Pledge Protection Act signals movement to rein in judicial activism
By Allen Palmeri
September 28, 2004
ST. CHARLES – A movement in America to strip federal courts of their jurisdiction over culture war issues is picking up steam.
On July 22, for the first time in history, Article III, Section 2 of the U.S. Constitution was applied to a moral issue when the U.S. House of Representatives voted, 233-194, to take away the authority of the federal judiciary in matters related to homosexual “marriage.” Then, on Sept. 23, the House voted, 247-173, to prevent federal judges from removing the words “one nation under God” from the Pledge of Allegiance.
“This tool is being used and considered more often,” said U.S. Rep. Todd Akin, R-St. Louis, who sponsored the Pledge Protection Act. “People have known about it, but it’s been sort of used as a special-deal thing. Of course, the liberal Democrats want to say that we’re ruining the Constitution, that this tool doesn’t exist. The fact is, it’s in plain print in the Constitution. It’s something that’s been used frequently, and we are now applying it to these very activist, liberal judges to take some of their power away.”
The next step in a legislative process that is emerging out of a growing discontent with what Akin calls judicial tyranny could be a congressional vote on the Constitution Restoration Act. Such action would strip federal courts of jurisdiction in cases where the acknowledgement of God is at issue. Sen. Richard Shelby, R-Ala., is a co-sponsor of that bill which was introduced in February and has received a hearing in the Senate Subcommittee on the Constitution. Shelby remains hopeful that the Senate Judiciary Committee will report the bill out favorably before Congress adjourns, said Virginia Largay Davis, Shelby’s press secretary.
“Over the years, we have seen a disturbing and growing trend in our federal courts to deny the rights of our states and our citizens to acknowledge God openly and freely,” Shelby said. “These tortured legal decisions distort our constitution, our nation’s history and its tradition in an effort to secularize our system of government and divest morality from the rule of law.”
The Article III, Section 2 movement that seems to be gaining support in Congress has been building for three years, Akin said. That is how much time the Missouri congressman has spent building consensus on the Pledge bill. Now that the problem has been defined – activist judges legislating from the bench – Akin said it is time for lawmakers to move on to the question, “What tools do we have to work with in the Constitution?” Article III, Section 2 is a “very attractive” tool, he said.
“Persistence is very important,” Akin said. “You stay on it, and you talk to a few people, and as you do that, you get more comfortable explaining the ideas. I start out frequently with the effect of what happens when you get activist judges. What’s the first, classic example of that? Well, it’s the Dred Scott decision (when the Supreme Court ruled in 1857 that blacks were less than citizens).”
Akin said he begins with the belief that there are three co-equal branches of government in America. Others in Congress counter that Marbury v. Madison, in 1803, established judicial review, where Chief Justice John Marshall is said to have argued for monopoly power of the Supreme Court in determining whether a law lines up with the Constitution. Akin said he understands this argument and is sympathetic to a point, but he hastens to add that the principles being applied to the judicial review process of 2004 are much more unreasonable than those that were applied in 1803.
“When Marbury v Madison was made, the President just ignored it, so that tells how much he took it seriously,” Akin said. “But we’ve gone past that point. It’s not the judge looking at a law comparing it to the Constitution and saying, ‘Is it Constitutional?’ I could live with that, but that’s not what they’re doing. They started with that, but then they moved to the next thing where some idiot judge said that there are emanations from the penumbra of the Constitution, trying to find an excuse in the Constitution to do what he wanted to do, which is just legislating from the bench.
“Now they’re saying there are some judges over in Europe that think this way, therefore we’re just going to get rid of the laws against sodomy. They say, ‘Well, it’s Equal Protection!’ That’s some sort of concept that they dream up to justify anything. So we’ve moved to the point where the judges are no longer looking at the Constitution as the standard, but they’re telling you what the Constitution is.”
Akin lined up 225 co-sponsors for the Pledge Protection Act. In the end, Article III, Section 2 is viewed as a remedy to potential judicial tampering with the Pledge. Sen. Jim Talent, R-Missouri, who is carrying the bill for Akin in the Senate, said Congress has used this power to prevent or overrule judicial abuse in administration of the environmental, immigration and labor laws.
“It’s really a defensive bill to try to protect the First Amendment and the citizens of our country,” Akin said. “Activist judges have turned the First Amendment exactly upside down. The First Amendment was designed to protect free speech – particularly speech that’s political or religious. That was central to the founders, and the First Amendment supposedly guaranteed people to be free to be able to speak. What these judges have done is to tell schoolchildren not that you have to say the Pledge, but that they cannot say the Pledge. So they are using the First Amendment instead of a shield to protect speech as a sword to censor.”
Rodney Albert, chairman, Christian Life Commission, Missouri Baptist Convention, and pastor, Hallsville Baptist Church, was encouraged by the Sept. 23 vote.
“In an age often described as judicial tyranny, when judges casually and repeatedly disregard the will of the people, this is a much-needed bill and hopefully a small beginning in a fight against the Robed Supremacists who with arrogance all too frequently usurp their constitutional power,” Albert said.