Posted on 06/29/2002 7:24:07 AM PDT by aristeides
It's been six years since one decision by a federal judge has kicked up this much controversy. In 1996, Judge Harold Baer Jr. threw out evidence in a cocaine case because the police had searched a car only because, when they approached it, four men started running away from it. Running away from the police, Baer ruled, was perfectly reasonable behavior for black men, not suspicious in the least. After Bill Clinton, Bob Dole, and pretty much everyone else denounced him, Baer reversed himself.
Ninth Circuit judges Alfred Goodwin and Stephen Reinhardt are getting the Baer treatment this week. The political world arose as one to denounce their ruling that it's unconstitutional to ask school kids to recite the Pledge of Allegiance. "Ridiculous," "absurd," "outrageous," and "wacko" are all words that have been used. Goodwin appears to be reacting much as Baer did. He has now stayed the implementation of his own ruling.
The judges deserve better. In the context of the church-state case law that the Supreme Court has built up over the last 55 years, their ruling was, at the very least, defensible. They are no more "wacko" than it is. One might call Goodwin and Reinhardt the Peter Singers of church-state jurisprudence. They follow its premises to their logical conclusions even when political prudence or residual common sense restrains most of their colleagues on the bench.
And while the decision can certainly be faulted for exhibiting a certain judicial arrogance, so can any number of judicial decisions that have aroused less controversy — such as, for instance, last week's ruling on the execution of the mentally retarded.
It is because outrage against judicial misrule is so rare, however, that conservatives have to make the most of it when it appears. That means using the outrage as a "teaching moment" for the public and elected officials alike and, if possible, using it to actually do something about excessive judicial power.
Since the pledge decision is a specific instance of a more widespread judicial habit, the first thing that conservatives should do, in their teaching role, is to stop painting this decision as the work of two isolated wackos and to imply that everything will be just fine once they're reversed. (To its credit, the Republican Study Committee, a group of House conservatives, has made this point.)
Second, the Democrats should not be let off the hook by going to the House floor or the well of the Senate to recite the pledge of allegiance. They support judges who are likely to issue decisions of this character, and they are willing to go quite far to block judges who would not issue such decisions, let alone judges who would roll back previous decisions of this character. Senate Democrats, especially, should be pressured to change their ways.
But they should also be asked to do something in response to the decision they say they find so egregious — something more meaningful than merely passing a resolution saying they think the pledge is constitutional.
The Congress has a range of options in dealing with a federal judicial decision that it regards as deeply mistaken. It can pass a statute attempting to undo the effects of the decision, as it did in the early 1990s when the Supreme Court created a right to burn the flag and denied a right to the ritual use of peyote. But the Court will just overturn the new statute — as it did in both of those instances.
Congress can propose a constitutional amendment to undo the bad decision. But that is an enormously difficult route, and if it is the only one then the check on the courts is very weak. And one wouldn't want to clutter the Constitution with clarifications every time the courts misread it.
Federalist 81 suggests that Congress should impeach judges who regularly exceed their constitutional powers. Most of the judges of the Ninth Circuit meet that description, and some of the Supremes do as well. But this solution may teach the wrong lesson — that the problem is a few bad apples, not a structural imbalance of power.
Finally, the Congress can use its power to limit the jurisdiction of the federal courts with respect to the issue in question (in this case, the Pledge of Allegiance). The power to limit the appellate jurisdiction of the Supreme Court is explicit in Article III, Section 2 ("the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exception, and under such Regulations as the Congress shall make"). The power of Congress to limit the jurisdiction of the lower federal courts is implied. Article III, Section 1, grants Congress the power to create the "inferior Courts," which has to include a power to say what these courts are to do and (therefore) to say, whether implicitly or explicitly, what they are not to do. (The Constitution spells out Congress's ability to limit the jurisdiction of the Supreme Court because the Constitution, rather than Congress, establishes that court.)
A simple majority of Congress and a presidential signature can enact a jurisdiction-stripping bill, in contrast to a constitutional amendment. Such a bill would be more effective than a statute. And it would reduce the power of the judiciary rather than merely recall a few judges. Finally, the effort to pass a bill would be educational even if it failed to pass, since it would challenge prevailing misconceptions about the proper division of interpretive power over the Constitution.
There are three major objections to this bill. The first one, to which I've already given an implicit answer, is that it's an overreaction to one bad decision that the courts are already correcting. The second is that it's up to the courts to interpret the Constitution, and they should not be second-guessed even if they occasionally make mistakes. That's a misunderstanding that this bill seeks to correct. The third is that the bill would set a dangerous precedent. Congress would soon start passing bills to undo sound court decisions that it merely dislikes or that are merely unpopular. There are good reasons for taking this third objection seriously, but not for considering it fatal to the proposal. But no doubt there will be some other occasion for elaborating on that.
The most obvious way to overrule federal court decisions is by constitutional amendment. Ponnuru considers -- and dismisses -- the possibility of a constitutional amendment, but the constitutional amendment that he considers would be a narrow one, only dealing with the text of the Pledge. A strong argument can be made that we shouldn't clutter the Constitution up with such narrow matters. After all, one of the main virtues of our Constitution is its brevity. But a constitutional amendment responding to the Pledge decision doesn't have to be as narrow, and could reverse at one sweep all of the Supreme Court's decisions about school prayer, religion in the public square, and the like.
The American people have responded many times to what they regarded as bad Supreme Court decisions with constitutional amendments. The 14th Amendment reversed the Dred Scott decision, the 16th Amendment reversed the Supreme Court's decision that the income tax was unconstitutional, and -- most to the point here -- the 11th Amendment reversed CHISHOLM v. STATE OF GA., 2 U.S. 419 (1793) , which held that ambiguous words in Article III of the U.S. Constitution gave federal courts jurisdiction over suits brought against States of the Union by citizens of other states. The 11th Amendment reversed this result by required that the ambiguous language be interpreted in such a way as not to allow such jurisdiction.
We can use a constitutional amendment to require, in a similar way, a more reasonable interpretation of the First Amendment's language about establishment of religion than the Supreme Court's. Imitating the language of the 11th Amendment, I would suggest language like the following for a new amendment:
The prohibition in the first article of amendment to the Constitution of the United States of laws respecting an establishment of religion shall not be construed to extend to voluntary nonsectarian prayers and exercises of religion.
Second, the Democrats should not be let off the hook by going to the House floor or the well of the Senate to recite the pledge of allegiance. They support judges who are likely to issue decisions of this character, and they are willing to go quite far to block judges who would not issue such decisions, let alone judges who would roll back previous decisions of this character. Senate Democrats, especially, should be pressured to change their ways.
Very good points.
If it's importance doesn't match the level of the Bill of Rights it doesn't belong there. Fixing judges by means of ammendments is silly.
Bear in mind, too, that, since an amendment like the one I suggest could not be ratified with ease (I can't see it getting two thirds of the votes in the current Senate), it could be ridden as a political issue for at least a couple of elections. If it resulted in a Republican landslide in 2002 or 2004, then it could probably get enough votes to be submitted to the states.
And I wouldn't say I'm suggesting demagoguing this issue. I'm suggesting a way to take political advantage of it, yes, but in a way that ideally would reverse what I consider 40 years of bad Supreme Court law on the establishment of religion. That's not demagoguing.
I don't understand how "under God" establishes a religion to begin with. What religion is that? Even "Allah" translates to "god" (small "g" for me, big "G" for them). This goes back much further.
I also agree (fervently) that the Constitution should not be cluttered up with procedural amendments or "one trick ponies".
Yours is a good start. The essence of the matter is to protect religion from the State without preventing free exercise.
The archaic language, "Congress shall make no law respecting an Establishment of religion" is the problem-even 55 years ago, the USSC could get away with Everson because this language was so obscure (charming, but obscure).
A simpler approach would be to amend as follows: "Amendment the First is hereinafter modified as follows: Congress shall make no law establishing any religion as the State Religion of the United States. Congress shall make no law prohibiting the free exercise of religion. Nothing in this Constitution shall be construed to prevent the People from engaging in public religious observences, or be construed so as to prevent the several States from assisting religious entities with public monies or facilities as their respective Legislatures may direct."
Senate Democrats should be defeated.
Start with Baucus, Carnahan, Cleland, Landrieu, and Johnson.
If they can't be beaten in GWB friendly States, they can't be beaten anywhere.
Activist judges who refuse to interpret the constitution need to be replaced. I would say that 29 reversals out of 30 decisions put them in that category. Like you, I hope that this controversy will result in the overturning of previous similar rulings, including school prayer.
Yes, I agree.
The Ninth Circuit is obliged to follow USSC precedent. Everson and progeny don't only point to, they require this decision.
It's Everson that's the problem.
I think Congress should do more useful things like controlling our debt, SEALING OUR BORDERS, REFUSING to allow access from Arab Mid East countries, and cutting off all funding to terrorists groups. This will work itself out. The other things I've discussed will need Congress' full attention. Which I'm afraid it doesn't!
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