29–006

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 2d Session 108–691

PLEDGE PROTECTION ACT OF 2004

SEPTEMBER 21, 2004.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2028] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 2028) to amend title 28, United States Code, with respect to 

the jurisdiction of Federal courts inferior to the Supreme Court 

over certain cases and controversies involving the Pledge of Allegiance, having considered the same, report favorably thereon with 

amendments and recommend that the bill as amended do pass.

CONTENTS 

Page 

The Amendments ..................................................................................................... 2

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 50

Committee Consideration ........................................................................................ 51

Vote of the Committee ............................................................................................. 51

Committee Oversight Findings ............................................................................... 53

New Budget Authority and Tax Expenditures ...................................................... 53

Congressional Budget Office Cost Estimate .......................................................... 53

Performance Goals and Objectives ......................................................................... 54

Constitutional Authority Statement ...................................................................... 54

Section-by-Section Analysis and Discussion .......................................................... 54

Changes in Existing Law Made by the Bill, as Reported ..................................... 55

Markup Transcript .................................................................................................. 55

Dissenting Views ..................................................................................................... 91

2

1This text of the Pledge is codified in 4 U.S.C. § 4. 

2 H.R. Rep. No. 83–1693. 

3 U.S. Const. (‘‘[D]one in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty 

seven . . .) (ratification clause). 4 292 F.3d 597 (9th Cir. 2002), rev’d, 124 S.Ct. 2301 (2004). 

THE AMENDMENTS

The amendments are as follows: 

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Pledge Protection Act of 2004’’. 

SEC. 2. LIMITATION ON JURISDICTION. 

(a) IN GENERAL.—Chapter 99 of title 28, United States Code, is amended by 

adding at the end the following: 

‘‘§ 1632. Limitation on jurisdiction 

‘‘No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge 

of Allegiance, as defined in section 4 of title 4, or its recitation.’’. 

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 99 

of title 28, United States Code, is amended by adding at the end the following new 

item:

‘‘1632. Limitation on jurisdiction.’’.

Amend the title so as to read:

A bill to amend title 28, United States Code, with respect to the jurisdiction of 

Federal courts over certain cases and controversies involving the Pledge of Allegiance.

PURPOSE AND SUMMARY

The Pledge of Allegiance (‘‘the Pledge’’), reads: ‘‘I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with 

liberty and justice for all.’’ 1 When Congress passed the bill adding 

the words ‘‘under God,’’ Congress stated its belief that those words 

in no way run contrary to the First Amendment but recognize ‘‘only 

the guidance of God in our national affairs.’’ 2

Two words—‘‘under God’’—in the Pledge help define our national 

heritage as the beneficiaries of a constitution sent to the states for 

ratification ‘‘in the Year of our Lord,’’ 3 1787, by a founding generation that saw itself guided by a providential God. Those two words, 

and their entirely proper presence in a system of government defined by our Constitution, have been repeatedly and overwhelmingly reaffirmed by the House of Representatives. 

H.R. 2028 would preclude Federal court jurisdiction over cases 

involving the Pledge of Allegiance and its recitation. H.R. 2028 

would prevent Federal courts from striking the words ‘‘under God’’ 

from the Pledge of Allegiance. 

BACKGROUND AND NEED FOR THE LEGISLATION

Congress has repeatedly and overwhelmingly reaffirmed the 

Pledge of Allegiance. On June 27, 2002, during the 107th Congress, 

the House of Representatives passed H. Res. 459, expressing the 

sense of the House of Representatives that Newdow v. United 

States Congress 4 was erroneously decided, and for other purposes, 

by a vote of 416–3. 

3

That resolution stated:

Whereas on June 26, 2002, the Ninth Circuit Court of Appeals 

held that the Pledge of Allegiance is an unconstitutional endorsement of religion, stating that it ‘‘impermissibly takes a 

position with respect to the purely religious question of the existence and identity of God,’’ and places children in the ‘‘untenable position of choosing between participating in an exercise 

with religious content or protesting.’’;

Whereas the Pledge of Allegiance is not a prayer or a religious 

practice, the recitation of the pledge is not a religious exercise;

Whereas the Pledge of Allegiance is the verbal expression of 

support for the United States of America, and its effect is to 

instill support for the United States of America;

Whereas the United States Congress recognizes the right of 

those who do not share the beliefs expressed in the Pledge to 

refrain from its recitation;

Whereas this ruling is contrary to the vast weight of Supreme 

Court authority recognizing that the mere mention of God in 

a public setting is not contrary to any reasonable reading of 

the First Amendment. The Pledge of Allegiance is not a religious service or a prayer, but it is a statement of historical beliefs. The Pledge of Allegiance is a recognition of the fact that 

many people believe in God and the value that our culture has 

traditionally placed on the role of religion in our founding and 

our culture. The Supreme Court has recognized that governmental entities may, consistent with the First Amendment, 

recognize the religious heritage of America;

Whereas the notion that a belief in God permeated the founding of our Nation was well recognized by Justice Brennan, who 

wrote in School District of Abington Township v. Schempp, 374 

U.S. 203, 304 (1963) (Brennan, J., concurring), that ‘‘[t]he reference to divinity in the revised pledge of allegiance * * * may 

merely recognize the historical fact that our Nation was believed to have been founded ‘under God.’ Thus reciting the 

pledge may be no more of a religious exercise than the reading 

aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.’’; and

Whereas this ruling treats any religious reference as inherently evil and is an attempt to remove such references from 

the public arena: Now, therefore, be it

Resolved, That it is the sense of the House of Representatives 

that——

(1) the Pledge of Allegiance, including the phrase ‘‘One Nation, 

under God,’’ reflects the historical fact that a belief in God permeated the founding and development of our Nation;

(2) the Ninth Circuit’s ruling is inconsistent with the United 

States Supreme Court’s First Amendment jurisprudence that 

the Pledge of Allegiance and similar expressions are not unconstitutional expressions of religious belief;

(3) the phrase ‘‘One Nation, under God,’’ should remain in the 

Pledge of Allegiance; and

4

5The purpose of S. 2690 is described in H.R. Rep. No. 107–659 (2002) at 4–13.

(4) the Ninth Circuit Court of Appeals should agree to rehear 

this ruling en banc in order to reverse this constitutionally infirm and historically incorrect ruling.

On October 8, 2002, also during the 107th Congress, the House 

of Representatives passed S. 2690,5 to reaffirm the reference to one 

Nation under God in the Pledge of Allegiance, by a vote of 401–5. 

The findings in S. 2690 provided:

Congress finds the following:

(1) On November 11, 1620, prior to embarking for the shores 

of America, the Pilgrims signed the Mayflower Compact that 

declared: ‘‘Having undertaken, for the Glory of God and the advancement of the Christian Faith and honor of our King and 

country, a voyage to plant the first colony in the northern 

parts of Virginia.’’

(2) On July 4, 1776, America’s Founding Fathers, after appealing to the ‘‘Laws of Nature, and of Nature’s God’’ to justify 

their separation from Great Britain, then declared: ‘‘We hold 

these Truths to be self-evident, that all Men are created equal, 

that they are endowed by their Creator with certain 

unalienable Rights, that among these are Life, Liberty, and the 

Pursuit of Happiness’’

(3) In 1781, Thomas Jefferson, the author of the Declaration of 

Independence and later the Nation’s third President, in his 

work titled ‘‘Notes on the State of Virginia’’ wrote: ‘‘God who 

gave us life gave us liberty. And can the liberties of a nation 

be thought secure when we have removed their only firm basis, 

a conviction in the minds of the people that these liberties are 

of the Gift of God. That they are not to be violated but with 

His wrath? Indeed, I tremble for my country when I reflect 

that God is just; that his justice cannot sleep forever.’’

(4) On May 14, 1787, George Washington, as President of the 

Constitutional Convention, rose to admonish and exhort the 

delegates and declared: ‘‘If to please the people we offer what 

we ourselves disapprove, how can we afterward defend our 

work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God!’’

(5) On July 21, 1789, on the same day that it approved the Establishment Clause concerning religion, the First Congress of 

the United States also passed the Northwest Ordinance, providing for a territorial government for lands northwest of the 

Ohio River, which declared: ‘‘Religion, morality, and knowledge, being necessary to good government and the happiness of 

mankind, schools and the means of education shall forever be 

encouraged.’’

(6) On September 25, 1789, the First Congress unanimously 

approved a resolution calling on President George Washington 

to proclaim a National Day of Thanksgiving for the people of 

the United States by declaring, ‘‘a day of public thanksgiving 

and prayer, to be observed by acknowledging, with grateful 

hearts, the many signal favors of Almighty God, especially by 

5

affording them an opportunity peaceably to establish a constitution of government for their safety and happiness.’’

(7) On November 19, 1863, President Abraham Lincoln delivered his Gettysburg Address on the site of the battle and declared: ‘‘It is rather for us to be here dedicated to the great 

task remaining before us—that from these honored dead we 

take increased devotion to that cause for which they gave the 

last full measure of devotion—that we here highly resolve that 

these dead shall not have died in vain—that this Nation, under 

God, shall have a new birth of freedom—and that Government 

of the people, by the people, for the people, shall not perish 

from the earth.’’

(8) On April 28, 1952, in the decision of the Supreme Court of 

the United States in Zorach v. Clauson, 343 U.S. 306 (1952), 

in which school children were allowed to be excused from public schools for religious observances and education, Justice William O. Douglas, in writing for the Court stated: ‘‘The First 

Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, 

it studiously defines the manner, the specific ways, in which 

there shall be no concern or union or dependency one on the 

other. That is the common sense of the matter. Otherwise the 

State and religion would be aliens to each other—hostile, suspicious, and even unfriendly. Churches could not be required 

to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. 

Policemen who helped parishioners into their places of worship 

would violate the Constitution. Prayers in our legislative halls; 

the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 

‘so help me God’ in our courtroom oaths—these and all other 

references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the 

supplication with which the Court opens each session: ‘God 

save the United States and this Honorable Court.’ ’’

(9) On June 15, 1954, Congress passed and President Eisenhower signed into law a statute that was clearly consistent 

with the text and intent of the Constitution of the United 

States, that amended the Pledge of Allegiance to read: ‘‘I 

pledge allegiance to the Flag of the United States of America 

and to the Republic for which it stands, one Nation under God, 

indivisible, with liberty and justice for all.’’

(10) On July 20, 1956, Congress proclaimed that the national 

motto of the United States is ‘‘In God We Trust’’, and that 

motto is inscribed above the main door of the Senate, behind 

the Chair of the Speaker of the House of Representatives, and 

on the currency of the United States.

(11) On June 17, 1963, in the decision of the Supreme Court 

of the United States in Abington School District v. Schempp, 

374 U.S. 203 (1963), in which compulsory school prayer was 

held unconstitutional, Justices Goldberg and Harlan, concurring in the decision, stated: ‘‘But untutored devotion to the concept of neutrality can lead to invocation or approval of results 

6

which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular 

and a passive, or even active, hostility to the religious. Such 

results are not only not compelled by the Constitution, but, it 

seems to me, are prohibited by it. Neither government nor this 

Court can or should ignore the significance of the fact that a 

vast portion of our people believe in and worship God and that 

many of our legal, political, and personal values derive historically from religious teachings. Government must inevitably 

take cognizance of the existence of religion and, indeed, under 

certain circumstances the First Amendment may require that 

it do so.’’

(12) On March 5, 1984, in the decision of the Supreme Court 

of the United States in Lynch v. Donelly, 465 U.S. 668 (1984), 

in which a city government’s display of a nativity scene was 

held to be constitutional, Chief Justice Burger, writing for the 

Court, stated: ‘‘There is an unbroken history of official acknowledgment by all three branches of government of the role 

of religion in American life from at least 1789 . . . [E]xamples 

of reference to our religious heritage are found in the statutorily prescribed national motto ‘In God We Trust’ (36 U.S.C. 

186), which Congress and the President mandated for our currency, see (31 U.S.C. 5112(d)(1) (1982 ed.)), and in the language ‘One Nation under God’, as part of the Pledge of Allegiance to the American flag. That pledge is recited by many 

thousands of public school children—and adults—every year 

. . . Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly 

inspired by one religious faith. The National Gallery in Washington, maintained with Government support, for example, has 

long exhibited masterpieces with religious messages, notably 

the Last Supper, and paintings depicting the Birth of Christ, 

the Crucifixion, and the Resurrection, among many others with 

explicit Christian themes and messages. The very chamber in 

which oral arguments on this case were heard is decorated 

with a notable and permanent—not seasonal—symbol of religion: Moses with the Ten Commandments. Congress has long 

provided chapels in the Capitol for religious worship and meditation.’’

(13) On June 4, 1985, in the decision of the Supreme Court of 

the United States in Wallace v. Jaffree, 472 U.S. 38 (1985), in 

which a mandatory moment of silence to be used for meditation or voluntary prayer was held unconstitutional, Justice 

O’Connor, concurring in the judgment and addressing the contention that the Court’s holding would render the Pledge of Allegiance unconstitutional because Congress amended it in 1954 

to add the words ‘‘under God,’’ stated ‘‘In my view, the words 

‘under God’ in the Pledge, as codified at (36 U.S.C. 172), serve 

as an acknowledgment of religion with ‘the legitimate secular 

purposes of solemnizing public occasions, [and] expressing confidence in the future.’ ’’

(14) On November 20, 1992, the United States Court of Appeals for the 7th Circuit, in Sherman v. Community ConsoliVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
7

6See 328 F.3d 466 (9th Cir. 2003). 7The purpose of H. Res. 132 is described in H.R. Rep No. 108–41 (2003) at 2–20. 

dated School District 21, 980 F.2d 437 (7th Cir. 1992), held 

that a school district’s policy for voluntary recitation of the 

Pledge of Allegiance including the words ‘‘under God’’ was constitutional.

(15) The 9th Circuit Court of Appeals erroneously held, in 

Newdow v. United States Congress (9th Cir. June 26, 2002), 

that the Pledge of Allegiance’s use of the express religious reference ‘‘under God’’ violates the First Amendment to the Constitution, and that, therefore, a school district’s policy and 

practice of teacher-led voluntary recitations of the Pledge of Allegiance is unconstitutional.

(16) The erroneous rationale of the 9th Circuit Court of Appeals in Newdow would lead to the absurd result that the Constitution’s use of the express religious reference ‘‘Year of our 

Lord’’ in Article VII violates the First Amendment to the Constitution, and that, therefore, a school district’s policy and 

practice of teacher-led voluntary recitations of the Constitution 

itself would be unconstitutional.

S. 2690 was signed by President George W. Bush on November 

13, 2002, and became Public Law No. 107–293. 

During the 108th Congress, on March 20, 2003, following a February 28, 2003, decision by the Ninth Circuit Court of Appeals, en 

banc, amending its ruling in this case,6 the House of Representatives passed H. Res. 132,7 expressing the sense of the House of 

Representatives that the Ninth Circuit Court of Appeals ruling in 

Newdow v. United States Congress is inconsistent with the Supreme Court’s interpretation of the first amendment and should be 

overturned, and for other purposes, by a vote of 400–7. 

H. Res. 132 provided:

Whereas on June 26, 2002, the Ninth Circuit Court of Appeals, 

in Newdow v. United States Congress (292 F.3d 597; 9th Cir. 

2002) (Newdow I), held that the Pledge of Allegiance to the 

Flag as currently written to include the phrase, ‘‘one Nation, 

under God’’, unconstitutionally endorses religion, that such 

phrase was added to the pledge in 1954 only to advance religion in violation of the establishment clause, and that the recitation of the pledge in public schools at the start of every 

school day coerces students who choose not to recite the pledge 

into participating in a religious exercise in violation of the establishment clause of the first amendment;

Whereas on February 28, 2003, the Ninth Circuit Court of Appeals amended its ruling in this case, and held (in Newdow II) 

that a California public school district’s policy of opening each 

school day with the voluntary recitation of the Pledge of Allegiance to the Flag ‘‘impermissibly coerces a religious act’’ on 

the part of those students who choose not to recite the pledge 

and thus violates the establishment clause of the first amendment;

Whereas the ninth circuit’s ruling in Newdow II contradicts 

the clear implication of the holdings in various Supreme Court 

cases, and the spirit of numerous other Supreme Court cases 

8

in which members of the Court have explicitly stated, that the 

voluntary recitation of the Pledge of Allegiance to the Flag is 

consistent with the first amendment;

Whereas the phrase, ‘‘one Nation, under God,’’ as included in 

the Pledge of Allegiance to the Flag, reflects the notion that 

the Nation’s founding was largely motivated by and inspired by 

the Founding Fathers’ religious beliefs;

Whereas the Pledge of Allegiance to the Flag is not a prayer 

or statement of religious faith, and its recitation is not a religious exercise, but rather, it is a patriotic exercise in which one 

expresses support for the United States and pledges allegiance 

to the flag, the principles for which the flag stands, and the 

Nation;

Whereas the House of Representatives recognizes the right of 

those who do not share the beliefs expressed in the pledge or 

who do not wish to pledge allegiance to the flag to refrain from 

its recitation;

Whereas the effect of the ninth circuit’s ruling in Newdow II 

will prohibit the recitation of the pledge at every public school 

in 9 states, schooling over 9.6 million students, and could lead 

to the prohibition of, or severe restrictions on, other voluntary 

speech containing religious references in these classrooms;

Whereas rather than promoting neutrality on the question of 

religious belief, this decision requires public school districts to 

adopt a preference against speech containing religious references;

Whereas the constitutionality of the voluntary recitation by 

public school students of numerous historical and founding documents, such as the Declaration of Independence, the Constitution, and the Gettysburg Address, has been placed into serious 

doubt by the ninth circuit’s decision in Newdow II;

Whereas the ninth circuit’s interpretation of the first amendment in Newdow II is clearly inconsistent with the Founders’ 

vision of the establishment clause and the free exercise clause 

of the first amendment, Supreme Court precedent interpreting 

the first amendment, and any reasonable interpretation of the 

first amendment;

Whereas this decision places the ninth circuit in direct conflict 

with the Seventh Circuit Court of Appeals which, in Sherman

v. Community Consolidated School District (980 F.2d 437; 7th 

Cir. 1992), held that a school district’s policy allowing for the 

voluntary recitation of the Pledge of Allegiance to the Flag in 

public schools does not violate the establishment clause of the 

first amendment;

Whereas Congress has consistently supported the Pledge of Allegiance to the Flag by starting each session with its recitation;

Whereas the House of Representatives reaffirmed support for 

the Pledge of Allegiance to the Flag in the 107th Congress by 

adopting House Resolution 459 on June 26, 2002, by a vote of 

416–3; and

Whereas the Senate reaffirmed support for the Pledge of Allegiance to the Flag in the 107th Congress by adopting Senate 

9

8 292 F.3d 597 (9th Cir. 2002). 

Resolution 292 on June 26, 2002, by a vote of 99–0: Now, 

therefore, be it

Resolved, That it is the sense of the House of Representatives 

that——

(1) the phrase ‘‘one Nation, under God,’’ in the Pledge of Allegiance to the Flag reflects that religious faith was central to 

the Founding Fathers and thus to the founding of the Nation;

(2) the recitation of the Pledge of Allegiance to the Flag, including the phrase, ‘‘one Nation, under God,’’ is a patriotic act, 

not an act or statement of religious faith or belief;

(3) the phrase ‘‘one Nation, under God’’ should remain in the 

Pledge of Allegiance to the Flag and the practice of voluntarily 

reciting the pledge in public school classrooms should not only 

continue but should be encouraged by the policies of Congress, 

the various States, municipalities, and public school officials;

(4) despite being the school district where the legal challenge 

to the pledge originated, the Elk Grove Unified School District 

in Elk Grove, California, should be recognized and commended 

for their continued support of the Pledge of Allegiance to the 

Flag;

(5) the Ninth Circuit Court of Appeals ruling in Newdow v. 

United States Congress has created a split among the circuit 

courts, and is inconsistent with the Supreme Court’s interpretation of the first amendment, which indicates that the voluntary recitation of the pledge and similar patriotic expressions is consistent with the first amendment;

(6) the Attorney General should appeal the ruling in Newdow

v. United States Congress , and the Supreme Court should review this ruling in order to correct this constitutionally infirm 

and historically incorrect holding; and

(7) the President should nominate and the Senate should confirm Federal circuit court judges who interpret the Constitution consistent with the Constitution’s text.

And on July 22, 2003, the House of Representatives agreed to an 

amendment (H. Amdt. 288 (A003)) offered by Rep. Hostettler to 

H.R. 2799, by a vote of 307–119. Rep. Hostettler’s amendment prohibited any funds from being used to enforce the judgment in 

Newdow v. United States Congress.8

THE FUTURE OF THE PLEDGE OF ALLEGIANCE

As the legislative history outlined above makes clear, the House 

of Representatives has acted to reaffirm the constitutionality of the 

Pledge in the face of multiple decisions by the Federal courts that 

the Pledge is unconstitutional. Although the United States Supreme Court reversed and remanded the Ninth Circuit’s latest 

holding striking down the Pledge as unconstitutional, it did so on 

the grounds that the plaintiff lacked the legal standing to bring the 

case and consequently the Supreme Court did not reach the merits 

of the case. The Supreme Court’s decision not to reach the merits 

of the case is apparently an effort to forestall a decision adverse to 

the Pledge, since the dissenting Justices concluded that the Court 

10

9 Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301, 2312 (Rehnquist, C.J., dissenting). That part of Chief Justice Rehnquist’s dissenting opinion was joined by Justices O’Connor and Thomas. Id. 10 Nothing in H.R. 2028 would allow deviations from existing Supreme Court precedent prohibiting the coerced recitation of the Pledge of Allegiance. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court held it is unconstitutional to require individuals to salute the flag. See id. at 643 (‘‘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.’’). 11 XV Thomas Jefferson, Writings of Thomas Jefferson, at 331–32 (Albert E. Bergh, ed. 1903) 

(letter from Thomas Jefferson to Charles Hammond (Aug. 18, 1821)). 12 XV The Writings of Thomas Jefferson 277–78 (Andrew A. Lipscomb and Albert Bergh, eds. 

1904) (letter from Thomas Jefferson to William C. Jarvis (September 28, 1820)) (emphasis 

added).

in its decision ‘‘erect[ed] a novel prudential standing principle in 

order to avoid reaching the merits of the constitutional claim.’’ 9

In order to protect the Pledge from Federal court decisions that 

would have the effect of invalidating the Pledge across several 

states, or even nationwide,10 H.R. 2028 would reserve to the state 

courts the authority to decide whether the Pledge is valid as written within each state’s boundaries. 

AMERICA’S GREATEST LEADERS HAVE LONG BEEN CONCERNED ABOUT

LIMITING FEDERAL JUDGES’ ABUSE OF THEIR AUTHORITY

Deep concern that Federal judges might abuse their power has 

long been noted by America’s most gifted observers, including 

Thomas Jefferson and Abraham Lincoln. 

Thomas Jefferson lamented that ‘‘the germ of dissolution of our 

Federal Government is in the constitution of the Federal judiciary; . . . working like gravity by night and by day, gaining a little 

today and a little tomorrow, and advancing its noiseless step like 

a thief, over the field of jurisdiction, until all shall be 

usurped . . .’’ 11 In Jefferson’s view, leaving the protection of individuals’ rights to Federal judges employed for life was a serious 

error. Responding to the argument that Federal judges are the 

final interpreters of the Constitution, Jefferson wrote: 

You seem . . . to consider the [federal] judges as the ultimate 

arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men 

and not more so. They have with others the same passions for 

party, for power, and the privilege of their corps . . . [T]heir 

power [is] the more dangerous as they are in office for life and 

not responsible, as the other functionaries are, to the elective 

control. The constitution has erected no such single tribunal, 

knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots.12

Jefferson strongly denounced the notion that the Federal judiciary should always have the final say on constitutional issues: 

If [such] opinion be sound, then indeed is our Constitution a 

complete felo de se [act of suicide]. For intending to establish 

three departments, coordinate and independent, that they 

might check and balance one another, it has given, according 

to this opinion, to one of them alone, the right to prescribe 

rules for the government of the others, and to that one too, 

which is unelected by, and independent of the nation . . . The 

11

13 XV The Writings of Thomas Jefferson (Albert Bergh, ed. 1903) at 213 (letter from Thomas 

Jefferson to Judge Spencer Roane (September 6, 1819)). 14 Abraham Lincoln’s First Inaugural Address (March 4, 1861) in 4 The Collected Works of 

Abraham Lincoln 268 (Roy P. Basler, ed. 1953). 15 Herbert Wechsler, ‘‘The Courts and the Constitution,’’ 65 Colum. L. Rev. 1001, 1005 (1965). 16See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). 17This provision of the Constitution makes clear that the Constitution itself vests judicial 

power in the manner prescribed in the Constitution, not that the Constitution mandates Congress to vest complete jurisdiction in the Federal courts. The Constitution itself ‘‘vests’’ in the 

Supreme Court only its limited, original jurisdiction ‘‘[i]n all cases affecting Ambassadors, other 

public Ministers and consuls, and those in which a State shall be Party . . .’’ U.S. Constitution, 

Article III, § 2, clause 2. The word ‘‘shall’’ in this provision is not addressed to Congress, just 

as the words ‘‘shall’’ in the constitutional clauses vesting the legislative and executive authorities are not addressed to Congress. See U.S. Constitution, Article I , § 1 (‘‘All legislative Powers 

herein granted shall be vested in a Congress of the United States . . .’’); Article II, § 1 (‘‘The 

executive Power shall be vested in a President of the United States of America.’’). Similarly, 

where the Constitution provides that ‘‘The judicial power shall extend’’ to certain cases, it can 

only mean that such power shall extend to such cases insofar as either the Constitution vests 

original jurisdiction in the Supreme Court or as the Constitution vests power in Congress to 

create lower Federal courts and Congress has in fact exercised that power by statute. See also

U.S. Const. Art. I, § 8, clause 9 (‘‘The Congress shall have Power . . . To constitute Tribunals 

inferior to the supreme Court.’’). See also Richard H. Fallon, Daniel J. Meltzer, and David L. 

Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System (4th ed. 1996) at 348 

(‘‘Although Article III states that ‘the judicial Power of the United States shall be vested’ (emphasis added), Congress possesses significant powers to apportion jurisdiction among state and 

Federal courts and, in doing so, to define and limit the jurisdiction of particular courts.’’). 18The Constitution does not grant the Supreme Court exclusive original jurisdiction. See California v. Arizona, 440 U.S. 59, 65 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); 

Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930). 

constitution, on this hypothesis, is a mere thing of wax in the 

hands of the judiciary, which they may twist and shape into 

any form they please.13

Abraham Lincoln said in his first inaugural address in 1861, 

‘‘The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people 

will have ceased to be their own rulers having, to that extent, practically resigned their government into the hands of that eminent 

tribunal.’’ 14

H.R. 2028 FITS NEATLY WITHIN OUR CONSTITUTIONAL SYSTEM

A remedy to abuses by Federal judges has long been understood 

to lie, among other places, in Congress’s authority to limit Federal 

court jurisdiction. As eminent Federal jurisdiction scholar Herbert 

Wechsler has stated, ‘‘Congress has the power by enactment of a 

statute to strike at what it deems judicial excess by delimitations 

of the jurisdiction of the lower courts and of the Supreme Court’s 

appellate jurisdiction . . . [E]ven a pending case may be excepted 

from appellate jurisdiction.’’ 15 Indeed, the Supreme Court has 

upheld a statute removing jurisdiction from it in a pending case.16

Regarding the Federal courts below the Supreme Court, Article 

III, § 1, clause 1 of the Constitution provides that ‘‘The judicial 

Power of the United States, shall be vested in one supreme Court, 

and in such inferior Courts as the Congress may from time to time 

ordain and establish.’’ 17

Regarding the Supreme Court, the Constitution provides that 

only two types of cases are within the original jurisdiction of the 

Supreme Court.18 Article III, § 2, clause 2 provides that ‘‘[i]n 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 . . . the supreme 

Court shall have appellate Jurisdiction, both as to Law and Fact, 

12

19 Article III, § 2, clause 2’s reference to cases in which ‘‘a State shall be Party’’ does not include suits by citizens against states. See United States v. Texas, 143 U.S. 621, 643–44 (1892) 

(‘‘The words in the constitution, ‘in all cases . . . in which a state shall be party, the supreme 

court shall have original jurisdiction’ . . . do not refer to suits brought against a state by its 

own citizens or by citizens of other states, or by citizens or subjects of foreign states, even where 

such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.’’) (emphasis added). The Eleventh Amendment provides that ‘‘The judicial power of the United States 

shall not be construed to extend to any suit in law or equity, commenced or prosecuted against 

one of the United States by citizens of another State, or by citizens or subjects of any foreign 

state.’’ U.S. Const. Amend. XI. 20 By statute, the original and exclusive jurisdiction of the Supreme Court is confined to ‘‘all 

controversies between two or more States.’’ 28 U.S.C. § 1251(‘‘(a) The Supreme Court shall have 

original and exclusive jurisdiction of all controversies between two or more States. (b) The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings 

to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings 

by a State against the citizens of another State or against aliens.’’). 21Federalist No. 80 (Hamilton) at 481 (Clinton Rossiter ed., 1961). Hamilton elaborated further in Federalist No. 81, stating that ‘‘We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes [cases affecting ambassadors, ministers, 

and consuls, and cases in which a State is a party], and those of a nature rarely to occur. In 

all other cases of Federal cognizance, the original jurisdiction would appertain to the inferior 

tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ‘with 

such EXCEPTIONS and under such REGULATIONS as the Congress shall make.’ ’’ Federalist 

No. 81 (Hamilton) at 488 (Clinton Rossiter ed., 1961). 22Federalist No. 81 (Hamilton) at 490 (Clinton Rossiter ed., 1961). 23See Clinton Rossiter, 1787: The Grand Convention, chapter 10 (1966).

with such Exceptions, and under such Regulations as the Congress 

shall make.’’ 19

Consequently, the Constitution provides that the lower Federal 

courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only ‘‘cases affecting Ambassadors, other public Ministers and Consuls, and those in which 

a State shall be Party.’’ 20

The Founders of our Nation carefully crafted a republic in the 

Constitution. They articulated their defense of that document to 

the voters in the ratifying states in a series of newspaper articles 

that became known as the Federalist Papers. 

In Federalist No. 80, Alexander Hamilton made clear the broad 

nature of Congress’s authority to amend Federal court jurisdiction 

to remedy perceived abuse. He wrote:

From this review of the particular powers of the Federal judiciary, as marked out in the Constitution, it appears that they 

are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation 

of any of them into the plan, it ought to be recollected that the 

national legislature will have ample authority to make such 

EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.21

Alexander Hamilton also wrote in Federalist No. 81 that ‘‘To 

avoid all inconveniencies, it will be safest to declare generally, that 

the Supreme Court shall possess appellate jurisdiction [that] shall 

be subject to such EXCEPTIONS and regulations as the national 

legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice 

and security.’’ 22

Roger Sherman, whom eminent historian Clinton Rossiter considered one of the most influential members of the Constitutional 

Convention,23 also wrote that: 

13

24 Roger Sherman, Observations on the New Federal Constitution (A Citizen of New Haven, 

II) (December 25, 1788) (emphasis added), reprinted in Essays on the Constitution of the United 

States, at 240–41 (P. Ford, ed. 1892). 25 1 Stat. 85. 26 Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler’s The Federal 

Courts and the Federal System (4th ed. 1996) at 28. 27Kenneth Thomas, Congressional Research Service, CRS Report for Congress, ‘‘Limiting 

Court Jurisdiction Over Federal Constitutional Issues: ‘Court-Stripping’ ’’ (updated May 19, 

2004) at 7. 28 1 Stat. 85. 29See Martin v. Hunter’s Lessee, 14 U.S. 304, 352 (1816). 30See Gordon v. Caldcleugh, 7 U.S. 268 (1806). 

It was thought necessary in order to carry into effect the laws 

of the Union, to promote justice, and preserve harmony among 

the states, to extend the judicial powers of the United States 

to the enumerated cases, under such regulations and with such 

exceptions as shall be provided for by law, which will doubtless 

reduce them to cases of such magnitude and importance as cannot safely be trusted to the final decision of the courts of particular states ...24

FROM THE FIRST JUDICIARY ACT OF 1789 TO THE PRESENT, 

CONGRESS’S USE OF ITS AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION HAS BEEN CONSISTENT AND BIPARTISAN

Congress has always made clear that it can limit the jurisdiction 

of the Federal courts, starting with the Judiciary Act of 1789.25 As 

has been observed by the authors of the leading treatise on Federal 

court jurisdiction, ‘‘the first Judiciary Act is widely viewed as an 

indicator of the original understanding of Article III and, in particular, of Congress’ constitutional obligations concerning the vesting of Federal jurisdiction.’’ 26

The first Congress made clear that Federal court jurisdiction 

over constitutional claims was not unlimited. As the Congressional 

Research Service has written:

There is significant historical precedent . . . for the proposition that there is no requirement that all jurisdiction that 

could be vested in the Federal courts should be so vested. For 

instance, the First Judiciary Act implemented under the Constitution, the Judiciary Act of 1789, is considered to be an indicator of the original understanding of the Article III powers. 

That Act, however, falls short of having implemented all of the 

‘‘judicial powers’’ which were specified under Article III. For instance, the Act did not provide jurisdiction for the inferior Federal courts to consider cases arising under Federal law or the 

Constitution. Although the Supreme Court’s appellate jurisdiction did extend to such cases when they originated in state 

courts, its review was limited to where a claimed statutory or 

constitutional right had been denied by the court below.27

The Judiciary Act of 1789 28 provided that the Supreme Court, 

regarding constitutional challenges to Federal law, could review 

only those final decisions of the state courts that held ‘‘against [the] 

validity’’ of a Federal statute or treaty.29 Consequently, under the 

Judiciary Act of 1789, if the highest state court held a Federal law 

constitutional, no appeal was allowed to any Federal court, including the Supreme Court. The Supreme Court dismissed a case early 

in its history under such provision.30

14

31 Judiciary Act of 1789, 1 Stat. 85 (1789). 32See Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler’s The 

Federal Courts and the Federal System (4th ed. 1996) at 33 (stating that in the Judiciary Act 

of 1789, ‘‘Congress provided no general Federal question jurisdiction in the lower Federal 

courts’’). 33 Judiciary Act of 1789, 1 Stat. 73, § 11 (1789). 34 Judiciary Act of 1789, 1 Stat. 73, § 25 (1789). 35 Id. 36See Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler’s The 

Federal Courts and the Federal System (4th ed. 1996) at 29 (emphasis in original). 37See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470 (1875). 38See Judiciary Act of 1914, Act of Dec. 23, 1914, ch. 2, 38 Stat. 790 (1914). 39The Congressional Research Service, on July 22, 2004, issued a memorandum stating its 

staff was unaware of any precedent for a law that would deny the inferior Federal courts original jurisdiction or the Supreme Court appellate jurisdiction to review the constitutionality of 

a law of Congress. See Memorandum from Mr. Johnny H. Killian, Senior Specialist, American 

In the Judiciary Act of 1789,31 Congress provided no general 

Federal question jurisdiction in the Federal courts below the Supreme Court.32 The Federal circuit courts were vested with jurisdiction according to the nature of the parties rather than the nature of the dispute. The Judiciary Act of 1789 provided ‘‘the circuit 

courts shall have original cognizance . . . of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds . . . the sum . . . of five hundred dollars, and the United 

States are plaintiffs, or petitioners; or an alien is a party, or the 

suit is between a citizen of the State where the suit is brought, and 

a citizen of another State.’’ 33

Further, Section 25 of the Judiciary Act of 1789 restricted the 

Supreme Court’s appellate jurisdiction over state court decisions to 

cases where the validity of a treaty, statute, or authority of the 

United States was drawn into question and the state court’s decision was against their validity 34 or where a state court construed 

a United States constitution, treaty, statute, or commission and decided against a title, right, privilege, or exemption under any of 

them.35 Consequently, under the Judiciary Act of 1789, if the highest state courts upheld a Federal law as constitutional and decided 

in favor of a right under such Federal statute (and there was no 

coincidental Federal diversity jurisdiction), no appeal claiming such 

Federal law was unconstitutional was allowed to any Federal court, 

including the Supreme Court. The Judiciary Act of 1789, therefore, 

denied the inferior Federal courts original jurisdiction and the Supreme Court appellate jurisdiction to review the constitutionality of 

literally thousands of laws of Congress in the many and various 

circumstances meeting the criteria just mentioned. 

As scholars of Federal court jurisdiction have observed, ‘‘the 1789 

Act . . . made no use of the grant of judicial power over cases arising under the Constitution or laws of the United States . . . In the 

category of cases arising under Federal law, Congress provided no 

general Federal question jurisdiction in the lower Federal courts. 

Nor, under section 25, did the Supreme Court’s appellate jurisdiction extend to cases originating in the state courts in which the 

Federal claim was upheld.’’ 36

Congress did not grant a more general Federal question authority to the lower Federal courts until after the Civil War,37 and Congress did not grant the Supreme Court the authority to review 

state court rulings upholding a claim of Federal right until 1914.38

Until 1914, then, a situation existed in which the constitutionality 

of literally thousands of Federal laws could not be reviewed in either the inferior Federal courts, or the Supreme Court, or both.39

15

Constitutional Law to House Committee on the Judiciary re: ‘‘Precedent for Congressional Bill.’’ 

However, on August 16, 2004, in response to a letter from the Committee, the Congressional 

Research Service admitted its error. See Memorandum to House Committee on the Judiciary 

from Johnny H. Killian, Senior Specialist, American Constitutional Law, American Law Division 

re: Congressional Control of Jurisdiction of Federal Courts (August 16, 2004) (‘‘This memorandum responds to your request that we reassess an earlier memorandum of ours . . . [§ 25 

of the Judiciary Act of 1789] did operate to preclude any Federal court from deciding the validity 

of a Federal statute from 1789 to 1875. Accordingly, our earlier memorandum was incorrect.’’). 

This correspondence is reprinted at 150 Cong. Rec. E1604–05 (September 13, 2004). 40William R. Casto, ‘‘The First Congress’s Understanding of Its Authority Over the Federal 

Courts’ Jurisdiction,’’ 26 B.C.L. Rev. 1101, 1118 (1985). 41William R. Casto, ‘‘The First Congress’s Understanding of Its Authority Over the Federal 

Courts’ Jurisdiction,’’ 26 B.C.L. Rev. 1101, 1120 (1985) (emphasis added). 42 Encyclopedia of American History 145 (R. Morris 6th ed. 1982). 43See 1 Annals of Congress 812–13 (J. Gales ed. 1789). 44See Gazette of the United States (September 19, 1789) at 3, col. 2. 45See I Debates and Proceedings in the Congress of the United States at 928–29 (Thursday, 

September 17, 1789) (‘‘The bill for establishing the Judicial Courts of the United States was read 

the third time and passed.’’). 46See I Debates and Proceedings in the Congress of the United States at 52 (Friday, July 17, 

1789) (Bassett, Ellsworth, Few, Johnson, Morris, Paterson, Read, and Strong voting for, Butler 

and Langdon voting against). While one cannot know from such votes whether those voting 

against it did so because they believed it was unconstitutional, surely no one who voted for it 

did so believing it was unconstitutional. 47 2 Annals of Congress 1719 (1790). 48See William R. Casto, ‘‘The First Congress’s Understanding of Its Authority Over the Federal Courts’ Jurisdiction,’’ 26 B.C.L. Rev. 1101, 1122 (1985). 

As one commentator has written, ‘‘Under the Judiciary Act of 

1789, cases could arise that clearly fall within the judicial power 

of the United States but that were excluded from the combined appellate and original jurisdiction of the Federal courts,’’ including 

cases in which a state court erroneously voided a state statute for 

violating the Federal constitution.40 In sum, ‘‘the first Congress’s 

allocation of jurisdiction in the Judiciary Act is inconsistent with 

the thesis that the Constitution requires the entire judicial power 

of the United States to be vested in the aggregate in the Supreme 

Court and lower Federal courts.’’ 41

In the first Congress, fifty-four members had been delegates to 

the Constitutional Convention or their state ratification conventions.42 That same Congress overwhelmingly voted to place significant restrictions on Federal court jurisdiction that prevented many 

constitutional and other claims from ever being heard in a Federal 

court. James Madison, for example, spoke in favor of the Judiciary 

Act of 1789 during House debate on the legislation,43 and at the 

conclusion of the debate he gave the legislation his endorsement.44

Although there is no rollcall vote on passage of the Judiciary Act 

of 1789 in the House recorded in the Congressional Record,45 the 

Judiciary Act of 1789 passed the Senate by a vote of 14–6, with 

eight of the ten former delegates to the Constitutional Convention 

voting for it.46

Shortly after the Judiciary Act of 1789 became law, Congress 

asked Edmund Randolph, the first Attorney General of the United 

States, to submit a report and recommendation on ‘‘matters relative to the administration of justice under the authority of the 

United States.’’ 47 In that report, Attorney General Randolph recommended that the Judiciary Act of 1789 be amended such that 

even more cases within the judicial power of the United States be 

prohibited from being filed in Federal court and from being appealed to a Federal court, citing the broad authority the Constitution granted Congress to limit Federal court jurisdiction.48

Indeed, as a leading treatise has pointed out, ‘‘Beginning with 

the first Judiciary Act in 1789, Congress has never vested the FedVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
16

49 Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler’s The Federal 

Courts and the Federal System (4th ed. 1996) at 349. Such less-than-full vesting includes statutes that preclude Federal review of diversity cases in which the amounts in controversy are 

below statutorily defined minimums. Id. Further, the law has generally developed in a variety 

of additional ways that make clear there are many types of cases in which not only are Federal 

courts precluded from conducting constitutional review, but all constitutional review is precluded. For example, the Supreme Court has found constitutional claims to be beyond judicial 

review because they involve ‘‘political questions.’’ See Coleman v. Miller, 307 U.S. 433, 443–46 

(1939); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79–80 (1930). And 

the doctrine of sovereign immunity provides that additional constitutional claims can go unheard. See Black’s Law Dictionary (8th ed. 2004) (‘‘A government’s immunity from being sued 

in its own courts without its consent’’). 50See Audrey Hudson, ‘‘Daschle Seeks to Exempt His State; Wants Logging to Prevent Fires,’’ 

The Washington Times (July 24, 2002) at A1 (‘‘ ‘As we have seen in the last several weeks, the 

fire danger in the Black Hills is high and we need to get crews on the ground as soon as possible 

to reduce this risk and protect property and lives,’ Mr. Daschle said in a statement late Monday 

night after a House-Senate conference committee agreed on the language . . . The provision 

says that ‘due to extraordinary circumstances,’ timber activities will be exempt from the National Forest Management Act and National Environmental Policy Act, is not subject to notice, 

comment or appeal requirements under the Appeals Reform Act, and is not subject to judicial 

review by any U.S. court.’’); Michelle Munn, ‘‘Plan to Curb Forest Fires Wins Support,’’ The Los 

Angeles Times (August 2, 2002) at A16 (‘‘Daschle’s amendment authorizes a forest management 

program in Black Hills National Forest without resort to a typically lengthy judicial review and 

appeals process.’’). 51See P.L. 107–206, § 706(j) (‘‘Any action authorized by this section shall not be subject to judicial review by any court of the United States.’’). This provision was addressed by the Tenth 

Circuit Court of Appeals in Biodiversity Associates v. Cables, 357 F.3d 1152 (10th Cir. 2004), 

but only to determine whether that provision conflicted with a settlement agreement between 

the Clinton Administration and plaintiffs in the case under which it agreed not to allow any 

tree cutting in the Beaver Park Roadless Area. Id. at 1158, 1160 (‘‘In the waning days of the 

Clinton Administration, in September of 2000, the Forest Service signed a settlement agreement 

with the plaintiff groups, under which it agreed not to allow any tree cutting in the Beaver Park 

Roadless Area, at least until the Service approved a new land and resource management plan 

remedying the defects of the 1997 plan . . . The question before us is simply whether the settlement agreement has continuing validity in the face of Congress’s intervening act.’’). 52 Congress has often acted to preclude judicial review in Federal courts in selected cases. For 

example, the Terrorism Risk Insurance Act (P.L. 107–297) precludes judicial review of ‘‘certifications’’ by the Secretary of the Treasury that terrorist events have occurred, and the Small 

Business Liability Relief and Brownfields Revitalization Act (P.L. 107–118) precludes judicial review of hazardous waste cleanup programs. 53See Congressional Quarterly, Congressional rollcall 1979, at 10–S (‘‘R 25–12; D 26–28’’). 54See 28 U.S.C. § 1738C. 

eral courts with the entire ‘judicial Power’ that would be permitted 

by Article III.’’ 49

On both sides of the political spectrum, calls have been made to 

limit the jurisdiction of Federal courts to avoid abuses. Senate Minority Leader Daschle has supported provisions that would deny all 

Federal courts jurisdiction over the procedures governing timber 

projects in order to expedite forest clearing and save forests from 

destruction.50 Those provisions became part of Public Law 107–

206.51 If Congress can deny all Federal courts the authority to hear 

a class of cases to protect trees, certainly it should do so to protect 

a state’s policy regarding the Pledge of Allegiance.52

Democratic Senator Robert Byrd also introduced an amendment, 

Amendment SU 70, to S. 450 during the 96th Congress. The 

amendment, which was adopted by a Senate controlled by Democrats with large bipartisan support,53 provided that neither the 

lower Federal courts nor the Supreme Court would have jurisdiction to review any case arising out of state laws relating to voluntary prayers in public schools and public buildings. 

And on July 22, 2004, the House passed, by a vote of 233–194, 

H.R. 3313, the Marriage Protection Act, which would prevent Federal courts from striking down the provision of the Defense of Marriage Act 54 that provides that no state shall be required to accept 

same-sex marriage licenses granted in other states. 

17

55 3 U.S. (3 Dall.) 321 (1796). 56 Id. at 328. 57 4 U.S. 8 (1799). 58 1 Stat. 79. 59 4 U.S. at 8 (‘‘Congress knew, that the English courts have amplified their jurisdiction, 

through the medium of legal fictions; and it was readily foreseen, that by the means of a 

colorable assignment to an alien, or to the citizen of another state, every controversy arising 

upon negotiable paper might be drawn into the Federal courts.’’) (citing argument of counsel). 

See also 10 Annals of Congress, at 897–99 (1801) (discussing purpose of assignee provision). 60 Id. at 10, n.a. (citing statement of Chief Justice Ellsworth).

SUPREME COURT PRECEDENTS ARE CONSISTENT WITH CONGRESS’S

AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION

Supreme Court precedents upholding a variety of statutes limiting Federal court jurisdiction make clear that Congress has the 

authority to remove jurisdiction over legal issues from Federal 

courts below the Supreme Court, and from the Supreme Court as 

well. 

In Wiscart v. D’Auchy,55 Chief Justice Ellsworth, who has been 

a delegate to the Constitutional Convention, upheld a denial of Supreme Court jurisdiction, stating broadly that the Supreme Court’s 

appellate jurisdiction is, likewise, qualified; inasmuch as it is 

given ‘‘with such exceptions, and under such regulations, as 

the Congress shall make.’’ Here then, is the ground, and the 

only ground, on which we can sustain an appeal. If Congress 

has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we 

cannot depart from it. The question, therefore, on the constitutional point of an appellate jurisdiction, is simply, whether 

Congress has established any rule for regulating its exercise? 56

In Turner v. Bank of North America,57 the Supreme Court 

upheld the provision of the Judiciary Act 58 which provided that no 

district or circuit court ‘‘shall have cognisance of any suit to recover 

the contents of any promissory note, or other chose in action, in 

favor of an assignee, unless a suit might have been prosecuted in 

such court, to recover the said contents, if no assignment had been 

made, except in cases of foreign bills of exchange.’’ As counsel 

pointed out, Congress had passed the statute to prevent contracts 

between citizens of the same state from, through collusion, being 

made Federal issues under the Federal courts’ diversity jurisdiction 

simply because one party assigned the benefits of a promissory 

note to a citizen of another state, or to an alien.59 Chief Justice 

Ellsworth, during oral argument, asked the counsel asserting jurisdiction incredulously, ‘‘How far is it meant to carry the argument? 

Will it be affirmed, that in every case, to which the judicial power 

of the United States extends, the Federal courts may exercise a jurisdiction, without the intervention of the legislature, to distribute, 

and regulate, the power?’’ 60 Justice Chase agreed, stating: 

The notion has frequently been entertained, that the Federal 

courts derive their judicial power immediately from the constitution; but the political truth is that the disposal of the judicial power (except in a few specified instances) belongs to congress. If congress has given the power to this court, we possess 

it, not otherwise: and if congress has not given the power to 

us, or to any other court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, 

18

61 Id. at 9, n.a. (citing statement of Justice Case). 62 44 U.S. 236 (1845). 63 Id. at 241 (‘‘To permit the receipts at the customs to depend on constructions as numerous 

as are the agents employed, as various as might be the designs of those who are interested; 

or to require that those receipts shall await a settlement of every dispute or objection that might 

spring from so many conflicting views, would be greatly to disturb, if not to prevent, the uniformity prescribed by the Constitution, and by the same means to withhold from the government 

the means of fulfilling its important engagements . . . We have no doubts of the objects or the 

import of that act; we cannot doubt that it . . . has made the head of the Treasury Department 

the tribunal for the examination of claims for duties said to have been improperly paid.’’).

be inexpedient, to enlarge the jurisdiction of the Federal 

courts, to every subject, in every form, which the constitution 

might warrant.61

In Cary v. Curtis,62 the Supreme Court upheld the application of 

a statute that placed jurisdiction for all claims of illegally charged 

customs duties with the Secretary of the Treasury. The Court stated that, under the statute, ‘‘it is the Secretary of the Treasury 

alone in whom the rights of the government and of the claimant 

are to be tested.’’ 63 In a broad decision, the Court upheld a Federal 

statute that removed jurisdiction over all such claims from both the 

state and Federal courts and dismissed the case for lack of jurisdiction: 

It is contended, however, that the language and the purposes 

of Congress, if really what we hold them to be declared in the 

statute of 1839, cannot be sustained, because they would be repugnant to the Constitution, inasmuch as they would debar the 

citizen of his right to resort to the courts of justice . . . [I]n 

the doctrines so often ruled in this court that the judicial 

power of the United States, although it has its origin in the 

Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the 

action of Congress, who possess the sole power of creating the 

tribunals (inferior to the Supreme Court) for the exercise of the 

judicial power, and of investing them with jurisdiction either 

limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to 

Congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative 

branch of the government, and to give to the former powers limited by its own discretion merely. It follows, then, that the 

courts created by statute must look to the statute as the warrant for their authority, certainly they cannot go beyond the 

statute, and assert an authority with which they may not be 

invested by it, or which may be clearly denied to them. This 

argument is in no wise impaired by admitting that the judicial 

power shall extend to all cases arising under the Constitution 

and laws of the United States. Perfectly consistent with such 

an admission is the truth, that the organization of the judicial 

power, the definition and distribution of the subjects of jurisdiction in the Federal tribunals, and the modes of their action 

and authority, have been, and of right must be, the work of the 

legislature. The existence of the Judicial Act itself, with its 

several supplements, furnishes proof unanswerable on this 

point. The courts of the United States are all limited in their 

19

64 Id. at 244–46 (emphasis added). 65 46 U.S. (5 How.) 103 (1847). 66 Id. at 119. 67 29 U.S. 441 (1850). 68 Id. at 448–49. 69 73 U.S. (6 Wall.) 247 (1868). 70 Id. at 251–52.

nature and constitution, and have not the powers inherent in 

courts existing by prescription or by the common law.64

In Barry v. Mercein,65 the Supreme Court stated that ‘‘[b]y the 

Constitution of the United States, the Supreme Court possesses no 

appellate power in any case, unless conferred upon it by act of Congress, nor can it, when conferred be exercised in any other form, 

or by any other mode of proceeding than that which the law prescribes.’’ 66

In Sheldon v. Sill,67 the Supreme Court stated: 

It must be admitted, that if the Constitution had ordained and 

established the inferior courts, and distributed to them their 

respective powers, they could not be restricted or divested by 

Congress. But as it has made no such distribution, one of two 

consequences must result—either that each inferior court created by Congress must exercise all the judicial powers not 

given to the Supreme Court, or that Congress, having the 

power to establish the courts, must define their respective jurisdictions. The first of these inferences has never been asserted, and could not be defended with any show of reason, and 

if not, the latter would seem to follow as a necessary consequence. And it would seem to follow, also, that, having a 

right to prescribe, Congress may withhold from any court of its 

creation jurisdiction of any of the enumerated controversies. 

Courts created by statute can have no jurisdiction but such as 

the statute confers. No one of them can assert a just claim to 

jurisdiction exclusively conferred on another, or withheld from 

all . . . Such has been the doctrine held by this court since its 

first establishment. To enumerate all the cases in which it has 

been either directly advanced or tacitly assumed would be tedious and unnecessary.68

In Mayor v. Cooper,69 the Supreme Court held that: 

How jurisdiction shall be acquired by the inferior courts, 

whether it shall be original or appellate, or original in part and 

appellate in part, and the manner of procedure in its exercise 

after it has been acquired, are not prescribed. The Constitution 

is silent upon those subjects. They are remitted without check 

or limitation to the wisdom of the legislature . . . As regards 

all courts of the United States inferior to this tribunal, two 

things are necessary to create jurisdiction, whether original or 

appellate. The Constitution must have given to the court the 

capacity to take it, and an act of Congress must have supplied 

it. Their concurrence is necessary to vest it . . . It is the right 

and the duty of the national government to have its Constitution and laws interpreted and applied by its own judicial tribunals. In cases arising under them, properly brought before it,

this court is the final arbiter.70

20

71 80 U.S. 128 (1871). 72 Id. at 147. 73 Id. 74 Id. at 146. 75 Id. at 145 (emphasis added). 76 105 U.S. 381 (1881). 77The Francis Wright, 105 U.S. 381, 385–86 (1881). 78 195 U.S. 165 (1904). 

In United States v. Klein,71 the Supreme Court struck down a 

statute that purported to deny the lower U.S. Court of Claims and 

the Supreme Court, on appeal, the authority to hear claims for 

property brought by those who were pardoned by President Lincoln 

following the Civil War. The Supreme Court held the statute unconstitutional for two reasons. First, because the statute made having received a pardon proof of disloyalty that effectively denied the 

right to Federal judicial review, it found that in forbidding the 

Court ‘‘to give the effect to evidence which, in its own judgment, 

such evidence should have’’ and directing the court ‘‘to give it an 

affect precisely contrary,’’ Congress had ‘‘inadvertently passed the 

limit which separates the legislative from the judicial power.’’ 72

Second, the statute unconstitutionally ‘‘impair[ed] the effect of a 

pardon, and thus infring[ed] the constitutional power of the Executive.’’ 73

In the opinion, however, the Supreme Court made clear that ‘‘[i]t 

seems to us that this is not an exercise of the acknowledged power 

of Congress to make exceptions and prescribe regulations to the appellate power.’’ 74 Further, the Court stated that ‘‘If [the challenged 

statute] simply denied the right of appeal in a particular class of 

cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make ‘such exceptions from the appellate jurisdiction’ as should seem to it expedient. But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great 

and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.’’ 75 In 

other words, the denial of Federal court jurisdiction would have 

been upheld if it had not effectively acted to limit the President’s 

constitutional pardon power. H.R. 2028 would not conflict with any 

other constitutional authority granted by the Constitution. 

In The Francis Wright,76 the Supreme Court stated: 

[W]hile the appellate power of this court under the Constitution extends to all cases within the judicial power of the United 

States, actual jurisdiction under the power is confined within 

such limits as Congress sees fit to prescribe . . . What those 

powers shall be, and to what extent they shall be exercised, 

are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with 

it authority to limit the use of the jurisdiction. Not only may 

whole classes of cases be kept out of the jurisdiction altogether, 

but particular classes of questions may be subjected to re-examination and review, while others are not.77

In Stevenson v. Fain,78 the Supreme Court stated that ‘‘The Supreme Court alone possesses [original] jurisdiction derived immediately from the Constitution, and of which the legislative power 

21

79 Id. at 167 (quotations and citations omitted). 80 260 U.S. 226 (1922). 81 Id. at 234. 82 303 U.S. 323 (1938). 83 319 U.S. 182 (1943).

cannot deprive it, but the jurisdiction of the circuit courts depends 

upon some act of Congress.’’ 79

In Kline v. Burke Construction Co.,80 the Supreme Court states 

that: 

Only the [original] jurisdiction of the Supreme Court is derived 

directly from the Constitution. Every other court created by 

the general government derives its jurisdiction wholly from the 

authority of Congress. That body may give, withhold or restrict 

such jurisdiction at its discretion, provided it be not extended 

beyond the boundaries fixed by the Constitution . . . The Constitution simply gives to the inferior courts the capacity to take 

jurisdiction in the enumerated cases, but it requires an act of 

Congress to confer it. And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or 

in part . . . A right which thus comes into existence only by 

virtue of an act of Congress, and which may be withdrawn by 

an act of Congress after its exercise has begun, cannot well be 

described as a constitutional right.81

In Lauf v. E.G. Shinner & Co.,82 the Supreme Court again 

upheld a statute that placed limits on the jurisdiction of the lower 

Federal courts, stating ‘‘the power of the court to grant the relief 

prayed depends upon the jurisdiction conferred upon it by the statutes of the United States . . . Section 7 [of the Act] declares that 

‘no court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing 

out of a labor dispute, as herein defined,’ [with certain exceptions] 

. . . There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United 

States.’’

In Lockerty v. Phillips,83 the Supreme Court similarly held, in 

upholding a statute limiting lower courts’ jurisdiction over challenges to price controls, that 

[b]y this statute Congress has seen fit to confer on the Emergency Court (and on the Supreme Court upon review of decisions of the Emergency Court) equity jurisdiction to restrain 

the enforcement of price orders under the Emergency Price 

Control Act. At the same time it has withdrawn that jurisdiction from every other Federal and state court. There is nothing 

in the Constitution which requires Congress to confer equity 

jurisdiction on any particular inferior Federal court. All Federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to ‘‘ordain and 

establish’’ inferior courts, conferred on Congress by Article III, 

§ 1, of the Constitution. Article III left Congress free to establish 

inferior Federal courts or not as it thought appropriate. It could 

have declined to create any such courts, leaving suitors to the 

remedies afforded by state courts, with such appellate review by 

this Court as Congress might prescribe. The Congressional 

power to ordain and establish inferior courts includes the 

22

84 Id. at 187–88 (quotations and citations omitted) (emphasis added). 85Martin H. Redish, ‘‘Constitutional Limitations on Congressional Power to Control Federal 

Jurisdiction: A Reaction to Professor Sager,’’ 77 N.W.U.L.Rev. 143, 148 (1982). 86 5 U.S. 137 (1803). In Marbury v. Madison, the Supreme Court found that under Article III 

of the Constitution, a party within the Supreme Court’s original jurisdiction must be a State 

or an ambassador and that neither Marbury nor Madison was a state or an ambassador. Consequently, the Supreme Court held that the original jurisdiction of the Supreme Court is fixed 

by the Constitution and it dismissed the case because Congress had exceeded its constitutional 

authority when it granted the Supreme Court original jurisdiction to hear Marbury’s case in the 

Judiciary Act of 1789. Id. 87See Gordon v. Caldcleugh, 7 U.S. 268 (1806) (dismissing case for lack of jurisdiction under 

the Judiciary Act of 1789) (‘‘This court has no jurisdiction, under the 25th section of the judiciary act of 1789, but in a case where a final judgment or decree has been rendered in the highest 

court of law or equity of a state, in which a decision in the suit could be had, where is drawn 

in question, the validity of a treaty or statute of, or an authority exercised under the United 

States, and the decision is against their validity, &c. or where is drawn in question, the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under 

the United States, and the decision is against the title, right, privilege or exemption, specially 

set up or claimed by either party, under such clause of the said constitution, treaty, statute or 

commission. In the present case, such of the defendants as were aliens, filed a petition to remove the cause to the Federal circuit court, under the 12th section of the same act. The state 

court granted the prayer of the petition, and ordered the cause to be removed; the decision, 

therefore, was not against the privilege claimed under the statute; and, therefore, this court has 

no jurisdiction in the case. The writ of error must be dismissed.’’). 

power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them 

in the exact degrees and character which to Congress may 

seem proper for the public good. In the light of the explicit language of the Constitution and our decisions, it is plain that 

Congress has power to provide that the equity jurisdiction to 

restrain enforcement of the Act, or of regulations promulgated 

under it, be restricted to the Emergency Court, and, upon review of its decisions, to this Court.84

While some have argued that Federal court jurisdiction is necessary to ensure a Federal court exists to decide at least constitutional questions, as eminent Federal jurisdiction scholar Martin 

Redish has observed, ‘‘there is no logical way to limit the need for 

an article III court to police the states to cases involving assertions 

of constitutional rights. If the state courts are not to be allowed to 

undermine the establishment of national supremacy, surely these 

courts must also be policed on their interpretation and enforcement 

of any Federal law. The supremacy clause, it should be recalled, is 

not limited in its dictates to matters of constitutional law, much 

less of constitutional right.’’ 85

Further, H.R. 2028 is entirely consistent with Marbury v. Madison. Marbury v. Madison 86 established the principle of judicial review and stands for the proposition that the Supreme Court has 

the final say on the issues it decides provided either the issues it 

decides are within its original jurisdiction or Congress, by statute, 

has granted the Supreme Court the authority to hear the issue. If 

a case does not fall within the jurisdiction of the Federal courts because Congress has not granted the required jurisdiction, Federal 

courts simply cannot hear the case. 

The author of Marbury v. Madison was Chief Justice John Marshall, and Chief Justice Marshall himself, after he decided Marbury

v. Madison, dismissed cases when the Federal courts had not been 

granted jurisdiction by Congress to hear them under the Judiciary 

Act of 1789.87

23

88 As Martin Redish has observed, the Founders did not intend to guarantee a Federal judiciary to ensure uniformity of Federal policy, but rather they intended to allow Congress the option 

of creating and granting jurisdiction to Federal courts if Congress thought such was necessary 

to police actions by state courts:

[The Founders’] fear seems to have been that, absent policing by some branch of the 

Federal Government, state courts might undermine Federal supremacy. Ultimately, the 

framers chose the judicial branch to perform this policing function. But if the policymaking branches of the Federal Government—Congress and the executive—conclude in 

a particular instance that there is no need to worry about state court interference, there 

is, by definition, no possibility of interference with Federal supremacy; the Federal Government has chosen to deem acceptable whatever constructions of Federal law the state 

courts develop.

Martin H. Redish, ‘‘Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager,’’ 77 N.W.U.L.Rev. 143, 146–47 (1982). See also Martin 

H. Redish, ‘‘Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the 

Exceptions Clause: An Internal and External Examination,’’ 27 Villanova L. Rev. 900, 909 

(1982) (‘‘[I]f the policy-making branches of the Federal Government—Congress and the Executive—conclude that whatever interpretations of Federal law given by state courts are acceptable, 

there will be no need for Supreme Court policing of the state courts to assure compliance with 

Federal supremacy . . . What is important for purposes of federalism is that Congress have the 

power to check the states, not that such a check be required of Congress.’’). 89See Stone v. Rice, 428 U.S. 465, 492 (1976) (‘‘[W]e are unwilling to assume that there now 

exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate 

courts of the several States. State courts, like Federal courts, have a constitutional obligation 

to safeguard personal liberties and to uphold Federal law.’’). 90 458 U.S. 50 (1982). 91 Id. at 64 n.15. 92Martin H. Redish, ‘‘Constitutional Limitations on Congressional Power to Control Federal 

Jurisdiction: A Reaction to Professor Sager,’’ 77 N.W.U.L.Rev. 143, 155, 157 (1982) (emphasis 

added). 

STATE COURTS ARE NOT SECOND-CLASS COURTS, AND THEY ARE

EQUALLY CAPABLE OF DECIDING FEDERAL CONSTITUTIONAL QUES- TIONS

Federal legislation that precludes Federal court jurisdiction over 

certain constitutional claims to remedy perceived abuses by Federal judges, and to preserve for the states and their courts the authority to determine constitutional issues, rests comfortably within 

our constitutional system.88

The Supreme Court has clearly rejected claims that state courts 

are less competent to decide Federal constitutional issues than 

Federal courts.89 Even famously liberal Justice William Brennan 

wrote, in Northern Pipeline Construction Co. v. Marathon Pipe Line 

Co.,90 that ‘‘virtually all matters that might be heard in Art. III 

courts could also be left by Congress to state courts.’’ 91 Justice 

Brennan was joined in that decision by Justices Marshall, Blackmun, and Stevens. 

And the leading scholars have long noted the constitutional alternative of state court resolutions of Federal constitutional claims. As 

Martin Redish has observed, ‘‘The state courts have, since the nation’s beginning, been deemed both fully capable of and obligated 

(under the supremacy clause) to enforce Federal law, including the 

Constitution . . . Congress has complete authority to have constitutional rights enforced exclusively in the state courts . . .’’ 92

Article VI of the Constitution states that ‘‘This Constitution . . . 

shall be the supreme Law of the Land; and the Judges in every 

State shall be bound thereby . . .’’ U.S. Constitution, Art. VI, Section 2. As Martin Redish has pointed out, ‘‘It is all but inconceivable that the framers who had vested total discretion in Congress 

over substantive lawmaking, with the possibility that a Congress 

‘biased’ towards the states could choose to pass no substantive Federal law at all and instead defer completely to state control, would 

have fretted significantly over the possibility that Congress would 

24

93Martin H. Redish, ‘‘Constitutional Limitations on Congressional Power to Control Federal 

Jurisdiction: A Reaction to Professor Sager,’’ 77 N.W.U.L.Rev. 143, 148 (1982). 94 Constitutional Restraints Upon the Judiciary, 97th Cong. 51, 55 (1981) (statement of Paul 

M. Bator, Professor, Harvard Law School). See also Paul Bator, ‘‘The State Courts and Federal 

Constitutional Litigation,’’ 22 Wm. & Mary L.Rev. 605, 627 (1981) (‘‘We must never forget that 

under our constitutional structure it is the state . . . courts that constitute our ultimate guarantee that a usurping legislature and executive cannot strip us of our constitutional rights.’’). 

take the lesser step of enacting substantive Federal law but leaving 

to the state courts the final authority to interpret it.’’ 93

As leading Harvard Law School Federal jurisdiction scholar Paul 

Bator has written, ‘‘If the Constitution means what it says, it 

means that Congress can make the state courts—or, indeed, the 

lower Federal courts—the ultimate authority for the decision of any 

category of case to which the Federal judicial power extends . . . 

Indeed, a powerful case can be made that such a plenary power 

may be essential to making the institution of judicial review tolerable in a democratic society.’’ 94

H.R. 2028 IS A PROPER EXERCISE OF CHECKS AND BALANCES

Far from violating the ‘‘separation of powers,’’ legislation that reserves to state courts jurisdiction to hear and decide certain classes 

of cases is an exercise of one of the very ‘‘checks and balances’’ provided for in the Constitution. 

As Lord Acton stated, ‘‘Power tends to corrupt and absolute 

power corrupts absolutely.’’ No branch of the Federal Government 

can be entrusted with absolute power, certainly not a handful of 

tenured Federal judges appointed for life. The Constitution allows 

the Supreme Court to exercise ‘‘judicial power,’’ but it does not 

grant the Supreme Court unchecked power to define the limits of 

its own power. Integral to the American constitutional system is 

each branch of government’s responsibility to use all its powers to 

prevent perceived instances of overreaching by the other branches. 

Congress’s exercise of its authority to remove classes of cases 

from Federal court jurisdiction does not transfer power from the 

Federal judiciary to Congress. Rather, it transfers power from the 

Federal judiciary to the state judiciary. Congress’s exercise of its 

authority to remove classes of cases from Federal court jurisdiction 

also does not give Congress the power to decide the outcome of 

cases: that decisional authority would rest with the state courts. 

H.R. 2028 does not dictate results: it only places final authority 

over a state’s Pledge policy in the hands of the states themselves. 

THE FOUNDERS CONSIDERED THE PEOPLE TO BE THE ULTIMATE

INTERPRETERS OF THE CONSTITUTION

While there is of course a place for judicial review, too often it 

is forgotten that the Founders considered the People, and the People through their duly elected representatives, to be the ultimate 

arbiters of the Constitution. 

George Washington complained to his nephew Bushrod (a future 

Justice of the Supreme Court) about the stubborn unwillingness of 

Anti-Federalists to face this fundamental point. Washington wrote, 

‘‘The power under the Constitution will always be in the People. It 

25

95Letter from George Washington to Bushrod Washington (November 10, 1787), in 8 The Documentary History of the Ratification of the Constitution 154 (John P. Kaminski and Gaspare 

J. Saladino eds. 1981). 96Letter from Thomas Jefferson to William Charles Jarvis (September 28, 1820) in 10 The 

Writings of Thomas Jefferson (Paul Leicester Ford ed. 1898) at 179–80. 97The Federalist No. 49, at 314 (James Madison), The Federalist Papers (Clinton Rossiter ed., 

1961). 98The Federalist No. 51, at 290 (James Madison), The Federalist Papers (Clinton Rossiter ed., 

1961). 99Letter from James Madison to Spencer Roane (May 6, 1821), in Madison: Writings 772, 774 

(Jack N. Rakove, ed., 1999). 100 James Madison, ‘‘Public Opinion,’’ in 14 Papers of James Madison (Robert A. Rutland et 

al., eds. 1975) at 179. 101 II Annals of Congress 717 (January 1802).

is entrusted for certain defined purposes, and for a certain limited 

period, to representatives of their own chusing . . .’’ 95

Thomas Jefferson, too, urged that ‘‘[w]hen the legislative or executive functionaries act unconstitutionally, they are responsible to 

the people in their elective capacity,’’ adding that ‘‘[t]he exemption 

of the judges from that is quite dangerous enough. I know of no 

safe depository of the ultimate powers of the society but the people 

themselves . . .’’ 96

James Madison wrote that constitutional disputes could not ultimately be resolved ‘‘without an appeal to the people themselves, 

who, as grantors of the commission, can alone declare its true 

meaning and enforce its observance.’’ 97 Madison also wrote in The 

Federalist No. 51 that ‘‘[a] dependence on the people is no doubt 

the primary controul on the government.’’ 98 Madison responded to 

the question ‘‘what is to controul Congress’’ when it exceeds its constitutional authority with the following answer: ‘‘Nothing within 

the pale of the Constitution but sound argument & conciliatory expostulations addressed both to Congress & to their Constituents.’’ 99

And Madison observed that among the most important devices for 

securing the sovereignty of the People, matched only by ‘‘a circulation of newspapers through the entire body of the people,’’ was 

‘‘Representatives going from, and returning among every part of 

them.’’ 100

Speaker of the House Nathanial Macon, in 1802, responding to 

those who claimed that without judicial review there would be civil 

war, said:

Whenever we supposed the Constitution violated, did we talk 

of civil war? No, sir; we depended on elections as the main corner-stone of our safety; and supposed, whatever injury the 

State machine might receive from a violation of the Constitution, that at the next election the people would elect those that 

would repair the injury and set it right again; and this in my 

opinion ought to be the doctrine of us all; and when we differ 

about Constitutional points, and the question shall be decided 

against us, we ought to consider it a temporary evil, remembering that the people possess the means of rectifying any 

error that may be committed by us.101

As the Dean of Stanford Law School, Larry H. Kramer, has written, the Supreme Court was never intended to be the ultimate authority on constitutional issues, and only in recent decades has the 

notion that the Supreme Court is the final authority on constitutional issues taken hold in popular opinion. As Dean Kramer describes it, the Founders’

26

102Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 7–8, 58. 103 Id. at 77, 91 (quoting comments of Federal convention delegate Elbridge Gerry, in 2 The 

Record of the Federal Convention 98 (Max Farrand ed. 1966)).

Constitution remained, fundamentally, an act of popular will: 

the people’s charter, made by the people . . . [I]t was ‘‘the people themselves’’—working through and responding to their 

agents in the government—who were responsible for seeing 

that it was properly interpreted and implemented. The idea of 

turning this responsibility over to judges was simply unthinkable . . . This modern understanding [of judicial review] is 

. . . of surprisingly recent vintage. It reflects neither the original conception of constitutionalism nor its course over most of 

American history. Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a 

central and pivotal role in implementing their Constitution 

. . . [It was the original understanding that] [n]o one of the 

branches [of government] was meant to be superior to any 

other, unless it were the legislature, and when it came to constitutional law, all were meant to be subordinate to the people 

. . . [I]n a regime of popular constitutionalism it was not the 

judiciary’s responsibility to enforce the constitution against the 

legislature. It was the people’s responsibility: a responsibility 

they discharged mainly through elections . . . It was the legislature’s delegated responsibility to decide whether a proposed 

law was constitutionally authorized, subject to oversight by the 

people.102

Dean Kramer explains why there is not any mention of judicial 

review in the Constitution:

Judicial review was not the question before the [Constitutional] Convention. The question was how best to prevent the 

enactment of unwise and unconstitutional Federal legislative 

measures. The answer was an executive veto. (And not just a 

veto, either. Additional checks on the risk of bad legislation included federalism, bicameralism, and the likelihood that ‘‘the 

best men in the Community would be comprised in the two 

branches of [Congress].’’) Some delegates were afraid that the 

executive might be too weak, but a solid majority felt otherwise 

and were concerned not to involve judges in the lawmaking 

process. That settled, there was simply no need to say or do 

anything more . . . This is why courts and judicial review 

were so rarely featured during ratification: members of the 

Founding generation had a different paradigm in mind. The 

idea of depending on judges to stop a legislature that abused 

its power never even occurred to the vast majority of participants in the debates.103

According to noted historian Gordon Woods, ‘‘Most Americans, 

even those deeply concerned with the legislative abuses of the 

1780’s, were too fully aware of the modern positivist conception of 

law (made famous by Blackstone in his Commentaries of the Laws 

of England ), too deeply committed to consent as the basis of law, 

and from their colonial experience too apprehensive of the possible 

arbitrariness and uncertainties of judicial discretion to permit 

27

104Gordon S. Wood, ‘‘Judicial Review in the Era of the Founding,’’ in Is the Supreme Court 

the Guardian of the Constitution? 153, 158 (Robert A. Licht, ed. 1993). 105Letter from James Iredell to Richard Dobbs Spaight (Aug. 26, 1787), in Griffith J. McRee, 

2 Life and Correspondence of James Iredell (1857), at 172, 175. 106Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 65. 107 Recollections of James Iredell, quoted in William R. Casto, The Supreme Court in the 

Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth, at 223 (1995). United 

States v. Ravara is found at 2 U.S. (2 Dall.) 297 (C.C.D. Pa. 1793). 108 3 U.S. (3 Dall.) 386, 395 (1798). 109 3 U.S. (3 Dall.) 171, 173, 175 (1796). 110 4 U.S. (4 Dall.) 14, 18 (1800). 111 Id. at 19. 112 3 U.S. (3 Dall.) 171 (1796). 113 3 U.S. (3 Dall.) 199 (1796). 114See, e.g., Kamper v. Hawkins, 3 Va. (I Va. Cases), at 39 (opinion of Judge Roane); 

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 309 (1795); Marbury v. Madison, 5 U.S. (I 

Cranch) 137, 179 (1803). 

judges to set aside laws made by the elected representatives of the 

people.’’ 104

Even early supporters of something akin to the modern notion of 

judicial review conceded that when the courts, including the Supreme Court, were to decide constitutional issues, ‘‘In all doubtful 

cases . . . the Act ought to be supported’’ and that ‘‘it should be 

unconstitutional beyond dispute before it is pronounced such.’’ 105

As Dean Kramer describes it, ‘‘[t]his limiting principle instantly became an article of faith among the supporters of judicial review, accompanying virtually every statement of the doctrine.’’ 106

James Iredell recorded Justice Wilson and Judge Peters agreeing 

on circuit in United States v. Ravara that ‘‘tho an Act of Congress 

plainly contrary to the Constitution was void, yet no such construction should be given in a doubtful case.’’ 107 Justice Chase similarly 

announced in Calder v. Bull that ‘‘if I ever exercise the jurisdiction 

[to review legislation,] I will not decide any law to be void, but in 

a very clear case,’’ 108 reiterating a point he had made previously 

in Hylton v. United States.109 Bushrod Washington said much the 

same thing in Cooper v. Telfair, noting that ‘‘[t]he presumption, indeed, must always be in favor of the validity of laws, if the contrary 

is not clearly demonstrated.’’ 110 William Paterson agreed, observing that ‘‘to authorise this Court to pronounce any law void, it must 

be a clear and unequivocal breach of the constitution, not a doubtful and argumentative application.’’ 111 The early Supreme Court 

acted accordingly, upholding a Federal tax law in Hylton v. United 

States,112 and generally showing great reluctance to find even state 

laws unconstitutional. The only antebellum case in which the Court 

held a state law unconstitutional was Ware v. Hylton.113 The 

‘‘doubtful case’’ rule also explains why judges invariably illustrated 

their understanding of judicial review with blatantly unconstitutional laws, the most common example being a law denying the 

right to trial by jury altogether.114 The were, literally, the only 

kinds of laws they could imagine declaring void. The closely divided 

5–4 decisions of the modern Supreme Court striking down legislation enacted by duly elected representatives of the People would be 

anathema to the Founders’ generation. 

As Dean Kramer has written, for most of American history, 

‘‘[j]udges did not typically intervene unless the unconstitutionality 

of a law was clear beyond doubt, which as a practical matter left 

questions of policy and expediency to politics. They also shied away 

from divisive social conflicts—at least in their constitutional jurisVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
28

115Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 150. 116William E. Nelson, ‘‘Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790–1860,’’ 120 U.Pa. L. Rev. 1166, 1176 (1972). 117Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 150–51. 118 Id. at 114. 119Dred Scott v. Sanford, 60 U.S. 393 (1856). 120Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 213 (citing Congressional Research Service, The Constitution 

of the United States of America: Analysis and Interpretation (1998)).

prudence, and in sharp contrast to their handling of private law—

striking laws down only in the situations where judicial intervention was least likely to be controversial. Courts were generally respectful of political outcomes, acting in a manner that remained 

consistent with long-standing practices of popular constitutionalism.’’ 115 According to William Nelson’s study of judicial review in the early nineteenth century, ‘‘[o]nce a legislature had resolved a conflict in a manner having widespread public support, 

judges would in practice view the resolution as that of the people 

at large . . . at least so long as a finding of inconsistency with the 

constitution was not plain and unavoidable.’’ 116 As Dean Kramer 

has written of the antebellum period, ‘‘[a]t the Federal level, the 

Supreme Court systematically deferred to Congress.’’ 117

The reason judges were so reluctant to hold Federal statutes unconstitutional unless they were indisputably so was because, as 

Dean Kramer has written, it was widely understood that ‘‘judges 

were no more authoritative on these [constitutional] matters than 

any other public official, and their judgments about the meaning of 

the Constitution, like those of everyone else, were still subject to 

oversight and ultimate resolution by the people themselves. This, 

in fact, is all that Marbury v. Madison actually says or does.’’ 118

During the entire antebellum period, the Supreme Court struck 

down only two Federal statutes, one in the notorious Dred Scott 119

decision, and only later did the Court aggressively exercise judicial 

review. As Dean Kramer has written: 

Dred Scott stuck out like a sore thumb partly because it was 

so unprecedented for the Supreme Court to assert its will over 

and against Congress . . . Having found only two Federal laws 

unconstitutional during the entire antebellum period (in 

Marbury and Dred Scott ), the Court [then] struck down four 

Federal statutes in the 1860’s alone, followed by seven in the 

1870’s, four more in the 1880’s, and five in the 1890’s. While 

these numbers seem small by comparison to today (the Court 

struck down thirty Federal laws between 1990 and 2000, for 

example, the most in its history), the change was striking 

enough to convince some commentators that it was only in this 

period that judicial review ‘‘really’’ became established.120

As Dean Kramer has described modern history, ‘‘as Warren 

Court activism crested in the mid-1960s, a new generation of liberal scholars discarded opposition to courts and turned the liberal 

tradition on its head by embracing a philosophy of broad judicial 

authority . . . [T]he main body of liberal intellectuals put aside 

misgivings about electoral accountability, frankly conceding that judicial review might be in tension with democracy while justifying 

29

121 Id. at 223. 122Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 228–29. 

any trade-off on the ground that courts could advance the more important cause of social justice.’’ 121

As Dean Kramer has written:

Whatever else one might think, [such a view] plainly represents a profound change from what . . . was historically the 

case. Neither the Founding generation nor their children nor 

their children’s children, right on down to our grandparents’ 

generation, were so passive about their role as republican citizens. They would not have accepted—did not accept—being 

told that a lawyerly elite had charge of the Constitution, and 

they would have been incredulous if told (as we are often told 

today) that the main reason to worry about who becomes president is that the winner will control judicial appointments. 

Something would have gone terribly wrong, they believed, if an 

unelected judiciary were being given that kind of importance 

and deference. Perhaps such a country could still be called 

democratic, but it would no longer be the kind of democracy 

Americans had fought and died and struggled to create . . . 

We see this in the excessive celebration of Marbury v. Madison, whose bloated significance seems immune to historical correction . . . Marbury and Brown loom large in these histories. 

The judicially inspired prosecutions for sedition, Dred Scott,

the dismantling of Reconstruction, the fifty years of opposition 

to social welfare legislation, Korematsu, complicity in the Red 

scares, and the current hobbling of Federal power to remedy 

discrimination all somehow shrink into insignificance.122

THE DEMOCRATIC PARTY, THE PROGRESSIVE PARTY, AND THE PRESIDENCIES OF BOTH THEODORE AND FRANKLIN DELANO ROOSEVELT

HAVE FOLLOWED THE FOUNDERS’ UNDERSTANDING THAT THE PEOPLE, NOT THE SUPREME COURT, ARE THE ULTIMATE ARBITERS OF

THE CONSTITUTION

The Democratic Party, the Progressive Party, and the presidencies of both Theodore and Franklin Delano Roosevelt have followed the Founders’ understanding that the people, and not the 

Supreme Court, are the ultimate arbiters of the Constitution. 

Martin Van Buren, one of the founders of the Democratic Party, 

reported the following comments of Senator Hugh Lawson White 

during a Senate debate:

The honorable Senator [Webster] argues that the Constitution 

has constituted the Supreme Court a tribunal to decide great 

constitutional questions . . . and that when they have done so, 

the question is put at rest, and every other department of the 

government must acquiesce. This doctrine I deny . . . If different interpretations are put upon the Constitution by the different departments, the people is the tribunal to settle the dispute. Each of the departments is the agent of the people, doing 

their business according to the powers conferred; and where 

30

123Martin Van Buren, Inquiry into the Origins and Courts of Political Parties in the United 

States at 329–30 (1867). 124 Id. at 330. 125Platform of the Progressive Party (August 7, 1912). 126 Id. 127Theodore Roosevelt, A Charter of Democracy—Address before the Ohio Constitutional Convention at Columbus, Ohio, Feb. 21, 1912, in Social Justice and Popular Rule: Essays, Addresses, and Public Statements Relating to the Progressive Movement 119, 141–42 (1926). 128 Id. at 142. 129Franklin D. Roosevelt, Address on Constitution Day, Washington, D.C., Sept. 17, 1937, in 

6 The Public Papers and Addresses of Franklin D. Roosevelt 359, 362–63, 365 (Samuel I. 

Rosenman ed. 1941). 

there is a disagreement as to the extent of these powers, the 

people themselves, through the ballot-boxes, must settle it.123

‘‘This,’’ Van Buren concluded, ‘‘is the true view of the Constitution’’—taken not only by ‘‘those who framed and adopted it,’’ but 

also ‘‘by the founders of the Democratic party.’’ 124

Even the 1912 Progressive Party Platform declared that ‘‘We 

hold with Thomas Jefferson and Abraham Lincoln that the people 

are the masters of their Constitution,’’ and that ‘‘[i]n accordance 

with the needs of each generation the people must use their sovereign power to establish and maintain’’ the ends of republican government.125 It was in accordance with this declaration that Progressives demanded ‘‘such restriction of the courts as shall leave to 

the people the ultimate authority to determine fundamental questions of social welfare and public policy.’’ 126

Theodore Roosevelt in 1912 argued the American people must be 

made ‘‘the masters and not the servants of even the highest court 

in the land’’ and ‘‘the final interpreters of the Constitution,’’ for ‘‘if 

the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government.’’ 127 Theodore Roosevelt stated ‘‘I do not say that the people are infallible. But I do 

say that our whole history shows that the American people are 

more often sound in their decisions than is the case with any of the 

governmental bodies to whom, for their convenience, they have delegated portions of their power. If this is not so, then there is no 

justification for the existence of our government; and if it is so, 

then there is no justification for refusing to give the people the 

real, and not merely the nominal, ultimate decision on questions of 

constitutional law.’’ 128

And President Franklin Roosevelt said ‘‘lay rank and file can 

take cheer from the historic fact that every effort to construe the 

Constitution as a lawyer’s contract rather than a layman’s charter 

has ultimately failed. Whenever legalistic interpretation has 

clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had 

their way.’’ 129

As Maryland Representative David J. Lewis explained to the 

House of Representatives in 1935:

The Constitution has made ample protective provision [for preventing unconstitutional laws]. A bill may be vetoed by a majority in the House or Senate, where it is first proposed; if not 

vetoed by either House, then by the President. If vetoed by 

none of these, the people at the next election can elect a new 

Congress to repeal the act. Here are three successive occasions 

when responsible officials, sworn to uphold the Constitution, 

elected by and responsible to the people, may, as they often do, 

31

130Franklin D. Roosevelt, Address on Constitution Day, Washington, D.C., Sept. 17, 1937, in 

6 The Public Papers and Addresses of Franklin D. Roosevelt 359, 362–63, 365 (Samuel I. 

Rosenman ed. 1941). 131Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 

(Oxford University Press 2004) at 247.

exercise a preventive veto. The unwise or unconstitutional bill 

is thus stopped before the obligations are fixed on the citizen. 

From 1789 to 1857—68 years—this kind of veto alone obtained. It surely sufficed the Republic through its period of 

greatest development, a chapter of changes and progress, I 

venture to affirm, without parallel in the history of nations.130

As Dean Kramer has written:

Simply put, supporters of judicial supremacy are today’s aristocrats. One can say this without being disparaging, meaning 

only to connect modern apologists for judicial authority with 

that strand in American thought that has always been concerned first and foremost with ‘‘the excess of democracy’’ . . . 

Today’s democrats, in the meantime, are no less concerned 

about individual rights than were their intellectual forebears: 

Jefferson, Madison, and Van Buren. But like these predecessors, those with a democratic sensibility have greater faith 

in the capacity of their fellow citizens to govern responsibly. 

They see risk, but are not persuaded that the risks justify circumscribing popular control by overtly undemocratic means. In 

earlier periods, aristocrats and democrats found themselves on 

opposite sides of such issues as executive power or federalism. 

Today, the point of conflict is judicial review, as it was for 

much of the twentieth century . . . The question Americans 

must ask themselves is whether they are comfortable handing 

their Constitution over to the forces of aristocracy: whether 

they share this lack of faith in themselves and their fellow citizens, or whether they are prepared to assume once again the 

full responsibility of self-government. And make no mistake: 

The choice is ours to make, necessarily and unavoidably. The 

Constitution does not make it for us. Neither does history or 

tradition or law.’’ 131

As Dean Kramer has summarized:

The point, finally, is this: to control the Supreme Court, we 

must first lay claim to the Constitution ourselves. That means 

publicly repudiating Justices who say that they, not we, possess ultimate authority to say what the Constitution means. It 

means publicly reprimanding politicians who insist that ‘‘as 

Americans’’ we should submissively yield to whatever the Supreme Court decides . . . What did earlier generations of 

American do? What did Jefferson, Jackson, Lincoln, the Reconstruction Congress, and Roosevelt do? The Constitution leaves 

room for countless political responses to an overly assertive 

Court: Justices can be impeached, the court’s budget can be 

slashed, the President can ignore its mandates, Congress can 

strip it of jurisdiction or shrink its size or pack it with new 

members or give it burdensome new responsibilities or revise 

its procedures. The means are available, and they have been 

used to great effect when necessary—used, we should note, not 

32

132 Id. at 247–49. 

by disreputable or failed leaders, but by some of the most admired Presidents and Congresses in American history.132

‘‘UNDER GOD’’ IN THE PLEDGE IS ONE OF INNUMERABLE HISTORICAL

REFERENCES TO AND ACKNOWLEDGMENTS OF AMERICA’S RELIGIOUS

HERITAGE

Striking down the words ‘‘under God’’ in the Pledge—and thereby 

precluding acknowledgment of the religious ideas that inspired momentous events in our Nation’s history—would preclude public recognition of America’s most significant historical landmarks. What 

follows is only a partial list of religious references in places and 

events that have defined American history. 

Christopher Columbus set sail ‘‘by the Grace of God’’ with the 

‘‘hope[] that by God’s assistance some of the continents and islands 

in the oceans will be discovered.’’ Rector v. Holy Trinity Church,

143 U.S. 457, 465–66 (1892). 

Virginia’s first charter granted by King James I commenced with 

the words: ‘‘We, greatly commending, and graciously accepting of, 

their Desires for the Furtherance of so noble a Work, which may, 

by the Providence of Almighty God, hereafter tend to the Glory of 

his Divine Majesty, in propagating of Christian Religion to such 

People, as yet live in Darkness and miserable Ignorance of the true 

knowledge and Worship of God, and may in time bring . . . a settled and quiet Government. . . .’’ Rector v. Holy Trinity Church,

143 U.S. 457, 466 (1892). 

On November 11, 1620, prior to embarking for the shores of 

America, the Pilgrims signed the Mayflower Compact that declared: ‘‘Having undertaken, for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and 

Country, a Voyage to plant the first Colony in the northern Parts 

of Virginia; Do by these Presents, solemnly and mutually, in the 

Presence of God and one another, covenant and combine ourselves 

together into a civil Body Politick, for our better Ordering and 

Preservation, and Furtherance of the Ends aforesaid.’’ Rector v. 

Holy Trinity Church, 143 U.S. 457, 466 (1892). 

The Massachusetts 1629 charter declared, ‘‘[O]ur said people . . . 

be so religiously, peaceably, and civilly governed as their good life 

and orderly conversation may win and incite the natives . . . to the 

knowledge and obedience of the only true God and Savior of mankind, and the Christian faith, which . . . is the principal end of 

this plantation.’’ Documents of American History 18 (Henry Steele 

Commager ed., Meredith Publishing Co. 7th ed. 1963). 

In the charter of privileges granted William Penn to Pennsylvania in 1701, it is recited, ‘‘Because no People can be truly happy, 

though under the greatest Enjoyment of Civil Liberties, if abridged 

of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith, and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings 

of People, I do hereby grant and declare. . . .’’ Rector v. Holy Trinity Church, 143 U.S. 457, 467 (1892). 

33

The Fundamental Orders of Connecticut explained that the document had been created, ‘‘[W]ell knowing where a people are gathered together the word of God requires that to maintain the peace 

and union of such a people, there should be an orderly and decent 

government established according to God.’’ Rector v. Holy Trinity 

Church, 143 U.S. 457, 467 (1892); John Fiske, The Beginnings of 

New England 127–28 (Boston, Houghton, Mifflin & Co., 1898). 

Alexander Hamilton stated, ‘‘No human laws are of any validity 

if contrary to [the law dictated by God Himself].’’ Alexander Hamilton, Signer of the Constitution, Papers of Alexander Hamilton, 

Vol. I, at 87 (Harold C. Syrett ed., Columbia Univ. Press 1961) 

(quoting William Blackstone, Commentaries on the Laws of England, Vol I, at 41). 

Alexander Hamilton also explained, ‘‘Natural liberty is a gift of 

the beneficent Creator to the whole human race, and that civil liberty is founded in that, and cannot be wrested from any people 

without the most manifest violation of justice.’’ Alexander Hamilton, The Farmer Refuted (February 23, 1775), in 1 The Papers of 

Alexander Hamilton 104 (H. Syrett ed. 1961). 

In our Declaration of Independence, the Founders based their 

right to ‘‘dissolve the Political Bands which have connected them 

with another’’ on the ‘‘Laws of Nature and of Nature’s God.’’ They 

then declared, ‘‘We hold these Truths to be self-evident, that all 

Men are created equal, that they are endowed by their Creator 

with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’’ They ended, ‘‘We, therefore, 

the Representatives of the United States of America, . . . appealing to the Supreme Judge of the World . . . do, . . . with a firm 

Reliance on the Protection of divine Providence, . . . pledge to 

each other our Lives, our Fortunes, and our sacred Honor.’’ The 

Declaration of Independence (1776). 

John Witherspoon, who signed the Declaration of Independence, 

stated, ‘‘God grant that in America true religion and civil liberty 

may be inseparable and that the unjust attempts to destroy the one 

may in the issue tend to the support and establishment of both.’’ 

John Witherspoon, Signer of the Declaration, The Works of John 

Witherspoon, Vol. IX, at 231 (Edinburgh, J. Ogle) (1815). 

The Manifesto of the Continental Congress appealed, ‘‘to the God 

who searcheth the hearts of men for the rectitude of our intentions; 

and in His holy presence declare that, as we are not moved by any 

light or hasty suggestions of anger or revenge . . . adhere to this 

our determination.’’ 4 Samuel Adams, The Writings of Samuel 

Adams 86 (Harry Alonzo Cushing ed., G.P. Putnam’s Sons 1904). 

George Washington used the phrase ‘‘under God’’ in several of his 

orders to the Continental Army. On one occasion he wrote that 

‘‘The fate of unborn millions will now depend, under God, on the 

courage and conduct of this army.’’ See American Center Law and 

Justice Position Paper on the Pledge of Allegiance, available at 

http://www.aclj.org/resources/pledge/pledge—postition—paper.pdf. 

On another occasion, Washington encouraged his army, declaring 

that ‘‘the peace and safety of this country depends, under God, solely on the success of our arms.’’ 3 The Writings of George Washington 301 (John C. Fitzpatrick ed., 1931–1944). 

In 1781, Thomas Jefferson, the author of the Declaration of Independence and later the Nation’s third President, in his work titled 

34

‘‘Notes on the State of Virginia’’ wrote, ‘‘God who gave us life gave 

us liberty. And can the liberties of a nation be thought secure when 

we have removed their only firm basis, a conviction in the minds 

of the people that these liberties are of the Gift of God. That they 

are not to be violated but with His wrath? Indeed, I tremble for my 

country when I reflect that God is just; that his justice cannot sleep 

forever.’’ Thomas Jefferson, Notes on the State of Virginia, Query 

XVIII 169 (Penguin Books 1999) (1785). 

The formal peace treaty with Great Britain, signed by John 

Adams, Benjamin Franklin, and John Jay on September 3, 1783, 

in its opening line invoked God with the words, ‘‘In the Name of 

the most Holy and undivided Trinity.’’ 2 Treaties and Other International Acts of the United States of America 151 (Hunter Miller 

ed., Gov’t Printing Office 1931). 

James Madison’s Memorial and Remonstrance Against Religious 

Assessments: ‘‘It is the duty of every man to render to the Creator 

such homage, and such only, as he believes to be acceptable to him. 

This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe[.]’’ James Madison, Memorial 

and Remonstrance Against Religious Assessments § 1 (1785). 

On May 14, 1787, George Washington, as President of the Constitutional Convention, rose to admonish and exhort the delegates 

and declared, ‘‘If to please the people we offer what we ourselves 

disapprove, how can we afterward defend our work? Let us raise 

a standard to which the wise and the honest can repair; the event 

is in the hand of God!’’ 4 U.S.C.A. § 4 (West Supp. 2003) (historical 

notes). Five weeks later, on June 28, with Convention delegates 

‘‘groping . . . in the dark to find political truth,’’ Benjamin Franklin pondered ‘‘applying to the Father of lights to illuminate our understandings,’’ famously recalling that, during the Revolutionary 

War, God had ‘‘heard, and . . . graciously answered’’ the ‘‘daily 

prayer in this room for the divine protection.’’ 1 Max Farrand, The 

Records of the Federal Convention of 1787, at 451 (rev. ed. 1966). 

Benjamin Rush said at the ratifying convention, ‘‘Where there is 

no religion, there will be no morals.’’ Benjamin Rush, Speech in 

Pennsylvania Ratifying Convention (Dec. 12, 1787), reprinted in 

Merrill Jensen, ed., 2 Documentary History of the Ratification of 

the Constitution 595 (1976). 

Benjamin Franklin wrote, ‘‘Freedom is not a gift bestowed upon 

us by other men, but a right that belongs to us by the laws of God.’’ 

Benjamin Franklin, Maxims and Morals (1789). 

Rufus King, who signed the Constitution, stated, ‘‘The . . . law 

established by the Creator, which has existed from the beginning, 

extends over the whole globe, is everywhere and at all times binding upon mankind . . . [This] law is the law of God by which he 

makes his way known to man and is paramount to all human control.’’ Rufus King, Signer of the Constitution, The Life and Correspondence of Rufus King, Vol. VI, at 276 (Charles King ed., G.P. 

Putnam’s Sons 1900). 

James Wilson, another signer of the Constitution, stated ‘‘God 

. . . is the promulgator as well as the author of natural law.’’ 

James Wilson, signer of the Constitution, U.S. Supreme Court Justice, The Works of the Honourable James Wilson, Vol I, at 64 (Bird 

35

Wilson ed., Philadelphia, Lorenzo Press 1804). He also stated ‘‘All 

[laws], however, may be arranged in two different classes: (1) Divine. (2) Human . . . But it should always be remembered that 

this law, natural and revealed, made for men or for nations, flows 

from the same Divine source: it is the law of God . . . Human law 

must rest its authority ultimately upon the authority of that law 

which is Divine.’’ Id. at 103–05. 

And Gouvernor Morris stated, ‘‘I believe that religion is the only 

solid base of morals and that morals are the only possible support 

of free governments.’’ Gouvernor Morris, Penman and Signer of the 

Constitution, A Diary of the French Revolution, Vol II, at 452 (Boston, Houghton Mifflin 1939). 

Article VII in the U.S. Constitution refers to ‘‘the Year of Our 

Lord,’’ 1787. U.S. Const. art. VII. 

On July 21, 1789, on the same day that it approved the Establishment Clause concerning religion, the First Congress of the 

United States also passed the Northwest Ordinance, providing for 

a territorial government for lands northwest of the Ohio River, 

which declared, ‘‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools 

and the means of education shall forever be encouraged.’’ The 

Northwest Ordinance, 1 Stat. 51 (1789). 

The Father of the Country, George Washington, acknowledged on 

many occasions the role of Divine Providence in the Nation’s affairs. His first inaugural address is replete with references to God, 

including thanksgivings and supplications: ‘‘Such being the impressions under which I have, in obedience to the public summons, repaired to the present station, it would be peculiarly improper to 

omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the 

councils of nations, and whose providential aids can supply every 

human defect, that His benediction may consecrate to the liberties 

and happiness of the people of the United States a government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute 

with success the functions allotted to his charge. In tendering this 

homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my 

own, nor those of my fellow-citizens at large less than either. No 

people can be bound to acknowledge and adore the Invisible Hand 

which conducts the affairs of men more than those of the United 

States.’’ Speeches of the American Presidents 3 (Steven Anzovin & 

Janet Podell eds., The H.W. Wilson Co. 1988). 

President Washington noted in his Farewell Address that ‘‘reason and experience both forbid us to expect that national morality 

can prevail in exclusion of religious principle.’’ Speeches of the 

American Presidents 18 (Steven Anzovin & Janet Podell eds., The 

H.W. Wilson Co. 1988). 

John Jay, the first Chief Justice of the Supreme Court, stated, 

‘‘The . . . natural law was given by the Sovereign of the Universe 

to all mankind.’’ John Jay, First Chief Justice, The Life of John 

Jay, Vol II, at 385, William Jay, editor (New York., J & J Harper, 

1833). 

The Virginia Act for Religious Freedom provides ‘‘Whereas, Almighty God hath created the mind free.’’ Va. Code Ann. § 57–1 

36

(West 2003). The Act continues by stating that any attempt by the 

government to influence the mind through coercion is ‘‘a departure 

from the plan of the Holy Author of our religion, who, being Lord 

both of body and mind, yet chose not to propagate it by coercions 

on either, as was in his Almighty power to do . . .’’ Va. Code Ann. 

§ 57–1 (West 2003). 

Supreme Court Justice Joseph Story stated, ‘‘The promulgation 

of the great doctrines of religion; the being and attributes and providence of one Almighty God; the responsibility to Him for all actions; founded upon moral freedom and accountability; a future 

state of rewards and punishments; the cultivation of personal, social, and benevolent virtues;—these can never be a matter of indifference in any well-ordered community. It is, indeed, difficult to 

conceive how any civilized society can well exist without them.’’ Joseph Story, U.S. Supreme Court Justice, Commentaries on the 

Constitution of the United States, Vol. III, at 722–23 (Boston, 

Hillard, Gray & Co.) (1833). ‘‘It yet remains a problem to be solved 

in human affairs whether any free government can be permanent 

where no public worship of God and the support of religion constitute no part of the policy or duty of the state in any assignable 

shape.’’ Id. at 727. 

As John Quincy Adams, the fifth President of the United States, 

explained in his famous oration, ‘‘The Jubilee of the Constitution’’: 

‘‘[T]he virtue which had been infused into the Constitution of the 

United States . . . was no other than the concretion of those abstract principles which had been first proclaimed in the Declaration 

of Independence—namely, the self-evident truths of the natural 

and unalienable rights of man . . . always subordinate to the rule 

of right and wrong, and always responsible to the Supreme Ruler 

of the universe for the rightful exercise of that . . . power . . . 

This was the platform upon which the Constitution of the United 

States had been erected.’’ John Quincy Adams, The Jubilee of the 

Constitution 54. He continued that ‘ ‘The laws of nature and of nature’s God’ . . . of course presupposes the existence of God, the 

moral ruler of the universe, and a rule of right and wrong, of just 

and unjust, binding upon man, preceding all institutions of human 

society and of government.’’ Id. at 3–14. 

Robert Winthrop, U.S. Speaker of the House in 1849, stated: ‘‘All 

societies of men must be governed in some way or other . . . Men, 

in a word, must necessarily be controlled, either by a power within 

them, or a power without them; either by the word of God, or by 

the strong arm of man; either by the Bible, or by the bayonet.’’ 

Gary North & Gary DeMar, Christian Reconstruction: What It Is, 

What It Isn’t 188 (1991). 

On November 19, 1863, President Abraham Lincoln delivered his 

Gettysburg Address on the site of the battle and declared, ‘‘It is 

rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion 

to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have 

died in vain—that this Nation, under God, shall have a new birth 

of freedom—and that Government of the people, by the people, for 

the people, shall not perish from the earth.’’ Speeches of the American Presidents 193 (Steven Anzovin & Janet Podell eds., The H.W. 

37

Wilson Co. 1988). (There are 14 references to God in the 669 words 

comprising the Gettysburg Address.) 

President Franklin D. Roosevelt said, ‘‘In teaching this democratic faith to American children, we need the sustaining, buttressing aid of those great ethical religious teachings which are the 

heritage of our modern civilization. For ‘not upon strength nor 

upon power, but upon the spirit of God’ shall our democracy be 

founded.’’ Public Papers of the Presidents, F.D. Roosevelt, 1940, 

Item 149, Office of Fed. Reg. (2003). 

On April 28, 1952, in the decision of the Supreme Court of the 

United States in Zorach v. Clauson, 343 U.S. 306 (1952), in which 

school children were allowed to be excused from public schools for 

religious observances and education, Justice William O. Douglas, in 

writing for the Court, stated:

The First Amendment, however, does not say that in every and 

all respects there shall be a separation of Church and State. 

Rather, it studiously defines the manner, the specific ways, in 

which there shall be no concert or union or dependency one on 

the other. That is the common sense of the matter. Otherwise 

the state and religion would be aliens to each other—hostile, 

suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be 

permitted to render police or fire protection to religious groups. 

Policemen who helped parishioners into their places of worship 

would violate the Constitution. Prayers in our legislative halls; 

the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 

‘‘so help me God’’ in our courtroom oaths—these and all other 

references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the 

supplication with which the Court opens each session: ‘‘God 

save the United States and this Honorable Court.’’

Zorach v. Clauson, 343 U.S. 306, 312–13 (1952).

President Kennedy exhorted, ‘‘The world is very different now 

. . . And yet the same revolutionary beliefs for which our forebears 

fought are still at issue around the globe—the belief that the rights 

of man come not from the generosity of the state but from the hand 

of God. With good conscience as our only sure reward, with history 

the final judge of our deeds, let us go forth to lead the land we love, 

asking His blessing and His help, but knowing that here on earth 

God’s work must truly be our own.’’ Engel v. Vitale, 370 U.S. 421, 

448 (1962) (dissenting opinion) (discussing quotes from Presidents 

Washington, Adams, Jefferson, Madison, Lincoln, Cleveland, Wilson, Roosevelt, Eisenhower and Kennedy). 

In the decision of the Supreme Court of the United States in Abington School District v. Schempp, 374 U.S. 203 (1963), in which 

compulsory school prayer was held unconstitutional, Justices Goldberg and Harlan, concurring in the decision, stated:

But untutored devotion to the concept of neutrality can lead to 

invocation or approval of results which partake not simply of 

that noninterference and noninvolvement with the religious 

which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, 

38

hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited 

by it. Neither government nor this Court can or should ignore 

the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political, 

and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances the 

First Amendment may require that it do so.

Abington School District v. Schempp, 374 U.S. 203, 306 (1963) 

(Goldberg, J., 

concurring). 

Justice Brennan, in Abington School District v. Schempp, 374 

U.S. 203, 304 (1963), offered, ‘‘The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the 

historical fact that our Nation was believed to have been founded 

‘under God.’ Thus reciting the pledge may be no more of a religious 

exercise than the reading aloud of Lincoln’s Gettysburg Address, 

which contains an allusion to the same historical fact.’’

On March 5, 1984, in the decision of the Supreme Court of the 

United States in Lynch v. Donnelly, 465 U.S. 668, 674–77 (1984), 

in which a city government’s display of a nativity scene was held 

to be constitutional, Chief Justice Burger, writing for the Court, 

stated:

There is an unbroken history of official acknowledgment by all 

three branches of government of the role of religion in American life from at least 1789 . . . [E]xamples of reference to our 

religious heritage are found in the statutorily prescribed national motto ‘‘In God We Trust,’’ which Congress and the President mandated for our currency, [see 31 U.S.C. § 5112(d)(1) 

(1982),] and in the language ‘‘One Nation under God,’’ as part 

of the Pledge of Allegiance to the American flag. That pledge 

is recited by thousands of public school children—and adults—

every year . . . Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Washington, maintained with Government support, for 

example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the 

Birth of Christ, the Crucifixion, and the Resurrection, among 

many others with explicit Christian themes and messages. The 

very chamber in which oral arguments on this case were heard 

is decorated with a notable and permanent—not seasonal—

symbol of religion: Moses with Ten Commandments. Congress 

has long provided chapels in the Capitol for religious worship 

and meditation.

On June 4, 1985, in the decision of the Supreme Court of the 

United States in Wallace v. Jaffree, 472 U.S. 38 (1985), in which 

a mandatory moment of silence to be used for meditation or voluntary prayer was held unconstitutional, Justice O’Connor, concurring in the judgment and addressing the contention that the 

Court’s holding would render the Pledge of Allegiance unconstitutional because Congress amended it in 1954 to add the words 

‘‘under God,’’ stated, ‘‘In my view, the words ‘under God’ in the 

39

Pledge, as codified at 36 U.S.C. § 172, serve as an acknowledgment 

of religion with ‘the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.’ ’’ Wallace v. 

Jaffree, 472 U.S. 38, 78 n.5 (1985) (O’Connor, J., concurring). 

On November 20, 1992, the United States Court of Appeals for 

the 7th Circuit, in Sherman v. Community Consolidated School 

District 21, 980 F.2d 437 (7th Cir. 1992), held that a school district’s policy for voluntary recitation of the Pledge of Allegiance including the words ‘‘under God’’ was constitutional. 

In President Bush’s 2003 State of the Union address, he ended 

with these words: ‘‘Americans are a free people, who know that 

freedom is the right of every person and the future of every nation. 

The liberty we prize is not America’s gift to the world; it is God’s 

gift to humanity. We Americans have faith in ourselves, but not in 

ourselves alone. . . . We do not claim to know all the ways of Providence, yet we can trust in them, placing our confidence in the loving God behind all of life and all of history. May He guide us now, 

and may God continue to bless the United States of America.’’ 

Weekly Compilation of Presidential Documents, Vol. 39, No. 5, at 

116 (Office of the Federal Register, February 3, 2003). 

God is Recognized in Our Highest Federal Offices and National 

Monuments 

The First Congress not only acknowledged a proper role for religion in public life, but it did so at the very time it drafted the Establishment Clause. Just 3 days before Congress sent the text of 

the First Amendment to the states for ratification, it authorized 

the appointment of legislative chaplains. Marsh v. Chambers, 463 

U.S. 783, 788 (1983). 

Both Houses of Congress open their daily sessions with prayer 

and, in recent years, recitation of the Pledge. See Senate Rule IV.1, 

Standing Rules of the Senate, S. Doc. No. 107–1, at 4 (2002); House 

Rule XIV.1, Constitution, Jefferson’s Manual, and Rules of the 

House of Representatives, H.R. Doc. No. 106–320, at 620 (2001). 

Manifestations of the religious faith of our forebears appear 

throughout the Nation’s Capital. The Senate Chamber is inscribed 

with the words ‘‘In God We Trust’’ and the Latin phrase ‘‘Annuit 

Coeptis’’ or ‘‘God has favored our undertakings.’’ S. Doc. No. 82–20, 

at 27 (1951); 4 U.S.C.A. § 4 (West Supp. 2003) (historical notes). 

The Main Reading Room of the Library of Congress prominently 

displays the Biblical quotation: ‘‘The heavens declare the Glory of 

God, and the firmament showeth His handiwork’’ (Psalms 19:1). 

John Y. Cole, On These Walls 35 (1995). Friezes on the North and 

South walls of the Supreme Court chamber depict a procession of 

historical lawgivers including Moses and Confucius. See County of 

Allegheny v. ACLU, 492 U.S. 573, 652–53 (1989) (Stevens, J., concurring in part and dissenting in part). 

In the Rotunda of the Capitol Building, there are paintings with 

religious themes, such as the Apotheosis of Washington, depicting 

the ascent of George Washington into Heaven, and the Baptism of 

Pocahontas, portraying Pocahontas being baptized by an Anglican 

minister. A wall in the Cox Corridor of the Capitol is inscribed with 

this line from Katharyn Lee Bates’s Hymn, America the Beautiful, 

‘‘America! God shed his grace on Thee, and crown thy good with 

brotherhood from sea to shining sea.’’ In the prayer room of the 

40

House chamber, is inscribed the following prayer ‘‘preserve me, O 

God—for in thee do I put my trust.’’

On July 20, 1956, Congress proclaimed that the national motto 

of the United States is ‘‘In God We Trust,’’ and that motto is inscribed above the main door of the Senate, behind the Chair of the 

Speaker of the House of Representatives, and on the currency of 

the United St ates. 4 U.S.C. § 4 (1998) (historical notes) (Congressional finding (10)). 

Virtually every President in the past thirty years has closed his 

speeches to the nation with the words ‘‘God bless America.’’

The Supreme Court opens each session with ‘‘God save the 

United States and this Honorable Court.’’ See Zorach v. Clauson,

343 U.S. 306, 313 (1952). 

The very chamber in which oral arguments are heard before the 

Supreme Court ‘‘is decorated with a notable and permanent—not 

seasonal—symbol of religion: Moses with Ten Commandments.’’ 

Lynch v. Donnelly, 465 U.S. 668, 677 (1984). 

Our courtrooms include the oath, ‘‘so help me God.’’ Zorach v. 

Clauson, 343 U.S. 306, 313 (1952). 

The Tomb of the Unknown Soldier is engraved with the words: 

‘‘Here rests in honored glory an American soldier known but to 

God.’’ See Lieutenant Colonel H. Wayne Elliott, The Third Priority: 

The Battlefield Dead, 1996 Army Law. 3, 20. 

Arlington National Cemetery maintains thousands of religious 

inscriptions on state-owned property. 

Our National holidays (‘‘holy days’’) include Christmas (Christ 

Mass), Thanksgiving and the National Day of Prayer. Lynch v. 

Donnelly, 465 U.S. 668, 676 (1952). Our children celebrate St. Valentine’s Day and St. Patrick’s Day in school. St. Valentine was a 

Christian martyr. St. Patrick was a Catholic bishop. St. Patrick, 

Encarta Encyclopedia (2003). The three leaf clover represents the 

Holy Trinity. Id. ‘‘Santa Claus’’ is derived from St. Nicholas 

(‘‘Santa’’ means ‘‘saint’’ and ‘‘Claus’’ is short for ‘‘Nicolaus’’), the 

archbishop of Myra, known for distributing his inherited wealth to 

the needy by anonymously throwing bags of gold coins through 

windows. Santa Claus, Encarta Encyclopedia (2003). 

Our cities bear religious names, such as St. Petersburg, San 

Francisco, Los Angeles, St. Paul, St. Augustine, Santa Barbara, 

Santa Clara, San Diego, Santa Fe (‘‘Holy Faith’’). 

Some of our most patriotic songs, such as ‘‘God Bless America’’ 

affirm a belief in God. The fourth stanza of the statutorily prescribed National Anthem includes in part the following, ‘‘Blest with 

victory and peace, may the heaven-rescued land, Praise the Power 

that hath made and preserved us a nation. Then conquer we must, 

when our cause is just, And this be our motto: ‘in God is our 

trust.’ ’’ See 36 U.S.C. § 301(a). 

Art galleries subsidized by public revenues display religious 

paintings. Lynch v. Donnelly, 465 U.S. 668, 676 (1952). 

Our churches and clergymen enjoy tax exemptions. Walz v. Tax 

Comm’n of the City of New York, 397 U.S. 664, 679–80 (1970). 

RECOGNITION OF GOD IN STATE CONSTITUTIONS

In addition, several of the States explicitly provided for religious 

education in their State constitutions. 

41

The Pennsylvania Constitution of 1776, for example, provided 

that ‘‘all religious societies or bodies of men heretofore united or incorporated for the advancement of religion or learning . . . shall be 

encouraged and protected.’’ Pa. Const. of 1776, § 45. 

The Vermont Constitution provides that ‘‘all religious societies or 

bodies of men that have or may be hereafter united and incorporated, for the advancement of religion and learning, shall be encouraged and protected.’’ Vt. Const. of 1777, Ch. II § XLI. 

The Massachusetts Constitution provides: ‘‘The people of this 

Commonwealth have the right to invest their legislature with 

power to authorize and require . . . the several towns . . . or religious societies to make suitable provision at their own expense . . . 

for the support and maintenance of public protestant teachers of 

piety, religion and morality.’’ Mass. Const. of 1780, Pt. I § 3. 

New Hampshire’s Constitution authorized the legislature to 

‘‘make adequate provision at their own expense for the support and 

maintenance of public protestant teachers of piety, religion and morality’’ because ‘‘morality and piety . . . will give the best and security to government . . .’’ N.H. Const. of 1784, Pt. I § 5. 

The Nebraska Constitution provides that ‘‘Religion, morality, and 

knowledge, however, being essential to good government, it shall be 

the duty of the Legislature . . . to encourage schools and the 

means of instruction.’’ Nebr. Const. Art. 1, § 4. 

Further, every one of the original States, and nearly every one 

of the current fifty, continues to acknowledge God in its constitution. 

The preamble to California’s constitution is typical: ‘‘We, the people of California, grateful to Almighty God for our freedom, in order 

to secure and perpetuate its blessings, do establish this Constitution.’’ Cal. Const. of 1879, Preamble, reprinted in Francis Newton 

Thorpe, 1 The Federal and State Constitutions 412 (William S. 

Hein & Co. 1993) (1909). 

The Massachusetts Constitution of 1780 provided for ‘‘public instructions in piety, religion and morality’’ because ‘‘the happiness 

of a people, and the good order and preservation of civil government, essentially depend upon . . . the public worship of God.’’ 

Mass. Const. of 1780, Pt. 1, Art. 3, reprinted in 1 Thorpe 1888, 

1889–90. Although Massachusetts eliminated its established 

church in 1833, its constitution continues to recognize that ‘‘the 

public worship of GOD and instructions in piety, religion and morality, promote the happiness and prosperity of a people and the 

security of a republican government.’’ Mass. Const., Amend. XI 

(ratified Nov. 11, 1833), reprinted in 3 Thorpe 1888, 1914, 1922. 

Many of the state constitutions recognize that the public worship 

of God is a duty of mankind, even while they expressly protect 

against formal sectarian establishments and provide for the free 

exercise of religion. See, e.g., Del. Const. of 1897, Art. I, Sec. 1, reprinted in 1 Thorpe 600, 601 (‘‘Although it is the duty of all men 

frequently to assemble together for the public worship of Almighty 

God; . . . yet no man shall or ought to be compelled to attend any 

religious worship’’) (Virtually identical language first appeared in 

the Delaware Constitution of 1792, Art. 1, Sec. 1, reprinted in 1 

Thorpe 568.); Md. Const. of 1970, Art. 36 (‘‘That as it is the duty 

of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in 

42

their religious liberty’’); Mass. Const. of 1780, Pt. I, Art. II, reprinted in 3 Thorpe 1888, 1889 (‘‘It is the right as well as the Duty 

of all men in society, publickly, and at stated seasons, to worship 

the Supreme Being, the great Creator and Preserver of the universe.’’). 

Because of the mechanism by which new states are added to the 

national union, see U.S. Const., Art. IV, sec. 3, we can assess 

whether Congress viewed state constitutional provisions that invoked God or encouraged public worship as contrary to the First 

Amendment. 

The first Congress, comprised of the same elected officials who 

drafted the First Amendment, admitted Vermont as a new State, 

with a constitution that provided: ‘‘every sect or denomination of 

Christians ought to observe the Sabbath or Lord’s day, and keep 

up some sort of religious worship, which to them shall seem most 

agreeable to the revealed will of God.’’ Vt. Const. of 1786, Ch. 1, 

Art. 3, reprinted in 6 Thorpe 3749, 3752. 

If one looks instead to the time period of the adoption of the 14th 

Amendment (which is the more relevant time period, given that the 

14th Amendment, via the Incorporation Doctrine, is the means by 

which the Supreme Court made the Establishment Clause applicable to the states), the same holds true. 

Nebraska’s Constitution of 1866 contains the following preamble: 

‘‘We, the people of Nebraska, grateful to Almighty God for our freedom, do establish this constitution.’’ Nebr. Const. of 1866, Preamble, reprinted in 4 Thorpe 2349. Even more significantly, the 

Nebraska Bill of Rights, after recognizing freedom of conscience, 

contains the following passage, modeled after the Northwest Ordinance: ‘‘Religion, morality, and knowledge, however, being essential 

to good government, it shall be the duty of the legislature to pass 

suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship and to encourage 

schools and the means of instruction.’’ Nebr. Const. of 1866, Art. 

I, sec. 16, reprinted in 4 Thorpe 2350. The language was repeated 

verbatim in the 1875 constitution, after adoption of the Fourteenth 

Amendment. See Nebr. Const. of 1875, Art. 1, sec. 4, reprinted in 

4 Thorpe 2361, 2362. These passages are particularly significant 

because the enabling act for Nebraska specifically required that the 

state’s constitution ‘‘shall not be repugnant to the Constitution of 

the United States and the principles of the Declaration of Independence,’’ and ‘‘that perfect toleration of religious sentiment shall 

be secured.’’ Enabling Act for Nebraska, 38th Cong., 1st Sess., sec. 

4, reprinted in 4 Thorpe 2343, 2344. 

Explicit religious invocations are also found in the ‘‘reconstruction’’ constitutions of the southern states, adopted after passage of 

the Fourteenth Amendment by Congress as those states were petitioning the same Congress for readmission to the Union. Georgia’s 

1868 Constitution, for example, ‘‘acknowledg[es] and invok[es] the 

guidance of Almighty God, the author of all good government,’’ in 

its preamble, even while protecting ‘‘perfect freedom of religious 

sentiment.’’ Ga. Const. of 1868, Preamble; Art. I, sec. 6, reprinted 

in 2 Thorpe 822. The preamble to North Carolina’s 1868 Constitution reads like a prayer: ‘‘[G]rateful to Almighty God, the sovereign 

ruler of nations, for the preservation of the American Union and 

the existence of our civil, political, and religious liberties, and acVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
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knowledging our dependence upon Him for the continuance of those 

blessings to us and our posterity.’’ N.C. Const. of 1868, Preamble, 

reprinted in 5 Thorpe 2800. See also, e.g., Va. Const. of 1870, Preamble, reprinted in 7 Thorpe 3871, 3873 (‘‘invoking the favor and 

guidance of Almighty God’’); Ala. Const. of 1867, Preamble, reprinted in 1 Thorpe 132 (same). 

Thus Congress—the very Congress that adopted the Fourteenth 

Amendment—saw no Establishment Clause problem with state 

constitutions that acknowledged God, gave thanks to God, and even 

encouraged the public worship of God, nor did it see such acknowledgments as inconsistent with the Free Exercise and Establishment clauses of the U.S. Constitution or with comparable clauses 

in the states’ own constitutions. Nor have subsequent Congresses 

or Presidents. 

All of the states created out of the Dakota Territory in 1889 were 

admitted with constitutions containing similar acknowledgments of 

God and similar prohibitions of establishment. The people of Idaho, 

for example, announced in their first constitution that they were 

‘‘grateful to Almighty God for [their] freedom,’’ even though the 

constitution also provided that ‘‘no person shall be required to attend or support any ministry or place of worship, religious sect or 

denomination, or pay tithes against his consent.’’ Const. of 1889, 

Preamble; Art. 1, sec. 4, reprinted in 2 Thorpe 913, 918. Congress 

admitted Idaho to statehood on July 3, 1990, after finding that the 

proposed constitution was ‘‘republican in form and . . . in conformity with the Constitution of the United States’’—a constitution 

that had included the Fourteenth Amendment for more than twenty years. See An Act to provide for the admission of the State of 

Idaho into the Union (July 3, 1890), reprinted in 2 Thorpe 913, 

918. Wyoming’s constitution announced that its people were ‘‘grateful to God’’ for their ‘‘civil, political, and religious liberties,’’ even 

while it declared that ‘‘the free exercise and enjoyment of religious 

profession and worship without discrimination or preference shall 

be forever guaranteed in this State.’’ Wy. Const. of 1889, Preamble; 

Art. 1, sec. 18, reprinted in 7 Thorpe 4118. Congress admitted Wyoming to statehood after finding that its constitution was ‘‘in conformity with the Constitution of the United States.’’ Act of July 10, 

1890, reprinted in 7 Thorpe 4111, 4112. Montana, South Dakota, 

and Washington were all admitted to statehood in 1889 by Presidential proclamation rather than directly by act of Congress. Before 

the President was authorized to issue the proclamation of statehood, however, he had to find that their constitutions were ‘‘not repugnant to the Constitution of the United States and the principles 

of the Declaration of Independence.’’ See Act of Feb. 22, 1889, 25 

Stat. 676. Montana’s preamble expressed gratitude ‘‘to Almighty 

God for the blessings of liberty’’ even while the constitution elsewhere barred ‘‘preference . . . to any religious denomination or 

mode of worship.’’ Mt. Const. of 1889, Preamble; Art. III, sec. 4, reprinted in 4 Thorpe 2300, 2301. President Benjamin Harrison 

found the constitution consistent with the United States Constitution and proclaimed Montana a state on November 8, 1889. See 

Proclamation of Nov. 8, 1889, reprinted in 4 Thorpe 2299–2300. 

Similar provisions are found in the first constitutions of South Dakota and Washington. S.D. Const. of 1889, Preamble and Art. VI, 

sec. 3, reprinted in 6 Thorpe 3357, 3370; Wash. Const. of 1889, PreVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00043 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
44

amble and Art. I, sec. 11, reprinted in 7 Thorpe 3973, 3974. Both 

received Presidential approval. Proclamation of Nov. 2, 1889, reprinted in 6 Thorpe 3355–57 (admitting South Dakota to statehood); Proclamation of Nov. 11, 1889, reprinted in 7 Thorpe 3971–

73 (admitting Washington to statehood). 

The Utah Constitution of 1895 contained one of the most strongly-worded anti-establishment provisions: ‘‘The rights of conscience 

shall never be infringed. The State shall make no law respecting 

an establishment of religion or prohibiting the free exercise thereof, . . . There shall be no union of church and state, nor shall any 

church dominate the State or interfere with its functions.’’ Utah 

Const. of 1895, Art. I, sec. 4, reprinted in 6 Thorpe 3702. Despite 

this strong anti-establishment language, the preamble of the same 

constitution acknowledges that the people of Utah were ‘‘grateful to 

Almighty God for life and liberty.’’ Utah Const. of 1895, Preamble, 

reprinted in 6 Thorpe 3702. President Grover Cleveland accepted 

Utah to statehood after finding that ‘‘said constitution is not repugnant to the Constitution of the United States and the Declaration 

of Independence.’’ Proclamation of January 4, 1896, reprinted in 6 

Thorpe 3700. Neither the President nor Congress found such public 

acknowledgments of God to be contrary to the Establishment 

Clause, well after adoption of the Fourteenth Amendment. 

THANKSGIVING PROCLAMATIONS HAVE RECOGNIZED GOD

On September 25, 1789, the First Congress unanimously approved a resolution calling on President George Washington to proclaim a National Day of Thanksgiving for the people of the United 

States by declaring, ‘‘a day of public thanksgiving and prayer, to 

be observed by acknowledging, with grateful hearts, the many favors of Almighty God, especially by affording them an opportunity 

peaceably to establish a constitution of government for their safety 

and happiness.’’ See Wallace v. Jaffree, 472 U.S. 38, 101 (1985) 

(Rehnquist, J., dissenting). 

In Washington’s Proclamation of a Day of National Thanksgiving, he wrote that it is the ‘‘duty of all Nations to acknowledge 

the providence of Almighty God, to obey his will, to be grateful for 

his benefits, and humbly to implore his protection and favor. . . .’’ 

30 The Writings of George Washington from the Original Manuscript Sources 1745–1799, at 427 (John C. Fitzpatrick ed., Gov’t 

Printing Office 1939). His proclamation of a day of thanksgiving, 

which we still celebrate, is an elegant national prayer, requested 

by the very Congress that drafted the Establishment Clause of the 

First Amendment:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his 

benefits, and humbly to implore his protection and favor, and 

Whereas both Houses of Congress have by their joint Committee requested me ‘‘to recommend to the People of the 

United States a day of public thanks-giving and prayer to be 

observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceable to establish a form of government for their 

safety and happiness.’’ Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by 

45

the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that 

was, that is, or that will be. That we may then all unite in rendering unto him our sincere and humble thanks, for his kind 

care and protection of the People of this country previous to 

their becoming a Nation, for the signal and manifold mercies, 

and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late ware, for the 

great degree of tranquility, union, and plenty, which we have 

since enjoyed, for the peaceable and rational manner in which 

we have been enabled to establish constitutions of government 

for our safety and happiness, and particularly the national One 

now lately instituted, for the civil and religious liberty with 

which we are blessed, and the means we have of acquiring and 

diffusing useful knowledge and in general for all the great and 

various favors which he hath been pleased to confer upon us. 

And also that we may then unite in most humbly offering our 

prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and 

punctually, to render our national government a blessing to all 

the People, by constantly being a government of wise, just and 

constitutional laws, discreetly and faithfully executed and 

obeyed, to protect and guide all Sovereigns and Nations (especially such as have shown kindness unto us) and to bless them 

with good government, peace, and concord. To promote the 

knowledge and practice of true religion and virtue, and the 

encrease of science among them and us, and generally to grant 

unto all Mankind such a degree of temporal prosperity as he 

alone knows to be best.

30 The Writings of George Washington from the Original 

Manuscript Sources 1745–1799, at 427–28 (John C. Fitzpatrick 

ed., Gov’t Printing Office 1939).

John Adams declared in 1799, ‘‘As no truth is more clearly 

taught in the Volume of Inspiration, nor any more fully demonstrated by the experience of all ages, than that a deep sense and 

due acknowledgment of the governing providence of a Supreme 

Being and of the Accountableness of men to Him as the searcher 

of heart and righteous distributor of rewards and punishments are 

conducive equally to the happiness and rectitude of individuals and 

to the well-being of communities . . . I do hereby recommend . . . 

to be observed throughout the United States as a day of solemn humiliation, fasting, and prayer. . . .’’ 9 The Works of John Adams 

172 (Charles F. Adams ed., 1850–56) (reprint by Books for Librarians Press, 1969). 

President James Madison, on July 9, 1812, proclaimed that the 

third Thursday in August ‘‘be set apart for the devout purposes of 

rendering the Sovereign of the Universe and the Benefactor of 

Mankind the public homage due to His holy attributes . . .’’ 2 

James D. Richardson, A Compilation of the Messages and Papers 

of the Presidents 498 (Bureau of National Literature, Inc.). 

President James Madison, on March 4, 1815 declared ‘‘a day of 

thanksgiving and of devout acknowledgments to Almighty God for 

46

His great goodness manifested in restoring to them the blessing of 

peace. No people ought to feel greater obligations to celebrate the 

goodness of the Great Disposer of Events and of the Destiny of Nations than the people of the United States.’’ 2 James D. Richardson, 

A Compilation of the Messages and Papers of the Presidents 546 

(Bureau of National Literature, Inc.). 

Andrew Johnson proclaimed ‘‘on the occasion of the obsequies of 

Abraham Lincoln, late President of the United States’’ that ‘‘a special period be assigned for again humbling ourselves before Almighty God. . . .’’ 8 James D. Richardson, A Compilation of the 

Messages and Papers of the Presidents 3504 (Bureau of National 

Literature, Inc.) (Proclamation of April 25, 1865). 

President Woodrow Wilson, on October 19, 1917, proclaimed that 

‘‘Whereas, the Congress of the United States, . . . requested me to 

set apart by official proclamation a day upon which our people 

should be called upon to offer concerted prayer to Almighty God for 

His divine aid . . . And, Whereas, it behooves a great free people, 

nurtured as we have been in eternal principles of justice and of 

right, a nation which has sought from the earliest days of its existence to be obedient to the divine teachings which have inspired it 

in the exercise of its liberties, to turn always to the supreme Master and cast themselves in faith at His feet, praying for His aid and 

succor . . .’’ 17 James D. Richardson, A Compilation of the Messages and Papers of the Presidents 8377 (Bureau of National Literature, Inc.) (Proclamation of Oct. 19, 1917). 

President Roosevelt’s 1944 Thanksgiving Proclamation declared: 

‘‘[I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies we have received individually and as 

a nation and for the blessings He has restored, through the victories of our arms and those of our Allies, to His children in other 

land . . . To the end that we may bear more earnest witness to our 

gratitude to Almighty God, I suggest a nationwide reading of the 

Holy Scriptures during the period from Thanksgiving to Christmas.’’ Lynch v. Donnelly, 465 U.S. 668, 675 n.3 (1984) (citing Proclamation No. 2629, 9 Fed. Reg. 13,099 (1944)). 

Official announcements proclaiming Christmas, Thanksgiving, 

and other national holidays are, to this day, made in religious 

terms. President Bush, in his 2002 Thanksgiving Day Proclamation, stated, ‘‘We also thank God for the blessings of freedom and 

prosperity; and, with gratitude and humility, we acknowledge the 

importance of faith in our lives.’’ Weekly Compilation of Presidential Papers, Vol. 38, No. 47, at 2072 (November 25, 2002). 

Recognition of God in the Presidential Oath of Office and Inaugural Addresses 

Every President of the United States, since Washington, has 

taken the Oath of Office with his hand placed upon the Bible. See 

Engel v. Vitale, 370 U.S. 421, 436 (1962). Every President has 

ended his Oath with, ‘‘So help me, God.’’ Id. at 436. 

Every President, without exception, has acknowledged God upon 

entering office: 

George Washington, 1st, ‘‘that Almighty Being who rules over 

the universe . . .’’ Speeches of the American Presidents 3 (Steven 

Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

John Adams, 2nd, ‘‘that Being who is supreme over all, the Patron of Order, the Fountain of Justice . . .’’ Speeches of the AmerVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00046 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
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ican Presidents 28 (Steven Anzovin & Janet Podell eds., The H.W. 

Wilson Co. 1988). 

Thomas Jefferson, 3rd, ‘‘And may that Infinite Power which rules 

the destinies of the universe lead our councils to what is best, and 

give them a favorable issue for your peace and prosperity.’’ Speeches of the American Presidents 40 (Steven Anzovin & Janet Podell 

eds., The H.W. Wilson Co. 1988). 

James Madison, 4th, ‘‘that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising republic, and to whom we are bound 

to address our devout gratitude for the past, as well as our fervent 

supplications and best hopes for the future.’’ Speeches of the American Presidents 51 (Steven Anzovin & Janet Podell eds., The H.W. 

Wilson Co. 1988). 

James Monroe, 5th, ‘‘with a firm reliance on the protection of Almighty God . . .’’ Speeches of the American Presidents 69 (Steven 

Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

John Quincy Adams, 6th, ‘‘knowing that ‘except the Lord keep 

the city the watchman waketh but in vain’ with fervent supplications for His favor. . . .’’ Inaugural Addresses of the Presidents 

of the United States, S. Doc. No. 101–10, at 60 (1989). 

Andrew Jackson, 7th, ‘‘my most fervent prayer to that Almighty 

Being before whom I now stand . . .’’ Speeches of the American 

Presidents 95 (Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

Martin Van Buren, 8th, ‘‘the Divine Being whose strengthening 

support I humbly solicit, and whom I fervently pray to look down 

upon us all.’’ Speeches of the American Presidents 108 (Steven 

Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

William Henry Harrison, 9th, ‘‘the Beneficent Creator has made 

no distinction amongst men . . .’’ Speeches of the American Presidents 116 (Steven Anzovin & Janet Podell eds., The H.W. Wilson 

Co. 1988). 

John Tyler, 10th, ‘‘the all-wise and all-powerful Being who made 

me . . .’’ 4 James D. Richardson, A Compilation of the Messages 

and Papers of the Presidents 1890 (Bureau of National Literature, 

Inc.). 

James Polk, 11th, ‘‘I fervently invoke the aid of that Almighty 

Ruler of the Universe in whose hands are the destinies of nations 

and of men . . .’’ Inaugural Addresses of the Presidents of the 

United States, S. Doc. No. 101–10, at 100 (1989). 

Zachary Taylor, 12th, ‘‘to which the goodness of Divine Providence has conducted our common country.’’ Inaugural Addresses of 

the Presidents of the United States, S. Doc. No. 101–10, at 114 

(1989). 

Millard Fillmore, 13th, ‘‘I have to perform the melancholy duty 

of announcing to you that it has pleased Almighty God to remove 

from this life Zachary Taylor . . .’’ Philip Kunhardt, Jr., The 

American President 218–223 (Riverhead Books 1999); ‘‘I rely upon 

Him who holds in His hands the destinies of nations . . .’’ 6 James 

D. Richardson, A Compilation of the Messages and Papers of the 

Presidents 2600 (Bureau of National Literature, Inc.) (Special Message, July 10, 1850). 

Franklin Pierce, 14th, ‘‘there is no national security but in the 

nation’s humble, acknowledged dependence upon God and His overVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
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ruling providence . . .’’ Speeches of the American Presidents 153 

(Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

James Buchanan, 15th, ‘‘In entering upon this great office I must 

humbly invoke the God of our fathers . . .’’ Inaugural Addresses 

of the Presidents of the United States, S. Doc. No. 101–10, at 125 

(1989). 

Abraham Lincoln, 16th, ‘‘Intelligence, patriotism, Christianity, 

and a firm reliance on Him who has never yet forsaken this favored land, are still competent to adjust in the best way all our 

present difficulty.’’ Speeches of the American Presidents 181 (Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

Andrew Johnson, 17th, ‘‘Duties have been mine; consequences 

are God’s.’’ 8 James D. Richardson, A Compilation of the Messages 

and Papers of the Presidents 3504 (Bureau of National Literature, 

Inc.). 

Ulysses S. Grant, 18th, ‘‘I ask the prayers of the nation to Almighty God in behalf of this consummation.’’ Speeches of the American Presidents 225 (Steven Anzovin & Janet Podell eds., The H.W. 

Wilson Co. 1988). 

Rutherford B. Hayes, 19th, ‘‘Looking for the guidance of that Divine Hand by which the destinies of nations and individuals are 

shaped . . .’’ Inaugural Addresses of the Presidents of the United 

States, S. Doc. No. 101–10, at 159 (1989). 

James Garfield, 20th, ‘‘They will surely bless their fathers and 

their fathers’ God that the Union was preserved, that slavery was 

overthrown . . .’’ Speeches of the American Presidents 251 (Steven 

Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

Chester Arthur, 21st, ‘‘I assume the trust imposed by the Constitution, relying for aid on divine guidance . . .’’ 10 James D. 

Richardson, A Compilation of the Messages and Papers of the 

Presidents 4621 (Bureau of National Literature, Inc.). 

Grover Cleveland, 22nd, ‘‘And let us not trust to human effort 

alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations. . . ..’’ Inaugural Addresses of the Presidents of the United States, S. Doc. No. 

101–10, at 173 (1989). 

Benjamin Harrison, 23rd, ‘‘invoke and confidently expect the 

favor and help of Almighty God, that He will give to me 

wisdom . . .’’ Speeches of the American Presidents 277 (Steven 

Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

Grover Cleveland, 24th, ‘‘I know there is a Supreme Being who 

rules the affairs of men and whose goodness and mercy have always followed the American people, and I know He will not turn 

from us now if we humbly and reverently seek His powerful aid.’’ 

Speeches of the American Presidents 274 (Steven Anzovin & Janet 

Podell eds., The H.W. Wilson Co. 1988). 

William McKinley, 25th, ‘‘Our faith teaches that there is no safer 

reliance than upon the God of our fathers . . .’’ Speeches of the 

American Presidents 291 (Steven Anzovin & Janet Podell eds., The 

H.W. Wilson Co. 1988). 

Theodore Roosevelt, 26th, ‘‘with gratitude to the Giver of Good 

who has blessed us with the conditions which have enabled 

us . . .’’ Speeches of the American Presidents 324 (Steven Anzovin 

& Janet Podell eds., The H.W. Wilson Co. 1988). 

49

Howard Taft, 27th, ‘‘. . . support of my fellow citizens and the 

aid of the Almighty God in the discharge of my responsible duties.’’ 

Speeches of the American Presidents 362 (Steven Anzovin & Janet 

Podell eds., The H.W. Wilson Co. 1988). 

Woodrow Wilson, 28th, ‘‘I summon all honest men, all patriotic, 

all forward-looking men, to my side. God helping me, I will not fail 

them, if they will but counsel and sustain me!’’ Speeches of the 

American Presidents 380 (Steven Anzovin & Janet Podell eds., The 

H.W. Wilson Co. 1988). 

Warren G. Harding, 29th, ‘‘that passage of Holy Writ wherein it 

is asked: ‘What doth the Lord require of thee . . .’ ’’ Speeches of 

the American Presidents 420 (Steven Anzovin & Janet Podell eds., 

The H.W. Wilson Co. 1988). 

Calvin Coolidge, 30th, ‘‘[America] cherishes no purpose save to 

merit the favor of Almighty God . . .’’ Speeches of the American 

Presidents 433 (Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). Calvin Coolidge also stated, ‘‘Our government rests 

upon religion. It is from that source that we derive our reverence 

for truth and justice, for equality and liberty, and for the rights of 

mankind. Unless the people believe in these principles, they cannot 

believe in our Government.’’ ‘‘Coolidge Declares Religion Our 

Basis,’’ N.Y. Times, Oct. 16, 1924 (October 15, 1924, address in connection with the unveiling of an equestrian statue of Francis Asbury.) 

Herbert Hoover, 31st, ‘‘I ask the help of Almighty God in this 

service to my country to which you have called me.’’ Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, 

at 267 (1989). Also according to President Hoover, ‘‘Our Founding 

Fathers did not invent the priceless boon of individual freedom and 

respect for the dignity of men. That great gift to mankind sprang 

from the Creator and not from governments.’’ ‘‘The Protection of 

Freedom,’’ Address by Herbert Hoover, West Branch, Iowa, Aug. 

10, 1954. 

Franklin D. Roosevelt, 32nd, ‘‘In this dedication of a nation we 

humbly ask the blessing of God.’’ Speeches of the American Presidents 489 (Steven Anzovin & Janet Podell eds., The H.W. Wilson 

Co. 1988). 

Harry S. Truman, 33rd, ‘‘all men are created equal because they 

are created in the image of God.’’ Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, at 286 (1989). 

Dwight D. Eisenhower, 34th, ‘‘At such a time in history, we, who 

are free, must proclaim anew our faith. This faith is the abiding 

creed of our fathers. It is our faith in the deathless dignity of man, 

governed by eternal moral and natural laws. This faith defines our 

full view of life. It establishes, beyond debate, those gifts of the 

Creator that are man’s inalienable rights, and that make all men 

equal in His sight! . . . The enemies of this faith know no god but 

force, no devotion but its use. . . . Whatever defies them, they torture, especially the truth. Here, then, is joined no pallid argument 

between slightly differing philosophies. This conflict strikes directly 

at the faith of our fathers and the lives of our sons. . . . This is 

the work that awaits us all, to be done with bravery, with charity—

and with prayer to Almighty God.’’ Speeches of the American Presidents 566, 568 (Steven Anzovin & Janet Podell eds., The H.W. Wilson Co. 1988). 

50

133When awarded the Presidential Medal of Freedom, President Reagan stated, ‘‘History 

comes and goes, but principles endure and ensure future generations to defend liberty—not a 

gift of government, but a blessing from our Creator.’’ ‘‘For the Record,’’ The Washington Post

(January 15, 1993) at A22. 

John F. Kennedy, 35th, ‘‘the rights of man come not from the 

generosity of the state but from the hand of God.’’ Speeches of the 

American Presidents 604 (Steven Anzovin & Janet Podell eds., The 

H.W. Wilson Co. 1988). 

Lyndon B. Johnson, 36th, ‘‘We have been allowed by Him to seek 

greatness with the sweat of our hands and the strength of our spirit. . . . [W]e learned in hardship . . . that the judgment of God is 

harshest on those who are most favored.’’ Inaugural Addresses of 

the Presidents of the United States, S. Doc. No. 101–10, at 313 

(1989). 

Richard M. Nixon, 37th, ‘‘as all are born equal in dignity before 

God, all are born equal in dignity before man.’’ Speeches of the 

American Presidents 662 (Steven Anzovin & Janet Podell eds., The 

H.W. Wilson Co. 1988). 

Gerald Ford, 38th, ‘‘to uphold the Constitution, to do what is 

right as God gives me to see the right . . .’’ Speeches of the American Presidents 698 (Steven Anzovin & Janet Podell eds., The H.W. 

Wilson Co. 1988). 

Jimmy Carter, 39th, ‘‘what doth the Lord require of thee, but to 

do justly, and to love mercy, and to walk humbly with thy God.’’ 

Inaugural Addresses of the Presidents of the United States, S. Doc. 

No. 101–10, at 328 (1989). 

Ronald Reagan, 40th, ‘‘We are a nation under God, and I believe 

God intended for us to be free.’’ Speeches of the American Presidents 749 (Steven Anzovin & Janet Podell eds., The H.W. Wilson 

Co. 1988).133

George Bush, 41st, ‘‘Heavenly Father, we bow our heads and 

thank You for Your love.’’ Inaugural Addresses of the Presidents of 

the United States, S. Doc. No. 101–10, at 346 (1989). 

Bill Clinton, 42nd, ‘‘with God’s help, we must answer the call.’’ 

Public Papers of the Presidents of the United States, William J. 

Clinton, 1993, Book 1, at 3 (Gov’t Printing Office 1994). 

George W. Bush, 43rd, ‘‘We are not this story’s Author, who fills 

time and eternity with his purpose. . . . God bless you all, and 

God bless America.’’ Public Papers of the Presidents of the United 

States, George W. Bush, 2001, Book 1, at 3 (Gov’t Printing Office 

2003). 

HEARINGS

The Committee’s Subcommittee on the Constitution held a hearing on ‘‘Limiting Federal Court Jurisdiction to Protect Marriage for 

the States’’ on June 24, 2004, which focused on Congress’s constitutional authority to limit the jurisdiction of the Federal courts. Testimony was received from Phyllis Schlafly, President, Eagle Forum; 

Martin H. Redish, Professor, Northwestern University School of 

Law; Michael Gerhardt, Professor, William & Mary Law School; 

William E. Dannemeyer, former U.S. Representative, with additional material submitted by individuals and organizations. 

51

COMMITTEE CONSIDERATION

On September 15, 2004, the Committee met in open session and 

ordered favorably reported the bill H.R. 2028 with amendments by 

a recorded vote of 17 to 10, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

2028. 

1. A second degree amendment to the Sensenbrenner amendment in the nature of a substitute was offered by Mr. Watt that 

would have stricken the provision eliminating the Supreme Court’s 

jurisdiction over cases involving the Pledge of Allegiance. By a rollcall vote of 9 yeas to 16 nays, the amendment was defeated.

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................ X

Mr. Flake ...........................................................................................................

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers .......................................................................................................

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ......................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 9 16

2. A second degree amendment to the Sensenbrenner amendment in the nature of a substitute was offered by Ms. Jackson Lee 

that would have precluded application of the bill to cases in which 

52

a ‘‘claim alleges religious coercion.’’ By a rollcall vote of 7 yeas to 

17 nays, the amendment was defeated.

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................ X

Mr. Flake ...........................................................................................................

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers .......................................................................................................

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... Pass 

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 7 17 1 Pass 

3. Final Passage. The motion to report favorably the bill H.R. 

2028, with an amendment in the nature of a substitute was agreed 

to by a rollcall vote of 17 yeas to 10 nays.

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

53

ROLLCALL NO. 3—Continued

Ayes Nays Present 

Ms. Hart ............................................................................................................ X

Mr. Flake ...........................................................................................................

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers .......................................................................................................

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 17 10

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 2028, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

54

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, September 17, 2004. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2028, the Pledge Protection of Privacy Act of 2004. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford, who 

can be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 2028—Pledge Protection Act of 2004. 

H.R. 2028 would amend federal law to eliminate the federal court 

jurisdiction and Supreme Court appellate jurisdiction on questions 

relating to the interpretation and constitutionality of the Pledge of 

Allegiance. CBO estimates that implementing H.R. 2028 would not 

have a significant effect on the federal budget. 

The bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Matthew Pickford, who 

can be reached at 226–2860. This estimate was approved by Peter 

H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 2028 would prevent Federal courts from considering cases involving the constitutionality of the Pledge of Allegiance. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, § 8; article III, § 1, clause 1; and article III, § 2, 

clause 2. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

This discussion describes the bill as reported by the Committee. 

Sec. 1. Short title. Section 1 provides that this Act may be cited 

as the ‘‘Pledge Protection Act of 2004.’’

Sec. 2. Limitation on Jurisdiction. Section 2 provides that no 

court created by Act of Congress shall have any jurisdiction, and 

the Supreme Court shall have no appellate jurisdiction, to hear or 

decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation. 

55

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 

and existing law in which no change is proposed is shown in 

roman):

CHAPTER 99 OF TITLE 28, UNITED STATES CODE 

CHAPTER 99—GENERAL PROVISIONS

Sec. 

1631. Transfer to cure want of juridiction.

1632. Limitation on jurisdiction.

* * * * * * *

§ 1632. Limitation on jurisdiction 

No court created by Act of Congress shall have any jurisdiction, 

and the Supreme Court shall have no appellate jurisdiction, to hear 

or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined 

in section 4 of title 4, or its recitation.

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, SEPTEMBER 15, 2004

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up the 

bill H.R. 2028, the ‘‘Pledge Protection Act of 2003,’’ for purposes of 

markup, and move its favorable recommendation to the House. 

Without objection, the bill will be considered as read and open 

for amendment at any point. 

[The bill, H.R. 2028, follows:]

56

1

I

108TH CONGRESS

1ST SESSION H. R. 2028

To amend title 28, United States Code, with respect to the jurisdiction

of Federal courts inferior to the Supreme Court over certain cases

and controversies involving the Pledge of Allegiance.

IN THE HOUSE OF REPRESENTATIVES

MAY 8, 2003

Mr. AKIN (for himself, Mr. MCINTYRE, Mr. DELAY, Mr. BLUNT, Mr. CANTOR, Ms. PRYCE of Ohio, Mr. ADERHOLT, Mr. BACHUS, Mr. BAKER, Mr.

BARRETT of South Carolina, Mr. BARTLETT of Maryland, Mr. BARTON

of Texas, Mr. BASS, Mrs. BLACKBURN, Mr. BEAUPREZ, Mr. BEREUTER,

Mr. BISHOP of Utah, Mr. BOEHNER, Mr. BONILLA, Mrs. BONO, Mr.

BONNER, Mr. BOOZMAN, Ms. BORDALLO, Mr. BRADY of Texas, Mr.

BROWN of South Carolina, Ms. GINNY BROWN-WAITE of Florida, Mr.

BURGESS, Mr. BURNS, Mr. BURR, Mr. BURTON of Indiana, Mr. CALVERT, Mr. CAMP, Mr. CHOCOLA, Mr. COLE, Mr. COLLINS, Mr. CRANE,

Mr. CULBERSON, Mr. CUNNINGHAM, Mrs. JO ANN DAVIS of Virginia,

Mr. DAVIS of Tennessee, Mr. TOM DAVIS of Virginia, Mr. DEAL of Georgia, Mr. DEMINT, Mr. LINCOLN DIAZ-BALART of Florida, Mr. MARIO

DIAZ-BALART of Florida, Mr. DOOLITTLE, Mr. DUNCAN, Ms. DUNN,

Mrs. EMERSON, Mr. FEENEY, Mr. FLAKE, Mr. FOLEY, Mr. FORBES, Mr.

FOSSELLA, Mr. FRANKS of Arizona, Mr. FRELINGHUYSEN, Mr.

GALLEGLY, Mr. GARRETT of New Jersey, Mr. GIBBONS, Mr. GILLMOR,

Mr. GINGREY, Mr. GOODE, Mr. GOODLATTE, Mr. GRAVES, Mr. GREEN

of Texas, Mr. GUTKNECHT, Ms. HARRIS, Mr. HAYES, Mr. HAYWORTH,

Mr. HEFLEY, Mr. HERGER, Mr. HOBSON, Mr. HOEKSTRA, Mr.

HOSTETTLER, Mr. HOUGHTON, Mr. HULSHOF, Mr. HUNTER, Mr. ISSA,

Mr. ISTOOK, Mr. JANKLOW, Mr. JENKINS, Mr. SAM JOHNSON of Texas,

Mr. JONES of North Carolina, Mr. KELLER, Mr. KENNEDY of Minnesota,

Mr. KING of Iowa, Mr. KINGSTON, Mr. KLINE, Mr. LAHOOD, Mr.

LATOURETTE, Mr. LEWIS of Kentucky, Mr. LUCAS of Oklahoma, Mr.

MANZULLO, Mr. MCCRERY, Mr. MCHUGH, Mr. MCINNIS, Mr. MICA, Mrs.

MILLER of Michigan, Mr. GARY G. MILLER of California, Mr. MILLER

of Florida, Mrs. MUSGRAVE, Mrs. MYRICK, Mr. NEY, Mrs. NORTHUP,

Mr. NUNES, Mr. OSBORNE, Mr. OSE, Mr. OTTER, Mr. PEARCE, Mr.

PENCE, Mr. PETERSON of Pennsylvania, Mr. PITTS, Mr. PORTER, Mr.

PLATTS, Mr. POMBO, Mr. PUTNAM, Mr. REGULA, Mr. REHBERG, Mr.

RENZI, Mr. REYNOLDS, Mr. ROGERS of Kentucky, Mr. ROGERS of Michigan, Mr. ROHRABACHER, Ms. ROS-LEHTINEN, Mr. RYAN of Wisconsin,


I2028.AAB
57

2

•HR 2028 IH

Mr. RYUN of Kansas, Mr. SAXTON, Mr. SCHROCK, Mr. SESSIONS, Mr.

SHADEGG, Mr. SHERWOOD, Mr. SHIMKUS, Mr. SHUSTER, Mr. SIMPSON,

Mr. SMITH of New Jersey, Mr. SMITH of Texas, Mr. SMITH of Michigan,

Mr. SOUDER, Mr. STEARNS, Mr. SULLIVAN, Mr. TANCREDO, Mr. TAUZIN, Mr. TAYLOR of North Carolina, Mr. TERRY, Mr. TIAHRT, Mr.

TIBERI, Mr. TOOMEY, Mr. WALSH, Mr. WAMP, Mr. WELDON of Pennsylvania, Mr. WELDON of Florida, Mr. WELLER, Mr. WHITFIELD, Mr. WILSON of South Carolina, Mr. WOLF, Mr. YOUNG of Florida, and Mr.

YOUNG of Alaska) introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To amend title 28, United States Code, with respect to

the jurisdiction of Federal courts inferior to the Supreme

Court over certain cases and controversies involving the

Pledge of Allegiance.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Pledge Protection Act

5 of 2003’’.

6 SEC. 2. JURISDICTION LIMITATION.

7 (a) IN GENERAL.—Chapter 99 of title 28, United

8 States Code, is amended by adding at the end the fol9 lowing:

10 ‘‘§ 1632. Jurisdiction limitation

11 ‘‘No court established by Act of Congress shall have

12 jurisdiction to hear or determine any claim that the recita13 tion of the Pledge of Allegiance, as set forth in section


I2028.AAC
58

3

•HR 2028 IH

1 4 of title 4, violates the first article of amendment to the

2 Constitution of the United States.’’.

3 (b) CLERICAL AMENDMENT.—The table of sections

4 at the beginning of chapter 99 of title 28, United States

5 Code, is amended by adding at the end the following new

6 item:

‘‘1632. Jurisdiction Limitation.’’.

Æ


I2028.AAD
59

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes to explain the bill. 

The Pledge of Allegiance reads, ‘‘I pledge allegiance to the flag 

of the United States of America, and to the Republic for which it 

stands, one Nation under God, indivisible, with liberty and justice 

for all.’’

Two words in the pledge, ‘‘under God,’’ help define our national 

heritage as beneficiaries of a Constitution sent to the States for 

ratification, as the Constitution itself states, ‘‘In the year of our 

Lord, 1787,’’ by a founding generation that saw itself guided by a 

providential God. 

These two words and their entirely proper presence in the system of Government defined by our Constitution have been repeatedly and overwhelmingly reaffirmed by the House of Representatives, most recently twice in the 107th Congress by votes of 416 to 

3 and 401 to 5, and in this Congress by a vote of 400 to 7. 

On July 4, 1776, our forbearers justified to the world our separation from Great Britain, declaring, ‘‘We hold these Truths to be 

self-evident, that all Men are created equal, that they are endowed 

by their Creator with certain Unalienable Rights.’’

The First Congress not only acknowledged a proper role for religion in public life, but it did so at the very time it drafted the establishment clause in the first amendment. Just 3 days before Congress sent the text of the first amendment to the States for ratification, it authorized the appointment of legislative chaplains. 

And on November 19, 1863, President Abraham Lincoln delivered the Gettysburg Address and declared in the words now inscribed in one of our most beloved national monuments, ‘‘We here 

highly resolve that these dead shall not have died in vain, that this 

Nation, under God, shall have a new birth of freedom.’’

Although the United States Supreme Court recently reversed 

and remanded the ninth circuit’s latest holding striking down the 

Pledge as unconstitutional, the Court did so on the questionable 

grounds that the plaintiff lacked legal standing to bring the case. 

The Court’s decision did not reach to the merits of the case is apparently an effort to forestall a decision adverse to the Pledge, 

since the dissenting Justices concluded the Court in its decision 

‘‘erected a novel prudential standing principle in order to avoid 

reaching the merits of the constitutional claim.’’

In order to protect the Pledge from Federal Court decisions that 

would have the effect of invalidating the Pledge across several 

States, H.R. 2028 was introduced by Representative Todd Akin. As 

introduced, it would have precluded the lower Federal courts from 

hearing cases involving the Pledge. However, in light of the 

Newdow decision, the bill’s sponsor and I agree that the bill should 

be expanded to also include the Supreme Court. 

The amendment in the nature of a substitute to H.R. 2028 that 

I will offer would reserve to the State courts the authority to decide 

whether the Pledge is valid within each State’s boundaries. It 

would place final authority over a State’s Pledge policy in the 

hands of the States themselves. 

The amendment in the nature of a substitute is identical to H.R. 

3318, the Marriage Protection Act, which the House passed just 

prior to the August recess, except that it addresses the Pledge rather than DOMA. If different States come to different decisions reVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00059 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
60

garding the constitutionality of the Pledge, the effects of such decisions will be felt only within those States, and a few Federal judges 

sitting hundreds of miles away from your State or mine will not be 

able to rewrite your State and my State’s Pledge policy. 

A remedy to abuses by Federal judges has long been understood 

to lie, among other places, in Congress’ authority to limit Federal 

court jurisdiction. The Constitution clearly provides the lower Federal courts are entirely creatures of Congress, as is the appellate 

jurisdiction of the Supreme Court, excluding only its very limited 

original jurisdiction over cases involving ambassadors and cases in 

which States have legal claims against each other. 

As the leading treatise on Federal court jurisdiction has pointed 

out, ‘‘Beginning with the first Judiciary Act in 1789, Congress has 

never vested the Federal courts with the entire judicial power that 

would be permitted by Article III of the Constitution.’’

Justice Brennan, writing for the Supreme Court, said, ‘‘Virtually 

all matters that might be heard in Article III courts could also be 

left by Congress to State courts.’’

Far from violating the separation of powers, legislation that 

leaves State courts with jurisdiction to decide certain classes of 

cases would be an exercise of one of the very checks and balances 

provided for in the Constitution. Therefore, I would urge Members 

to support this legislation. 

Who wishes to be recognized? 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Mr. Chairman, thank you. 

Mr. Chairman, I really hate to be an ‘‘I told you so.’’ actually, I 

don’t hate it. But when this Committee started on its first effort 

to strip the Federal courts of jurisdiction—legislation to strip Federal courts of the jurisdiction to hear cases challenging the Defense 

of Marriage Act, I warned there would be no end to it. 

Our former colleague Bob Barr, whose legislation Congress is 

purporting to protect, 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 paths set by H.R. 3313.’’

Bob Barr was right, and you can quote me. 

Today it is the turn of the religious minorities. Remember, before 

I get into that, remember the Soviet Constitution of 1936; freedom 

of speech, freedom of the press, freedom of assembly, freedom to petition government, freedom of religious and antireligious propaganda, as they quaintly put it, all right there. Of course, you 

couldn’t enforce it because there were no courts to enforce it. It 

wasn’t worth the paper it was written on. 

Bills like this will make the Bill of Rights as worthless as the 

Soviet Constitution, and this bill is intended to do just that. Today 

it is the turn of the religious minorities. 

Remember how we got here. Once upon a time a student could 

be expelled from school for refusing to recite the Pledge. In 1943, 

the Supreme Court in West Virginia Board of Education v. Barnett

61

held that the children had a first amendment right not to be compelled to swear an oath against their beliefs, in this case Jehovah’s 

Witnesses who objected on religious grounds. 

There is a reason for these provisions of the Constitution. Remember the ‘‘testos’’ that King Henry used to enforce. Remember 

St. Thomas More, who went to his death because he wouldn’t take 

the proper oath. Under this bill, we could do that again. 

Justice Jackson wrote, ‘‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can describe 

what should be orthodox in politics, nationalism, religion or other 

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

faith therein.’’

This legislation, of course, would strip the parents of those children of the right to go to court and defend their children’s religious 

liberty, their right not to recite a religious statement ‘‘under God’’ 

with which they disagree. Schools could expel children for acting 

according to the dictates of their faith, and Congress will have 

slammed the courthouse doors in their faces. 

As despicable as this legislation is, even for an election season, 

it is part of a more general attack on our system of Government. 

You don’t need a law degree to understand this. You should have 

learned about this in elementary school. 

Just to recap, we have an independent judiciary whose job it is 

to interpret the Constitution, even if those decisions are really unpopular. It is right there in Article III of the Constitution. 

Sometimes we don’t like what the Court says. I don’t like the decisions that struck down parts of the Violence Against Women Act 

or the Gun-Free Safe School Zones Act. I don’t like the fact of 

misapplying the commerce clause in the 11th amendment to gut 

our civil rights law. I really don’t like it that they stole an election 

and put someone in the White House that got more than half a million votes less than its other candidate. I especially don’t like the 

Supreme Court’s decision in Employment Division v. Smith, in 

which Justice Scalia wrote, ‘‘It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in, 

but that is an inevitable consequence of democratic Government.’’

As wrong-headed as I find the current Court on many issues, I 

understand that we cannot maintain our system of Government 

and we cannot enforce or give any meaning whatsoever to the Bill 

of Rights if the independent judiciary cannot enforce those rights, 

even if the majority doesn’t like it. 

To return to Justice Jackson in the flag salute case, ‘‘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 and free press, freedom of worship and assembly and other fundamental rights may not be submitted to a 

vote. They depend on the outcome of no elections.’’

Does any of this ring a bell with anyone? High school civics, 

maybe? 

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 

62

majority, especially when it comes to the rights of unpopular minorities, even atheist minorities. That is our system of Government, and it is a good one. 

As Alexander Hamilton said in Federalist 78, ‘‘The complete 

independence of the courts of justice is peculiarly essential—’’

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. Mr. Speaker, I ask—Mr. Speaker—Mr. Chairman, 

I ask for an additional 2 minutes. 

Chairman SENSENBRENNER. Thanks for the promotion, and without objection. 

Mr. NADLER. Thank you. You are welcome. 

‘‘the complete independence of the courts 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 it shall pass no bills of attainment and no ex post facto laws and the like. Limitations of this 

kind can be preserved and practiced 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 and particular rights and privileges would 

amount to nothing.’’

I would point out that the Chairman says that the Judiciary Act 

of 1789 limited the jurisdiction of the courts. It is true. But the Judiciary Act of 1789 predated the Bill of Rights, which guarantees 

everyone in the fifth amendment, in the 14th amendment, the right 

to due process of law, the right to equal protection, those rights 

which cannot be enforced if the Legislature, if the Congress, can 

strip the courts of the right to enforce those. 

We are playing with fire here. Is demagoging a case that you 

won really worth it? Do you really hate the Bill of Rights so much 

that you are willing to destroy it? 

I urge my conservative colleagues to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities, even if a majority hates them. Feel free to hate if 

you must, but leave our Constitution alone. Destroy this bill, not 

the Constitution. 

Thank you. I yield back. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Without objection, all Members may insert opening statements in 

the record at this time. 

Are there amendments? 

The Chair recognizes himself for purposes of offering an amendment in the nature of a substitute, which the clerk will report. 

The CLERK. Amendment in the nature of a substitute to H.R. 

2028 offered by Mr. Sensenbrenner. 

[The amendment follows:]

63 H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 2028

OFFERED BY MR. SENSENBRENNER

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Pledge Protection Act

3 of 2004’’.

4 SEC. 2. LIMITATION ON JURISDICTION.

5 (a) IN GENERAL.—Chapter 99 of title 28, United

6 States Code, is amended by adding at the end the fol7 lowing:

8 ‘‘§ 1632. Limitation on jurisdiction

9 ‘‘No court created by Act of Congress shall have any

10 jurisdiction, and the Supreme Court shall have no appel11 late jurisdiction, to hear or decide any question pertaining

12 to the interpretation of, or the validity under the Constitu13 tion of, the Pledge of Allegiance, as defined in section 4

14 of title 4, or its recitation.’’.

15 (b) CLERICAL AMENDMENT.—The table of sections

16 at the beginning of chapter 99 of title 28, United States


A2028.AAB
64

2

H.L.C.

1 Code, is amended by adding at the end the following new

2 item:

‘‘1632. Limitation on Jurisdiction.’’.

Amend the title so as to read: ‘‘A bill to amend title

28, United States Code, with respect to the jurisdiction

of Federal courts over certain cases and controversies involving the Pledge of Allegiance.’’.


A2028.AAC
65

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

The Chair recognizes himself for 5 minutes. 

Because I have already described the substance of this amendment in the nature of a substitute in my opening statement, I will 

not consume further Committee time by repeating myself. I simply 

ask the Members support its adoption, and yield back the balance 

of my time. 

Are there any second degree amendments to the amendment in 

a nature of a substitute offered by the Chair? 

The gentleman from California. 

Mr. SCHIFF. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. Mr. Chairman and Members, last month we had legislation to strip the Federal courts of the jurisdiction over DOMA. 

This we took up and passed out of this Committee, notwithstanding 

the fact that all of the witnesses who were invited to testify on the 

constitutionality of DOMA believed that DOMA was constitutional 

and DOMA would be upheld by the Court. 

So we stripped the jurisdiction of the courts to decide a question 

that the experts told us they believed the Federal courts would decide the way the Committee believed it should be decided. 

Not content with that, last week we removed jurisdiction of State 

courts to determine issues of venue in their own courthouses. Now 

we move the assault on the judiciary further this week by moving 

to strip the Federal courts from the district court to the Supreme 

Court of jurisdiction over the Pledge of Allegiance in an area, in a 

case, on an issue where the courts have already done what this 

Committee would like them to do, and that is thrown out a challenge to the inclusion of ‘‘under God’’ in the Pledge of Allegiance. 

Now, I think ‘‘under God’’ belongs in the Pledge of Allegiance, 

and I think the ninth circuit court was wrongly decided. But the 

courts remedied the error of the ninth circuit when the Supreme 

Court threw out the case. 

Interestingly, it is not enough, I guess, for the Committee or for 

this body that the Supreme Court threw out this challenge to the 

inclusion of ‘‘under God’’ in the Pledge of Allegiance. It is not 

enough that they prevailed in the case, because they did not prevail on the merits, they prevailed on an issue of procedure, of 

standing. 

But when you look at why we prevailed on the issue of standing, 

we that believe ‘‘under God’’ should be in the Pledge of Allegiance, 

it is interesting that we attacked the Court on this, because what 

the Supreme Court found in the Newdow case was that the mother 

had full legal custody of the child who was at issue in the Pledge 

of Allegiance case. The father, the Court found, did not have the 

standing to raise this issue of the religious education of his daughter. The mother had sole custody. 

As the mother evidently intervened and the Court made clear, 

the daughter is a Christian who believes in God and has no objection either to reciting or hearing others recite the Pledge of Allegiance or its reference to God. So the mother wanted the daughter 

exposed to the Pledge of Allegiance with ‘‘under God,’’ and the Supreme Court found that the father, who lacked any legal custody, 

66

didn’t have the right to challenge the mother’s view of her daughter’s religious education. 

And we are critical of that decision. We are not only critical of 

it, but we wanted to strip the Court of any jurisdiction over the entire issue, because they held a mother with legal custody had the 

right to allow her daughter to recite the Pledge of Allegiance, including ‘‘under God.’’

This seems an extraordinary result for this Committee, implicitly 

disapproving of a decision upholding the mother’s right, the sole 

legal custodian’s right, to have her daughter recite ‘‘under God’’ in 

the Pledge of allegiance. That is effectively what we are doing. We 

are chastising the Court that threw out a case that we thought 

should be thrown out because they didn’t throw it out on the basis 

we would have liked, but nonetheless a very legally supportable 

basis. 

The question is, I guess, is, what next? Where do we go after we 

have stripped the courts of jurisdiction over a law, DOMA, that we 

thought they were going to decide the right way. We have stripped 

the Court’s jurisdiction over an issue where they have already decided it the right way. What is next? 

Again, I think the peril is one that my colleague pointed out and 

that our former colleague Mr. Barr pointed out, and that is there 

is no limit to what we are undertaking, and while it may seem advantageous from a certain political point of view to press it now, 

what will prevent those who are arguing for Court-stripping now 

if later others make the argument that we should strip the Federal 

courts of the ability to resolve cases involving not the first amendment, as here, but the second amendment; or maybe not the second 

amendment, but the fourth amendment right to be free of unreasonable searches and freedoms, or the ninth amendment’s protection of the right of privacy? What will prevent us from undertaking 

those Court-stripping measures that may lead to results very different than the majority wants at this moment? 

Mr. Chairman, I urge the Committee to reject this bill. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Are there any second degree amendments? 

The gentlewoman from California. 

Ms. LOFGREN. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. I likely will not consume the entire 5 minutes, because I think the constitutional issues were very ably outlined by 

our Ranking Member Mr. Nadler. I will say, however, it is clear to 

me that this bill is unconstitutional. It would reverse Marbury v. 

Madison, a case which has led our country to a separation of powers and freedom for over 200 years. 

I would also like to just observe that I think it is unlikely that 

this bill will ever become law. If it were to become law, it would 

be overturned by the courts, which would prompt an unnecessary 

constitutional conflict. 

So the question is really why are we going through this exercise? 

I think it is very much about the election season. I am one, as Mr. 

Schiff mentioned, who believes that ‘‘under God’’ belongs in the 

67

Pledge of Allegiance, and my votes on the floor of the House reflect 

that opinion. I believe that the courts will ultimately, if they are 

squarely faced with the decision, reach the same conclusion. 

I question why, other than politics, the majority would be bringing up this issue 50 days before the election, and I think it shows 

that really radicals have taken over the Congress, people who are 

willing to essentially toss the system of checks and balances that 

protects our freedom in America for a temporary political gain. I 

think that is sad and also dangerous, and I notice that we have not 

tremendous press attention here today, but I think we could ask 

them to let them know that radicals have taken over the Congress. 

The public has a right to know. 

I yield back. 

Mr. CHABOT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CHABOT. First of all, I will be brief in my comments, but I 

think it is interesting to look at some of the terms that we have 

heard thrown around this morning already. For example, ‘‘radicals’’ 

having taken over the Congress, and that old favorite, ‘‘stole the 

election.’’ We have heard that we ‘‘hate the Bill of Rights,’’ ‘‘assault 

on the judiciary,’’ all this kind of terminology. I think it is kind of 

interesting. 

If we get back to the issue of what we are really talking about 

here, I want to express my support for this particular Pledge Protection Act. 

When the issue of limiting Federal court jurisdiction was raised 

during the discussions of the Marriage Protection Act, our Subcommittee held a hearing examining Congress’ authority to do just 

what we are doing here today. Although there was mixed opinion 

on whether Congress should exercise its authority, there was consensus that Congress did and does, in fact, have the authority 

under Article III of the Constitution to determine which issues 

were heard by the Supreme Court under its appellate jurisdiction 

and by the lower Federal courts. 

So saying this is unconstitutional, all the experts indicated that 

Congress does have this power. Obviously, there may be a difference as to whether we should do this or not, just like whether 

we should have passed the legislation we talked about a month ago 

relative to DOMA. But whether we can do it or whether we are authorized under the Constitution, really there is not much argument 

about that. 

The Pledge of Allegiance, as our Chairman said, deserves protection. It not only defines our national heritage, but also unites our 

society each time that it is recited in schools around the country 

and public events, and we cannot let a few rogue Federal judges 

redefine our country’s history and the basis from which our Founding Fathers found guidance when constructing our country’s Government. 

So, I think we all ought to be very careful in the terms that we 

use here this morning, because I think oftentimes we throw these 

phrases around much too loosely. Let us talk about the merits 

rather than talking about stealing elections and that sort of thing. 

I yield back my time. 

68

Chairman SENSENBRENNER. Are there any second degree amendments to the amendment in the nature of a substitute? 

The gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I am trying to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. Some Members do have to get out of 

town. That is why I am trying to move this along. 

The gentlewoman from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Mr. Chairman, thank you. 

I just wanted to clear the air, because my good friend from Ohio 

was citing words that he thought might not have been descriptive 

of what we are doing today. Let me just briefly say nor do I believe 

the description of the Federal judiciary as ‘‘rogue judges’’ can in 

any way do any justice or add any contributory aspect to this debate. 

Let me just say that I am sure that the Congress has many powers. It might be even said that we have the power to abolish ourselves, to abolish the Government. But there is a question of wisdom in using one’s power. There is a question of abuse in using 

one’s power. 

Frankly, I believe that the previous legislation passed on DOMA 

was reckless, and I believe that this legislation is equally so. 

I would only offer to my colleagues to say that when a Judiciary 

Committee or an oversight Committee of the United States Congress begins to take the Constitution and eliminate rights, then I 

think we are on dangerous ground. When we begin to close the 

door of the courthouse, the appellate court, the Supreme Court, 

then frankly I am frightened. 

I will not throw words around recklessly. I will not suggest without some basis in fact that we are nearing the terrible times of the 

1950’s and McCarthysim when no one could speak, when everyone 

had to be silenced. That is not the role of this Congress. 

The courts have not in any way rendered decisions that should 

suggest they are rogue or runaway courts. Our justice system 

works. What we are doing today does not work, and I rise to oppose 

both the legislation and the substitute, and I would argue that we 

are misusing the Congress’ time unwisely. 

I will have an amendment in short order, but I rise to oppose the 

substitute. 

Mr. HOSTETTLER. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I listened with great interest to 

the statement by Mr. Nadler, and I heard that he began by suggesting that the notion of a independent judiciary is found in Article III, right there. We can look at it and read it. Then he ended 

his comments by admonishing us to leave the Constitution alone. 

I think that seeming contradiction is very important for the case 

that the other side is making, because if they tell us that the notion of an independent judiciary is found in Article III, then they 

are going to have to require us to leave the Constitution alone, including not actually read the Constitution, because if you actually 

read Article III, you will find that the notion of an independent judiciary is a flawed notion, at best. 

69

Article III, section 1, ‘‘The judicial power of the United States 

shall be vested in one Supreme Court and such inferior courts as 

the Congress may from time to time establish. The judges, both of 

the Supreme Court and inferior courts, shall hold their offices during good behavior,’’ and who determines good behavior, and what 

process determines good or bad behavior? It is the impeachment 

and removal from office process that is solely the prerogative of the 

legislative branch. 

It also talks about, ‘‘Shall at stated times receive for their service 

a compensation.’’ set by whom? The Congress. 

It goes on to say it will not be diminished during their continuance in office. So there is that form of independence in the judiciary. 

But if you go on and read section 2 where it talks about the 

types of judicial power and the cases that may be considered, we 

come to the point that it says, ‘‘In all the other cases before mentioned, the Supreme Court,’’ and it is saying all the other courts 

except for the two cases that the Chairman mentioned, ‘‘with such 

exceptions and under such regulations as’’ who? ‘‘the Congress 

shall make.’’ that doesn’t sound very independent to me. 

The next paragraph says, ‘‘The trial of all crimes, except in cases 

of impeachment, shall be by jury, and such trials shall be held in 

the State where the said crimes shall have been committed, but 

when not committed within the State, the trial shall be at such 

place or places as’’ who says? ‘‘the Congress may by law have directed.’’ not the court, but the Congress shall direct where the trial 

is in that particular case. 

Then it goes on in Article III, section 3 to say that ‘‘the Congress 

shall have power to declare the punishment of treason.’’ not the 

court, but the Congress. 

So, the notion of an independent judiciary, and I listened to Mr. 

Nadler’s dissertation very closely and found the term ‘‘independent’’ 

or a derivative of the word ‘‘independent’’ several times, it just does 

not bear out actually in the Constitution. 

But it does prove the adage that is long-time established that 

there is nothing so absurd, but if repeated often enough, people will 

believe it. And people have asserted the notion of an independent 

judiciary for so long and asked us as a country and as a citizenry 

to leave the Constitution alone, including don’t read it, that many 

folks have begun to believe this absurd notion of an independent 

judiciary, when, if you actually read the Constitution, you will find 

out that they are not an independent judiciary, that, in fact, Congress at every turn has the authority, according to the Constitution, according to the document that many claim they are trying to 

preserve, that the Constitution itself gives the Congress the authority to curb the influence of the courts, because, as we know, the 

courts are unelected and, therefore, unaccountable to the people. 

You know, if what we are doing today is so outlandish, according 

to the will of the people, do you know who gets to finally be the 

arbiter of the actions of a radical Congress? I think I heard that 

word? The people themselves. 

But those are exactly the people that folks on the other side don’t 

want to have make the final decision in these questions, because 

they know that these people want to actually allow their children 

70

in public schools to recite the Pledge of Allegiance and have the authority and have the ability to do that. 

That is what they don’t want. They don’t want the people to 

make this decision. They would much rather have five people, 

unelected, unaccountable, life-tenured, to make these decisions, 

and ask the rest of us to please leave the Constitution alone, and, 

by all means, don’t read it. If you read it, then you may feel that 

you have some power or some authority through your elected officials to make a change. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Are there any second degree amendments to the amendment in 

the nature of a substitute? 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Mr. Chairman, to save a little time, I would like to 

incorporate by reference the debate we had on the DOMA amendment, just to save a little time. I would want to comment, however, 

on a different recollection I have on the hearing that we had. 

I thought the question was whether we actually had the constitutional authority, and they seemed to be a little ambivalent about 

whether we had the authority or not, but I thought there was a 

consensus we should not exercise it. 

By incorporating by reference, I remind you that most of us 

thought that Marbury v. Madison had been correctly decided, but 

we found out that apparently there are a lot of people who think 

it was wrongly decided. Now we have found that the idea of an 

independent judiciary is a flawed concept. 

Mr. Chairman, the gentleman from New York pointed out under 

‘‘I told you so’’ that this kind of idea would become boilerplate language, and here we have it on another bill. 

Lastly, Mr. Chairman, by incorporating by reference, we are reminded how happy we are that nobody thought of this scheme back 

in the 1960’s when rogue, unelected, lifetime-appointed Federal 

judges required Virginia, against the will of the people, to recognize 

marriages of people of different races. Had someone come up with 

a scheme and had some kind of DOMA legislation, if it had been 

found constitutional, those rogue, unelected, lifetime Federal judges 

would not have been able to do that in Virginia. Also if they decided in the 1950’s, they could have had a barrier to judges reviewing pupil placement plans before Brown v. Board of Education.

But, Mr. Chairman, speaking about this bill, this bill is not limited to just ‘‘under God.’’ there are a lot of constitutional issues involving the Pledge of Allegiance. The gentleman from New York 

and others have mentioned the West Virginia case, where we could 

not coerce students against their religion to recite a pledge. It has 

free speech, freedom of association implications. This legislation 

would prevent all of those cases from being considered. 

Present law prohibits a coerced recitation of the Pledge of Allegiance against one’s religious views. I don’t know what implication 

this bill would have on even enforcing that present state of the law. 

Finally, but not finally, one other comment, we have several letters here I would like unanimous consent to introduce, one from 

Americans United for Separation of Church and State, and the 

other from a long list of civil rights organizations which I would 

ask unanimous consent to introduce for the record. 

Chairman SENSENBRENNER. Without objection. 

71

[The information referred to follows:]


2028Z1.eps
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2028Z3.eps
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2028Y1.eps
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Mr. SCOTT. Both opposed to the bill. But Barry Lynn, the president and leader of the Americans United for Separation of Church 

and State, has said, ‘‘Far from protecting the Pledge, this bill insults the very democratic principles embodied in that affirmation.’’

Finally, Mr. Chairman, the way I read the bill, there is an additional gratuitous insult for the residents of Washington, D.C., in 

that apparently they will be totally left out without any court to 

file in. 

Yesterday we helped foreign corporations escape liability from 

American courts by developing a scheme whereby there may be no 

court that someone may file in within the United States. This bill, 

I think, does the same for Washington, D.C., residents, because apparently my reading of it is there is no court in D.C. that you could 

bring the case in. 

For those reasons, Mr. Chairman, I would hope that we would 

defeat the legislation. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Are there second degree amendments? Does the gentleman from 

North Carolina have a second degree amendment? 

Mr. WATT. The Chairman will be happy to know that I have an 

amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 2028 offered by Mr. Watt of North Carolina. 

Page 1, line 10 to 11, strike the following: ‘‘, and the Supreme 

Court shall have no appellate jurisdiction,’’. 

[The amendment follows:]

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

Let me start by tamping down some of the rhetoric and actually 

complimenting the Chairman. As I read the Chairman’s amendment in the nature of a substitute, it is substantially better at accomplishing the avowed purpose of what some people would like to 

accomplish than the original version of the bill and does address 

some of the concerns expressed by Mr. Nadler in his opening statement. For that, I think the Chairman should be applauded, and I 

want to publicly applaud him. 


A2028A.eps
78

On the other hand, nothing I say to applaud either the original 

bill or the amendment in the nature of a substitute should be 

taken by any Member of this Committee or the public as an endorsement of the undertaking. 

But for the fact that I was going to introduce this amendment, 

I probably would have struck the last word for about 30 seconds, 

only long enough to say that the only way I could constructively debate the bill or the amendment in the nature of a substitute would 

be to mock, mock, my colleagues, and I refuse to do that, or to just 

take it so lightly and dismiss it that the only comment would be 

laughter into the record, or to get so emotional about this that it 

would run up my blood pressure, which I am not inclined to do 

today either. 

I think if you are going to do this, you should limit it to what 

you have the capacity to do, which is I think we would concede constitutionally you could strip the jurisdiction of courts that you have 

created. I am not sure that you can constitutionally strip the jurisdiction of the Supreme Court to hear appeals. And even if you can, 

I certainly don’t believe that would be advisable, because the result 

of that would be to leave each State and its highest courts with the 

final word on this and leave an absolute hodgepodge of final opinions, which I just think would be a terrible public policy result. 

So, my amendment would restore or remove the part of the 

amendment in the nature of a substitute that strikes the jurisdiction of the Supreme Court to hear these cases on review. I think—

well, maybe I am naive, but it seems to me that we need a final 

arbiter in the court system and hierarchy, and while I have not always agreed throughout history, throughout the 22 years I practiced law or the 12 years I have been in Congress, with a lot of decisions of the United States Supreme Court, I think it is an integral part of our system of justice, and we need a final arbiter, and 

the Supreme Court is that. 

So I would ask my colleagues to join me in trying to make this 

bill constitutional if you really believe in it. If you just want the 

political issue, then vote against my amendment. 

I will yield back the balance of my time. 

[11:05 a.m.] 

Chairman SENSENBRENNER. Gentleman from Ohio Mr. Chabot. 

Mr. CHABOT. Thank you, Mr. Chairman. Move to strike the last 

word. 

Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes. 

Mr. CHABOT. And I will be brief. 

Just two points. Does Congress have the authority to do that 

under the Constitution? The answer to that is yes. Under Article 

III, section 1, it states that the judicial power of the United States 

shall be vested in one Supreme Court, and then goes on to say, and 

the lower courts we established. Article III, section 2, clause 2 further provides, in all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party, the 

Supreme Court shall have original jurisdiction. In all other cases, 

the Supreme Court shall have appellate jurisdiction both as to law 

and fact with exceptions and under such regulations as the Congress shall make. 

79

So we clearly have the authority to do this. The second question 

is should we. Consistent with the Marriage Protection Act, we want 

to make sure that the Supreme Court essentially can’t rewrite the 

50 States’ policies on the Pledge of Allegiance. Our goal here was 

to allow the States to determine their own Pledge policy within 

their own State and not to be undercut by any other court. For that 

reason, I would urge my colleagues to oppose this amendment. 

Chairman SENSENBRENNER. The gentleman from New York Mr. 

Nadler. 

Mr. NADLER. I would simply point out that what the gentleman 

from Ohio just said and what the distinguished Chairman said earlier about the States determining their own policy is one reason 

why this entire bill should be defeated. By stripping the Supreme 

Court of power of jurisdiction, what you are saying is that the 50 

State courts are the final authorities in their States as to what is 

constitutional and what is not in Federal law. That means the Federal law will have 50 different versions in each State, and what is 

constitutional in one State will not be constitutional in another. 

One of the reasons we have a Supreme Court is we have a uniform interpretation of the Constitution, and then your constitutional rights don’t depend on what State you are in; they are guaranteed by the Bill of Rights, by the Constitution, and they are the 

same wherever you are. 

Your rights under the Federal Constitution should not depend on 

what State you are in. This would essentially reverse the Civil 

War. What you are saying is you would have 50 different countries, 

not one country. The case of Martin v. Sumter back in 1819 which 

the Supreme Court was given the right to declare or establish the 

right to declare State laws unconstitutional is so that we didn’t 

have 50 different States having different interpretations of what 

they could do under the Federal Constitution essentially would be 

undone. And if we want one country and not 50 countries, you have 

to have a uniform interpretation of the law and a uniform interpretation of the Federal Constitution and not 50 different interpretations. 

Mr. CHABOT. We are only saying that with respect to one thing, 

and that is Pledge of Allegiance. 

Mr. NADLER. Reclaiming my time. With all due respect, if this 

bill passes, you will be saying with respect to two things so far, 

since this is the second bill——

Mr. CHABOT. So far. 

Mr. NADLER. Exactly. That is the point. So far. What we are really saying here, what this bill is, what the previous bill is, what the 

next bill will be is that whenever there is a law that the majority 

likes that it fears may be declared unconstitutional by the Supreme 

Court will have a court-stripping bill, and we will end up over 

course of years—and the majority may not always be a right-wing 

majority or a left-wing majority or a Republican majority. It will 

change from time to time. And we will do this on all sorts of issues 

and all sides of the viewpoint and will end up where you have no 

uniform Constitution and no uniform Federal law, and the 50 

States start going their separate ways. And it is not what we wanted to do since—that is why we have the Constitution and not the 

Articles of Confederation. This bill, the approach of this bill, future 

80

bills like it, will ultimately destroy the national unity of the American people. 

Mr. WEINER. Would the gentleman yield? If I am correct, though, 

in the argument the gentleman from Indiana makes and the gentleman from Ohio makes, that if the majority of a legislature believes something to be constitutional, then it de facto is. It becomes 

constitutional. 

Mr. NADLER. Reclaiming my time. That is exactly what they are 

saying, because they are saying that if they think it is constitutional, the majority of the legislature and the majority of Congress, 

they will strip the courts of the ability to decide that question, and, 

therefore, the final decisionmaker is the Congress. 

It is essentially what Mr. Hostettler said. That is why he denies 

that there is an independent judiciary, because who needs it, because the Congress, being a coordinated branch of Government, by 

stripping the courts of the ability to make that decision will make 

the final decision on constitutionality for itself. And with all due respect, what that means is that constitutionality and individual 

rights depend on who wins the elections. That is exactly why we 

have courts and why we have a Bill of Rights, because your freedom of religion and your freedom of speech should not depend on 

your popularity or your ability to win an election. 

Mr. HOSTETTLER. Mr. Chairman——

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment to the amendment in the nature of a substitute offered 

by the gentleman from North Carolina Mr. Watt. Those in favor 

will say aye. 

Opposed, no. 

The noes appear to have it. 

Ms. JACKSON LEE. Mr. Chairman——

Chairman SENSENBRENNER. rollcall will be ordered. The question 

is on agreeing to the amendment by the gentleman from North 

Carolina Mr. Watt to the amendment in the nature of a substitute 

offered by the Chair. Those in favor will, as your names are called, 

answer aye; those opposed, no. And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

[No response.] 

81

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Ms. Hart. 

Ms. HART. No. 

The CLERK. Ms. Hart, no. 

Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Carter. 

Mr. CARTER. No. 

The CLERK. Mr. Carter, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mrs. Blackburn. 

Mrs. BLACKBURN. No. 

The CLERK. Mrs. Blackburn, no. 

Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. Yes. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

82

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Ms. Baldwin. 

[No response.] 

The CLERK. Mr. Wiener. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members in the Chamber who wish 

to cast or change their vote. 

Gentleman from Virginia Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. Further Members in the Chamber 

who wish to cast or change their vote? If there are none, the clerk 

will report. 

The CLERK. Mr. Chairman, there are 9 ayes and 16 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment 

by the gentlewoman from Texas. 

Ms. JACKSON LEE. It is handwritten with, in the amendment in 

the nature of a substitute. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 2028 offered by Ms. Jackson Lee. Page 1——

[The amendment follows:]

83

Chairman SENSENBRENNER. Without objection, the amendment 

will be considered as read. 

The gentlewoman from Texas will be recognized for 5 minutes. 

Ms. JACKSON LEE. This amendment was amended to conform to 

the amendment in the nature of a substitute. Thank you very 

much, Mr. Chairman. I think my colleagues have very eloquently 

cast the light of this particular legislative initiative in the framework of the Constitution that we are here to protect. 

I think one of the most dangerous aspects of this legislation is 

the fact that it has now begun to set precedent and seems as if 

from day to day and month to month, we will have these kinds of 

initiatives that simply attempt to shut the courthouse door. 

I say to those who are listening to us, beware multinational corporations, beware school districts, beware State and local governments, beware those of you who would believe that your issues are 

untouchable, for it seems that these kinds of legislative initiatives 

which are closing the courthouse door may be subject to the whims 

of those who are in the majority. 

My legislation clearly speaks to the personalness of this idea of 

closing the courthouse doors. Like my colleague, I voted to leave 

‘‘under God’’ in the Pledge of Allegiance, and I think we should be 

reminded that that language was only put into the Pledge of Allegiance in the 1950’s. The original authors of the Pledge did not 

have ‘‘under God.’’ but I do believe that you have a first amendment right to recite the Pledge of Allegiance, and if you desire not 

to recite it because of your religious beliefs, and you have the right 

not to recite as I have the right to recite it. 

My amendment says if you are in a position that you are being 

coerced against your religious beliefs, such as the Jehovah Witnesses, you should be allowed to go into the courthouse and petition and protest that coercion. 

Let me tell you about a little girl who sat next to me in my elementary school class. I will call her Hazel. And I wondered as a 

child why Hazel never stood up to say the Pledge of Allegiance. I 

am glad at that time that, one, we were wise enough in our school 

to leave Hazel alone, or the school district understood or the teacher understood that Hazel had the right under the first amendment 

to express her religious belief. Hazel was a Jehovah Witness. 


A2028B.eps
84

This amendment speaks to that diversity of religious belief. This 

amendment suggests that if you are coerced, there is no reason 

why you should not be able to go into the courthouse. In the 1943 

case of West Virginia Board of Education v. Barnett, the Supreme 

Court held that children had a first amendment right not to be 

compelled to swear on an oath against their beliefs. In that case 

there was a group of Jehovah Witnesses who objected on religious 

grounds. Justice Jackson wrote, 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. 

That is the protection of the first amendment, and are you going 

to tell me that this legislation then would prohibit these individuals from going into the courthouse and going to the Supreme 

Court? There is no question that this legislation would strip the 

parents of those children of their right to go to court and defend 

their children’s religious liberty. 

Mr. Chairman, we must not slam the courthouse doors shut to 

victims of religious persecution, but I would hope that as this debate concludes, that those who are listening to this would really 

have a sense that the House is on fire, that the Judiciary Committee of the United States Congress is now passing legislation 

again to close the courthouse doors. It is both a travesty and a 

tragedy, and, I might add, an extra outrage that we sit here in this 

Committee room closing the courthouse doors. I would hope that 

we would not close it on those who would be coerced into saying 

the Pledge of Allegiance and have no reprieve and nowhere to go 

and be barred from going into the courthouse on their grievance. 

I ask my colleagues to support my amendment, and I yield back. 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes in opposition to the amendment. This amendment should 

be defeated because it would gut the bill. First, nothing in H.R. 

2028 would allow State courts to deviate from Supreme Court 

precedent prohibiting the coerced recitation of the Pledge of Allegiance. Even when Federal courts are denied jurisdiction to hear 

certain classes of cases and those classes of cases are thereby reserved to the State courts, the previously existing Supreme Court 

precedent still governs State court determinations. This is required 

by the supremacy clause of the Constitution. 

And in West Virginia Board of Education v. Barnett, the Supreme Court held it is unconstitutional to require individuals to salute the flag. In that case, the Supreme Court held, quote, if there 

is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what should be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act or faith therein, unquote. Under 

H.R. 2028 as written, that decision will preclude State courts from 

allowing coerced recitations of the Pledge of Allegiance. 

Even if it weren’t required by the supremacy clause, State courts 

are not second-class courts, and they are equally capable of deciding Federal constitutional questions. The Supreme Court has clearly rejected claims that State courts are less competent to decide 

Federal constitutional issues than the Federal courts. Justice William Brennan wrote in the Northern Pipeline Construction ComVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00084 Fmt 6659 Sfmt 6601 E:\HR\OC\HR691.XXX HR691
85

pany v. Marathon Pipeline Company that, quote, virtually all matters that might be heard in Article III courts could also be left by 

Congress to the State courts. Justice Brennan was joined in that 

decision by Justices Marshall, Blackmun and Stevens, a hardly 

right wing contingent of judges in office at the time, I might add. 

Now, what, then would be the harm of adopting this amendment? Plenty. If we carve out an exception for cases in which coercion is involved, we will open the floodgates to expansive interpretation by the Federal courts that will gut the purpose of the bill. 

Carving out a coercion exemption will invite the Federal courts, including the liberal Ninth Circuit Court of Appeals, to hold that excessive coercion exists to pressure a student to recite the Pledge 

simply when a majority of the schoolchildren choose to recite it, but 

one or a few students do not want to. The inevitable claim will be 

that in the school environment, there is no such thing as free will 

whenever the majority of students are reciting the pledge, because 

those who don’t want to recite it will feel pressure to recite it simply because other students are reciting it. 

Yet again the courts will strike another blow to the concept of 

free will and personal responsibility if we let them. We must not 

let them, so this amendment must be defeated, and I yield back the 

balance of my time. 

Gentleman from Virginia Mr. Scott. 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes. 

Mr. SCOTT. I can’t understand how a child could possibly vindicate their rights to not to say the Pledge under the coercion of religion if this amendment is not adopted. I mean, any court can kind 

of distinguish a new fact situation and say this kind of coercion 

doesn’t apply. You don’t have any appeal to the Federal courts. You 

don’t have an appeal to the Supreme Court because we just rejected the Watt amendment. To suggest that a State court is going 

to follow the exact precedent set by the Supreme Court, maybe in 

that exact same case, but they will distinguish it, and you will have 

50 different rulings as to what children will have the freedom of 

religion and which ones won’t. 

I would hope that we would at least allow this amendment to 

come forth so you can at least maintain present law in the Federal 

court system under the Barnett decision. I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment by the gentlewoman from Texas Ms. Jackson Lee to 

the amendment in the nature of a substitute offered by the Chair. 

Those in favor will say aye. 

Opposed, no. 

Noes appear to have it. 

Ms. JACKSON LEE. rollcall. 

Chairman SENSENBRENNER. rollcall will be ordered. Those in 

favor of the amendment by the gentlewoman from Texas Ms. Jackson Lee to the amendment in the nature of a substitute offered by 

the Chair will, as your names are called, answer aye; those opposed, no. And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

86

[No response.] 

The CLERK. Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Ms. Hart. 

Ms. HART. No. 

The CLERK. Ms. Hart, no. 

Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Carter. 

Mr. CARTER. No. 

The CLERK. Mr. Carter, no. 

Mr. Feeney? 

[No response.] 

The CLERK. Mrs. Blackburn. 

Mrs. BLACKBURN. No. 

The CLERK. Mrs. Blackburn, no. 

Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

87

[No response.] 

The CLERK. Mr. Nadler? 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. Aye. 

The CLERK. Ms. Baldwin, aye. 

Mr. Wiener. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff. 

Mr. SCHIFF. Pass. 

The CLERK. Mr. Schiff, pass. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members in the Chamber wish to 

cast or change their vote? 

Gentleman from North Carolina Mr. Coble. 

Mr. COBLE. No. 

Chairman SENSENBRENNER. Gentleman from Florida Mr. 

Feeney? 

Mr. FEENEY. No. 

Chairman SENSENBRENNER. Further Members in the Chamber 

who wish to cast or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 7 ayes, 17 noes and 1 pass. 

Chairman SENSENBRENNER. And the amendment to the amendment in the nature of a substitute is not agreed to. 

Are there further second degree amendments to the amendment 

in the nature of a substitute? If not, the question occurs on the 

amendment in the nature of a substitute. All in favor will say aye. 

Opposed, no. 

88

The ayes appear to have it. The ayes have it. The amendment 

in the nature of a substitute is agreed to. 

A reporting quorum is present. The question occurs on the motion to report the bill, H.R. 2028, favorably as amended. All in 

favor will say aye. 

Opposed, no. 

The ayes appear to have it. 

rollcall will be ordered. The question is on ordering the bill reported favorably as amended. Those in favor will, as your names 

are called, answer aye; those opposed, no. And the clerk will call 

the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. 

Ms. Hart. 

Ms. HART. Aye. 

The CLERK. Ms. Hart, aye. 

Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

89

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Carter. 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mrs. Blackburn. 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn, aye. 

Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. 

Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. No. 

The CLERK. Ms. Baldwin, no. 

Mr. Wiener. 

Mr. WEINER. Pass. 

The CLERK. Mr. Weiner, pass. 

Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

90

Chairman SENSENBRENNER. Members in the Chamber who wish 

to cast or change their vote? 

Gentleman from Alabama Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Chairman SENSENBRENNER. Gentleman from California Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Chairman SENSENBRENNER. Gentleman from New York Mr. Wiener. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Chairman SENSENBRENNER. Further Members in the Chamber 

who wish to cast or change their votes? If not, the clerk will report. 

The CLERK. There are 17 ayes and 10 noes. 

Chairman SENSENBRENNER. And the motion to report the bill favorably as amended is agreed to. Without objection, the bill will be 

reported favorably to the House in the form of a single amendment 

in the nature of a substitute incorporating the amendments adopted here today. 

Without objection, the Chairman is authorized to move to go to 

conference pursuant to House rules. 

Without objection, the staff is directed to make any technical and 

conforming changes. And all Members will be given 2 days as provided by the House rules in which to submit additional dissenting 

supplemental or minority views. 

The Chair also would like to announce the meeting of the Constitution Subcommittee relative to issuing a subpoena directed at 

the Civil Rights Commission has been postponed until next week. 

The Chair thanks the Members for their patience today, and the 

Committee stands adjourned. 

[Whereupon, at 11:30 a.m., the Committee was adjourned.]

(91)

1 H. Res. 132, 108th Cong., 2d Sess. (2004). The resolution passed by a vote of 400–7, with 

15 members voting ‘‘Present.’’ 2 H.R. 3313, the ‘‘Marriage Protection Act,’’ precluded any federal judicial review, either by a 

lower federal court or the Supreme Court, of any constitutional challenge to DOMA’s validity 

or the legislation itself. H.R. 3313, 108th Cong., 2d Sess. (2004). H.R. 3313 passed the House 

on July 22, 2004, by a vote of 233–194. 

DISSENTING VIEWS 

We strongly dissent from H.R. 2028, the so-called ‘‘Pledge Protection Act of 2003.’’ The legislation is unconstitutional, unnecessary, 

and undermines our judiciary. 

We do not oppose the legislation because we believe that voluntary recitation of the Pledge of Allegiance is unconstitutional. As 

a matter of fact, the House overwhelmingly passed a resolution 

stating that voluntary recitation of the Pledge of Allegiance is constitutional.1 However, we do not believe that the appropriate reaction to the issue of the constitutionality of the Pledge of Allegiance 

is to undermine the whole of the federal judiciary, as the present 

bill does. 

Ironically, the very idea of balkanizing our judiciary and eliminating the possibility of operating under a single uniform Supreme 

Court, as H.R. 2028 would do, is inconsistent with the very words 

of the Pledge of Allegiance, namely that we are ‘‘one Nation under 

God, indivisible, with liberty and justice for all.’’ Dividing our nation into 50 different legal regimes, where the Pledge is permitted 

in some jurisdictions and not in others, is the very antithesis of 

this sacred principle. Enactment of such legislation would constitute a very undesirable precedent and would no doubt lead to 

further assaults on the judiciary. 

The Pledge Protection Act, along with the Marriage Protection 

Act taken up by the House two months ago,2 represents yet another effort by the Majority to use wedge social issues to divide our 

nation for political gain. Why else would the Majority schedule this 

legislation for floor action without the benefit of a single legislative 

hearing or subcommittee markup? Why else would the Majority 

bring up legislation deep in an election year when it has no chance 

of passage by the Senate? 

If H.R. 2028 is passed into law, it would constitute the first and 

only time Congress has enacted legislation totally eliminating any 

federal court from considering the constitutionality of federal legislation—in this case, the Pledge of Allegiance. At a time when the 

highest court in our land has not issued a single opinion undermining the constitutionality of the Pledge, we believe it is inexcusable for Congress to attack the federal judiciary in an effort to 

score political points. 

The operative language of H.R. 2028 consists of a single sentence. It amends the Federal judicial code to provide:

92

3 4 U.S.C. § 4 speaks to the manner and delivery of the Pledge of Allegiance. It reads: ‘‘I pledge 

allegiance to the Flag of the United States of America, and to the Republic for which it stands, 

one Nation under God, indivisible, with liberty and justice for all’’, should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men 

should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and 

render the military salute. 4 John Marshall Commemorative Coin Act, H.R. 2768, 108th Cong. (2004). In support of the 

legislation, the bill’s sponsor, Representative Spencer Bachus (R-AL), said, ‘‘John Marshall 

served as Chief Justice of the United States Supreme Court from 1801 to 1835, much of that 

time spent in this very building, holding the longest tenure of any Chief Justice in the Nation’s 

history. He authored more than 500 opinions, including virtually all of the most important cases 

that the Court decided during his tenure. Under his leadership, the Supreme Court gave shape 

to the fundamental principles of the Constitution.’’ 150 Cong. Rec. H5781 (July 14, 2004). 5Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 6 328 F. 3d 466 (CA9 2003). 

7Mandatory recitation of the Pledge was struck down by the Supreme Court in West Virginia 

State Board of Education v. Barnette, 319 U.S. 624 (1943). 8The Court wrote, ‘‘[t]he Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers ‘that they are outsiders, not 

full members of the political community, and an accompanying message to adherents that they 

are insiders, favored members of the political community.’ ’’ Newdow at 469. The 9th Circuit, 

relying on the Supreme Court’s voluntary school prayer jurisprudence stated, ‘‘the phrase ‘one 

nation under God’ in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag 

stands: unity, indivisibility, liberty, justice, and—since 1954—monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely 

religious question of the existence and identity of God. A profession that we are a nation ‘under 

God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under 

[n]o court created by an Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate 

jurisdiction, to hear or decide any question pertaining to 

the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of 

title 4, or its recitation.3

As such, the legislation effectively precludes any federal judicial review, either by a lower federal court or the Supreme Court, of any 

constitutional challenge to the Pledge of Allegiance, including challenges relating to religious and other forms of coercion. Instead, the 

bill relegates state courts to review any challenges to the Pledge, 

creating the very real possibility of having differing legal constructions across the 50 states. Even worse, the legislation precludes 

any and all residents of our Nation’s capital and territories of the 

United States from bringing any claim concerning the Pledge of Allegiance. 

It is ironic that in the very same year that Congress celebrated 

Justice John Marshall by authorizing a commemorative coin in his 

honor,4 the Judiciary Committee would disparage him by passing 

legislation such as the Pledge Protection Act and the Marriage Protection Act that are totally inconsistent with Marshall’s seminal 

legal opinion, Marbury v. Madison.5 We should not use the issue 

of the constitutionality of the Pledge of Allegiance to permanently 

damage our courts, our constitution, and Congress. At a time when 

it is more important than ever that our nation stand out as a beacon of freedom, we cannot countenance a bill which undermines the 

very protector of those freedoms—our independent federal judiciary. 

H.R. 2028 appears to be a response to the 9th Circuit’s decision 

in Newdow v. U.S. Congress.6 In that case, the 9th Circuit held 

that daily voluntary 7 recitation of the pledge violated the Establishment Clause of the Constitution.8 In Elk Grove Unified School 

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Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none 

of these professions can be neutral with respect to religion.’’ Id. at 470. 9 Elk Grove Unified School Dist. v. Newdow, 542 U.S. XXX (2004). 10Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992). 11See Letter to Representative F. James Sensenbrenner and Representative John Conyers, Jr. 

from Rev. Barry W. Lynn, Executive Director, Americans United for Separation of Church and 

State (September 14, 2004); Letter to Members of the Judiciary Committee from Kathryn A. 

Monroe, Director, The Constitution Project (September 15, 2004); Letter to Representative F. 

James Sensenbrenner and Representative John Conyers, Jr. from American Civil Liberties 

Union, American Humanist Association, American Jewish Committee, Americans for Religious 

Liberty, Americans United for Separation of Church and State, Anti-Defamation League, Baptist 

Joint Committee, Central Conference of American Rabbis, Committee for Judicial Independence, 

Human Rights Campaign, The Interfaith Alliance, Jewish Reconstructionist Federation, Leadership Conference on Civil Rights, National Council of Jewish Women, National Senior Citizen 

Law Center, People for the American Way, Union for Reform Judaism, Unitarian Universalist 

Association of Congregations, U.S. Action (September 14, 2004) [hereinafter Group Sign-On Letter]. 12 Article III of the Constitution authorizes Congress to establish judicial power in lower federal courts, and to regulate the Supreme Court’s appellate jurisdiction.

Dist. v. Newdow, the Supreme Court, led by a 5–3 majority, reversed the decision in the 9th Circuit case, holding that Mr. 

Newdow lacked the proper standing to file his lawsuit on behalf of 

his elementary school aged daughter.9 The only other Circuit to 

have considered the question, the 7th Circuit, has upheld the language of the Pledge, including the 1954 amendment.10

This unnecessary and dangerous legislation is strongly opposed 

by a variety of organizations, including the Leadership Conference 

on Civil Rights; the American Civil Liberties Union; People for the 

American Way; the Human Rights Campaign; Americans United 

for Separation of Church and State; American Jewish Committee; 

Anti-Defamation League; Baptist Joint Committee; National Council of Jewish Women; Union for Reform Judaism; U.S. Action; 

Human Rights Watch; the Unitarian Universalist Association; the 

Anti-Defamation League; the Interfaith Alliance; and the Constitution Project; among numerous others.11

For these and the other reasons set forth herein, we dissent from 

H.R. 2028. 

I. H.R. 2028 IS UNCONSTITUTIONAL

H.R. 2028 is an unconstitutional and unnecessary court stripping 

bill that would eliminate access to the federal judiciary for a specific group of claims. For over 200 years, the federal courts have 

played an indispensable role in the interpretation and enforcement 

of the rights guaranteed under our constitution.

While it is clear that Congress has the authority to regulate federal court jurisdiction,12 it is also clear that such power is not plenary. Rather, the power is subject to other overarching constitutional rights, such as freedom of speech, freedom of religion, equal 

protection and due process and separation of powers. In this regard, one of the preeminent treatises on Constitutional Law concludes: 

There is little doubt that other constitutional provisions, 

like the equal protection clause, limit Congress’s power 

under the Exceptions Clause. For example, Congress could 

not constitutionally provide that Republicans, but no one 

else, may have access to the Supreme Court. Such a proviVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00093 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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13Stone, Seidman, et al., Constitutional Law 85 (3d ed.) (emphasis added). 14Limiting Federal Court Jurisdiction to Protect Marriage for the States: Hearing Before the 

Subcomm. on the Const. of the House Comm. on the Judiciary, 108th Cong., 2d Sess. (June 24, 

2004) (testimony of Professor Michael Gerhardt) [hereinafter Federal Court Jurisdiction Hearing]. 15Federal Court Jurisdiction Hearing (statement of Professor Martin Redish at 3–4). 

sion would violate the first amendment and thus would be 

independently unconstitutional.13

At the Committee’s prior hearing on court stripping legislation 

concerning the Defense of Marriage Act, both of the constitutional 

scholars that testified agreed with this conclusion. The Minority 

witness, Professor Michael J. Gerhardt of William & Mary Law 

School, testified that ‘‘Congress cannot exercise any of its powers 

under the Constitution—not the power to regulate interstate commerce, not the Spending power, and not the authority to define federal jurisdiction—in a manner that violates the Constitution.’’ 14

Similarly, the Majority’s witness, Prof. Martin H. Redish of Northwestern University School of Law, acknowledged that there were 

limits on Congress’ Article III powers: 

To be sure, several other guarantees contained in the 

Constitution—due process, separation of powers, and equal 

protection—may well impose limitations on the scope of 

congressional power. 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.15

A. Separation of powers 

The legislation intrudes upon the long-standing principle of separation of powers between the branches of government. By denying 

the Supreme Court its historical role as the final authority on the 

constitutionality of federal laws, H.R. 2028 unnecessarily and unconstitutionally usurps the Court’s power. As a practical matter, to 

the extent that H.R. 2028 strips federal courts of jurisdiction to adjudicate claims that acts of Congress are unconstitutional, the legislation unnecessarily provokes an inter-branch confrontation. This 

is destructive of comity between branches and places undue tensions on the separation of powers framework of government. 

Since the Supreme Court’s historic ruling in Marbury v. Madison, the separation of powers doctrine has been well established. 

Marbury concerned the validity of a judicial commission that was 

signed, but not delivered prior to the end of John Adams’ presidency. Justice Marshall agreed with President Jefferson that the 

commission should not be given effect, but he did so only by declaring unconstitutional the provision of the Judiciary Act of 1789 

granting courts mandamus powers over these commissions. In so 

doing, the Court enunciated the principle of federal judicial review 

of federal laws. Marshall’s opinion included the now famous decVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00094 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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16Marbury v. Madison, 5 U.S. (1 Cr.) at 178 (emphasis added). 17Louis Fisher, American Constitutional Law 42 (5th ed. 2003). 18 H.R. 2028 Markup (Statement of Representative John Hostettler). 19 Id. 20 14 U.S. (1Wheat.) 304 (1816). 21 80 U.S. 128, 178 (1872). 

laration that ‘‘it is emphatically the province and duty of the judicial department to say what the law is.’’ 16

In the more than 200 years that have passed since this legal decision was issued, judicial review has served as the very touchstone 

of our constitutional system and our democracy. As the Congressional Research Service’s chief authority on separation of powers 

stated, ‘‘Marbury v. Madison is famous for the proposition that the 

[Supreme] Court is supreme on constitutional questions.’’ 17

Unfortunately, the concept of separation of powers and the independence of the judiciary are both being challenged by H.R. 2028. 

At the Committee’s markup of this legislation, Rep. John N. 

Hostettler (R–IN) admitted that he disagreed with Marbury’s long 

established principle of federal judicial review and explained that 

‘‘. . . the notion of an independent judiciary is a flawed notion, at 

best’’ 18

Mr. HOSTETTLER: The notion of an independent judiciary 

. . . just does not bear out actually in the Constitution. 

But it does prove the adage that is long-time established 

that there is nothing so absurd, but if repeated often 

enough, people will believe it. And people have asserted 

the notion of an independent judiciary for so long and 

asked us as a country and as a citizenry to leave the Constitution alone . . . that many folks have begun to believe 

this absurd notion of an independent judiciary. . . .19

Historical precedent, the very bedrock and cornerstone of our judicial system, proves that it is in fact Representative Hostettler’s 

argument that is flawed, at best. The failure of Congress to enact 

legislation totally eliminating federal judicial jurisdiction to review 

the constitutionality of federal statutes is evidence of the long deference and respect maintained by Congress for the principle of federal judicial review. In addition, several of the Supreme Court’s 

own subsequent decisions reaffirm that Congress may not contravene the doctrine of judicial review. 

Not too long after Marbury, the need for some federal judicial review in all cases was further confirmed by Justice Story in Martin 

v. Hunter’s Lessee, when he wrote, ‘‘the whole judicial power of the 

United States should be, at all times, vested in an original or appellate form, in some courts created under its authority.20 That is 

to say, a federal court ought to be empowered to exercise judicial 

power on behalf of the United States. 

H.R. 2028 also contradicts existing precedent on Congress’ ability 

to restrict the power of the judiciary. For example, in United States 

v. Klein,21 the only case in which the Supreme Court addressed directly the question whether the Congress could impose a legislative 

restriction on court power if framed in jurisdictional terms, the 

Court made clear that ‘‘the language [of the challenged law] shows 

plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. . . . We believe that Congress has inadVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00095 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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22 80 U.S. at 145. 23 521 U.S. 507 (1997). 24 530 U.S. 428, 432 (2000) (‘‘Congress enacted 18 U.S.C. 3501, which in essence laid down 

a rule that the admissibility of such statements should turn only on whether or not they were 

voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not 

be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.’’). 25 Rasu v. Bush, 542 U.S. lll (2004); Hamdi v. Rumsfeld, 542 U.S. lll (2004); Rumsfeld v. Padilla, 542 U.S. lll (2004). 26 Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise 

in Dialectic, 66 Harv L. Rev. 1362 (1953). 27 Akhil Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 Boston Univ. L. Rev. 205 (1985). 28 Report of the Citizens for Independent Courts Task Force on the Role of the Legislature 

in Setting the Power and Jurisdiction of the Courts, reprinted in: The Century Foundation, Uncertain Justice: Politics in America’s Courts 206, 217 (2002). 29Memorandum from David H. Remes, Partner, Covington & Burling, prepared at the request 

of People for the American Way (September 17, 2004). 30 Id. at 3. 

vertently passed the limit which separates the legislative from the 

judicial power.’’ 22

In an analogous vein, in City of Boerne v. Flores, the Court held 

that it is improper and unconstitutional for Congress to attempt to 

legislate its view of the free exercise clause of the First Amendment.23 Also, in Dickerson v. United States, the Court struck down 

a federal statute narrowing the scope of statements held 

inadmissable under Miranda v. Arizona, 384 U.S. 436 (1966).24 It 

is telling that as recently as this term, the Supreme Court rebuffed 

an attempt by the Executive Branch unilaterally to withdraw certain habeas corpus cases from the jurisdiction of the federal 

courts.25

Numerous esteemed legal scholars have emphasized that it 

would be a constitutional violation of separation of powers principles for Congress to completely strip federal courts of jurisdiction 

over constitutional claims. The most noted of these views was put 

forth by Stanford Law Professor Henry Hart when he concluded 

that under Marbury, restrictions on federal jurisdiction are unconstitutional when ‘‘they destroy the essential role of the Supreme 

Court in the constitutional system.’’ 26 More recently, Yale Law 

Professor Akhil Amar concluded that article III requires that ‘‘all’’ 

cases arising under federal law must be vested, either as an original or appellate matter, in a federal court.27

The views of these legal scholars concerning complete federal 

court stripping are consistent with the findings of the Task Force 

of the Courts Initiative of the Constitution Project, a bipartisan 

nonprofit organization that seeks consensus on controversial legal 

and constitutional issues. The Constitution Project concluded ‘‘legislation precluding court jurisdiction that prevents the judiciary 

from invalidating unconstitutional laws is impermissible. Neither 

Congress nor state legislatures may use their powers to prevent 

courts from performing their essential functions of upholding the 

Constitution.’’ 28

Other independent and respected legal experts have reached the 

same conclusion. For example, the Washington, D.C. law firm of 

Covington & Burling found that, ‘‘H.R. 2028 would violate the Constitution, place congress above the Federal judiciary, and set a dangerous precedent.’’ 29 Specifically, they found that not only will this 

bill violate the First Amendment by closing the federal courts to 

claims that the Pledge is unconstitutional,30 thereby abridging the 

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31 Id. at 5. 32Group Sign-On Letter. It is particularly puzzling that the Majority is so intent on undermining federal judicial power with respect to constitutional law interpretations, while in other 

contexts it seeks to expand federal judicial power at the expense of state courts over matters 

such as state class action claims, state drug laws, and state abortion laws. 33 319 U.S. 624, 638 (1943). 34 Id. at 639–640.

right to petition, but the bill will also repudiate the principle of 

separation of powers by placing an action by Congress beyond federal court review.31

B. Freedom of speech and establishment 

If H.R. 2028 is passed into law, it would totally eliminate any 

federal court from considering any claim that any aspect of any 

governmental entity’s use or application—whether coerced or otherwise—of the Pledge of Allegiance violates the First Amendment or 

any other constitutional limitation. 

Given the importance of developing a single national standard on 

constitutional questions it seems particularly odd that the Majority 

would seek to strip federal courts of their power in the context of 

the Pledge. As Americans United for the Separation of Church and 

State and other non-profit advocacy groups noted in their letter to 

members of the Judiciary Committee:

H.R. 2028 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. . . . Americans United 

strongly urges [Congress] to protect longstanding constitutional rights of religious minorities to seek redress in the 

federal courts, and respect free speech rights of countless 

individuals by rejecting this misguided legislation.32

An additional concern is that the legislation operates to deny federal court review involving religious coercion in violation of the 

First Amendment. Such a case was present over sixty years ago in 

West Virginia State Board of Education v. Barnett 33 when 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, Justice 

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.34

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35 Circle School v. Pappert, No. 03–3285 (3rd Cir., Aug. 19, 2004). 36 Id. Slip Op. at 14. 37The Fifth Amendment Due Process has long been interpreted to include a requirement of 

equal protection parallel to the requirement of the Equal Protection Clause of the Fourteenth 

Amendment. See, e.g., Adarand Contractors, Inc. v. Pena, 515 U.S. 200 (1995). 38 517 U.S. 620 (1996). 39 Id. at 633. 

Had H.R. 2028 been law, the Supreme Court would have never 

been able to issue this landmark ruling protecting religious liberty. 

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

the Third Circuit held that a Pennsylvania law mandating recitation of the Pledge, even when it provided a religious exception, violated the Constitution because it violated the free speech of the students.35 In Circle School v. Pappert, the court found that: 

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, 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.36

Again, under H.R. 2028, such a coercive speech case could never 

reach the federal courts. 

It is also important to note that as H.R. 2028 is drafted, it 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 

courts. However, the statute and the Pledge are subject to change 

by future legislative bodies. This means that were some future 

Congress to insert in the pledge some objectionable language, concerning overt discrimination or favoring one specific religious text, 

that would be immune to constitutional challenge in the federal 

courts. 

C. Equal protection and due process 

H.R. 2028 would also violate the Fifth Amendment’s guarantee 

of equal protection under the law,37 in that it imposes an undue 

burden on a specific class of individuals without a rational basis. 

The critical case in this regard is Roemer v. Evans, a 1996 Supreme Court decision invalidating a Colorado law preventing the 

state or any political subdivision from enacting legislation to protect gay and lesbian citizens from discrimination.38

Roemer held in a 6 to 3 decision by Justice Kennedy that it was 

unacceptable for the state of Colorado to exclude a class of individuals from legal protections:

Central both to the idea of the rule of law and to our 

own Constitution’s guarantee of equal protection is the 

principle that government and each of its parts remain 

open on impartial terms to all who seek its assistance. . . . 

A law declaring that in general it shall be more difficult 

for one group of citizens than for all others to seek aid 

from the government is itself a denial of equal protection 

of the laws in the most literal sense.39

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40 Id. 41 Id. 42 Id. (citing Dep’t of Agric. v. Moreno, 143 U.S. 528, 534 (1973)). 43See Romer v. Evans, 517 U.S. 620 (1996). 44Federal Court Jurisdiction Hearing (statement of Professor Gerhardt at 2). 45 Id. at 10. 

Absent a rational basis, the Roemer Court found that laws of this 

nature cannot stand. It found that such laws ‘‘raise the inevitable 

inference that the disadvantage imposed is born of animosity toward the class of persons affected.’’ 40 In Roemer, the general provision ‘‘that gays and lesbians shall not have any particular protection from the law, inflicts on them immediate, continuing and real 

injuries that outrun and belie any legitimate justifications that 

may be claimed for it.’’ 41 Specifically, the Court found the principal 

motivation for the legislation was animus towards gays and lesbians, which had no rational relationship to a legitimate governmental purpose; it concluded, ‘‘a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental 

interest.’’ 42

These same concerns could well invalidate H.R. 2028 on Equal 

Protection grounds, since it could be seen as specifically affecting 

religious minority groups and atheists. Even if courts were to apply 

the more deferential rational basis standard of review to the legislative proposal, it could be struck down. Though, generally, courts 

will not look into the motive of the legislature to determine the 

constitutionality of a statute, animus towards a particular class 

will be considered as improper and discriminatory, and the statute 

will not withstand scrutiny.43 As Professor Gerhardt observed that, 

‘‘distrust of ‘unelected judges’ does not qualify as a legitimate basis, 

much less a compelling justification, for congressional action.’’ 44

It is also possible that the courts will find that H.R. 2028 violates 

the Fifth Amendment’s Due Process clause. As Professor Gerhardt 

noted in a Committee hearing on the Marriage Protection Act, ‘‘a 

proposal excluding all federal jurisdiction may violate the Fifth 

Amendment’s Due Process Clause’s guarantee of procedural fairness.’’ 45 This is because on its face the law denies federal courts 

the opportunity to review a federal law. Given the traditional expertise the federal courts have in reviewing the constitutionality of 

federal laws, relegating such claims to state court can hardly be 

considered a fair or rationale process. 

D. Particular problem with regard to District of Columbia and U.S. 

territories 

Another problem with the legislation is that it denies any access 

to any courts concerning Pledge of Allegiance cases in the District 

of Columbia and U.S. territories. The only possible rationale the 

Majority can assert for the legislation’s constitutionality is that it 

does not totally preclude judicial review by state courts. While we 

do not believe the text or history of the Constitution, or subsequent 

action by the courts or Congress support the validity of such a contention, even that thin rationale does not apply with respect to 

cases involving the Pledge of Allegiance brought in the District of 

Columbia or U.S. territories. 

As Representative Robert C. Scott (D–VA) observed at the Committee’s markup:

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46Markup of H.R. 2028 (statement of Representative Robert Scott). 47Pub. L. No. 93–198, § 431(a), 87 Stat. 774, 792–93 (1973). 48 48 U.S.C. § 1611. 49 48 U.S.C. § 1821. 50 48 U.S.C. § 1424. 51See supra note 15.

Mr. SCOTT. Mr. Chairman, the way I read the bill, there 

is an additional gratuitous insult for the residents of 

Washington, DC, in that apparently they will be totally 

left out without any court to file in. Yesterday we helped 

foreign corporations escape liability from American courts 

by developing a scheme whereby there may be no court 

that someone may file in within the United States. This 

bill, I think, does the same for Washington, DC residents, 

because . . . there is no court in D.C. that you could bring 

the case in.46

Mr. Scott’s concern stems from the fact that the local courts in 

the District of Columbia,47 the U.S. Virgin Islands,48 the Northern 

Mariana Islands,49 and Guam,50 were all created by acts of Congress, not the local legislatures. Since the legislation provides that 

‘‘[n]o court created by an Act of Congress’’ shall have any jurisdiction to hear cases concerning the constitutionality of the Pledge of 

Allegiance, the net result is that under H.R. 2028, no judicial review would be available for Pledge of Allegiance cases for the nearly 600,000 residents of the District, not to mention the residents of 

these other territories. As the Majority’s own witness, Martin 

Redish, asserted at the Committee’s hearing on court stripping in 

the context of the Defense of Marriage Act: 

. . . as long as the state courts remain available and 

adequate forums to adjudicate federal law and protect federal rights, it is difficult to see how the Due Process 

Clause would restrict congressional power to exclude federal judicial authority to adjudicate a category of cases, 

even one that is substantively based.51

Clearly, such a state court review is not possible in the District of 

Columbia and U.S. territories as H.R. 2028 is drafted, so the bill 

would be unconstitutional under the interpretation of the Majority’s own witness. 

II. H.R. 2028 UNDERMINES THE INDEPENDENCE OF THE FEDERAL

JUDICIARY

Aside from the obvious constitutional flaws inherent in H.R. 

2028, the idea of Congress unilaterally cutting off federal constitutional review constitutes both a poor and dangerous legal precedent. The legislation not only degrades the independence of the federal judiciary, but eliminates any possibility of developing a single 

uniform policy with regard to the recitation of the Pledge from the 

50 state supreme courts. 

Since H.R. 2028 strips the federal courts of the ability to review 

state court decisions, including those involving federal questions, a 

lack of uniformity in the law is an imminent threat. One’s federal 

rights would depend on the vagaries of location. Ultimately, coercVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00100 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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52See supra, note 14. Affirming the Supreme Court’s ability to review matters of state common law, statutory law, and constitutional law to effectuate national uniformity of law under 

the Federal Constitution. 53See supra, note 15. 54 Id. (written statement of Martin Redish).

ing children to recite the Pledge may be permitted in one state and 

not in another. 

This will create the sort of problem that the seminal decision in 

Martin v. Hunter’s Lessee anticipated and sought to avoid.52 (In 

Martin, the Court held a state law unconstitutional for the first 

time, noting that it would be undesirable for the U.S. Constitution 

to mean one thing in one state and something altogether different 

in another state.) Were states the final arbiters of federal constitutional questions, the country would be rendered a patchwork of inconsistent interpretations. Constitutional protections could be 

strong in one state, and weak or nonexistent in another. Minorities 

in one state could be disenfranchised from the federal protections 

and benefits afforded citizens of another state, prompting class 

holders of rights to cluster upon jurisdictional lines. 

Both of the legal scholars who testified earlier this year at the 

Committee’s hearings on Congressional power to control federal 

court jurisdiction with respect to the Defense of Marriage Act 

agreed that such legislation in general was inadvisable from a policy perspective. Professor Gerhardt testified that ‘‘a proposal excluding all federal jurisdiction regarding a particular federal question undermines the Supreme Court’s ability to ensure the uniformity of federal law. . . . This allows for the possibility that different state courts will construe the law differently, and no review 

in a higher tribunal is possible.’’ 53

The Majority’s witness, Professor Martin Redish, was even more 

blunt in criticizing the legislation: 

as a matter of policy . . . I . . . firmly believe that were 

Congress to [strip federal courts of jurisdiction in DOMA 

cases, it] would risk undermining public faith in both Congress and the federal courts. Due to their constitutionally 

granted independence and insulation from the 

majoritarian branches of the federal government, the judiciary possesses a unique ability to provide legitimacy to 

governmental action in the eyes of the populace. Congressional manipulation of federal judicial authority therefore 

threatens the legitimacy of federal political actions.54

Such a complete, unprecedented, and unnecessary stripping of 

federal court jurisdiction would be totally at odds with the policy 

of checks and balances envisioned by the Nation’s founders. This 

legislation would bring us far closer to the balkanized scenario envisioned by the Articles of Confederation, than the unified nation 

brought forth by the Constitution. Contemporaneous writings by 

two of the Nation’s most important founding fathers—the principal 

drafter of the Constitution and Bill of Rights, James Madison, as 

well as the author of the Federalist Papers, Alexander Hamilton—

indicate the importance they placed on a strong and independent 

federal judiciary. 

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55 2 Max Farrand, the Records of the Federal Convention of 1787 27 (1937). 56 1 Annals of Cong. 458 (Gales & Seaton ed.) (June 8, 1789). 57The Federalist No. 78 (Alexander Hamilton). 58 Id. No. 81 (Alexander Hamilton). 59See, e.g., H.R. 3893 (regarding government exercise of religion, sexual orientation, and the 

right to marry); H.R. 3190 (regarding government exercise of religion); H.R. 3799 (regarding official acknowledgments of religious authority); and H.R. 2045 (regarding government recognition 

of the Ten Commandments). 

Thus, when there was disagreement at the constitutional convention regarding the need for lower federal courts, Madison insisted 

on provisions permitting their creation. He argued, confidence ‘‘cannot be put in the state tribunals as guardians of the national authority and interests.’’ 55 Similarly, when he introduced the Bill of 

Rights in the First Congress, Madison again emphasized the importance of federal courts: 

[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; 

they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will 

be naturally led to resist every encroachment upon rights 

expressly stipulated for in the Constitution by the declaration of rights.56

Alexander Hamilton also wrote about the importance of federal 

court jurisdiction. In Federalist Number 78, Hamilton emphasized 

the importance of an independent federal judiciary: ‘‘In a monarchy 

it is an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body.’’ 57 In Federalist Number 81, 

Hamilton expressed further support for federal courts being the appropriate venue for federal issues, writing: 

But ought not a more direct and explicit provision to 

have been made in favor of the State courts? There are, in 

my opinion, substantial reasons against such a provision: 

the most discerning cannot foresee how far the prevalency 

[sic] of a local spirit may be found to disqualify the local 

tribunals for the jurisdiction of national causes; whilst 

every man may discover, that courts constituted like those 

of some of the States would be improper channels of the 

judicial authority of the Union.58

The legal precedent that will be set if Congress is permitted to 

simply ‘‘end run’’ the Bill of Rights by circumventing the federal 

courts could be far-reaching and is adopted here. If this bill passes, 

we must ask, as we did with the Marriage Protection Act, what 

other rights will next be placed at risk? The right to vote? The 

right to privacy? Indeed, many of these proposals are already introduced in statutory form.59 If H.R. 2028 passes into law, it truly 

could be open season on our precious rights and liberties. 

This was our prediction when the Majority was contemplating 

the Marriage Protection Act, and here we are again. In fact, in his 

letter to Members of the U.S. House of Representatives, Representative John Dingell (D–MI) warned of the potential slippery slope 

that Congress may end up on as a result of passing such problematic legislation:

103

60Letter from John D. Dingell to U.S. Representatives (July 22, 2004). 61Letter from Bob Barr to U.S. Representatives (July 19, 2004). 62Markup of H.R. 2028. 63Loving v. Virginia, 388 U.S. 1 (1967). 64 Brown v. Board of Educ., 347 U.S. 483 (1954). 

Once Congress goes down the path of making any statute immune from constitutional challenge in the Supreme 

Court, there will be no turning back. If the Marriage Protection Act is not rejected, we should expect to see this 

dangerous approach repeated on a wide range of other legislation including bills infringing upon the right to bear 

arms.60

In a similar vein, Bob Barr, a former Republican congressman, 

noted that this type of bill sets a dangerous precedent because 

court stripping provisions could be added to legislation limiting the 

right to bear arms under the Second Amendment, an idea many 

conservatives would oppose.61

Astoundingly, during the Committee markup of the Pledge Protection Act, Rep. Steve Chabot (R–OH) conceded that there is no 

telling where the Majority will stop in its quest to strip us of our 

rights and liberties:

Mr. NADLER. One of the reasons we have a Supreme 

Court is we have a uniform interpretation of the Constitution, and then your constitutional rights don’t depend on 

what State you are in; they are guaranteed by the Bill of 

Rights, by the Constitution, and they are the same wherever you are. Your rights under the Federal Constitution 

should not depend on what State you are in. This would 

essentially reverse the Civil War. What you are saying is 

you would have 50 different countries, not one country. 

Mr. CHABOT. We are only saying that with respect to one 

thing, and that is the Pledge of Allegiance. 

Mr. NADLER. With all due respect, if this bill passes, you 

will be saying that with respect to two things so far, since 

this is the second bill——

Mr. CHABOT. So far. 

Mr. NADLER. Exactly. That is the point. So far. What are 

we really saying here . . . is that whenever there is a law 

that the majority likes that it fears may be declared unconstitutional by the Supreme Court we will have a courtstripping bill . . . and we will end up where you have no 

uniform Constitution and no uniform Federal law, and the 

50 States start going their separate ways.62

Moreover, if court stripping had been used in the past, the Court 

might never have overturned laws prohibiting inter-racial marriage 63 or permitting segregated education.64

The views of many legal scholars concerning complete federal 

court stripping are consistent with the findings of the Task Force 

of the Courts Initiative of the Constitution Project, which concluded, ‘‘legislation precluding court jurisdiction that prevents the 

judiciary from invalidating unconstitutional laws is impermissible. 

Neither Congress nor state legislatures may use their powers to 

104

65 Report of the Citizens for Independent Courts Task Force on the Role of the Legislature 

in Setting the Power and Jurisdiction of the Courts, reprinted in: The Century Foundation, Uncertain Justice: Politics in America’s Courts 206, 217 (2002). 66See Linda Greenhouse, The Nation: How Congress Curtailed the Courts’ Jurisdiction, N.Y. 

TIMES, Oct. 27, 1996, 4 at 5. 67 Cong. Rec., Sept. 10, 1985. 68Quoted in Frank Trippet, Trying to Trim the Courts, Time, September 28, 1981. 69Letter from William French Smith, Attorney General of the United States, to the Honorable 

Strom Thurmond, Chairman, U.S. Senate Comm. on the Judiciary (May 6, 1982), reprinted in 

128 Cong. Rec. 9093, 9097 (May 6, 1982). 70 Hearing on H.R. 1252, The Judicial Reform Act of 1997 and Federal Judicial Term Limits 

Before the Subcomm. on Courts and Intellectual Property of the House Comm. On the Judiciary, 

prevent courts from performing their essential functions of upholding the Constitution.’’ 65

When court stripping legislation was proposed in the 1970’s concerning school prayer, abortion, and busing, it is no wonder that 

principled conservatives such as former Senator Barry Goldwater, 

former Yale Law professor Robert Bork, and former Attorney General William French Smith, among many others, found court stripping legislation to be so repugnant. 

Senator Goldwater opposed the proposed court-stripping measures, warning that the ‘‘frontal assault on the independence of the 

Federal courts is a dangerous blow to the foundations of a free society.’’ 66 Then, in 1985, Sen. Goldwater expressed his concern over 

legislation that would have stripped the Supreme Court of jurisdiction on school prayer cases: 

I am a little surprised that the Senator from North Carolina decided to outlaw the Supreme Court from our life. I think it is unconstitutional. The Senator is beginning to get into areas now that 

are frankly none of our business . . . I am really kind of surprised 

that he would write this bill. If I wrote it, I would have been 

ashamed of it.67

Robert Bork, a former Yale Law professor and Reagan appointee 

for the D.C. Circuit Court of Appeals, also expressed his concern 

over such court-stripping measures, arguing, ‘‘[y]ou’d have 50 different constitutions running around out there, and I’m not sure 

even the conservatives would like the results.’’ 68

Moreover, in his letter to Senate Judiciary Chairman Strom 

Thurmond regarding S. 1742, a bill that would have stripped the 

Supreme Court and lower federal courts of jurisdiction over school 

prayer cases, then Attorney General William French Smith argued 

that, ‘‘[c]ongress may not . . . consistent with the Constitution, 

make ‘exceptions’ to Supreme Court Jurisdiction which would intrude upon the core functions of the Supreme Court as an independent and equal branch in our system of separation of powers.’’ 69

Efforts by the Majority to discredit our judiciary by painting it 

with the broad brush of ‘‘judicial activism’’ are both disingenuous 

and demeaning. Once we parse through the thick rhetorical fog 

surrounding this issue, it becomes clear that the Majority’s real 

gripe is with the results, not the activist nature, of judicial decisions. As Roger Pilon, a Cato Institute Director, acknowledged, ‘‘examples of ‘judicial activism’ that are cited, turn out, when examined more closely, not to be cases in which the judge failed to apply 

the law but applied the law differently, or applied different law, to 

reach a result different than the result thought correct by the person charging activism.’’ 70

105

105th Cong. (1997) (written statement of Roger Pilon, Director, Center for Constitutional Studies, Cato Institute). 71 410 U.S. 113 (1973). 72 370 U.S. 421 (1962). 73 515 U.S. 200 (1995). 74 514 U.S. 549 (1995). 75 521 U.S. 898 (1997). 76 424 U.S. 1 (1976). 77Lee v. Oregon, Civil No. 94–6467–HO, 2 (D. Or. 1994). 78 United States v. Moscinski, 952 F. Supp. 167, 170 (S.D.N.Y. 1997). 79League of United Latin Americans Citizens v. Wilson, 908 F. Supp. 755 (C.D. CA, 1995), 

remanded 131 F.3d 1297 (1997), aff’d 1998 U.S. Dist. Lexis 3418 (March 13, 1998) (holding California Proposition 187 unconstitutional). 80 Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, rev’d 122 F.3d 718 (1997) (holding California Proposition 209). 81Letter from Mark Tushnet, Professor, Georgetown University Law Center, to the Honorable 

John Conyers, Jr., 2 (July 19, 2004) (some emphasis in original and emphasis added) [hereinafter Tushnet Letter].

So-called ‘‘conservatives’’ are prone to assert that Supreme Court 

decisions protecting a woman’s right to choose (Roe v. Wade 71) and 

a child’s right to attend school without being subject to compulsory 

prayer (Engel v. Vitale 72) constitute judicial activism. They herald, 

however, as landmark examples of the Court restraining excessive 

legislative power those decisions that limit Congress’s ability to 

provide affirmative action as a remedy to respond to racial discrimination (Adarand v. Pena 73), ban guns in schools (United 

States v. Lopez 74), require background checks before felons can 

purchase handguns (Printz v. United States 75), and limit campaign 

expenditures (Buckley v. Valeo 76). 

Similarly, when a Bush I-appointed district judge enjoins an Oregon ballot initiative allowing for assisted suicide,77 or a Reaganappointed district judge dismisses a contempt order for violating 

the Freedom of Access to Clinic Entrances Act because the defendants lack the requisite ‘‘wilfulness’’ on account of their religious 

convictions,78 we hear scant criticism from the right wing. But 

when federal courts in California have the temerity to suggest that 

referenda that deny alien children the right to an education79 or 

prevent minorities subject to discrimination from benefitting from 

affirmative action may be illegal or inappropriate,80 we hear 

storms of protest from the same conservatives. 

III. H.R. 2028 IS UNPRECEDENTED

The fact that no other Congress has passed a law that totally 

eliminates the federal courts’ ability to review the constitutionality 

of a federal law should give all of the Members pause when considering this legislation. 

This empirical assessment was most recently reviewed and confirmed by Georgetown University Law Center Professor Mark 

Tushnet, who explained that:

[T]he very fact that Congress has never attempted to bar 

access to all federal courts when a person claims that a federal statute violates the Constitution is itself a matter of 

more than minor significance.81

The Majority attempts in vain to find precedent for court-stripping bills such as H.R. 2028 and H.R. 3313, but at the end of the 

day, they are left with the reality that no bill as far reaching and 

106

82 Act of Sept. 24, 1789, ch. 20, §§ 11, 12, 1 Stat. 73 (1789). 83 H.R. 2028 Markup (statement of Representative Sensenbrenner). 84Memorandum from Johnny H. Killian, Senior Specialist, Congressional Research Serv., to 

Perry Apelbaum, Minority Chief Counsel, U.S. House Comm. on the Judiciary (August 16, 2004). 85Tushnet Letter at 1 n.2 (referring to Ives v. South Buffalo Railway Co., 94 N.E. 431 (N.Y. 

1911) and New York Cent. R. Co. v. White, 243 U.S. 188 (1917)). 86 Cary v. Curtis, 44 U.S. 236 (1845) (reviewing Act of 1839, ch. 82, 2). 

degrading to the federal judiciary as these, has never been enacted 

into law. 

The Majority attempts to justify such legislation through several 

short-sighted appeals. First, it asserts that total court stripping 

laws are supported by precedent enacted by the Congress. Second, 

they argue that such court stripping laws were envisioned by the 

founders. Neither of these assertions is correct. 

The Majority then points to several laws they believe to be precedents for H.R. 3313 and H.R. 2028. As the following review indicates, in addition to being largely outdated, all of the precedents 

they cite are either misstated, constitute only partial restrictions 

on federal judicial review, or do not involve issues of constitutional 

review: 

Judiciary Act of 1789: 82 The Majority cites as precedent the fact 

that the Judiciary Act of 1789 did not permit the Supreme Court 

(or any other federal court) to review state supreme court decisions 

upholding constitutional challenges to federal laws.83 In relying on 

information given to them by the Congressional Research Service, 

the Majority argues that the interrelated effects of two sections of 

that Act, ‘‘operate to deny under some circumstances the authority 

of any federal court to review the constitutionality of some federal 

laws.’’ 84 (It is notable that this is the only single law that CRS 

found even remotely close to serving as a precedent for the Marriage Protection Act and the Pledge Protection Act—a more than 

210 year old law, whose applicable provision had since been long 

repealed). 

However, as Professor Tushnet points out, this does not prove 

the Majority’s contention that federal judicial review can be ignored: ‘‘The underlying thought [at that time] was that the national interest was in ensuring that federal rights were adequately 

protected, and that interest was not impaired when a state court 

mistakenly over-protected federal rights. After a controversial decision in the early decades of the twentieth century, Congress came 

to the view that there was indeed a national interest in ensuring 

the uniformity in the interpretation of national law, and amended 

the statute regarding the Supreme Court’s jurisdiction accordingly.’’ 85

The fact that the only precedent in the history of the law of this 

country that the Majority is able to cite in support of their argument is both questionable and obscure, at best, speaks for itself. In 

any event, it is a far different thing to prevent individuals from 

having access to the federal courts in order to redeem their constitutional rights than it is to prevent states from appealing legal 

judgments that they lose against the federal government in their 

own state courts. 

Cary v. Curtis: 86 The Majority also attempts to argue that a 19th 

century federal statute placing jurisdiction for all claims of illegally 

charged customs duties with the Secretary of the Treasury repVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00106 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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87 Id. at 241. 88 Id. at 245. 89 74 U.S. (7 Wall.) 506 (1869). 90 Id. at 514. 91 75 U.S. (7 Wall.) 85 (1869). 92 Id. 93Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme 

Court, 109 U.Pa.L.Rev., 157, 180 (1981).

resents a precedent for federal court stripping. In upholding the 

statute, the Court stated that, under the statute, ‘‘it is the Secretary of the Treasury alone in whom the rights of the government 

and of the claimant are to be tested.’’ 87 The Majority, however, 

misstates the decision. 

In fact, the Court decided the case on the basis of sovereign immunity, not court stripping. The plaintiff was suing the government to recover allegedly improperly charged customs fees. The 

Court stated that: ‘‘the government, as a general rule, claims an exemption from being sued in its own courts. That although, as being 

charged with the administration of the laws, it will resort to those 

courts as means of securing this great end, it will not permit itself 

to be impleaded therein, save in instances forming conceded and 

express exceptions.’’ 88 Thus, the language alluded to by the Majority regarding jurisdiction is mere dicta, and is not controlling. Additionally, Cary is distinguishable as a suit against the government 

for money, not a suit asserting that the law at issue violates an individual constitutional right. 

Ex parte McCardle: The McCardle89 case is often cited for authority that the Congress may upset a pending Supreme Court appeal by limiting the Court’s appellate jurisdiction. The case involved a habeas corpus petition by an individual who had been convicted by a military commission for acts obstructing the Reconstruction. In an effort to forestall an anticipated adverse ruling, 

Congress eliminated the Supreme Court’s appellate jurisdiction to 

hear the case. The Court held ‘‘[w]e are not at liberty to inquire 

into the motives of the legislature. We can only examine into its 

power under the Constitution; and the power to make exceptions 

to the appellate jurisdiction of this court is given by express 

words.’’ 90 However, all that is clear from this case is that Congressional power under the exceptions clause is not without some limits. 

The scope of the McCardle decision was narrowed when, in Ex 

Parte Yerger,91 which was also a challenge to the Reconstruction 

Act, the Court affirmed its jurisdiction to review habeas corpus decisions from lower federal courts when the petitions were originally 

brought under earlier legislation.92 In light of Yerger, one commentator notes that the Court’s concession of appellate jurisdiction in 

McCardle was, as a practical matter, quite minimal: 

The statute [involved in McCardle did] not deprive the 

Court of jurisdiction to decide McCardle’s case; he could 

still petition the Supreme Court for [an original] writ of 

habeas corpus. [The] legislation did no more than eliminate one procedure for Supreme Court review of the decisions denying habeas corpus while leaving another equally 

efficacious one available.93

108

94The Francis Wright, 105 U.S. 381 (1881) (analyzing Act of Feb. 16, 1875, ch. 77). 95See Federal Court Jurisdiction Hearing (statement of Phyllis Schlafly). 96The Francis Wright, 105 U.S. at 381. 97 Id. 98 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 99See Federal Court Jurisdiction Hearing (statement of Phyllis Schlafly). 100Marathon Pipe Line Co., 458 U.S. at 50. 101 28 U.S.C. § 1342. 102 Ala. Pub. Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341, 350 (1951). 103 Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 534 (1981). 104 California v. Grace Brethren Church, 457 U.S. 393, 410 (1982).

The Court’s decision in Yerger shows that the Justices are protective of the Court’s jurisdiction and will not readily concede its appellate jurisdiction. In McCardle, the Court surrendered only a single procedural avenue for appellate review, not the ability to hear 

an entire class of cases. Moreover, McCardle, as a war powers case, 

must be considered within the Civil War context from which it 

arose. 

The Francis Wright: 94 the Majority also points to another 19th 

century federal law restricting Supreme Court jurisdiction in admiralty cases to questions of law arising on the record.95 The Court 

upheld the statute in The Francis Wright decision. 

This case, however, in no way indicates that Congress may take 

a particular class of cases out of the Jurisdiction of all federal 

courts.96 It merely deals with the uncontroversial claim that in 

cases involving admiralty jurisdiction, Congress may limit the appellate jurisdiction of the Supreme Court.97

Marathon Pipe Line: 98 the Majority also points to dicta from Justice Brennan’s opinion in the Court’s decision in Northern Pipeline 

Construction Co. v. Marathon Pipe Line Co. to the effect that matters that could be heard in Article III courts could also be heard 

in state courts.99

In point of fact, the actual holding in Marathon Pipe Line was 

that Congress, had invested unconstitutionally broad powers in the 

untenured judges who served in the newly created bankruptcy 

courts. The Supreme Court invalidated the entire statutory grant 

of jurisdiction to the new bankruptcy court system set up by the 

1978 Act, holding that untenured judges could not, consistent with 

Article III, exercise the judicial power of the United States. Even 

in the dicta cited by the Majority, Justice Brennan was endorsing 

the possible constitutionality of partial restrictions on judicial review, rather than a complete bar on such review.100 If anything, 

the Marathon Pipe Line decision stands for the sanctity of the federal judiciary, and the fact that Congress cannot easily give federal 

matters to judges who are not actual Article III judges appointed 

by the president and confirmed by the Senate. 

The Johnson Act:101 This act ‘‘deprived federal district courts of 

jurisdiction to enjoin enforcement of certain state administrative 

orders affecting public utility rates where ‘A plain, speedy and efficient remedy may be had in the courts of such State,’ ’’ 102 and ‘‘the 

jurisdiction of the federal court was based solely on diversity.’’ 103

‘‘The legislative history of the Johnson Act . . . makes clear that 

its purpose was to prevent public utilities from going to federal district court to challenge state administrative orders or avoid state 

administrative and judicial proceedings.’’ 104

109

105Supplemental Appropriations Act for Further Recovery From and Response to Terrorist 

Acts on the United States, Pub. L. No. 107–206, § 706, 116 Stat. 820, 864 (2002) [hereinafter 

706 Rider]. 106See H.R. 3313 Markup (statement of Representative Sensenbrenner). 107 706 Rider § 706(j). It must be noted that the express language of this bill is far broader 

than the language in the Daschle amendment. While the Daschle amendment precluded ‘‘judicial review’’ of any logging or clearance action, this bill would strip the federal courts of ‘‘jurisdiction’’ or ‘‘appellate jurisdiction . . . to hear or determine any question pertaining to’’ DOMA. 108 Biodiversity Associates v. Cables, 357 F.3d 1152 (10th Cir. 2004). 109 Id. at 1152. Furthermore, in that case, the Tenth Circuit Court of Appeals explicitly held 

that the legislation’s restriction on judicial review was not absolute because it did not apply to 

the review of the ‘‘congressional act,’’ but rather to review of ‘‘the Forest Service’s acts authorized by the Rider.’’ Id. at 1160. Notably, the court also held that Congress, in this instance, was 

acting pursuant to an express authorization under Article IV, § 3, cl. 2, to ‘‘dispose of and make 

all needful Rules and Regulations respecting the Territory or other Property belonging to the 

United States.’’ Id. at 1156. 110 Although characterized in Ms. Schlafly’s testimony as having ‘‘removed from federal courts 

the jurisdiction [in cases involving labor strikes] from the federal courts, and the Supreme Court 

had no difficulty in upholding it,’’ Federal Court Jurisdiction Hearing (statement of Ms. 

Schlafly), the Norris-LaGuardia Act did nothing of the sort. As the Supreme Court observed in 

Lauf v. E.G. Shinner, 303 U.S. 323 (1938), the District Court had jurisdiction to hear the case 

‘‘by the findings as to diversity of citizenship and the amount in controversy.’’ 111This legislation also did not strip the federal courts, or the Supreme Court, of equity jurisdiction to hear cases involving price orders. Section 204(a) of the Act allowed an individual 

whose protest against a price control ruling had been denied at the administrative level, to take 

an appeal to an Emergency Court of Appeals set up by subsection (c), and take a direct appeal 

to the U.S. Supreme Court under subsections (b) and (d). 112The section in question states only that ‘‘No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction 

of any action or proceeding . . . to enforce liability or impose punishment for or on account of 

the failure of the employer to pay minimum wages or overtime compensation under the Fair 

Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the BaconDavis Act, to the extent that such action or proceeding seeks to enforce any liability or impose 

any punishment with respect to an activity which was not compensable under subsections (a) 

and (b) of this section.’’ It is, at best, tautological to state that a court does not have jurisdiction 

to impose liability on an employer with respect to an activity that is not compensable. 113The section Ms. Schlafly cites, 42 U.S.C. § 1395w–4(i)(1), does not permit judicial or administrative review of certain factors to be taken into account in the setting of a fee schedule for 

the payment of physicians under the Supplementary Medical Insurance Benefits for Aged and 

Continued

The Act did not purport to prevent the Supreme Court from reviewing state-court rate order decisions, or to preclude a challenge 

to the constitutionality of the Act itself. 

Daschle Brush Clearing Rider: 105 Most notably, the Majority 

claims that a rider to the 2002 Supplemental Appropriations Act 

authored by Senator Tom Daschle (D–SD) approving logging and 

clearance measures by the Forest Service in the Black Hills of 

South Dakota serves as a precedent for the enactment of these 

types of court-stripping measures.106

The problem with this argument is that, while the rider restricted ‘‘judicial review’’ of ‘‘any [logging or clearance] action’’ 107

by the Forest Service, it did not restrict federal judicial review of 

the rider itself or its constitutionality. Indeed, the federal courts 

did review the validity of the rider,108 and explicitly found that the 

‘‘challenged legislation’s jurisdictional bar did not apply to preclude 

Court of Appeals’ review as to the legislation’s validity.’’ 109

Other federal statutes cited by the Majority involve only partial 

limitations on federal court jurisdiction or do not implicate constitutional issues as H.R. 2028 does. These include the NorrisLaGuardia Act of 1932 (federal court actually found to have jurisdiction); 110 the Emergency Price Control Act of 1942 (appeals permitted to Supreme Court); 111 the Portal-to-Portal Pay Act of 1947 

(deals with a restriction on liability, not a constitutional claim); 112

the 1965 Medicare Act (court stripping limited to administrative 

determination regarding fee schedule, not constitutional issues); 113

110

Disabled. It is only with respect to those particular factors that go into the calculation of the 

fee schedule, that the restriction applies. The restriction does not apply to the fee schedules 

themselves, much less to, as Ms. Schlafly put it, ‘‘administrative decisions about many aspects 

of the Medicare payment system.’’ 114 442 U.S.C. 1973c places jurisdiction in the U.S. District Court for the District of Columbia, 

with a direct appeal to the Supreme Court. This was upheld by the Supreme Court in South 

Carolina v. Katzenbach, 383 U.S. 301, 331 (1966). 115The limitation of jurisdiction in the 1996 immigration law is quite specific and circumscribed. It only bars judicial review of three discrete and discretionary actions—the Attorney 

General’s decisions (1) to ‘‘commence proceedings,’’ (2) to ‘‘adjudicate cases,’’ or (3) to ‘‘execute 

removal orders.’’ See Hatami v. Ridge, 270 F. Supp. 2d 763 (E.D. Va. 2003). 116 H.R. 2028 Markup (statement of Representative F. James Sensenbrenner). 117President George Washington, Farewell Address to the Nation (1796).

the Voting Rights Act of 1965 (funnels cases into the district court 

for the District of Columbia); 114 and the 1996 Immigration Amendments (eliminates review of narrow set of discretionary actions by 

Attorney General, not constitutional issues).115

Second, the Majority asserts the founders would have expressed 

support for court stripping legislation.116 In this regard, the Majority notes that authority such as Hamilton’s Federalist No. 80 make 

clear that Congress has broad authority to rein in the federal 

courts. Properly read, Federalist No. 80 merely restates the Constitution’s grant of authority with regard to the federal courts generally. It does not sanction efforts to eviscerate and degrade the 

federal courts themselves as H.R. 2028 does. In reality, as noted 

above, Hamilton was one of the principal supporters of a strong 

and independent federal judiciary of broad jurisdiction. 

CONCLUSION

Just as we opposed the ill-considered Marriage Protection Act, 

we oppose this court stripping bill. These efforts to deny our citizens access to the federal courts constitutes nothing more than a 

modern day version of ‘‘court packing.’’ Just as President Franklin 

Roosevelt’s efforts to control the outcome of the Supreme Court by 

packing it with loyalists was rejected by Congress in the 1930s, 

thereby preserving the independence of the federal judiciary, so too 

must this modern day effort to show the courts ‘‘who is boss’’ fail 

as well. 

We agree with then-President George Washington’s warning concerning efforts to undermine the judiciary, when he stated:

Let there be no change [in court powers] by usurpation; 

for it is through this, in one instance, may be the instrument of good, it is the customary weapon by which free 

governments are destroyed. The precedent must always 

greatly overbalance in permanent evil, any partial or transient benefit which the use can at any time yield.117

Justice Jackson echoed these warnings over sixty years ago in 

Barnett, a decision now under attack by this very legislation:

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 

official 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 subVerDate jul 14 2003 07:50 Sep 22, 2004 Jkt 029006 PO 00000 Frm 00110 Fmt 6601 Sfmt 6602 E:\HR\OC\HR691.XXX HR691
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118 319 U.S. 624, 638 (1943). 

mitted to vote; they depend on the outcome of no elections.118

It is unfortunate that the Judiciary Committee would disparage 

these eloquent statements by passing legislation such as the Pledge 

Protection Act and the Marriage Protection Act that are so totally 

inconsistent with judicial independence. With the passage of this 

legislation, parents will be stripped of their right to go to court and 

defend their children’s religious liberty, schools could expel children 

for acting according to the dictates of their faith, and Congress will 

have slammed the courthouse doors shut in their faces. We urge 

the Members to put principle above politics and reject this ill-advised and unconstitutional legislation.

JOHN CONYERS, Jr. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

BOBBY SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

ROBERT WEXLER. 

TAMMY BALDWIN. 

ANTHONY D. WEINER. 

LINDA T. SA ́ NCHEZ.

Æ