The Pledge and Jurisdiction Stripping

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! reports:

.. Democrats said the bill would damage a system of judicial review that has been fundamental to government for 200 years. “We’re playing with fire here, we are playing with the national unity of this country,” by letting each state make its own interpretation of constitutional law, said Rep. Jerrold Nadler, D-N.Y

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:

“The issue today may be the pledge, but what if the issue tomorrow is Second Amendment (gun) rights, civil rights, environmental protection, or a host of other issues that members may hold dear?”

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.

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21 Responses to The Pledge and Jurisdiction Stripping

  1. 1
    Amanda says:

    I guess since God is a man and we are all under God, then it is emasculating feminism not to just say so all the time. Or something like that.

  2. 2
    NancyP says:

    Akin is local, and is even more of a winger than the guy he replaced, Jim No-Talent, now US Senator. Akin’s district includes both the wealthiest suburbs in St. Louis and the fast-growing young white suburbs, and has no significant minority component, which is districted into the “safe” seat of Lacy Clay (mid integrated and north black city, north black suburbs). The wealthy are taken care of by the tax cuts, the young evangelicals get their fix of piety, and relatively few people in the district are actually going bankrupt or begging for health care. The wealthy don’t need to be told about the tax benefits of voting for this winger, and the religious folk who may be feeling one paycheck or illness from disaster can be mollified by the anti-abortion, anti-gay, pro-mandatory public religion symbolic stuff.

  3. 3
    Bill Nazzaro says:

    The Congress can not remove jurisdiction from the Supreme Court. It can regulate which matters must go to the SCOTUS directly, do pass the circuit courts, do not collect $200.00.

  4. 4
    lucia says:

    Amanda, I knew you’d like the “emasculate” idea!

  5. 5
    mooglar says:

    …and since all good, right-thinking Americans are Christians, it’s godless satanism not to want “God” mentioned in the Pledge.

    Even though many of the Founding Fathers were not Christians.

    And that the First Amendment guarantees freedom of religion.


  6. 6
    jennhi says:

    If it passes and it’s unconstitutional, can we challenge it through the courts? How would that work? Would judges refuse to rule on it if it was challenged in conjunction with the Pledge case? It’s kind of an endless loop.

    What happens if Congress passes another law forbidding the courts from ruling on the forbidding ruling law? Arrrgh!

  7. 7
    Phi says:

    How is it that so many people who support gay marriage, and many other progressive ideas, take offense to a little thing like “under God”?

    It doesn’t hurt you or effect your life in any way. It’s not shoving religion down peoples throat. It’s not state sponsored religion. It’s just a damn word.

    I am not a religious or even spiritual person, and I fail to see why this is such a big deal. I have never understood why this touches a nerve with supposedly open minded, progressive folk. People claim righteous superiority through a nuanced, gray area view of the world, and use words like “God” and “Christian” like some kind of slur. I’m sick and tired of God being a dirty word.

  8. 8
    Eileen says:

    Phi, render unto Caesar the things that are Caesar’s, and unto God the things that are God’s. The pledge is Caesar’s, and not God’s.

  9. 9
    Phi says:


    Maybe I am dense, I don’t understand your point.

    Are you saying the objection to “Under God” is that the Pledge of Allegience is man’s pledge, not belonging to God? “Liberals” are offended that we’re using God’s name in vain?

    Could you be a little less cryptic for this midwestern conservative boy?

    I understand that this post is about the supreme court pre-empting tactics of late, but I really want to know the heart of your objection to “Under God”.

  10. 10
    lucia says:

    What happens if Congress passes another law forbidding the courts from ruling on the forbidding ruling law? Arrrgh!
    This is an interesting question. I’ve wondered the same thing– but I would think the constitutional question there must be clear. If a law on jurisdiction stripping is unconstitutional, a law barring the courts from evaluating a law on jurisdiction stripping would be unconstitutional too!

    On the words “under god”, my preference would be to go back to the original pledge, which didn’t include them. That said, this is not a big issue for me. But, the jurisdiction stripping attempts bother me a lot. There is no reason our entire judicial system should be revamped for, as Phi descritbes it, a “little thing” like the two words, “under god”.

  11. 11
    Rad Geek says:

    In reference to the insertion of “Under God” into the Pledge of Allegiance, Eileen quoted the famous saying of Jesus, “render unto Caesar the things that are Caesar’s, and unto God the things that are God’s,” found in each of the synoptic Gospels (Matt 22:18-21, Mark 12:14-17, Luke 20:22-25). Phi responded by asking, ‘Are you saying the objection to “Under God” is that the Pledge of Allegience is man’s pledge, not belonging to God? “Liberals” are offended that we’re using God’s name in vain?’

    Well, I don’t know Eileen, and I can’t be sure of the point that she was making. But doing a bit of Biblical exegesis should offer a pretty clear charitable reconstruction of the point. *If* you claim to care about God as you find Him in the Bible, then there are some pretty clear indications–Jesus’s admonition included–of the need to distinguish the powers of this world from the authority of God. To use human power to force people to recite a pledge of allegiance invoking the name of God and associating the provenance of that State with the eternal authority of God is not taking God’s name in vain so much as it is idolatry. When Jesus says to “render unto God the things that are God’s,” he demands that we recognize the difference between the power we concede to the State and the higher authority that we recognize in God. The theologico-political “Pledge” that our kids are forced to recite every morning systematically obliterates that distinction.

    Surprised that “liberals” would care about what Jesus would have to say? That would only make sense if you think that “liberals” are, as such, non-Christian or anti-Christian. But why would you think that? The Christian Left is an old and well-established political tradition; Christian Leftists played key roles in the abolitionist, feminist, labor, socialist, anarchist, civil rights, anti-war, and anti-death penalty movements. Until the late 1960s when people spoke of “Christian activism” it almost invariably meant some variety of socialism, of the Walter Rauschenbusch variety, not the Religious Right activism that hogs the spotlight today.

    (N.B.: I am not a Christian. Nor am I a liberal. But I care a great deal about both Christianity and liberalism, and the importance and influence that they have had in history.)

    In any case, if you profess to care about God as you find Him in the Bible, you shouldn’t be concerned about what liberals think, or what conservatives think, or, for that matter, what I think. You ought to be concerned about what God thinks, and if the message of the Bible is clear (as I think, on this point, it is), then the importance of contextual facts about the messanger pointing it out should be vanishingly small.

  12. 12
    Rad Geek says:

    lucia says: On the words “under god”, my preference would be to go back to the original pledge, which didn’t include them. That said, this is not a big issue for me. But, the jurisdiction stripping attempts bother me a lot. There is no reason our entire judicial system should be revamped for, as Phi descritbes it, a “little thing” like the two words, “under god”.

    I agree that “Under God” in the Pledge is, of all the issues in the world to be dealing with, a pretty lame and unimportant one; and also that the attempts of Congress to usurp the federal judiciary are worrying, and of much more concern here than the specific issue over which they’re being launched. But I’m a bit puzzled when lucia says she would prefer the original (1892) pledge. I suppose it’s better than the theocratic version of the pledge, but why should children be forced to recite any pledge of allegiance daily–well before they have had the chance to think at all about what it means to owe allegiance to a state, or learned much of anything about the history and nature of the republic to which they are pledging allegiance? Why should anyone be compelled to make a daily ritual of obesiance toward the state if they don’t understand it or don’t believe in it? That’s the sort of unthinking enforced “loyalty” ritual that tends to characterize authoritarian regimes–not what you’d expect out of a free society. (I actually think that’s all of one piece–whatever the conditions outside the classroom, government schools are authoritarian regimes rather than free societies. But that is, perhaps, another diatribe for another day.)

  13. 13
    Soul says:

    Given the havoc the 11 Ammendment has played with the section of the constitution enabling the congress to do this, nobody really has any clue if this is legal or not. My feeling is, since it will ultimately be the supreme court who decides this, and since it is fudgeable, it won’t be legal. It would gut the entire court system, and lead to a whole lot of things that would severely destablize our country.
    It would create two regions with two seperate system of laws. Or worse yet, one region with laws only 30% of the population would support. This could be electorally solved, except Republicans would almost certainly toy with the electoral system and declare elections outside of the SCOTUS jurisdiction (anyone who thinks this is paranoid must not remember Republicans threatening to hold the election in the House in 2000 if they didn’t get their way). Their party is too extreme. Democracy is held together with duct tape and chewing gum. If they keep up with this sort of thing, it’s going to fall apart and then all hell will break lose.

  14. 14
    Jason Kuznicki says:

    Soul: The “threat” to hold the election in the House was merely a suggestion that we the procedure that the constitution explicitly established for electoral college failure. There was nothing arbitrary or unconstitutional about it.

  15. 15
    The Doctor says:

    I would like to personally thank Phi for having an opinion which seems to take some “common sense” to this argument. It is right and proper for the word “under God” to be present in a national pledge which claims a historic tradition which includes some form of divity. Let us not forget that at one time the Congress intended for our money contain the words “Jesus Christ Our Lord,” but the term was replaced with, “In God We Trust” because they wanted to be inclusive of non Christian sects.

    Thus, why do not the Liberal, Feminist and so-called open minded people not want this pledge? Maybe because they want their nation to have no rememberance of their national religious history. We should never forget that the “truth shall set you free.” And, “Under God” and “In God We Trust” was a comprimise that reflects our national character and strength, and it’s right to keep it in our pledge. Thanks for your common sense approach Phi.

  16. 16
    NancyP says:

    What “historical tradition”, “the doctor”?

    The words “under God” were inserted into the already traditional Pledge in the mid 1950s, during the Eisenhower administration, as a rebuke to Godless Communism. Apparently God got by just fine before 1954, and did not exact retribution on the US for its neglect by causing Hitler and Hirohito to win (see Philip Dick, The Man in the High Castle).

    The major point is this worrisome concept of Court-stripping. Why shouldn’t this be used to take away basic civil rights of immigrants, dissidents labelled as terra-ists (eg, evil anti-nuclear nuns), and so forth? The role of the courts, occasionally lived up to and occasionally ignored, is to protect individual rights, not just the rights of the corporation or government.

  17. 17
    Amanda says:

    As an atheist who was all but forced to pray in school, I would point out that not every belief is covered by a generic “God”.

    But I agree with Rad Geek–forcing the Pledge on children is troublesome in many ways, not the least of which is religious freedom. Many religions forbid pledging allegiance to nations or governments, and children of these faiths are being discriminated against.

  18. 18
    Jake Squid says:

    Once I understood what the pledge of allegiance was (in 4th or 5th or 6th grade, I’m not sure), I stopped standing and reciting it. I was pissed that I’d been made to say stuff that I didn’t understand to a piece of cloth. I was more pissed by the anger and disappointment displayed by teachers and classmates at my refusal to stand and recite. I had not yet become an atheist at that time, so “under god” had nothing to do with the problem. Rad Geek is absolutely correct about the immorality (my word) of having children mindless pledge an oath of loyalty that they are not yet capable of understanding. I might feel differently if, at the beginning of each school year, the Pledge was explained and analyzed for the students. But probably not.

  19. 19
    Jake Squid says:

    should be “mindlessly”

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