Monday, July 24, 2006

One Nation Under God

Some would deny it, and foist their denial on the Constitution. The House is taking steps to prevent this:

Jul 19, 2006 (AP)— The House, citing the nation's religious origins, voted Wednesday to protect the Pledge of Allegiance from federal judges who might try to stop schoolchildren and others from reciting it because of the phrase "under God."

. . .

The pledge bill would deny jurisdiction to federal courts, and appellate jurisdiction to the Supreme Court, to decide questions pertaining to the interpretation or constitutionality of the pledge. State courts could still decide whether the pledge is valid within the state.


Opponents are arguing -- what else? -- that the bill is itself unconstitutional. Perhaps they have a point in terms of usage: that word can mean pretty much anything one wants it to mean; it has been watered down to a mere rhetorical trope. But here is what the Constitution actually says, for those interested:

In 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 before mentioned, 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.


Those invoking separation of powers have no case, as that doctrine is balanced by checks and balances, and Congress has one heck of a mighty check when it comes to the Supreme Court's appellate jurisdiction! This may seem passing strange, but only because Congress has been asleep at the wheel for so long, allowing the Court to usurp so much power that no one remembers that the overwhelming majority of cases it decides could be stripped from the federal courts altogether by a mere congressional majority -- not even a constitutional amendment.

Of course, the SC is so bloated with power it could rule that the Congressional act is invalid, not for stripping the SC of power (and no bias of course), but for having improper motives: the infamous Lemon Test may strike again! (For those not in the know: any law passed for religious motives, and with which the Court disagrees, can be ruled in violation of the first amendment. In this case, if historical accuracy about our nation's relationship to God is deemed a religious purpose -- and how can it not be since the Court's doctrine presupposes the opposite relation to God? -- this otherwise valid law could be ruled null and void.) Only an all out war between Congress and the Court could tame it now, unless the justices decide prudently to back down, or to revert to the Constitution voluntarily.

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