Shameful hypocrisy over the pledge

In some of the most brilliant theory in history, drafter of the Constitution James Madison wrote in The Federalist Papers about the need for checks and balances in the new federal government he helped create. The new system would work because "The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others."

This system has allowed our government to flourish into the strongest democracy in history. However, sometimes the members of our government seem to forget this trivial notion known as checks and balances, give themselves powers that do not actually exist and take authority away from where it should be.

The agent of my wrath this week is not the president, as one might suppose (although some would argue he possesses the aforementioned lack of constitutional respect), but rather the members of the House of Representatives who recently passed House Concurrent Resolution 2028.

The measure "utilizes Congress' constitutional authority to proscribe the jurisdiction of federal courts by requiring that any court challenges to the phrase 'under God' in the Pledge will be heard by state courts," as the press release from the House Judiciary Committee reports. The resolution intends to limit all federal courts -- including the Supreme Court -- from ruling on the constitutionality of the Pledge of Allegiance, and more specifically, the phrase "under God."

This resolution comes in response to the suit brought by atheist Michael Newdow, who claimed that the pledge was unconstitutional because it was an endorsement of religion by the government. Rather than make a definitive ruling on the issue, the Supreme Court punted, dismissing his case on a technicality, thus leaving the door wide open for future legal challenges.

But the sponsors of the bill want to see to it that this never happens. They want you to believe that if you don't support it, then you don't support the pledge and everything it stands for. It's a pedagogical line of reasoning, and a shameless political ploy thinly veiled under the guise of "patriotism."

House Judiciary Committee Chairman Jim Sensenbrenner Jr. (R-Wis.) tried to justify this gross constitutional offense by saying, "This legislation is an exercise of one of the very 'checks and balances' provided for in the Constitution. ... It will place final authority over a state's Pledge policy in the hands of the states themselves."

That's a patently ridiculous notion. Any student with a rudimentary knowledge of law will tell you that, in matters dealing with the Constitution, federal courts have jurisdiction. Regardless of your opinion about judicial activism, or strict constructionism, this is a fact. Furthermore, all cases, regardless of origin, can be appealed to the Supreme Court. The court then has the final say.

This isn't new legal philosophy. Over 200 years ago, Chief Justice John Marshall ruled in a rather obscure case that no one has probably ever heard of (something about Marbury and Madison) that "it is emphatically the province and the duty of the judicial department to say what the law is."

So apparently Rep. Sensenbrenner has taken it upon himself to undermine one of the most fundamental tenets of our system of government -- judicial review. In the process, he has declared himself more knowledgeable in the ways of constitutional jurisprudence than perhaps the greatest chief justice in our nation's history. Makes sense to me.

The bill's sponsor, Rep. Todd Akin (R-Mo.) suggested that "A few federal judges sitting hundreds of miles away from your state will not be able to rewrite your state's Pledge policy [with this resolution]." Oh, now I get it. The last thing we would ever want is a federal court making a ruling that started in one area of the country (I don't know, let's pick Topeka, Kan., for example) that could impact the nation. But hey, lots of states didn't like Brown v. Board of Education, so I guess the Supremes were wrong there too.

It's basic Government 101: The executive branch enforces the laws, the legislatures make them and the courts ultimately rule on their constitutional validity. That's their check on the system; the Supreme Court gets final say. If you decide that the court can no longer rule on certain topics, then why have a court? This sort of selective jurisdiction reeks of a "holier than thou" attitude that has no place in government.

The Boston Globe quoted Rep. Akin as saying, "If we allow federal judges to start [saying] it's wrong to somehow allow schoolchildren to say 'under God' in the pledge, we have emasculated the very heart of what America is all about. If we allow activist judges to go there, what's next?"

What's next, he asks? Apparently, destroying the very essence of our democracy. By stepping on the Constitution and giving the House powers that don't exist, Rep. Akin has himself emasculated the "very heart of America" he so desperately wishes to protect.

Craig Cohen is a Wharton junior from Woodbury, N.Y. He Hate Me appears on Fridays.

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