Remember when the house passed a bill to prevent the federal courts from hearing DOMA challenges? Now, they’ve passed a similar bill to prevent the federal courts from hearing challenges over the words “under God” the Pledge of Allegiance!
Why risk damaging our traditional system of judicial review for two words in the Pledge of Allegiance? Well, Rep. Todd Akin, R-Mo., is worried that, should the courts strip the words “under God” from the pledge, “we will have emasculated the very heart of what America has always been about.” Oh my! Does he mean feminism might win?
For my part, if each state had it’s own point of view on the question of “under God”, I would still myself able to sleep at night. But the precedent of jurisdiction stripping would be a bad one. As Rep. Judy Biggert, R-Ill., who supported stripping jurisdiction from lower federal courts, but retaining jurisdiction at the Supreme Court, noted:
Of course, we all know the issue came up, to use a metaphor, yesterday. That time the issue was same sex marriage. The constitutionality of jurisdiction stripping was discussed widely. Notable discussions are available at: Volokh who thinks it’s probably constitutional, Ox Blog who thinks it’s not and Findlaw who thinks the issue is unclear.
Constitutional or not, jurisdiction stripping is a bad idea. Hopefully, the Senate will not pass this bill. If they do, hopefully the whole idea is unconstitutional. That could keep this strategy from exploding on to the scene and affecting every civil right the American people retained.
Balkinization has an interesting article which appeared at 1 am Sept. 25.