Time has come for Congress to rein in the Imperial Judiciary

Posted: Aug 25, 2003 12:00 AM

Federal court decisions about the Pledge of Allegiance and the Ten Commandments, and the specter raised by the U.S. Supreme Court decision in Lawrence vs. Texas that marriage may no longer be defined as the union of a man and a woman, show that the time has come to curb the "Imperial Judiciary."

Not only did a single federal judge overturn a nearly 60 percent majority of California voters who passed Proposition 187 in 1994, but another U.S. District Court judge in Sacramento actually considered canceling the historic California gubernatorial recall election before declining to act on a lawsuit brought by the American Civil Liberties Union.

Alexander Hamilton wrote in the Federalist Papers 78, 81 and 82 that he expected Congress to use its "discretion" to make appropriate "exceptions and regulations" to keep the judiciary "the least dangerous" of the three branches of government. It's long past time for Congress to protect U.S. citizens from activist judges who are assaulting fundamental American principles.

When the 9th U.S. Circuit Court of Appeals by 2-1 banned the pledge of Allegiance on June 26, 2002, because of the words "under God," Congress on the same day adopted resolutions of appropriate indignation in a House vote of 416-3 and a Senate vote of 99-0.

When the full 9th U.S. Circuit Court of Appeals refused to reconsider this outrageous decision, the Senate on March 4, 2003, reaffirmed its support for the pledge as written by a vote of 94-0, and the House did likewise on March 20, 2003, by a vote of 400-7.

Two cheers for Congress. But that's not enough to fulfill its constitutional duty to demote the federal courts to their proper status.

Congress has failed to solve the pledge problem, and federal judges haven't gotten the message.

In July, one federal judge barred Pennsylvania teachers from obeying a state law that required them to lead their classes in reciting the pledge or singing the national anthem. In August, another federal judge banned a Colorado law requiring public school teachers to lead the pledge.

Public opinion has always been strongly in favor of schoolchildren reciting the Pledge of Allegiance. Massachusetts Gov. Michael Dukakis' veto of a state law requiring teachers to lead the pledge helped to elect George H.W. Bush to the presidency in 1988.

If there ever was a case where Congress should act promptly to withdraw jurisdiction from the federal courts, this is it. U.S. Rep. Todd Akin, R-Mo., already has 220 co-sponsors for H.R. 2028, the proposed Pledge Protection Act. A companion bill in the Senate is sponsored by Judiciary Committee Chairman Orrin Hatch, R-Utah, and Sen. Jim Talent, R-Mo.

So what is Congress waiting for? All federal courts except the U.S. Supreme Court were created by Congress under Article III, Section 1, of the U.S. Constitution, so Congress can uncreate, limit or withdraw jurisdiction from them, as well as create "exceptions" to Supreme Court jurisdiction.

Congress has used this authority scores of times. Most recently, Senate Minority Leader Tom Daschle, D-S.D., inserted a provision in legislation to prohibit the courts from hearing cases about brush clearing in South Dakota. Surely, the Pledge of Allegiance is equally as important.

The House, but not the Senate, inched a little closer toward doing its duty in July when it passed two amendments sponsored by Rep. John Hostettler, R-Ind., to stop enforcement of two obnoxious federal court rulings. One amendment, which passed 307-119, prohibits spending federal money to enforce the 9th U.S. Circuit Court's anti-pledge decision, and the second, adopted 260-161, does likewise for the 11th U.S. Circuit Court ruling that the Ten Commandments may not be posted in the lobby of the Alabama Supreme Court.

A national campaign to exorcise the Ten Commandments from public buildings has been accelerating since the Supreme Court ruled in Stone vs. Graham (1980) that they may not be posted in public school classrooms. Recent cases have popped up in at least 13 states to force removal of the Ten Commandments from all public buildings and squares.

The showdown in Montgomery, Ala., stems from the decision by state Supreme Court Chief Justice Roy Moore to place a 5,280-pound granite monument to the Ten Commandments in the state courthouse. However, the other eight Alabama justices - seven Republicans, one Democrat - voted Aug. 21 to have the monument removed to avoid having the state pay $5,000 per day in federal fines.

Despite a vitriolic hammering by the media, Moore has the public on his side and crowds numbering in the thousands have gathered in Montgomery in the August heat to support him.

U.S. Rep. Robert Aderholt's Ten Commandments Defense Act, H.R. 2045, declares that the display of the Ten Commandments on state property is within the powers the U.S. Constitution reserves to the states, thereby removing challenges from federal court jurisdiction. The Alabama Republican's bill passed the House in 1999, but not the Senate, and currently has 64 co-sponsors.

Since the Supreme Court this year voided Texas' sodomy law without any rational justification in the U.S. Constitution, pro-homosexual commentary in the media has been preparing the public for court rulings that legalize same-sex marriages and invalidate the Defense of Marriage Act, which was passed by Congress and signed by President Clinton in 1996 and enacted in 38 states. But since the Lawrence decision, a Gallup Poll has reported a drop of 12 points in public support for same-sex marriages.

It is possible that the Supreme Court may use procedural grounds to duck the lead cases on the Pledge of Allegiance, the Ten Commandments, and the definition of marriage. The dozens of cases arising all over the country make it imperative for Congress to withdraw jurisdiction on these three issues from all federal courts. Any member of Congress who defaults in this duty should be defeated in 2004.