Long before Michael Newdow argued the
unconstitutionality of the Pledge of Allegiance in front of the
U.S. Supreme Court earlier this year, Republican legislators have
expressed concern about “judicial activism.” Last week,
this feeling led U.S. House Republicans to pass a resolution that
would protect the pledge from the federal courts. The legislation,
which passed the House by a 247-173 vote, would prevent the courts,
including the Supreme Court, from ruling on whether the phrase
“under God” is constitutional. This resolution is
useless legislation that violates the separation of powers between
the three branches of government.

Janna Hutz

The words “under God” were added to the Pledge in
1954, during the cold war, to distinguish the United States from
communist nations. The first suit against the revised pledge was
filed in 2002 in California. Newdow, the plaintiff, felt his
daughter should not have to stand up in school every day and recite
words that were in contradiction of her father’s beliefs. The
U.S. 9th Circuit Court of Appeals ruled in Newdow’s favor,
but the case went to the Supreme Court where it was thrown out on a
technicality.

It has been rumored that other opponents of the phrase will
reinstate the suit, which President Bush declared
“ridiculous,” in other circuit courts around the
country. This talk led Congress to propose the bill that would
ensure that children all over the country continue to say the
pledge as it has been said for the past 50 years. Congressional
proponents have said that the bill is to protect an affirmation of
religion that is part of our national heritage. As Rep. Steve
Chabot (R–Ohio) said, Congress “can’t let rogue
judges redefine our history.”

Unfortunately, Congress’s proposal to protect the
patriotic ritual is contradictory to the constitutional system that
the pledge honors. Choosing to limit the court’s jurisdiction
is, in spirit, a violation of the separation of powers. The
separation of powers is the philosophy that ensures the executive,
legislative and judicial branches of the federal government do not
infringe upon each other’s rights and duties; it is one of
the basic ideas in the U.S. Constitution. The Supreme Court,
sitting atop the judicial branch, has final authority to strike
down both legislative and presidential acts as unconstitutional.
Thus, it is a violation of fundamental principles when legislators
pass laws that inhibit the ability of the court system to do its
duty. Barring courts from ruling on cases concerning the First
Amendment and the separation of church and state is going above and
beyond the powers of the legislative branch.

It is unlikely that the Senate will take up this bill, and the
proposal from the House was most likely a conservative move to
create a divisive issue before the upcoming election. The vote
tally was basically split between Republicans and Democrats. The
bill has left many Democratic congressmen questioning its
rationale; House Minority Leader Nancy Pelosi (D–Calif.)
called the proposal a “piece of legislation in search of a
solution for a problem that does not exist.”

It is regrettable that this bill is not unique; several other
proposals involving religion and patriotism have been flooding the
docket this year in Congress. Because of this, there is gridlock on
several more pressing matters. Conservatives in Congress need to
stop pandering and step up to deal with serious issues. But beyond
just focusing on what is important, Congress has an obligation to
protect the rights of those who do not believe in God This bill is
not worth the paper it is printed on.

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