Pledge Protection Act of 2005

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I really hate to be an ``I told you so,'' but when, in 2003, we considered legislation to strip the Federal courts of jurisdiction, in that case to hear cases challenging the Defense of Marriage Act, I warned that there would be no end to it.

In fact, when we first marked up this bill, I asked my friend, the chairman of the Constitution Subcommittee, whether there would be other court-stripping bills. He assured me that this and the marriage court- stripping bill were the only ones ``so far.'' As we know, he was being, as always, truthful.

Our former colleague Bob Barr, the author of the Defense of Marriage Act, whose legislation Congress was purporting to protect in that case, said, no thanks.

He wrote: ``This bill will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. During my time in Congress, I saw many bills introduced that would violate the takings clause, the second amendment, the 10th amendment, and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by this bill.''

Bob Barr was right. Today it is the turn of the religious minorities.

Once upon a time in this country a student could be expelled from school for refusing to cite the Pledge because it was against his or her religion. In 1943, the Supreme Court in West Virginia Board of Education v. Barnette held that children, in that case Jehovah's Witnesses, had a first amendment right not to be compelled to swear an oath or recite a pledge in violation of their religious beliefs.

This legislation would, of course, strip those families of the right to go to court and to defend their religious liberty. Schools would be able to expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces.

As dangerous as this legislation is, even for an election season, it is part of a more general attack on our system of government which includes an independent judiciary whose job it is to interpret the Constitution even if those decisions are unpopular. It is their job to protect individual rights, even if the exercise of those rights in given instances are unpopular.

Sometimes we do not like what the court says. I don't like that the Supreme Court struck down part of the Violence Against Women Act, or that they struck down part of the Gun Free Safe Schools Zones Act, or that they are misapplying, in my opinion, the commerce clause and the 11th amendment in order to gut some of our civil rights laws. I really didn't like it that Republican-appointed justices traversed, perverted justice in order to put someone in the White House who got more than half a million votes less than the other candidate who really won the election.

I don't hear my colleagues on the other side screaming about judicial activism by unelected judges in these cases.

As wrong as I believe the current Supreme Court to be on many issues, I understand that we cannot maintain our system of government and especially our Bill of Rights if the independent judiciary cannot enforce those rights, even if the majority doesn't like it.

Again, I will refer to the Soviet Stalinist Constitution of 1936, which had many rights in it, freedom of speech, freedom of association, freedom of the press, freedom of religious and antireligious propaganda, as they quaintly put it. But, of course, it wasn't worth the paper it was written on because they had no judicial enforcement of it, and if you tried to bring a lawsuit to enforce your right, they shot you before they brought you to court. Any constitutional right without the ability to enforce it in court is no right.

This House appears infected with hostility toward the rule of law. This bill is a perfect example. Even more egregious is the way it has reached the floor. The Judiciary Committee twice voted against reporting this bill to the House. The ``no'' vote was bipartisan. Now the Republican majority is abusing its power to bring it to the floor anyway.

Neither the Parliamentarian nor the Congressional Research Service has been able to find any other case like this. They report, ``We found one instance of a bill, a joint resolution, between the 100th Congress and the current Congress, in which a committee specifically voted not to report a measure that was later considered by the House.'' That measure was a 1996 agriculture bill that was rejected in committee and later folded into a reconciliation bill.

Now the Republican majority exceeds even that arrogance. We are asked to vote on a bill that guts our system of government and guts the protection of our individual rights when the committee tasked with the consideration of this bill rejected it. It must be an election year.

To return to Justice Jackson and the flag salute case, he observed that, and I quote because it is very apposite here, ``The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.''

But now some would strip the courts of any ability to protect these individual rights against a temporarily intolerant majority.

As to the complaints about unelected judges, I would refer my colleagues back to their high school civics textbooks. We have an independent judiciary precisely to rule against the wishes of the majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one and we should protect it.

As Alexander Hamilton said in Federalist Number 78, ``The complete independence of the court of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.''

Where would this bill leave religious liberty? The Republicans tell us State courts can protect those rights. What would this mean? It would mean that your rights might be protected in one State, but not in another. I thought the 14th amendment to our Constitution settled that issue.

One of the reasons we have a Supreme Court is so that the Federal

Constitution means the same thing in New York as in California or Mississippi or Minnesota. This country must be one country, not 50 separate countries.

We are really playing with fire here. Do you really hate unpopular religious minorities so much that you are willing to destroy the first amendment? I urge my conservative colleagues especially to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities, even if the majority hates them or hates the expression of their opinion.

If someone doesn't want to recite the Pledge of Allegiance or doesn't feel conscientiously able to recite the words ``under God,'' that is their privilege. Our Constitution protects it, our civil liberties protect it, this country should protect it, and I urge the defeat of this bill.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Mr. Speaker, the gentleman is commenting and his entire speech was about the desirability or the worth of the words ``under God,'' which I think almost everybody agrees with. The issue in this bill is court-stripping. Do we take away from the courts the right to decide, to protect people's rights?

Mr. Speaker, Mr. Stearns may be right in everything that he is saying, but he does not seem to have the confidence that the courts will agree with him, because if he did, he would not be supporting this legislation.

I yield myself 10 seconds so I can yield to the gentleman from Florida.

To overrule the Supreme Court? Certainly we do not have that.

We have the right, but I do not believe we have the right, given the fact that the Bill of Rights postdates the grant of the jurisdiction-setting authority in the Constitution, I do not think we have the right to take away from the Supreme Court the ability to protect constitutional rights.

Mr. Chairman, I yield 5 seconds to the gentleman from Virginia (Mr. Scott).

Mr. Chairman, I yield 5 minutes to the gentleman from California (Mr. Berman).

Mr. Chairman, I will yield the gentleman 30 seconds, and yield for an answer to how he would have prevented, under this bill, all the States from negating the Supreme Court's Brown v. Board of Education ruling.

Mr. Chairman, I yield 2\1/2\ minutes to the distinguished gentleman from California (Mr. Rohrabacher).

Mr. Chairman, I now yield 3 minutes to the distinguished ranking member of the Judiciary Committee, the gentleman from Michigan (Mr. Conyers).

Mr. Chairman, I yield to the gentleman from Texas for a unanimous consent request.

(Mr. GENE GREEN of Texas asked and was given permission to revise and extend his remarks.)

Mr. Chairman, how much time do I have left?

The other side?

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, every word that we have heard uttered on this floor by the majority side has, as Mr. Scott said, increased the likelihood of the courts ordering that the words ``under God'' in the Pledge of Allegiance cannot be recited in a public, in a school situation where there is an imputation of coercion or pressure because the students are, in fact, under the direction of the State agent, namely, the teacher.

As someone who very deeply believes in God, I think it is insulting to say that the words ``under God'' are not important, and yet that is the defense that is offered in court because the Constitution says there should be no establishment of religion. Well, saying that schoolchildren must recite the Pledge of Allegiance with the words ``under God'' is not an establishment of religion. The defense is, no, it is not because this is de minimis; it is not important; it is minor. I do not believe the words ``under God'' are minor or de minimis, unimportant. I think that it is an insult to religion.

But that whole question is for the courts, not for us, and here we are seeing another bill to strip the courts of jurisdiction. We are getting to a point where it is becoming boilerplate in any controversial issue to say the courts shall not have jurisdiction.

Consider this, the Defense of Marriage Act, the Pledge, we passed the bill a few weeks ago on the floor here saying that no funds should be expended to enforce a court order in some court in Indiana because we do not like what the courts do, or we think we might not like what the court will do; we will strip them of jurisdiction.

This is a danger to all our constitutional rights. The only thing that protects our rights as Americans, that

protects our freedom of speech, religion, press, assembly, et cetera, is the ability to go to court and tell the President or the Governor or whoever, you cannot do that, you cannot force them to do that, you cannot put them in jail for not doing it. Without the protection of the court, rights are meaningless.

There is a maxim in law: There is no right without a remedy. What we are doing here is saying to people who are unpopular, to people who may not want to recite the words ``under God,'' they may be wrong and unpopular, but we are saying you cannot go to court to defend yourself and assert your constitutional rights. It is very dangerous. As was pointed out before, if we had done that before, we would still have segregation in this country because in every State we would have stripped the Supreme Court of the ability to declare separate but equal schools unconstitutional. The State courts would have soon said it is fine, and we would still have Jim Crow.

Almost lastly, we should not have a separate law in every State. We should not have the Constitution mean different things in New York and New Jersey. We should be one country. That is why the Supreme Court is vested with jurisdiction to rule on appeals from the State supreme courts.

Finally, this bill is itself unconstitutional. Someone said that the courts have upheld Congress' ability to limit jurisdiction. Sure, they have. Every single case has upheld limitations to jurisdiction, regardless of subject matter, never with regard to constitutional claims, not one case in the history of the Republic.

At a hearing that was held 2 years ago on a similar bill, the majority witness, the Republican witness, professor of constitutional law, said the following: ``The due process clause of the fifth amendment requires that a neutral, independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner,'' which is what this bill does.

There is no ability, for example, to constitutionally provide that Republicans, but no one else, may have access to the Supreme Court. No one will think Congress could do that. This bill is clearly unconstitutional for the same reason.

Mr. Chairman, I yield back my time.

Mr. Chairman, I claim the time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, we are now down to the heart of the matter. This entire spectacle is aimed at a possible decision by one Court that the directed recitation by school children under the instruction of their teacher of the phrase ``under God'' may violate the first amendment rights of those children.

Let's be clear. Nowhere in the United States is the use of the phrase ``under God'' prohibited in the public schools. In the only two cases in which the Court ruled that the directed recitation of the phrase ``under God'' violated the establishment clause, the Supreme Court vacated one ruling, and has issued a stay preventing the second ruling from interfering with the recitation of the Pledge.

For this we need to take a chain saw to the Constitution? For this we need to endanger the religious liberty of religious minorities like the Jehovah's Witnesses, who were thrown out of school because their religion barred them from saying the Pledge?

Only the Supreme Court protected their rights in violence against Jehovah's Witnesses that ensued.

This bill would not only prevent the Supreme Court from ruling on the constitutionality of directing school children to recite the phrase ``under God,'' it would also overturn the 1943 Supreme Court Jehovah's Witnesses case and allow the punishment or expulsion of school children for refusing to recite a pledge that violates their religion or their conscience.

We may be endowed, Mr. Chairman, by our Creator with certain unalienable rights, but people can, and routinely do, violate and take away those rights. That is why we need a Supreme Court, to protect these rights even when political majorities will not.

Supporters of this bill have candidly said they disagree with the Supreme Court, and that, in their opinion, the Supreme Court has gone beyond its powers, and that we, in effect, should overrule it and prevent them from ruling in these cases. We have heard this before. Look at the notorious ``Southern Manifesto'' against the Supreme Court decision in the Brown v. Board of Education 50 years ago: ``We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.''

That is what we hear whenever people disagree with the Supreme Court, in the school desegregation cases and now. And this amendment makes the point of the bill explicit.

The sponsors are afraid of what the Supreme Court may do in a pending case on this subject that may come before them and therefore explicitly strip the Federal courts of jurisdiction even over a pending case. This is Congress saying to a specific plaintiff, we do not approve of your claim of a violation of your constitutional right; so we are going to shut the courthouse door in your face.

This is a dangerous enterprise. I respect my friend's concerns and his right to disagree with the courts, but we must not destroy our Constitution and the one independent bulwark of our liberty. I urge defeat of this bill.

Mr. Chairman, I yield for the purpose of making a unanimous consent request to the distinguished ranking member of the Judiciary Committee, Mr. Conyers.

(Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I will not use the 1\1/2\ minutes. I will simply say that this amendment is dangerous for the same reason that the bill is dangerous. We should not say, in the case of this amendment, to someone who is a plaintiff in a court in a pending case, we are going to shut the courthouse door in your face because we are afraid the Supreme Court might issue a decision. It has not done it yet, but we are afraid the Supreme Court might issue a decision that we disagree with. We do not trust the courts. We do not agree with them. Never mind that George Bush has appointed two new members of the Court. We still do not agree with it, and, therefore, we are going to try to strip them of their jurisdiction.

That way strips the protection of our liberties from us. We need the courts to protect our liberties. Our constitutional rights can only be vindicated by the courts stepping in when the political branches of government violate the rights of unpopular minorities. That is what the courts have done throughout our history, and we need that protection to continue. And that is why this bill is not only subversive of our constitutional rights, but unconstitutional.

The bill ought to be defeated. The amendment ought to be defeated.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I rise in opposition to H.R. 2389, the Pledge Protection Act of 2005.

This bill precludes any Federal judicial review of any constitutional challenge to recitation of the Pledge of Allegiance--whether it be in the lower Federal courts or in the highest court in the land, the U.S. Supreme Court. Effectively, if passed, this extremely vague legislation will relegate all claimants to State courts to review any challenges to the pledge. This possibility will lead to different constitutional constructions in each of the 50 States.

The only way to make this bill palatable is to adopt the Jackson-Lee amendment, which provides for an exception to the bill's preclusion for cases that involve allegations of coerced or mandatory recitation of the Pledge of Allegiance, including coercion in violation of the First Amendment or the Equal Protection clauses. Opposing the Jackson-Lee amendment is tantamount to endorsing the coercion of children to mandatory recitation of the Pledge of Allegiance.

Closing the doors of the Federal courthouse doors to claimants will actually amount to a

coercion of individuals to recite the pledge and its ``under God'' reference in violation of West Virginia State Board of Education v. Barnette. In Barnette, the Supreme Court struck down a West Virginia law that mandated school children recite the Pledge of Allegiance. Under the West Virginia law, religious minorities faced expulsion from school and could be subject to prosecution and fines, if convicted of violating the statute's provisions. In striking down that statute, Justice Jackson wrote for the Court:

``To believe in patriotism will not flourish if patriotic

ceremonies are voluntary and spontaneous instead of a

compulsory routine is to make an unflattering estimate of the

appeal of our institutions to free minds . . . If there is

any fixed star in our constitutional constellation, it is

that no official, high, or petty can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters

of opinion or force citizens to confess by word or act their

faith therein.''

H.R. 2389 would strip parents of their right to go to court and defend their children's religious liberty. If this legislation is passed, schools could expel children for acting according to the dictates of their faith and Congress will have slammed the courthouse door shut in their faces. When I was a child, I always wondered why, when the rest of the class recited the Pledge of Allegiance, one little girl always sat quietly. Today, I understand that it was because she was of the 7th Day Adventist faith and therefore reciting the ``under God'' provision would force her to undermine her religious faith. If H.R. 2389 were law back then, the school administrators could have forced her to say the pledge and she would have no recourse in the Federal courts.

The problem with this bill is that it does not protect religious minorities, Mr. Chairman.

Article III, Section I of the U.S. Constitution vests ``the Judicial Power of the United States . . . in one supreme court.'' The list of subject matter areas which the Federal courts have the power to hear and decide under section 2 of Article III establishes that, ``The Judicial power shall extend to all cases . . . arising under this Constitution.'' For over 50 years, the Federal courts have played a central role in the interpretation and enforcement of civil rights laws. Bills such as H.R. 2389 and the Federal Marriage Amendment we debated yesterday are bills to prevent the courts from exercising their article III functions and prohibiting discrimination. We cannot allow bad legislation such as this to pass in the House, and thereby eviscerate the Constitution and the values upon which this nation was originally founded. In the 1970s, some Members of Congress unsuccessfully sought to strip the courts of jurisdiction to hear desegregation efforts such as busing, which would have perpetuated racial inequality. We did not allow it then, and we should not allow it now.

H.R. 2389, as drafted, insulates the Pledge of Allegiance as set forth in section 4 of title 4 of the United States Code from constitutional challenge in the Federal court. The Jackson-Lee amendment protects children from being coerced or forced into reciting the Pledge of Allegiance against their will.

However, the statute and the pledge are subject to change by future legislation bodies. This means that if some future Congress decides to insert some religiously offensive or discriminatory language in the Pledge, the matter would be immune to constitutional challenge in the Federal courts.

Mr. Chairman, I ask unanimous consent to place in the Record a copy of a letter dated July 18, 2006 from the American Bar Association which supports my claims.

Mr. Chairman, I ask that my colleagues vote to protect religious minorities, vote to protect judicial review, vote to protect separation of powers, and vote to protect access to the Federal courts. I urge my colleagues to vote against H.R. 2389.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I would imagine that Members across the campus in their offices and maybe even committee rooms are moved by the impassioned pleas by my friends on the other side of the aisle, so I want to make a pledge, and that is that I have stood on the floor of the House and acknowledged the importance of having our schoolchildren and others of America acknowledge and say the Pledge of Allegiance every single day. I stand by that statement.

What bothers me is when Members come to the floor and vote, they will look to the name of the proponent and they will simply vote ``no.'' They will not understand the crux of the debate. They will not understand the sheer quarrel or the sheer amazement that we have with this particular legislation in the first place.

This legislation deals with the idea of protecting the Pledge of Allegiance by denying access to the courthouse. My amendment is simple. It gives real meaning to the Pledge of Allegiance and the patriotism that is felt when it is recited by making it clear that no one can be forced or coerced to recite the Pledge of Allegiance or retaliated against for not reciting it in those cases where doing so violates one's religious beliefs.

What is the hindrance of Members agreeing to allow one to be able to access the courts on the simple ground that it violates one's religious beliefs?

In this way, my amendment ensures that the Pledge of Allegiance is being recited freely, voluntarily and without coercion or fear of retaliation. In this way, a recited Pledge of Allegiance remains sacrosanct, and our national commitment to religious freedom is preserved.

Might I cite for my friends a quote from President Reagan, the great communicator himself, who said in 1983, ``The first amendment of the Constitution was not written to protect the people of this country from religious values, it was written to protect religious values from government tyranny.''

What I would suggest is to close the courthouse door is an example of government tyranny. It means that if my 6-year-old friend by the name of Hazel, who had a religious belief, whose family had a religious belief, who was allowed to sit silently in her seat when all of us stood to say I pledge allegiance, that little girl, if forced by any school system to do so, now has the courthouse door closed to her.

It means that we are ignoring the West Virginia State Board of Education versus Barnett case that mandated that school children recite the Pledge of Allegiance. This was done in West Virginia. Under West Virginia law, persons who on religious grounds refused to recite the Pledge faced expulsion from school. But Justice Jackson wrote, ``To believe patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institution to free minds.''

Mr. Chairman, I have said it is good and good news to say the Pledge and to have our school children say the Pledge. This amendment is very clear. It does nothing to this particular legislation, other than to say that if your grounds are religious based, based on religion, based on your defined religious beliefs, why are you denying them the right to go into the courthouse on religious beliefs only?

That is the question that clergy are asking across America. That is the question that the American Bar Association, representing lawyers of all political persuasions, are asking at this time.

And I beg of my colleagues to understand that we are protectors of liberty. We are protectors of the first amendment. We are not to denounce the first amendment. We are not to ignoring the first amendment. We are not to stomp on the first amendment. And I would beg to say that if we call ourselves protecting the flag, the very flag that soldiers in Iraq and Afghanistan are now on the battlefield shedding their blood, veterans, and we would deny Americans the right to utilize the constitutional branch of government created by the Constitution and created by this body.

Shame on us if we cannot accept the entreaty of a little girl named Hazel, who sat next to me in a school a few short years ago, I might add, lonely, unprotected, fearful, sitting isolated while we stood to say the Pledge. I am grateful that I had a teacher that understood that we would not stigmatize her, discriminate against her, and she had her freedom.

This is an important amendment to ensure that all of our freedom is protected. I ask my colleagues for a vote for religious freedom and liberty and to allow the Jackson-Lee amendment to go forward.

Mr. Chairman, I have an amendment at the desk. I thank the members of the Rules Committee for allowing this amendment to go forward.

Mr. Chairman, my amendment gives real meaning to the Pledge of Allegiance and the

patriotism that is felt when it is recited by making it clear that no one can be coerced or forced to recite the Pledge, or retaliated against for not reciting it in those cases where doing so violates one's religious beliefs. In this way, my amendment ensures that the Pledge of Allegiance is being recited freely, voluntarily, and without coercion or fear of retaliation. In this way, a recited Pledge of Allegiance remains sacrosanct and our national commitment to religious freedom is preserved.

Mr. Chairman, my amendment draws inspiration from President Reagan, the Great Communicator himself, who said in 1983:

The First Amendment of the Constitution was not written to

protect the people of this country from religious values; it

was written to protect religious values from government

tyranny.

H.R. 2389 precludes Federal judicial review of any constitutional challenge to recitation of the Pledge of Allegiance--whether it be in the lower Federal courts or the U.S. Supreme Court. My amendment does not disturb this legislative judgment except in the limited instance of cases involving claims of coercion and mandatory recitation. In other words, my amendment is intended to protect religious values from government tyranny. Nothing less, nothing more.

Mr. Chairman, in West Virginia State Board of Education v. Barnett, the Supreme Court struck down a West Virginia law that mandated schoolchildren recite the Pledge of Allegiance. Under West Virginia law, persons who, on religious grounds, refused to recite the Pledge faced expulsion from school and could be prosecuted and fined for violating the statute. In striking down that statute, the great Justice Robert Jackson wrote for the Court:

To believe patriotism will not flourish if patriotic

ceremonies are voluntary and spontaneous instead of a

compulsory routine is to make an unflattering estimate of the

appeal of our institutions to free minds . . . If there is

any fixed star in our constitutional constellation, it is

that no official, high, or petty can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters

of opinion or force citizens to confess by word or act their

faith therein.

Mr. Chairman, my amendment is important for another reason. H.R. 2389, as drafted, insulates the Pledge of Allegiance from constitutional challenge in Federal court.

However, the pledge itself is subject to change by future legislative bodies. This means that if some future Congress decides to revise the Pledge to include religiously offensive or discriminatory language in the Pledge, the authority of the government to compel a person to recite that Pledge could not be challenged in Federal court. None of us would want that to happen. My amendment ensures that it won't.

Mr. Chairman, my amendment protects religious minorities. My amendment protects judicial review. My amendment protects the separation of powers. My amendment strengthens the Pledge by ensuring that it recited voluntarily. My amendment ensures that the Pledge, like the oath all Members of Congress take, is ``given freely, without mental reservation or purpose of evasion.'' I urge all Members to support the Jackson-Lee amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Chairman, in the spirit of reflection of this disastrous bill, I ask unanimous consent to withdraw my rollcall vote only because I believe that we would denigrate the protection of religion even further by subjecting my very good amendment to a rollcall vote. It should be already included in this.

Mr. Chairman, anytime we consider legislation like this, one can be assured that veterans benefits have either just been cut or are about to be cut. Instead of addressing the real issues of patriotism, such as the adequacy of health care funding for veterans or the fact that the number of veterans waiting for benefit determinations has increased by approximately 80,000 since last year alone, we are going to use this bill to divert attention from those more pressing issues.

Mr. Chairman, this bill is aimed at the Ninth Circuit Court of Appeals case, Newdow v. U.S. Congress, which held that the words ``under God'' in the Pledge are unconstitutional in the context of public school recitations. I happen to disagree with that decision and I agree with the dissent in that case which stated, ``Legal world abstractions and ruminations aside, when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so miniscule as to be de minimis. The danger that the phrase represents to our first amendment's freedoms is picayune at best.''

I agree with that language, Mr. Chairman. So as we discuss the constitutionality of ``under God'' in the Pledge, we must recognize that every bill that is introduced, every hearing we have, every vote that we take on the issue enhances the importance of this issue and these actions serve to chip away at the de minimis argument and actually increase the chance that the court will ultimately decide that the Pledge is unconstitutional.

The simple fact is that we need to respect the Constitution and the right of courts to decide whether the Pledge is constitutional or not. But the majority will not do that. H.R. 2389 is a court-stripping bill as the bill does not address the substance of the arguments pro and con, it just prohibits Federal courts, including the Supreme Court, from deciding the case.

This bill is a blatant attempt to prevent the judicial branch from doing its job. The foundation of our democracy rests on the principle of checks and balances of power among three coequal branches, and this bill is a flagrant disregard of that principle. In addition, this bill will result in unprecedented confusion as each State court will decide how to interpret the Federal Constitution.

It also sets a poor precedent that at any time we are considering a bill that might be found unconstitutional by the courts, we might just prohibit the courts from saying so by taking away their right to hear the case.

Mr. Chairman, this bill would strip Federal courts from their ability to hear cases that are clearly within Federal jurisdiction because those cases address Federal constitutional rights and individual liberties guaranteed under the Bill of Rights, and many rights may be involved because the bill is not limited to cases addressing the words ``under God.'' The recitation of the Pledge may in some situations implicate the right of free speech, the right of freedom of association, the right to free exercise of religion, the establishment clause protections, all guaranteed under the first amendment of the Constitution.

The passage of this bill will mean that there will be no Federal law on a Federal constitutional question, not even a supreme law of the land to guide other Federal or State courts on the matter or to definitively state the law when there are inconsistent decisions in different States. So a Federal constitutional right could be applied inconsistently to American citizens simply because they live in different parts of the country.

The need for a Federal review of many different rights that may be involved is not speculative. For example, Mr. Chairman, even before the words ``under God'' were in the Pledge, the Supreme Court in 1943 held in West Virginia Board of Education v. Barnette that a compulsory flag salute and accompanying Pledge were unconstitutional when required of a public school student in violation of the student's religious beliefs.

In that case, the lawsuit was originally filed in Federal Court and was never considered in State court. If this legislation passes, State courts won't even have to follow prior Supreme Court precedents. The reason that State courts are prohibited from ignoring Supreme Court precedent is if they

do so, the Supreme Court is there, ready and willing and able to reverse the State court's decision. But no more under this bill. We may well end up with 50 interpretations and applications of a single Federal constitutional right.

For over 200 years, since Marbury v. Madison in 1803, the Supreme Court has been the final arbiter of what is constitutional and what is not. So while Congress has the power to regulate jurisdiction of Federal courts, the court-stripping language of H.R. 2389 grossly exceeds that power in violation of the principles of separation of powers.

If this court-stripping idea had been around in 1954, Congress could have prohibited the Supreme Court from hearing issues involving student assignment to public schools. We never would have had the decision of Brown v. Board of Education, or it could have passed in the 1960s, and the decision in the Federal court in Loving v. Virginia, to overrule the will of the people of Virginia and require Virginia to recognize racially mixed marriages, might not have ever happened.

The judges in those decisions were described just as judges are described today: liberal, rogue, unelected, life-time appointed activist judges. But they made the right decisions in those cases. The truth is that we rely on Federal courts to determine and enforce our constitutional rights.

America is more politically and religiously diverse than it was in 1943, but instead of embracing that diversity, this bill would jeopardize our fundamental rights. We should instead adhere to the wisdom of the Supreme Court in the Barnette case which said, and I quote, ``The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.''

Mr. Chairman, there are numerous legal, civil rights and religious organizations opposed to this legislation, including the American Bar Association, the ACLU, the American Jewish Committee, the Anti- Defamation League, the Baptist Joint Committee, the Constitutional Project, the Leadership Conference on Civil Rights, Legal Momentum, the National Women's Law Center and People for the American Way.

Mr. Chairman, I will ask unanimous consent to insert those letters into the Record at the appropriate time, and there are other organizations, of course, that are opposed to the bill. I urge my colleagues to vote ``no'' on this legislation.

June 14, 2006.

Protect Separation of Powers and Religious Minorities'

Longstanding Constitutional Rights; Oppose Final Passage

of H.R. 2389.

Dear Representative: We, the undersigned religious, civil

rights, and civil liberties organizations, urge you to oppose

H.R. 2389, the ``Pledge Protection Act,'' misguided

legislation that would strip all federal courts, including

the Supreme Court, from hearing First Amendment challenges to

the Pledge of Allegiance and from enforcing longstanding

constitutional rights in federal court.

The signatories to this letter include organizations that

supported the court challenge to the constitutionality of

including ``under God'' in the Pledge of Allegiance,

organizations that opposed that challenge, and organizations

that took no position on the matter. We are united, however,

in believing that H.R. 2389 threatens the separation of

powers that is a fundamental aspect of our constitutional

structure. Beyond this, while the legislation ostensibly

responds to the controversy surrounding ``under God'' in the

Pledge of Allegiance, this legislation sweeps far more

broadly, with potentially severe constitutional implications

for religious minorities who are adversely affected by

government-mandated recitation of the Pledge.

First and foremost, we are opposed to H.R. 2389 because

this legislation, by entirely stripping all federal courts,

including the Supreme Court, of jurisdiction over a

particular class of cases, threatens the separation of powers

established by the Constitution, and undermines the unique

function of the federal courts to interpret constitutional

law. This legislation deprives the federal courts of the

ability to hear cases involving religious and free speech

rights of students, parents, and other individuals. The

denial of a federal forum to plaintiffs to vindicate their

constitutional rights would force plaintiffs out of federal

courts, which are specifically suited for the vindication of

federal interests, and into state courts, which may be

hostile or unsympathetic to these federal claims, and which

may lack expertise and independent safeguards provided to

federal judges under Article III of the Constitution.

In addition, as drafted, the bill would deny access to the

federal courts in cases to enforce existing constitutional

rights for religious minorities. Over sixty years ago, the

Supreme Court decided the case of West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943). In Barnette,

the Supreme Court struck down a West Virginia law that

mandated schoolchildren to recite the Pledge of Allegiance.

Under the West Virginia law, religious minorities faced

expulsion from school and could be subject to prosecution and

fined, if convicted of violating the statute's provisions. In

striking down that statute, the Court reasoned: ``To believe

that patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous instead of a compulsory routine is

to make an unflattering estimate of the appeal of our

institutions to free minds . . . If there is any fixed star

in our constitutional constellation, it is that no official,

high, or petty can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion.'' 319 U.S. at 639-40.

Moreover, a panel of the U.S. Court of Appeals for the

Third Circuit, holding unconstitutional two provisions of a

Pennsylvania law mandating recitation of the Pledge, said,

``It may be useful to note our belief that most citizens of

the United States willingly recite the Pledge of Allegiance

and proudly sing the national anthem. But the rights embodied

in the Constitution, most particularly the First Amendment,

protect the minority--those persons who march to their own

drummers. It is they who need the protection afforded by the

Constitution and it is the responsibility of federal judges

to ensure that protection.'' Circle School v. Pappert, 381

F.3d 172, 183 (3d Cir. 2004).

H.R. 2389 would undermine the longstanding constitutional

rights of religious minorities to seek redress in the federal

courts in cases involving mandatory recitation of the Pledge.

As a result, this legislation will seriously harm religious

minorities and the constitutional free speech rights of

countless individuals.

H.R. 2389 also raises serious legal concerns about the

violation of the principles of separation of powers, equal

protection and due process. The bill undermines public

confidence in the federal courts by expressing outright

hostility toward them, threatens the legitimacy of future

congressional action by removing the federal courts as a

neutral arbiter, and rejects the unifying function of the

federal judiciary by denying federal courts the opportunity

to interpret the law. We strongly believe that this

legislation as drafted will have broad, negative implications

on the ability of individuals to seek enforcement of

previously constitutionally protected rights concerning

mandatory recitation of the Pledge. We therefore urge, in the

strongest terms, your rejection of this misguided and unwise

legislation.

Sincerely,

American Civil Liberties Union.

American Humanists Association.

American Jewish Committee.

Americans for Democratic Action.

Americans United for Separation of Church and State.

Anti-Defamation League.

Baptist Joint Committee.

Buddhist Peace Fellowship.

Central Conference of American Rabbis.

Disciples Justice Action Network (Disciples of Christ).

Equal Partners in Faith.

Federation of Jain Associations in North America (JAINA).

Friends Committee on National Legislation.

Human Rights Campaign.

Jewish Council For Public Affairs (JCPA).

Leadership Conference on Civil Rights.

Legal Momentum (formerly NOW Legal Defense and Education

Fund).

National Council of Jewish Women.

National Council of Negro Women, Inc.

National Family Planning and Reproductive Health

Association (NFPRHA).

National Gay and Lesbian Task Force.

People For the American Way.

Secular Coalition for America.

Sikh Coalition.

The Interfaith Alliance.

The Workmen's Circle/ Arbeter Ring.

Union for Reform Judaism.

Unitarian Universalist Association of Congregations.

Woodhull Freedom Federation.

Mr. Chairman, when I listed the organizations opposed to the bill, I inadvertently left off Americans United for Separation of Church and State and the National Council of Negro Women.

Madam Speaker, I thank Dr. Gingrey for the time, and I yield myself such time as I may consume.

Madam Speaker, I listened to Dr. Gingrey, and I have the misfortune of reading the paper every now and again. Dr. Gingrey, you are quoted as saying yesterday in the discussion with reference to banning gay marriage, the quote says, ``This is probably the best message we can give to the Middle East in regards to the trouble we are having over there right now.''

I say to you, sir, that I find that very confusing in the sense that I don't understand how, with all of the things going on in this country and around the world, that gay marriage, yesterday, was the most important thing that we could contribute to the horror of what is going on in the Middle East.

But I don't intend to use much of my time this morning, frankly. I really am embarrassed for the House of Representatives today. Why? Let's be clear about what the priorities are for the majority and what they are for the rest of the world.

Today, the Federal minimum wage purchases less than it has at any point in the last 50 years. Let me repeat: The Federal minimum wage purchases less than it has at any point in the last 50 years. It hasn't been raised in 9 years, and today the House is going to spend its time protecting something that all of us say every morning in the House of Representatives, the Pledge of Allegiance.

In the last year, 23 percent of all Americans say they or someone in their family have had to stop medical treatment because of the cost, and today the House will spend its time attempting to turn the independent judiciary into an echo chamber of the right wing of this particular majority.

If today is anything like the typical day of the past 3 years, three American soldiers will die in Iraq or Afghanistan, the Taliban will get a little stronger in Afghanistan and the civil war will continue to be enhanced in Iraq. And the American people will watch their Congress do nothing, but listen to a bunch of demagogues who claim a crisis in the United States courts.

The Middle East is literally going up in flames, as is California, and Katrina's problems haven't been solved, and Congress' response is to criticize Federal judges.

Today in America, 110 people will be treated in an emergency room for their wounds from a handgun and there is an epidemic of violence with reference to handguns, particularly by our youth in this country. 1,500 people will die of cancer today in America, and 1,900 people will die of heart disease. And the United States House of Representatives will speechify about patriotism.

Let me tell you something, Madam Speaker: Patriots try to solve real problems and not seek out remedies to perceived problems. Yesterday in this country we had people die of hunger and malnutrition. In some parts of this country, the infant mortality rate rivals that of sub- Saharan Africa. We have a public education system that ranks below that of almost any other Western nation. We have a looming Social Security crisis, and health care costs are spiraling out of control. And what do we do? Speechify about patriotism.

These are some of the problems, just some of the problems, confronting the American people today. And what is the majority's response to this? Today we will make sure that the Pledge of Allegiance is safe from so-called activist judges.

I could go on and on, but I have already taken more time than this deserves. Court-stripping bills such as this are, according to the Chief Justice of the United States of America, John Roberts, and let me quote the Chief Justice of America, they are bad policy.

I hope the American people are paying attention to their priorities, the priorities of the Republican majority.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I am very pleased at this time to yield 6 minutes to my good friend, the distinguished gentleman from Wisconsin (Mr. Obey), the ranking member of the Appropriations Committee.

Madam Speaker, I yield myself such time as I may consume before yielding to the distinguished minority whip from Maryland, my very good friend, a Member of this body who works tirelessly, tirelessly to alleviate the squeeze on America's middle class.

Madam Speaker, I would like to respond to my friend from Georgia who was responding to my friend from Wisconsin Mr. Obey when he says cheese and crackers go together. And the context, as I understand it, was that you did not vote for the pay raise.

The question is, do you favor and can you push for the minimum wage? Cheese and crackers may very well go together, but they need to be washed down with milk or Coca-Cola. And the fact of the matter is people living on the minimum wage cannot buy cheese, crackers, Coca- Cola or milk, and so somewhere along the line that needs to be understood

Madam Speaker, I yield 3 minutes to the distinguished gentleman from Maryland (Mr. Hoyer), my good friend.

Madam Speaker, I look forward to the day that somebody offers a bill to eliminate the Court. I mean, you talk about Jefferson and Madison. I don't know how many of you have read the Federalist Papers and clearly understand the dynamics of establishing the Federal judiciary and the importance of the separation of powers.

That is what they went to war about or with King George, it was to make sure that we had a separation of powers. I travel in countries all over this world where the leaders of the country dictate to the courts, if they have any.

I don't want to see America in that position, and I believe my good friend from California feels likewise.

Madam Speaker, I yield 3\1/2\ minutes to the distinguished gentleman from California (Mr. George Miller).

Madam Speaker, how much time remains on both sides?

Madam Speaker, a young man whose sensitivities have shown through on this subject of countless others who are less fortunate, I am pleased to yield 2 minutes to my good friend from Rhode Island (Mr. Kennedy).

Madam Speaker, I yield 30 seconds to the gentleman from Rhode Island (Mr. Kennedy) to respond.

Before the gentleman from Georgia goes forward, may I say that we have but one more speaker, and then I will be prepared to close if the gentleman is prepared to close.

Before yielding to the distinguished minority leader whom I believe will cause in November the priorities of this House to change substantially, and to protect not only minimum wage earners, but the middle class of this country better than we have, I would like to come to today's discussion.

I find it difficult to believe that God would want us to strip the courts of their powers to interpret the laws of this land, albeit with the divergent opinions. I shudder that my colleagues do not understand the dynamics of the Federal judiciary.

But let me do something, perhaps not dramatic, perhaps a little melodramatic. Under Madam Speaker are the words ``In God we trust.'' I have been in this body 14 years, and I have had the distinct privilege, as have many other Members of the House of Representatives, of opening these proceedings with other speakers in the chair, at least five times, from my memory.

Every time that I participated in the opening proceedings, we said the Pledge of Allegiance, and we used the term ``God.'' I don't have as many of these as I want, and minimum wage workers don't have this many, and the middle class is suffering immensely in this country. But on our money is ``In God we trust.''

Please understand this. Only once has a court ruled that you cannot say the Pledge of Allegiance in this country, and that law was stricken down. I ask you, please, to listen to the Chief Justice when he says that court-stripping would be bad policy.

You may have the right intention, but you are doing it in the wrong way.

Madam Speaker, I yield 1 minute to the distinguished minority leader, Ms. Pelosi.

Madam Speaker, I yield myself such time as I may consume.

It is hard to correct my friend from Missouri. I said to him last night, earlier yesterday, as it were, in the Rules Committee that he is an engineer and I am a lawyer of 44 years standing, twice a judge as it were, and I understand a little bit about how the Federal judiciary works. I said to him that I do not come into his engineering association to tell them how to construct bridges and tunnels, and not that there is any premium on lawyers or judges having clarity, but he muddies the water on this subject.

I would urge him to understand that it was under President Eisenhower that the words ``under God'' were put in the Pledge of Allegiance. Somehow or another, during World War I and World War II, without the words ``under God,'' we managed to win those wars. Somehow or another we were not a godless society any more than we are not today.

Please understand that the pendulum swings in the Federal judiciary, and there may be a day when things that you envision are important for the Court to undertake constitutionally will allow for some more liberal Congresspersons to come along than you and strip the courts of those powers.

We have a beautiful system of checks and balances in this country. Madam Speaker, I would urge that we do not impinge upon that territory.

I urge all Members to vote ``no'' on the previous question so I can amend the rule and provide this House with yet another chance to vote on legislation to increase the Federal minimum wage.

Madam Speaker, I ask unanimous consent to insert the text of the amendment and extraneous material immediately prior to the vote on the previous question.

My amendment provides that immediately after the House adopts this rule it will bring H.R. 2429, the Miller-Owens minimum wage bill, to the House floor for an up-or-down vote. This bill will gradually increase the minimum wage from the current level of $5.15 an hour to $7.25 an hour after about 2 years.

A footnote right there; I am so proud of my State. By petition, the State of Florida passed a minimum wage with an acceleration clause pegged to the cost of living. Hurrah for Florida.

The bill is identical to language that was included in the Labor-HHS appropriations bill that was blocked by the majority leadership last month. It is also identical to the language that we on the Democratic side have tried to bring to this floor in recent weeks.

Madam Speaker, every day that we fail to bring legislation to the floor to increase the minimum wage is another day we turn our backs on America's low-income and middle-class families who desperately need our help. These workers, as many have said, struggle every day to make ends meet. Many minimum-wage earners work two and three jobs just to get by, and it is unconscionable that we have waited this long to offer even a little relief to those in this Nation who need it most.

There is a statistic that was quoted very recently, but no offense to rich people, but America's corporate executives collectively, when paired down in the first 4 hours of any given year that they worked, they earn in 4 hours more money than a minimum-wage earner makes all year long.

It has been nearly a decade since this House voted to increase the minimum wage. The minimum wage, as I said earlier, is now at its lowest level in 50 years.

A full-time minimum-wage earner makes just $10,700 a year, an amount that is $5,000 below the poverty line for a family of three.

I am going to cut it off right here, Madam Speaker, and go back to my original remarks. We have not done anything about genocide in Darfur; the Middle East is in flames. California is suffering forest fires. We have left the Hurricane Katrina victims by the wayside with more hurricanes looming to come during this hurricane season. The deficit is at an all-time high and accelerating. The national debt is crippling this Nation. And the middle class, we didn't fully fund education to the extent that we left no children behind. We are not putting sufficient police on the streets in order to be able to protect our Nation. Our homeland is vulnerable in more ways than one, including the containers that go on our aircraft and those that are not inspected in our ports. I could go on and on, including the potential for $4-a- gallon gas prices.

And what we are going to do? We are going to strip the courts. We ought to strip some of these people that are in the business of stripping the courts.

Madam Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Chairman, I rise to introduce the Pledge Protection Act and just to give a quick and brief history as to why it is important. We have heard some discussion that this is really not necessary, that we can rest assured that the words of the Pledge of Allegiance will just stand firm forever. Unfortunately, that is not what our recent history shows.

First of all, three judges on the Ninth Circuit Court in California ruled that the words ``under God'' are unconstitutional. They were supported by the entire Ninth Circuit.

The case went to the Supreme Court, and I was there at the hearing at the Supreme Court. The President's attorney there argued that the Supreme Court should kick the case out because the person, Mr. Newdow, bringing the case did not have standing. The response of one of the Judges was, as a Supreme Court we never kick a case out based on standing, because we assume the lower courts have already taken care of that.

Why did the Supreme Court do this? They could easily have ruled that the Pledge is just fine, that it is completely constitutional. Is that their ruling? No. They kicked the case out based on standing.

So we believe that there are not five Judges on the Court, which is what it would take to uphold the Pledge of Allegiance. Hence we use a constitutional authority granted to us from the Founders that wrote the Constitution to protect the Pledge of Allegiance. That constitutional authority is known as Article III, section 2.

What we do is we create a very simple fence around the Federal court system. We say just regarding the Pledge of Allegiance, that no Federal Court has authority to hear a claim that the Pledge is unconstitutional. So we put a fence around the Federal court system.

Well, what does that mean, if somebody really wants to make a claim that the Pledge is unconstitutional? It means that they go to their local State courts, with the ultimate decisions being made in 50 separate supreme courts and a court here in the District of Columbia. So that is the reason for why we need to pass the Pledge Protection Act.

It seems a bit ironic that some people will complain about the fact that we have no respect for the Constitution and that we are eroding the separation of powers, and yet it is the very Constitution that gives Congress the authority and the responsibility to stand up to the Court when they are misusing the Constitution. If you claim you respect the Constitution, part of that is the first amendment, and the first amendment to the Constitution is about free speech. It is not about censorship.

To say that a child cannot say the Pledge of Allegiance is a form of censorship. The Court has already ruled that no child has to say the Pledge. But now the Court wants to go the other step and say no, we are going to use the first amendment about free speech to say that you cannot say the Pledge. We must step in.

Mr. Chairman, as the gentleman made the scenario, let's assume the bill passes that we are discussing now, is signed by the President.

Now is law. What happens then is you are going to a particular State, you are saying West Virginia. And what happens is that a school board or something like that in the State decides to just basically go against what is already established Supreme Court policy.

From 1944, the Supreme Court made the ruling that nobody is required to say the Pledge of Allegiance. We have no interest in changing that. We think that is good policy.

What you are saying is, first of all, you are making, obviously you are taking this to a pretty extreme situation. You are saying a whole series of courts in West Virginia are going to overturn Supreme Court policy on the fact that people have to say the Pledge.

So first of all, they are going completely against what the Federal courts have already established. They then expose themselves to the checks and balances within that State. In at least 45, probably more, of the States, there are provisions where those judges can be removed by the people of that State.

Well, the situation is that you are dependent on this bill with the various checks and balances on the Supreme Courts in the States. That is, those justices could be impeached for violating the Supreme Court.

And the voters of that State. It depends on the State laws.

The bottom line is we have a system of republics. We have a system of federalism. We have 51 established republics, one federated and 50 States.

Mr. Chairman, I would like to start by quoting a person who I believe is the founder, or at least acknowledged as the father, of the Democratic Party, Thomas Jefferson. His words encased in stone on his monument read: ``The God that gave us life gave us liberty.'' It goes on to say: ``Can the liberties of a people be secure if we remove the conviction that those liberties are the gift of God?''

The author of our Declaration well understood that it is impossible to assert that we have inalienable rights and at the same time ignore the person that gave us the inalienable rights, the God that provided those rights itself.

This question goes to the heart of what America has always stood for and always fought for. We believe that there is a God that gives basic rights to all people, and it is the job of the government to protect those rights. If the courts come to the decision that we cannot acknowledge God, then we have ripped the heart out of the logic of what makes America, the fact that our rights come from God Himself, and we have thumbed our nose at Thomas Jefferson and our Declaration and our 300-plus years of history.

Now we have good reason to fear that the Court will not be content to ignore just the fifth amendment and say that you can take private property from people and redistribute it without a public purpose, but that they may also decide to take the first amendment and turn it upside down and use it as a sword of censorship rather than an oasis of free speech.

I am not persuaded by the pious hand-wringing of liberal activists who flinch not at the courts' unfettered march to create some imagined utopia at the expense of the separation of powers in the Constitution itself.

It is time for the Congress to reassert our legislative authority. It is time for the Congress to signal an end to the courts' freewheeling forays of unchecked legislative license.

Mr. Chairman, I rise to claim the time in opposition to the amendment, and I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. Chairman, I yield myself the balance of my time.

Essentially what our bill does, if you want to put it in a simple word picture, we are creating a fence. The fence goes around the Federal judiciary. We do that because we don't trust them. We don't trust them because of previous decisions and because of the simple fact that there are not five votes on the Supreme Court to protect our beloved Pledge of Allegiance. And 80 percent to 90 percent of Americans would like to leave the Pledge of Allegiance the way it is.

So what does this amendment do? This amendment simply opens a big hole in the fence. So the gentleman from Iowa was absolutely right: this is a gutting amendment. There is absolutely no reason to pass the bill if this amendment were to pass. We simply allow the Supreme Court to come in whenever they choose, turn the first amendment upside down and simply say to kids, you are not allowed to say the Pledge of Allegiance, and we are going to use the first amendment from now on as a weapon instead of for free speech to censorship on the courts.

So I am not persuaded by the pious hand-wringing of liberal activists who flinch not at the courts' unfettered march to create some imagined utopia at the expense of the separation of powers. It is time for us to do our job as Congressmen. It is time to assert ourselves, that we will not give unchecked legislative authority to the courts. We have been too long rolling

over to them. It is time to stand up and say on the Pledge of Allegiance, enough is enough.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I rise to claim the time in opposition to the amendment.

Mr. Chairman, I yield 3 minutes to my distinguished colleague from Arizona, Trent Franks.

Mr. Chairman, I offer an amendment.

Mr. Chairman, could I just ask, is the other side going to be speaking on the amendment?

That is a good assumption.

Mr. Chairman, the purpose of this amendment and the reason it was added, to some degree in a last-minute nature, was because of the Hamden decision. The Hamden decision, a majority of the Supreme Court on an Article III, section 2 question said that because a particular issue, in this case it was Gitmo, was being considered in the courts, that the article III, section 2 language didn't apply.

Now, this is completely inconsistent with all previous rulings of the Supreme Court. But we thought, just to be safe, that what we would do here would be to add language that makes it clear that not only does this bill consider any future cases that are brought before the court, the Federal courts, but also existing cases, in this case, again, the challenge to the Pledge that is already in the Federal court system and is before the Ninth Circuit out in California and some of the States in the West. So that was the reason for this technical and perfecting amendment, certainly to clarify, just simply to clarify that this bill would apply not only to future legislation but cases that are currently before the Court.

Along those lines, I think it is very important for us to once again affirm the importance of our discussion and our debate here today. It is ultimately the job of the legislative branch and the executive branch to provide some check and balance on the Supreme Court.

There would be no argument from me if the Supreme Court based all of their decisions on the rules, that is the U.S. Constitution. However, the Supreme Court has gone beyond that increasingly, and it is our concern that they will go well beyond the U.S. Constitution in considering this case.

We have every reason to believe that we do not have five Justices that will support the Pledge. We have every reason to believe that the Pledge could easily be struck, and it is for that reason that this bill has been introduced.

Now, some would say that, in fact I believe the minority leader called what is going on on this floor a charade. I think that is a rather harsh way of describing people that have a genuine interest in the Pledge of Allegiance, have a genuine interest in the heart of what this good Nation was based on, the idea that there is, in fact, a God that grants basic inalienable rights to all people, and that the job of government is to protect those basic rights.

Part of that U.S. Constitution includes the first amendment, and the first amendment has to do with free speech. I can understand the use of the first amendment to say to someone, you are not required to give an oath that you don't believe in. But I cannot understand how you can look at free speech as a tool to censor school children across America from saying that they cannot, they are going to censor the Pledge of Allegiance, they cannot say the Pledge of Allegiance.

This is the time for this Congress to stand up, to be strong, and to take notice of the fact that the Court will no longer be making these forays of absolutely unchecked legislative decision-making. And it is time for us to stand up and say no to a Court that is effectively trying to create their own set of rules instead of reading the U.S. Constitution.

Mr. Chairman, I think that there is good evidence from the way that the Court has handled the fifth amendment in allowing the redistribution of private property willy nilly, without a government purpose, I think there is good reason to be concerned as the Court has taken to itself a power to tax, which is unconstitutional. There is good reason for us to be concerned about the Court's overrunning their constitutional bounds.

It is time for us to show the backbone to stand up to the Court. It is time for us to say no to this unregulated, general legislative authority.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I move that the Committee do now rise.