    \39\ Id. at 633.
---------------------------------------------------------------------------
    Absent a rational basis, the Roemer Court found that laws 
of this nature cannot stand. It found that such laws ``raise 
the inevitable inference that the disadvantage imposed is born 
of animosity toward the class of persons affected.'' \40\ In 
Roemer, the general provision ``that gays and lesbians shall 
not have any particular protection from the law, inflicts on 
them immediate, continuing and real injuries that outrun and 
belie any legitimate justifications that may be claimed for 
it.'' \41\ Specifically, the Court found the principal 
motivation for the legislation was animus towards gays and 
lesbians, which had no rational relationship to a legitimate 
governmental purpose; it concluded, ``a bare . . . desire to 
harm a politically unpopular group cannot constitute a 
legitimate governmental interest.'' \42\
---------------------------------------------------------------------------
    \40\ Id.
    \41\ Id.
    \42\ Id. (citing Dep't of Agric. v. Moreno, 143 U.S. 528, 534 
(1973)).
---------------------------------------------------------------------------
    These same concerns could well invalidate H.R. 2028 on 
Equal Protection grounds, since it could be seen as 
specifically affecting religious minority groups and atheists. 
Even if courts were to apply the more deferential rational 
basis standard of review to the legislative proposal, it could 
be struck down. Though, generally, courts will not look into 
the motive of the legislature to determine the 
constitutionality of a statute, animus towards a particular 
class will be considered as improper and discriminatory, and 
the statute will not withstand scrutiny.\43\ As Professor 
Gerhardt observed that, ``distrust of `unelected judges' does 
not qualify as a legitimate basis, much less a compelling 
justification, for congressional action.'' \44\
---------------------------------------------------------------------------
    \43\ See Romer v. Evans, 517 U.S. 620 (1996).
    \44\ Federal Court Jurisdiction Hearing (statement of Professor 
Gerhardt at 2).
---------------------------------------------------------------------------
    It is also possible that the courts will find that H.R. 
2028 violates the Fifth Amendment's Due Process clause. As 
Professor Gerhardt noted in a Committee hearing on the Marriage 
Protection Act, ``a proposal excluding all federal jurisdiction 
may violate the Fifth Amendment's Due Process Clause's 
guarantee of procedural fairness.'' \45\ This is because on its 
face the law denies federal courts the opportunity to review a 
federal law. Given the traditional expertise the federal courts 
have in reviewing the constitutionality of federal laws, 
relegating such claims to state court can hardly be considered 
a fair or rationale process.
---------------------------------------------------------------------------
    \45\ Id. at 10.
---------------------------------------------------------------------------

D. Particular problem with regard to District of Columbia and U.S. 
        territories

    Another problem with the legislation is that it denies any 
access to any courts concerning Pledge of Allegiance cases in 
the District of Columbia and U.S. territories. The only 
possible rationale the Majority can assert for the 
legislation's constitutionality is that it does not totally 
preclude judicial review by state courts. While we do not 
believe the text or history of the Constitution, or subsequent 
action by the courts or Congress support the validity of such a 
contention, even that thin rationale does not apply with 
respect to cases involving the Pledge of Allegiance brought in 
the District of Columbia or U.S. territories.
    As Representative Robert C. Scott (D-VA) observed at the 
Committee's markup:

          Mr. Scott. Mr. Chairman, the way I read the bill, 
        there is an additional gratuitous insult for the 
        residents of Washington, DC, in that apparently they 
        will be totally left out without any court to file in. 
        Yesterday we helped foreign corporations escape 
        liability from American courts by developing a scheme 
        whereby there may be no court that someone may file in 
        within the United States. This bill, I think, does the 
        same for Washington, DC residents, because . . . there 
        is no court in D.C. that you could bring the case 
        in.\46\
---------------------------------------------------------------------------
    \46\ Markup of H.R. 2028 (statement of Representative Robert 
Scott).

    Mr. Scott's concern stems from the fact that the local 
courts in the District of Columbia,\47\ the U.S. Virgin 
Islands,\48\ the Northern Mariana Islands,\49\ and Guam,\50\ 
were all created by acts of Congress, not the local 
legislatures. Since the legislation provides that ``[n]o court 
created by an Act of Congress'' shall have any jurisdiction to 
hear cases concerning the constitutionality of the Pledge of 
Allegiance, the net result is that under H.R. 2028, no judicial 
review would be available for Pledge of Allegiance cases for 
the nearly 600,000 residents of the District, not to mention 
the residents of these other territories. As the Majority's own 
witness, Martin Redish, asserted at the Committee's hearing on 
court stripping in the context of the Defense of Marriage Act:
---------------------------------------------------------------------------
    \47\ Pub. L. No. 93-198, Sec. 431(a), 87 Stat. 774, 792-93 (1973).
    \48\ 48 U.S.C. Sec. 1611.
    \49\ 48 U.S.C. Sec. 1821.
    \50\ 48 U.S.C. Sec. 1424.

          . . . as long as the state courts remain available 
        and adequate forums to adjudicate federal law and 
        protect federal rights, it is difficult to see how the 
        Due Process Clause would restrict congressional power 
        to exclude federal judicial authority to adjudicate a 
        category of cases, even one that is substantively 
        based.\51\
---------------------------------------------------------------------------
    \51\ See supra note 15.

Clearly, such a state court review is not possible in the 
District of Columbia and U.S. territories as H.R. 2028 is 
drafted, so the bill would be unconstitutional under the 
interpretation of the Majority's own witness.

   II. H.R. 2028 UNDERMINES THE INDEPENDENCE OF THE FEDERAL JUDICIARY

    Aside from the obvious constitutional flaws inherent in 
H.R. 2028, the idea of Congress unilaterally cutting off 
federal constitutional review constitutes both a poor and 
dangerous legal precedent. The legislation not only degrades 
the independence of the federal judiciary, but eliminates any 
possibility of developing a single uniform policy with regard 
to the recitation of the Pledge from the 50 state supreme 
courts.
    Since H.R. 2028 strips the federal courts of the ability to 
review state court decisions, including those involving federal 
questions, a lack of uniformity in the law is an imminent 
threat. One's federal rights would depend on the vagaries of 
location. Ultimately, coercing children to recite the Pledge 
may be permitted in one state and not in another.
    This will create the sort of problem that the seminal 
decision in Martin v. Hunter's Lessee anticipated and sought to 
avoid.\52\ (In Martin, the Court held a state law 
unconstitutional for the first time, noting that it would be 
undesirable for the U.S. Constitution to mean one thing in one 
state and something altogether different in another state.) 
Were states the final arbiters of federal constitutional 
questions, the country would be rendered a patchwork of 
inconsistent interpretations. Constitutional protections could 
be strong in one state, and weak or nonexistent in another. 
Minorities in one state could be disenfranchised from the 
federal protections and benefits afforded citizens of another 
state, prompting class holders of rights to cluster upon 
jurisdictional lines.
---------------------------------------------------------------------------
    \52\ See supra, note 14. Affirming the Supreme Court's ability to 
review matters of state common law, statutory law, and constitutional 
law to effectuate national uniformity of law under the Federal 
Constitution.
---------------------------------------------------------------------------
    Both of the legal scholars who testified earlier this year 
at the Committee's hearings on Congressional power to control 
federal court jurisdiction with respect to the Defense of 
Marriage Act agreed that such legislation in general was 
inadvisable from a policy perspective. Professor Gerhardt 
testified that ``a proposal excluding all federal jurisdiction 
regarding a particular federal question undermines the Supreme 
Court's ability to ensure the uniformity of federal law. . . . 
This allows for the possibility that different state courts 
will construe the law differently, and no review in a higher 
tribunal is possible.'' \53\
---------------------------------------------------------------------------
    \53\ See supra, note 15.

    The Majority's witness, Professor Martin Redish, was even 
---------------------------------------------------------------------------
more blunt in criticizing the legislation:

        as a matter of policy . . . I . . . firmly believe that 
        were Congress to [strip federal courts of jurisdiction 
        in DOMA cases, it] would risk undermining public faith 
        in both Congress and the federal courts. Due to their 
        constitutionally granted independence and insulation 
        from the majoritarian branches of the federal 
        government, the judiciary possesses a unique ability to 
        provide legitimacy to governmental action in the eyes 
        of the populace. Congressional manipulation of federal 
        judicial authority therefore threatens the legitimacy 
        of federal political actions.\54\
---------------------------------------------------------------------------
    \54\ Id. (written statement of Martin Redish).

    Such a complete, unprecedented, and unnecessary stripping 
of federal court jurisdiction would be totally at odds with the 
policy of checks and balances envisioned by the Nation's 
founders. This legislation would bring us far closer to the 
balkanized scenario envisioned by the Articles of 
Confederation, than the unified nation brought forth by the 
Constitution. Contemporaneous writings by two of the Nation's 
most important founding fathers--the principal drafter of the 
Constitution and Bill of Rights, James Madison, as well as the 
author of the Federalist Papers, Alexander Hamilton--indicate 
the importance they placed on a strong and independent federal 
judiciary.
    Thus, when there was disagreement at the constitutional 
convention regarding the need for lower federal courts, Madison 
insisted on provisions permitting their creation. He argued, 
confidence ``cannot be put in the state tribunals as guardians 
of the national authority and interests.'' \55\ Similarly, when 
he introduced the Bill of Rights in the First Congress, Madison 
again emphasized the importance of federal courts:
---------------------------------------------------------------------------
    \55\ 2 Max Farrand, the Records of the Federal Convention of 1787 
27 (1937).

          [I]ndependent tribunals of justice will consider 
        themselves in a peculiar manner the guardians of those 
        rights; they will be an impenetrable bulwark against 
        every assumption of power in the legislative or 
        executive; they will be naturally led to resist every 
        encroachment upon rights expressly stipulated for in 
        the Constitution by the declaration of rights.\56\
---------------------------------------------------------------------------
    \56\ 1 Annals of Cong. 458 (Gales & Seaton ed.) (June 8, 1789).

    Alexander Hamilton also wrote about the importance of 
federal court jurisdiction. In Federalist Number 78, Hamilton 
emphasized the importance of an independent federal judiciary: 
``In a monarchy it is an excellent barrier to the despotism of 
the prince; in a republic, it is a no less excellent barrier to 
the encroachments and oppressions of the representative body.'' 
\57\ In Federalist Number 81, Hamilton expressed further 
support for federal courts being the appropriate venue for 
federal issues, writing:
---------------------------------------------------------------------------
    \57\ The Federalist No. 78 (Alexander Hamilton).

          But ought not a more direct and explicit provision to 
        have been made in favor of the State courts? There are, 
        in my opinion, substantial reasons against such a 
        provision: the most discerning cannot foresee how far 
        the prevalency [sic] of a local spirit may be found to 
        disqualify the local tribunals for the jurisdiction of 
        national causes; whilst every man may discover, that 
        courts constituted like those of some of the States 
        would be improper channels of the judicial authority of 
        the Union.\58\
---------------------------------------------------------------------------
    \58\ Id. No. 81 (Alexander Hamilton).

    The legal precedent that will be set if Congress is 
permitted to simply ``end run'' the Bill of Rights by 
circumventing the federal courts could be far-reaching and is 
adopted here. If this bill passes, we must ask, as we did with 
the Marriage Protection Act, what other rights will next be 
placed at risk? The right to vote? The right to privacy? 
Indeed, many of these proposals are already introduced in 
statutory form.\59\ If H.R. 2028 passes into law, it truly 
could be open season on our precious rights and liberties.
---------------------------------------------------------------------------
    \59\ See, e.g., H.R. 3893 (regarding government exercise of 
religion, sexual orientation, and the right to marry); H.R. 3190 
(regarding government exercise of religion); H.R. 3799 (regarding 
official acknowledgments of religious authority); and H.R. 2045 
(regarding government recognition of the Ten Commandments).
---------------------------------------------------------------------------
    This was our prediction when the Majority was contemplating 
the Marriage Protection Act, and here we are again. In fact, in 
his letter to Members of the U.S. House of Representatives, 
Representative John Dingell (D-MI) warned of the potential 
slippery slope that Congress may end up on as a result of 
passing such problematic legislation:

          Once Congress goes down the path of making any 
        statute immune from constitutional challenge in the 
        Supreme Court, there will be no turning back. If the 
        Marriage Protection Act is not rejected, we should 
        expect to see this dangerous approach repeated on a 
        wide range of other legislation including bills 
        infringing upon the right to bear arms.\60\
---------------------------------------------------------------------------
    \60\ Letter from John D. Dingell to U.S. Representatives (July 22, 
2004).

In a similar vein, Bob Barr, a former Republican congressman, 
noted that this type of bill sets a dangerous precedent because 
court stripping provisions could be added to legislation 
limiting the right to bear arms under the Second Amendment, an 
idea many conservatives would oppose.\61\
---------------------------------------------------------------------------
    \61\ Letter from Bob Barr to U.S. Representatives (July 19, 2004).
---------------------------------------------------------------------------
    Astoundingly, during the Committee markup of the Pledge 
Protection Act, Rep. Steve Chabot (R-OH) conceded that there is 
no telling where the Majority will stop in its quest to strip 
us of our rights and liberties:

          Mr. Nadler. One of the reasons we have a Supreme 
        Court is we have a uniform interpretation of the 
        Constitution, and then your constitutional rights don't 
        depend on what State you are in; they are guaranteed by 
        the Bill of Rights, by the Constitution, and they are 
        the same wherever you are. Your rights under the 
        Federal Constitution should not depend on what State 
        you are in. This would essentially reverse the Civil 
        War. What you are saying is you would have 50 different 
        countries, not one country.
          Mr. Chabot. We are only saying that with respect to 
        one thing, and that is the Pledge of Allegiance.
          Mr. Nadler. With all due respect, if this bill 
        passes, you will be saying that with respect to two 
        things so far, since this is the second bill----
          Mr. Chabot. So far.
          Mr. Nadler. Exactly. That is the point. So far. What 
        are we really saying here . . . is that whenever there 
        is a law that the majority likes that it fears may be 
        declared unconstitutional by the Supreme Court we will 
        have a court-stripping bill . . . and we will end up 
        where you have no uniform Constitution and no uniform 
        Federal law, and the 50 States start going their 
        separate ways.\62\
---------------------------------------------------------------------------
    \62\ Markup of H.R. 2028.

Moreover, if court stripping had been used in the past, the 
Court might never have overturned laws prohibiting inter-racial 
marriage \63\ or permitting segregated education.\64\
---------------------------------------------------------------------------
    \63\ Loving v. Virginia, 388 U.S. 1 (1967).
    \64\ Brown v. Board of Educ., 347 U.S. 483 (1954).
---------------------------------------------------------------------------
    The views of many legal scholars concerning complete 
federal court stripping are consistent with the findings of the 
Task Force of the Courts Initiative of the Constitution 
Project, which concluded, ``legislation precluding court 
jurisdiction that prevents the judiciary from invalidating 
unconstitutional laws is impermissible. Neither Congress nor 
state legislatures may use their powers to prevent courts from 
performing their essential functions of upholding the 
Constitution.'' \65\
---------------------------------------------------------------------------
    \65\ Report of the Citizens for Independent Courts Task Force on 
the Role of the Legislature in Setting the Power and Jurisdiction of 
the Courts, reprinted in: The Century Foundation, Uncertain Justice: 
Politics in America's Courts 206, 217 (2002).
---------------------------------------------------------------------------
    When court stripping legislation was proposed in the 1970's 
concerning school prayer, abortion, and busing, it is no wonder 
that principled conservatives such as former Senator Barry 
Goldwater, former Yale Law professor Robert Bork, and former 
Attorney General William French Smith, among many others, found 
court stripping legislation to be so repugnant.
    Senator Goldwater opposed the proposed court-stripping 
measures, warning that the ``frontal assault on the 
independence of the Federal courts is a dangerous blow to the 
foundations of a free society.'' \66\ Then, in 1985, Sen. 
Goldwater expressed his concern over legislation that would 
have stripped the Supreme Court of jurisdiction on school 
prayer cases:
---------------------------------------------------------------------------
    \66\ See Linda Greenhouse, The Nation: How Congress Curtailed the 
Courts' Jurisdiction, N.Y. TIMES, Oct. 27, 1996, 4 at 5.
---------------------------------------------------------------------------
    I am a little surprised that the Senator from North 
Carolina decided to outlaw the Supreme Court from our life. I 
think it is unconstitutional. The Senator is beginning to get 
into areas now that are frankly none of our business . . . I am 
really kind of surprised that he would write this bill. If I 
wrote it, I would have been ashamed of it.\67\
---------------------------------------------------------------------------
    \67\ Cong. Rec., Sept. 10, 1985.
---------------------------------------------------------------------------
    Robert Bork, a former Yale Law professor and Reagan 
appointee for the D.C. Circuit Court of Appeals, also expressed 
his concern over such court-stripping measures, arguing, 
``[y]ou'd have 50 different constitutions running around out 
there, and I'm not sure even the conservatives would like the 
results.'' \68\
---------------------------------------------------------------------------
    \68\ Quoted in Frank Trippet, Trying to Trim the Courts, Time, 
September 28, 1981.
---------------------------------------------------------------------------
    Moreover, in his letter to Senate Judiciary Chairman Strom 
Thurmond regarding S. 1742, a bill that would have stripped the 
Supreme Court and lower federal courts of jurisdiction over 
school prayer cases, then Attorney General William French Smith 
argued that, ``[c]ongress may not . . . consistent with the 
Constitution, make `exceptions' to Supreme Court Jurisdiction 
which would intrude upon the core functions of the Supreme 
Court as an independent and equal branch in our system of 
separation of powers.'' \69\
---------------------------------------------------------------------------
    \69\ Letter from William French Smith, Attorney General of the 
United States, to the Honorable Strom Thurmond, Chairman, U.S. Senate 
Comm. on the Judiciary (May 6, 1982), reprinted in 128 Cong. Rec. 9093, 
9097 (May 6, 1982).
---------------------------------------------------------------------------
    Efforts by the Majority to discredit our judiciary by 
painting it with the broad brush of ``judicial activism'' are 
both disingenuous and demeaning. Once we parse through the 
thick rhetorical fog surrounding this issue, it becomes clear 
that the Majority's real gripe is with the results, not the 
activist nature, of judicial decisions. As Roger Pilon, a Cato 
Institute Director, acknowledged, ``examples of `judicial 
activism' that are cited, turn out, when examined more closely, 
not to be cases in which the judge failed to apply the law but 
applied the law differently, or applied different law, to reach 
a result different than the result thought correct by the 
person charging activism.'' \70\
---------------------------------------------------------------------------
    \70\ Hearing on H.R. 1252, The Judicial Reform Act of 1997 and 
Federal Judicial Term Limits Before the Subcomm. on Courts and 
Intellectual Property of the House Comm. On the Judiciary, 105th Cong. 
(1997) (written statement of Roger Pilon, Director, Center for 
Constitutional Studies, Cato Institute).
---------------------------------------------------------------------------
    So-called ``conservatives'' are prone to assert that 
Supreme Court decisions protecting a woman's right to choose 
(Roe v. Wade \71\) and a child's right to attend school without 
being subject to compulsory prayer (Engel v. Vitale \72\) 
constitute judicial activism. They herald, however, as landmark 
examples of the Court restraining excessive legislative power 
those decisions that limit Congress's ability to provide 
affirmative action as a remedy to respond to racial 
discrimination (Adarand v. Pena \73\), ban guns in schools 
(United States v. Lopez \74\), require background checks before 
felons can purchase handguns (Printz v. United States \75\), 
and limit campaign expenditures (Buckley v. Valeo \76\).
---------------------------------------------------------------------------
    \71\ 410 U.S. 113 (1973).
    \72\ 370 U.S. 421 (1962).
    \73\ 515 U.S. 200 (1995).
    \74\ 514 U.S. 549 (1995).
    \75\ 521 U.S. 898 (1997).
    \76\ 424 U.S. 1 (1976).
---------------------------------------------------------------------------
    Similarly, when a Bush I-appointed district judge enjoins 
an Oregon ballot initiative allowing for assisted suicide,\77\ 
or a Reagan-appointed district judge dismisses a contempt order 
for violating the Freedom of Access to Clinic Entrances Act 
because the defendants lack the requisite ``wilfulness'' on 
account of their religious convictions,\78\ we hear scant 
criticism from the right wing. But when federal courts in 
California have the temerity to suggest that referenda that 
deny alien children the right to an education\79\ or prevent 
minorities subject to discrimination from benefitting from 
affirmative action may be illegal or inappropriate,\80\ we hear 
storms of protest from the same conservatives.
---------------------------------------------------------------------------
    \77\ Lee v. Oregon, Civil No. 94-6467-HO, 2 (D. Or. 1994).
    \78\ United States v. Moscinski, 952 F. Supp. 167, 170 (S.D.N.Y. 
1997).
    \79\ League of United Latin Americans Citizens v. Wilson, 908 F. 
Supp. 755 (C.D. CA, 1995), remanded 131 F.3d 1297 (1997), aff'd 1998 
U.S. Dist. Lexis 3418 (March 13, 1998) (holding California Proposition 
187 unconstitutional).
    \80\ Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 
rev'd 122 F.3d 718 (1997) (holding California Proposition 209).
---------------------------------------------------------------------------

                    III. H.R. 2028 IS UNPRECEDENTED

    The fact that no other Congress has passed a law that 
totally eliminates the federal courts' ability to review the 
constitutionality of a federal law should give all of the 
Members pause when considering this legislation.
    This empirical assessment was most recently reviewed and 
confirmed by Georgetown University Law Center Professor Mark 
Tushnet, who explained that:

          [T]he very fact that Congress has never attempted to 
        bar access to all federal courts when a person claims 
        that a federal statute violates the Constitution is 
        itself a matter of more than minor significance.\81\
---------------------------------------------------------------------------
    \81\ Letter from Mark Tushnet, Professor, Georgetown University Law 
Center, to the Honorable John Conyers, Jr., 2 (July 19, 2004) (some 
emphasis in original and emphasis added) [hereinafter Tushnet Letter].

    The Majority attempts in vain to find precedent for court-
stripping bills such as H.R. 2028 and H.R. 3313, but at the end 
of the day, they are left with the reality that no bill as far 
reaching and degrading to the federal judiciary as these, has 
never been enacted into law.
    The Majority attempts to justify such legislation through 
several short-sighted appeals. First, it asserts that total 
court stripping laws are supported by precedent enacted by the 
Congress. Second, they argue that such court stripping laws 
were envisioned by the founders. Neither of these assertions is 
correct.
    The Majority then points to several laws they believe to be 
precedents for H.R. 3313 and H.R. 2028. As the following review 
indicates, in addition to being largely outdated, all of the 
precedents they cite are either misstated, constitute only 
partial restrictions on federal judicial review, or do not 
involve issues of constitutional review:
    Judiciary Act of 1789: \82\ The Majority cites as precedent 
the fact that the Judiciary Act of 1789 did not permit the 
Supreme Court (or any other federal court) to review state 
supreme court decisions upholding constitutional challenges to 
federal laws.\83\ In relying on information given to them by 
the Congressional Research Service, the Majority argues that 
the interrelated effects of two sections of that Act, ``operate 
to deny under some circumstances the authority of any federal 
court to review the constitutionality of some federal laws.'' 
\84\ (It is notable that this is the only single law that CRS 
found even remotely close to serving as a precedent for the 
Marriage Protection Act and the Pledge Protection Act--a more 
than 210 year old law, whose applicable provision had since 
been long repealed).
---------------------------------------------------------------------------
    \82\ Act of Sept. 24, 1789, ch. 20, Sec. Sec. 11, 12, 1 Stat. 73 
(1789).
    \83\ H.R. 2028 Markup (statement of Representative Sensenbrenner).
    \84\ Memorandum from Johnny H. Killian, Senior Specialist, 
Congressional Research Serv., to Perry Apelbaum, Minority Chief 
Counsel, U.S. House Comm. on the Judiciary (August 16, 2004).
---------------------------------------------------------------------------
    However, as Professor Tushnet points out, this does not 
prove the Majority's contention that federal judicial review 
can be ignored: ``The underlying thought [at that time] was 
that the national interest was in ensuring that federal rights 
were adequately protected, and that interest was not impaired 
when a state court mistakenly over-protected federal rights. 
After a controversial decision in the early decades of the 
twentieth century, Congress came to the view that there was 
indeed a national interest in ensuring the uniformity in the 
interpretation of national law, and amended the statute 
regarding the Supreme Court's jurisdiction accordingly.'' \85\
---------------------------------------------------------------------------
    \85\ Tushnet Letter at 1 n.2 (referring to Ives v. South Buffalo 
Railway Co., 94 N.E. 431 (N.Y. 1911) and New York Cent. R. Co. v. 
White, 243 U.S. 188 (1917)).
---------------------------------------------------------------------------
    The fact that the only precedent in the history of the law 
of this country that the Majority is able to cite in support of 
their argument is both questionable and obscure, at best, 
speaks for itself. In any event, it is a far different thing to 
prevent individuals from having access to the federal courts in 
order to redeem their constitutional rights than it is to 
prevent states from appealing legal judgments that they lose 
against the federal government in their own state courts.
    Cary v. Curtis: \86\ The Majority also attempts to argue 
that a 19th century federal statute placing jurisdiction for 
all claims of illegally charged customs duties with the 
Secretary of the Treasury represents a precedent for federal 
court stripping. In upholding the statute, the Court stated 
that, under the statute, ``it is the Secretary of the Treasury 
alone in whom the rights of the government and of the claimant 
are to be tested.'' \87\ The Majority, however, misstates the 
decision.
---------------------------------------------------------------------------
    \86\ Cary v. Curtis, 44 U.S. 236 (1845) (reviewing Act of 1839, ch. 
82, 2).
    \87\ Id. at 241.
---------------------------------------------------------------------------
    In fact, the Court decided the case on the basis of 
sovereign immunity, not court stripping. The plaintiff was 
suing the government to recover allegedly improperly charged 
customs fees. The Court stated that: ``the government, as a 
general rule, claims an exemption from being sued in its own 
courts. That although, as being charged with the administration 
of the laws, it will resort to those courts as means of 
securing this great end, it will not permit itself to be 
impleaded therein, save in instances forming conceded and 
express exceptions.'' \88\ Thus, the language alluded to by the 
Majority regarding jurisdiction is mere dicta, and is not 
controlling. Additionally, Cary is distinguishable as a suit 
against the government for money, not a suit asserting that the 
law at issue violates an individual constitutional right.
---------------------------------------------------------------------------
    \88\ Id. at 245.
---------------------------------------------------------------------------
    Ex parte McCardle: The McCardle\89\ case is often cited for 
authority that the Congress may upset a pending Supreme Court 
appeal by limiting the Court's appellate jurisdiction. The case 
involved a habeas corpus petition by an individual who had been 
convicted by a military commission for acts obstructing the 
Reconstruction. In an effort to forestall an anticipated 
adverse ruling, Congress eliminated the Supreme Court's 
appellate jurisdiction to hear the case. The Court held ``[w]e 
are not at liberty to inquire into the motives of the 
legislature. We can only examine into its power under the 
Constitution; and the power to make exceptions to the appellate 
jurisdiction of this court is given by express words.'' \90\ 
However, all that is clear from this case is that Congressional 
power under the exceptions clause is not without some limits.
---------------------------------------------------------------------------
    \89\ 74 U.S. (7 Wall.) 506 (1869).
    \90\ Id. at 514.
---------------------------------------------------------------------------
    The scope of the McCardle decision was narrowed when, in Ex 
Parte Yerger,\91\ which was also a challenge to the 
Reconstruction Act, the Court affirmed its jurisdiction to 
review habeas corpus decisions from lower federal courts when 
the petitions were originally brought under earlier 
legislation.\92\ In light of Yerger, one commentator notes that 
the Court's concession of appellate jurisdiction in McCardle 
was, as a practical matter, quite minimal:
---------------------------------------------------------------------------
    \91\ 75 U.S. (7 Wall.) 85 (1869).
    \92\ Id.

          The statute [involved in McCardle did] not deprive 
        the Court of jurisdiction to decide McCardle's case; he 
        could still petition the Supreme Court for [an 
        original] writ of habeas corpus. [The] legislation did 
        no more than eliminate one procedure for Supreme Court 
        review of the decisions denying habeas corpus while 
        leaving another equally efficacious one available.\93\
---------------------------------------------------------------------------
    \93\ Leonard Ratner, Congressional Power Over the Appellate 
Jurisdiction of the Supreme Court, 109 U.Pa.L.Rev., 157, 180 (1981).

    The Court's decision in Yerger shows that the Justices are 
protective of the Court's jurisdiction and will not readily 
concede its appellate jurisdiction. In McCardle, the Court 
surrendered only a single procedural avenue for appellate 
review, not the ability to hear an entire class of cases. 
Moreover, McCardle, as a war powers case, must be considered 
within the Civil War context from which it arose.
    The Francis Wright: \94\ the Majority also points to 
another 19th century federal law restricting Supreme Court 
jurisdiction in admiralty cases to questions of law arising on 
the record.\95\ The Court upheld the statute in The Francis 
Wright decision.
---------------------------------------------------------------------------
    \94\ The Francis Wright, 105 U.S. 381 (1881) (analyzing Act of Feb. 
16, 1875, ch. 77).
    \95\ See Federal Court Jurisdiction Hearing (statement of Phyllis 
Schlafly).
---------------------------------------------------------------------------
    This case, however, in no way indicates that Congress may 
take a particular class of cases out of the Jurisdiction of all 
federal courts.\96\ It merely deals with the uncontroversial 
claim that in cases involving admiralty jurisdiction, Congress 
may limit the appellate jurisdiction of the Supreme Court.\97\
---------------------------------------------------------------------------
    \96\ The Francis Wright, 105 U.S. at 381.
    \97\ Id.
---------------------------------------------------------------------------
    Marathon Pipe Line: \98\ the Majority also points to dicta 
from Justice Brennan's opinion in the Court's decision in 
Northern Pipeline Construction Co. v. Marathon Pipe Line Co. to 
the effect that matters that could be heard in Article III 
courts could also be heard in state courts.\99\
---------------------------------------------------------------------------
    \98\ Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 
U.S. 50 (1982).
    \99\ See Federal Court Jurisdiction Hearing (statement of Phyllis 
Schlafly).
---------------------------------------------------------------------------
    In point of fact, the actual holding in Marathon Pipe Line 
was that Congress, had invested unconstitutionally broad powers 
in the untenured judges who served in the newly created 
bankruptcy courts. The Supreme Court invalidated the entire 
statutory grant of jurisdiction to the new bankruptcy court 
system set up by the 1978 Act, holding that untenured judges 
could not, consistent with Article III, exercise the judicial 
power of the United States. Even in the dicta cited by the 
Majority, Justice Brennan was endorsing the possible 
constitutionality of partial restrictions on judicial review, 
rather than a complete bar on such review.\100\ If anything, 
the Marathon Pipe Line decision stands for the sanctity of the 
federal judiciary, and the fact that Congress cannot easily 
give federal matters to judges who are not actual Article III 
judges appointed by the president and confirmed by the Senate.
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    \100\ Marathon Pipe Line Co., 458 U.S. at 50.
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    The Johnson Act:\101\ This act ``deprived federal district 
courts of jurisdiction to enjoin enforcement of certain state 
administrative orders affecting public utility rates where `A 
plain, speedy and efficient remedy may be had in the courts of 
such State,' '' \102\ and ``the jurisdiction of the federal 
court was based solely on diversity.'' \103\ ``The legislative 
history of the Johnson Act . . . makes clear that its purpose 
was to prevent public utilities from going to federal district 
court to challenge state administrative orders or avoid state 
administrative and judicial proceedings.'' \104\
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    \101\ 28 U.S.C. Sec. 1342.
    \102\ Ala. Pub. Serv. Comm'n v. Southern Ry. Co., 341 U.S. 341, 350 
(1951).
    \103\ Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 534 (1981).
    \104\ California v. Grace Brethren Church, 457 U.S. 393, 410 
(1982).
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    The Act did not purport to prevent the Supreme Court from 
reviewing state-court rate order decisions, or to preclude a 
challenge to the constitutionality of the Act itself.
    Daschle Brush Clearing Rider: \105\ Most notably, the 
Majority claims that a rider to the 2002 Supplemental 
Appropriations Act authored by Senator Tom Daschle (D-SD) 
approving logging and clearance measures by the Forest Service 
in the Black Hills of South Dakota serves as a precedent for 
the enactment of these types of court-stripping measures.\106\
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    \105\ Supplemental Appropriations Act for Further Recovery From and 
Response to Terrorist Acts on the United States, Pub. L. No. 107-206, 
Sec. 706, 116 Stat. 820, 864 (2002) [hereinafter 706 Rider].
    \106\ See H.R. 3313 Markup (statement of Representative 
Sensenbrenner).
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    The problem with this argument is that, while the rider 
restricted ``judicial review'' of ``any [logging or clearance] 
action'' \107\ by the Forest Service, it did not restrict 
federal judicial review of the rider itself or its 
constitutionality. Indeed, the federal courts did review the 
validity of the rider,\108\ and explicitly found that the 
``challenged legislation's jurisdictional bar did not apply to 
preclude Court of Appeals' review as to the legislation's 
validity.'' \109\
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    \107\ 706 Rider Sec. 706(j). It must be noted that the express 
language of this bill is far broader than the language in the Daschle 
amendment. While the Daschle amendment precluded ``judicial review'' of 
any logging or clearance action, this bill would strip the federal 
courts of ``jurisdiction'' or ``appellate jurisdiction . . . to hear or 
determine any question pertaining to'' DOMA.
    \108\ Biodiversity Associates v. Cables, 357 F.3d 1152 (10th Cir. 
2004).
    \109\ Id. at 1152. Furthermore, in that case, the Tenth Circuit 
Court of Appeals explicitly held that the legislation's restriction on 
judicial review was not absolute because it did not apply to the review 
of the ``congressional act,'' but rather to review of ``the Forest 
Service's acts authorized by the Rider.'' Id. at 1160. Notably, the 
court also held that Congress, in this instance, was acting pursuant to 
an express authorization under Article IV, Sec. 3, cl. 2, to ``dispose 
of and make all needful Rules and Regulations respecting the Territory 
or other Property belonging to the United States.'' Id. at 1156.
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    Other federal statutes cited by the Majority involve only 
partial limitations on federal court jurisdiction or do not 
implicate constitutional issues as H.R. 2028 does. These 
include the Norris-LaGuardia Act of 1932 (federal court 
actually found to have jurisdiction); \110\ the Emergency Price 
Control Act of 1942 (appeals permitted to Supreme Court); \111\ 
the Portal-to-Portal Pay Act of 1947 (deals with a restriction 
on liability, not a constitutional claim); \112\ the 1965 
Medicare Act (court stripping limited to administrative 
determination regarding fee schedule, not constitutional 
issues); \113\ the Voting Rights Act of 1965 (funnels cases 
into the district court for the District of Columbia); \114\ 
and the 1996 Immigration Amendments (eliminates review of 
narrow set of discretionary actions by Attorney General, not 
constitutional issues).\115\
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    \110\ Although characterized in Ms. Schlafly's testimony as having 
``removed from federal courts the jurisdiction [in cases involving 
labor strikes] from the federal courts, and the Supreme Court had no 
difficulty in upholding it,'' Federal Court Jurisdiction Hearing 
(statement of Ms. Schlafly), the Norris-LaGuardia Act did nothing of 
the sort. As the Supreme Court observed in Lauf v. E.G. Shinner, 303 
U.S. 323 (1938), the District Court had jurisdiction to hear the case 
``by the findings as to diversity of citizenship and the amount in 
controversy.''
    \111\ This legislation also did not strip the federal courts, or 
the Supreme Court, of equity jurisdiction to hear cases involving price 
orders. Section 204(a) of the Act allowed an individual whose protest 
against a price control ruling had been denied at the administrative 
level, to take an appeal to an Emergency Court of Appeals set up by 
subsection (c), and take a direct appeal to the U.S. Supreme Court 
under subsections (b) and (d).
    \112\ The section in question states only that ``No court of the 
United States, of any State, Territory, or possession of the United 
States, or of the District of Columbia, shall have jurisdiction of any 
action or proceeding . . . to enforce liability or impose punishment 
for or on account of the failure of the employer to pay minimum wages 
or overtime compensation under the Fair Labor Standards Act of 1938, as 
amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to 
the extent that such action or proceeding seeks to enforce any 
liability or impose any punishment with respect to an activity which 
was not compensable under subsections (a) and (b) of this section.'' It 
is, at best, tautological to state that a court does not have 
jurisdiction to impose liability on an employer with respect to an 
activity that is not compensable.
    \113\ The section Ms. Schlafly cites, 42 U.S.C. Sec. 1395w-4(i)(1), 
does not permit judicial or administrative review of certain factors to 
be taken into account in the setting of a fee schedule for the payment 
of physicians under the Supplementary Medical Insurance Benefits for 
Aged and Disabled. It is only with respect to those particular factors 
that go into the calculation of the fee schedule, that the restriction 
applies. The restriction does not apply to the fee schedules 
themselves, much less to, as Ms. Schlafly put it, ``administrative 
decisions about many aspects of the Medicare payment system.''
    \114\ 442 U.S.C. 1973c places jurisdiction in the U.S. District 
Court for the District of Columbia, with a direct appeal to the Supreme 
Court. This was upheld by the Supreme Court in South Carolina v. 
Katzenbach, 383 U.S. 301, 331 (1966).
    \115\ The limitation of jurisdiction in the 1996 immigration law is 
quite specific and circumscribed. It only bars judicial review of three 
discrete and discretionary actions--the Attorney General's decisions 
(1) to ``commence proceedings,'' (2) to ``adjudicate cases,'' or (3) to 
``execute removal orders.'' See Hatami v. Ridge, 270 F. Supp. 2d 763 
(E.D. Va. 2003).
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    Second, the Majority asserts the founders would have 
expressed support for court stripping legislation.\116\ In this 
regard, the Majority notes that authority such as Hamilton's 
Federalist No. 80 make clear that Congress has broad authority 
to rein in the federal courts. Properly read, Federalist No. 80 
merely restates the Constitution's grant of authority with 
regard to the federal courts generally. It does not sanction 
efforts to eviscerate and degrade the federal courts themselves 
as H.R. 2028 does. In reality, as noted above, Hamilton was one 
of the principal supporters of a strong and independent federal 
judiciary of broad jurisdiction.
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    \116\ H.R. 2028 Markup (statement of Representative F. James 
Sensenbrenner).
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                               CONCLUSION

    Just as we opposed the ill-considered Marriage Protection 
Act, we oppose this court stripping bill. These efforts to deny 
our citizens access to the federal courts constitutes nothing 
more than a modern day version of ``court packing.'' Just as 
President Franklin Roosevelt's efforts to control the outcome 
of the Supreme Court by packing it with loyalists was rejected 
by Congress in the 1930s, thereby preserving the independence 
of the federal judiciary, so too must this modern day effort to 
show the courts ``who is boss'' fail as well.
    We agree with then-President George Washington's warning 
concerning efforts to undermine the judiciary, when he stated:

          Let there be no change [in court powers] by 
        usurpation; for it is through this, in one instance, 
        may be the instrument of good, it is the customary 
        weapon by which free governments are destroyed. The 
        precedent must always greatly overbalance in permanent 
        evil, any partial or transient benefit which the use 
        can at any time yield.\117\
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    \117\ President George Washington, Farewell Address to the Nation 
(1796).

    Justice Jackson echoed these warnings over sixty years ago 
in Barnett, a decision now under attack by this very 
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legislation:

          The very purpose of the Bill of Rights was to 
        withdraw certain subjects from the vicissitudes of 
        political controversy, to place them beyond the reach 
        of majorities and official and to establish them as 
        legal principles to be applied by the courts. One's 
        right to life, liberty, and property, to free speech, a 
        free press, freedom of worship and assembly, and other 
        fundamental rights may not be submitted to vote; they 
        depend on the outcome of no elections.\118\

    \118\ 319 U.S. 624, 638 (1943).
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    It is unfortunate that the Judiciary Committee would 
disparage these eloquent statements by passing legislation such 
as the Pledge Protection Act and the Marriage Protection Act 
that are so totally inconsistent with judicial independence. 
With the passage of this legislation, parents will be stripped 
of their right to go to court and defend their children's 
religious liberty, schools could expel children for acting 
according to the dictates of their faith, and Congress will 
have slammed the courthouse doors shut in their faces. We urge 
the Members to put principle above politics and reject this 
ill-advised and unconstitutional legislation.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.