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Meddling moves against the courts

A Times Editorial
Published July 21, 2006

You can tell it is an election year when the Republican-led Congress takes up a lot of hot-button issues to energize the party's base of voters. After failing to pass proposed constitutional amendments to ban flag burning and gay marriage, the House on Wednesday approved legislation to protect the Pledge of Allegiance from federal court review.

The idea that a federal judge somewhere might strike the words "under God" from the pledge understandably upsets many people. Loud public outrage was expressed when California atheist Michael Newdow initially succeeded in having a federal appellate court set aside the recitation of the pledge in public schools because of its religious invocation. Ultimately, the U.S. Supreme Court threw out the case on technical grounds, though Newdow is back in court trying again.

Such an emotional issue is a perfect foil for a Congress looking to divert attention from the quagmire in Iraq and soaring gasoline prices in this midterm election year. But the Pledge Protection Act is a dangerous measure that has implications for our constitutional system far beyond putting an end to Newdow's challenges.

The bill would strip the federal courts of the power to hear any case involving the pledge, including cases that challenge state laws requiring a student to recite it. As far back as 1943, the U.S. Supreme Court has courageously stood against state efforts to punish religious minorities, such as Jehovah's Witnesses, who refuse to say the pledge because it violates their religion. Under the proposed legislation, that role would fall to state courts, inevitably weakening this historic First Amendment protection.

Once Congress starts down the road of stripping the courts of jurisdiction for certain classes of cases, there is no real end point. Any time the legislative branch disagrees with the courts it can simply carve out another chunk of the judiciary's territory, leaving Congress, rather than the courts, as the ultimate arbiter of constitutional interpretation. The adverse impact of this on the separation of powers and our system's checks and balances would be revolutionary.

Court stripping is likely to undermine the role of the courts as the protector of unpopular groups and ideas. Our individual rights would suddenly depend on the great swings of popular sentiment - a posture directly contrary to the nation's constitutional traditions.

There is a chance that the courts would not accept such congressional meddling in their powers, but Congress should not be testing these limits. The House did us all a disservice by passing the Pledge Protection Act in a bid to score political points. Now it is up to the Senate to put the country's long-term interests ahead of short-term politics.

[Last modified July 20, 2006, 23:54:50]

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