Saturday, September 25, 2004

This seems unconstitutional

The House just passed a bill forbidding the Supreme Court from considering whether "under God" should be removed from the pledge. From what I remember from Federal Courts, the constitutionality of such issue-specific jurisdictional removals is quite unclear, but most scholars argue that an issue cannot be completely removed from federal court review. I think similar bills have been introduced before regarding abortion and maybe other issues, usually by conservatives. It's interesting, though: wouldn't a pro-life conservative want to keep federal jursidiction over abortion so that the law might change? Surely they don't want Roe v. Wade/Casey "frozen" into the law. But I suppose in the pledge case their purposes are served because the current law - the "default" - is in their "favor."

Personally, I'm uncomfortable with the idea of removing anything like this from federal court jurisdiction. Doesn't doing so implicitly announce a distrust of the federal judiciary? That is, isn't such a direct accusation of ideology on the Court going to hurt the Court's credibility? And if it isn't a direct accusation of ideology - if the House "agrees" that the Court will honestly interpret "under God" according to the Constitution - then either 1) the House thinks it's a better arbiter of the Constitution, which is a serious separation of powers issue or 2) the House is trying to make a de facto amendment to the constitution short of amendment (i.e., the House would be acknowledging that "under God" may violate the First Amendment, but it would be forbidding that fact to ever come out in court).


Blogger Chris said...

Seems you may be assuming:

1) Judicial review is Constitutional; and
2) We shouldn't be concerned about the counter-majoritarian difficulty.

I'm not a big fan of jurisdiction-stripping either, but to defend it for the moment: wouldn't it make sense for such contentious, political issues to be to the political process? Do we really want to Court to strike down something highly popular, when it seems to serve (ostensibly) good ends? And besides -- wouldn't the Court's credibility be more hurt if it struck down "under God"? If it didn't strike down "under God" because it was being politically-minded (and why shouldn't it be?), then aren't they acting as a voice for the people -- even though they are unelected and unaccountable?

September 25, 2004 at 4:08 PM  
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