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"Under God" bill threatens judicial independence

July 20, 2006

The "Pledge Protection Act" (HR2389) states:

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

While the bill passed the House (260-167) it's unclear whether or not it is likely to pass in the Senate. Opponents claim that this bill, if it becomes law, would be a critical blow to judicial independence. Congress has the authority to limit the jurisdiction of federal courts, but that power must be exercised cautiously or the judicial system can become crippled.

Stripping the federal courts of jurisdiction on specific issues can result in contradictory and inconsistent rulings as individual state court rulings will have ultimate authority. Stripping the Supreme Court's jurisdiction over questions of Constitutional validity undermines the very purpose of that court and prevents them from revisiting previous rulings. In addition to impacting the jurisdiction of federal courts, this bill ensures that religious and nonreligious minorities have no legal means of defending their rights.

Rep. Zach Wamp (R-Tenn) spoke in support of the bill, stating "We should not and cannot rewrite history to ignore our spiritual heritage." As one ACA member pointed out, "Apparently only the re-write of '54 is acceptable." One wonders if Rep. Wamp is familiar with the history of the pledge...

In 1892, President Harrison proclaimed that a pledge written by Francis Bellamy (and published in the magazine "The Youth's Companion") be included in school ceremonial observances of Columbus Day. In 1924, the pledge was edited, changing the words "my flag" to "the flag of the United States of America." In 1940, the Supreme Court upheld a school district's requirement that students salute the flag and pledge allegiance to it. That decision was challenged and reversed in 1943, with the court ruling that obligatory recitation of the pledge was a violation of the free speech protections afforded by the First Amendment. Congress officially recognized the Pledge of Allegiance in 1945 and passed a law stating that no one could change its words without congressional approval.

If the story of the pledge had stopped here, Rep. Wamp's comment might almost be valid. However, in 1954, President Eisenhower requested that Congress add the phrase "under God" to the pledge. Congress approved that change, providing us with the current version. It is particularly ironic that they chose to insert an incredibly divisive phrase directly before the word "indivisible".

The existence of the phrase "under God" isn't problematic for all atheists. For some it's beneath concern or even an unfortunate but acceptable tradition. For others it represents a much bigger problem. Regardless of your personal position on the significance or constitutionality of the phrase, this bill is a serious threat. It isn't simply an attempt to protect the cherished "pet phrase" of the majority, it is an attack on the very structure of our judicial system - it's an attempt to avoid, by majority edict, a question of Constitutional validity.

Our Constitution exists to protect the rights of the minority from the whim of the majority. Judicial independence is critical to that end and this bill attempts to undermine that authority.

I urge all concerned members to contact their Senators and insist that they oppose this bill. If this bill had been made law in 1941, we'd all be forced to recite the pledge despite our free speech protections.

It's time that our elected officials stand up to support the idea that the freedoms and rights provided by our Constitution exist for everyone and not simply to protect the opinions of those in the majority.

No law should be shielded from Constitutional scrutiny and no just law should need such protection.

-Matt Dillahunty

President, Atheist Community of Austin

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