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Posted: 9/23/2004 9:49:31 AM EST
story.news.yahoo.com/news?tmpl=story2&u=/ap/20040923/ap_on_go_co/congress_pledge_of_allegiance



By JIM ABRAMS, Associated Press Writer

WASHINGTON - The House passed legislation Thursday that would prevent the Supreme Court from ruling on whether the words "under God" should be stricken from the Pledge of Allegiance.

In a politically and emotionally charged debate, Democrats said majority Republicans in the chamber were debasing the Constitution in order to force a vote that could hurt Democrats in the election.

Supporters insisted that Congress has always had authority to limit federal court jurisdiction, and the legislation is needed to protect an affirmation of religion that is part of the national heritage.

The bill, which was passed 247-173, would prohibit federal courts, including the Supreme Court, from hearing cases involving the pledge and its recitation and would prevent federal courts from striking the words "under God" from the pledge.

The legislation has little chance of advancing in the Senate this year, but it laid down another marker for politicians seeking to differentiate themselves from their election opponents on the volatile social issues of the day. Other "wedge" issues that have or could come up before the election include gay marriage and flag-burning.

The Supreme Court in June dismissed, on a technicality, a 2002 federal court decision that the religious reference made the pledge unconstitutional.

Rep. Todd Akin (news, bio, voting record), R-Mo., the author of the amendment on legislation before the House Thursday, said the high court is likely to rule differently if it considers the substance of the case and "if we allow activist judges to start creating law and say that it is wrong to somehow allow schoolchildren to say 'under God' in the pledge."

In such a scenario, Akin said, Congress will have "emasculated the very heart of what America has always been about."



247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?
Link Posted: 9/23/2004 9:51:48 AM EST
Constitution? What constitution?

It's all about scoring points in the next election....

BTW --

Congress has given up FAR too much authority to the courts, and seeing them take some back would be a great thing, if this wasn't just a political season slop with no chance of passing.
Link Posted: 9/23/2004 9:54:46 AM EST
Oh come one! You know the drill.

Step 1) Pass unconstitutional "FEEL GOOD" legislation

Step 2) Let the courts deal with it. It ain't our problem anymore.
Link Posted: 9/23/2004 9:56:16 AM EST

Originally Posted By kill-9:
[ 247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?



No.

What scares me are the Left Wing Activist Judges that have been legislating from the bench for decades. I am more afraid of the 9th Circut Court of Appeals and SCOTUS overstepping their bounds than I am of the House over stepping it's bounds!
Link Posted: 9/23/2004 9:56:28 AM EST
[Last Edit: 9/23/2004 9:59:00 AM EST by FLAL1A]

Originally Posted By kill-9:
247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?



It doesn't scare anybody who's actually read the Constitution:

AIII, S1: 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. Courts inferior to the USSCt, and their jurisdiction, are entirely creatures of the Congress.

AIII, S2: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Congress has the power define the jurisdiction of the USSCt, despite the fact that the USSCt is created not by the Congress but by the Constitution.

"Underlying principles" don't mean squat when they are contradicted by the express language of the Constitution. Put another way, you misapprehend the allocation of powers under the Constitution. The power to determine the jurisdiction of federal courts is expressly allocated to the Congress, and not to the courts. The doctrine of separation of powers is in no way impeached by the bill under discussion.
Link Posted: 9/23/2004 10:01:49 AM EST

Originally Posted By FLAL1A:

Originally Posted By kill-9:
247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?



It doesn't scare anybody who's actually read the Constitution:

AIII, S1: 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. Courts inferior to the USSCt, and their jurisdiction, are entirely creatures of the Congress.

AIII, S2: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Congress has the power define the jurisdiction of the USSCt, despite the fact that the USSCt is created not by the Congress but by the Constitution.

"Underlying principles" don't mean squat when they are contradicted by the express language of the Constitution. Put another way, you misapprehend the allocation of powers under the Constitution. The power to determine the jurisdiction of federal courts is expressly allocated to the Congress, and not to the courts. The doctrine of separation of powers is in no way impeached by the bill under discussion.



Oh, I guess I was under the mistaken impression that the SCOTUS was a check and balance on the power of Congress. My bad.
Link Posted: 9/23/2004 10:02:54 AM EST

Originally Posted By FLAL1A:

Originally Posted By kill-9:
247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?



It doesn't scare anybody who's actually read the Constitution:

AIII, S1: 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. Courts inferior to the USSCt, and their jurisdiction, are entirely creatures of the Congress.

AIII, S2: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Congress has the power define the jurisdiction of the USSCt, despite the fact that the USSCt is created not by the Congress but by the Constitution.

"Underlying principles" don't mean squat when they are contradicted by the express language of the Constitution.



FLAL1A, You beat me to it.

SCOTUS has ruled that the above mentioned Article II Section 2 exemption can be used by Congress to limit their jurisdiction. This is something I have advocated for nearly two decades, as a method of combating judicial activism. It is far less prone to abuse than having Courts make overbroad rulings that can only be overturned by amending the Constitution. Removing a bad appeals restriction only takes a majority vote in Congress.
Link Posted: 9/23/2004 10:06:29 AM EST

Originally Posted By kill-9:

Originally Posted By FLAL1A:

Originally Posted By kill-9:
247 Congressmen are on record actively advocating violation of one of the underlying principles of the Constitution, the separation of powers. Does this scare anybody else?



It doesn't scare anybody who's actually read the Constitution:

AIII, S1: 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. Courts inferior to the USSCt, and their jurisdiction, are entirely creatures of the Congress.

AIII, S2: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Congress has the power define the jurisdiction of the USSCt, despite the fact that the USSCt is created not by the Congress but by the Constitution.

"Underlying principles" don't mean squat when they are contradicted by the express language of the Constitution. Put another way, you misapprehend the allocation of powers under the Constitution. The power to determine the jurisdiction of federal courts is expressly allocated to the Congress, and not to the courts. The doctrine of separation of powers is in no way impeached by the bill under discussion.



Oh, I guess I was under the mistaken impression that the SCOTUS was a check and balance on the power of Congress. My bad.



The real question is whether Congress could pass a patently unconstitutional law (say, An Act to Abolish the State of Pennsylvania) and insulate from judicial review using its power under Article III. I kinda doubt it, but I can't say exactly why. A more interesting issue is the development of the idea that only the federal courts have the power to determine constitutionality. Several of the early presidents held that they had the power to decline to carry out - or even, iirc to declare inoperative -laws they deemed unconstitutional.
Link Posted: 9/23/2004 10:07:39 AM EST

Originally Posted By kill-9:

Oh, I guess I was under the mistaken impression that the SCOTUS was a check and balance on the power of Congress. My bad.



READ THE CONSTITUTION BEFORE YOU SPOUT OFF ABOUT WHAT IT MEANS.

FLAL1A posted the text of the document itself that EXPLICITLY grants this power to the Congress. Perhaps you could cite a contradicting portion of the Constitution to refute his argument?

(Hint: You cannot, because there are none.)
Link Posted: 9/23/2004 10:10:14 AM EST
actually the constitution is quite clear. The congress does have the ability to limit what the Supreme Court can rule on.

The supreme court has repeatedly overstepped its bounds by redefining the constitution to mean whatever they want it to. In effect, they have usurped the power of the legislature.

How else do you think they could decide that "...the right of the people to keep and bear arms shall not be infringed" really doesn't apply to the people?

It boggles my mind that despite the first amendmant, the SCOTUS has ruled to keep public profession of faith out of schools with all the legal authority of a single private letter written by Thomas Jefferson to a Baptist Minister.


Link Posted: 9/23/2004 10:11:45 AM EST
It's also much easier to get rid of a fuckup legislator than it is to get rid of one of these entrenched judges.
Link Posted: 9/23/2004 10:16:11 AM EST

Originally Posted By PAEBR332:

SCOTUS has ruled that the above mentioned Article II Section 2 exemption can be used by Congress to limit their jurisdiction. This is something I have advocated for nearly two decades, as a method of combating judicial activism. It is far less prone to abuse than having Courts make overbroad rulings that can only be overturned by amending the Constitution. Removing a bad appeals restriction only takes a majority vote in Congress.



Actually, I think they could overturn at least some decisions using this power. It's a highly speculative question, but suppose they simply passed a statute that said:

"No federal court shall have jurisdiction to hear or decide any action concerning abortion."

Alabama outlaws abortion after the first 6 weeks of pregnancy. The Alabama Supreme Court declines to overturn it based on the state constitution. Where do the pro-abortion folks turn? Nowhere, I think, and the statute doesn't even address Roe vs Wade.

What it does is make the policy determination that abortion is a political rather than a legal issue (which is what it was pre-Roe). I think it's a harder question if they did it with some express constitutional right; if they eliminated jurisdiction to entertain suits based on ex post facto legislation, or former jeopardy. I think the most rational conclusion is that the Congress could use this power to foreclose judicial jurisdiction in any instance in which it would not amount to an amendment to the Constitution, because where it did so, it would nullify the amendment procedures set out in the document itself. Remember that Roe and cases like that are merely interpretations of the Constitution, and the Constitution nowhere ascribes the power to interpret the Constitution exclusively to the courts.
Link Posted: 9/23/2004 10:30:32 AM EST

Originally Posted By FLAL1A:

Originally Posted By PAEBR332:

SCOTUS has ruled that the above mentioned Article II Section 2 exemption can be used by Congress to limit their jurisdiction. This is something I have advocated for nearly two decades, as a method of combating judicial activism. It is far less prone to abuse than having Courts make overbroad rulings that can only be overturned by amending the Constitution. Removing a bad appeals restriction only takes a majority vote in Congress.



Actually, I think they could overturn at least some decisions using this power. It's a highly speculative question, but suppose they simply passed a statute that said:

"No federal court shall have jurisdiction to hear or decide any action concerning abortion."

Alabama outlaws abortion after the first 6 weeks of pregnancy. The Alabama Supreme Court declines to overturn it based on the state constitution. Where do the pro-abortion folks turn? Nowhere, I think, and the statute doesn't even address Roe vs Wade.

What it does is make the policy determination that abortion is a political rather than a legal issue (which is what it was pre-Roe). I think it's a harder question if they did it with some express constitutional right; if they eliminated jurisdiction to entertain suits based on ex post facto legislation, or former jeopardy. I think the most rational conclusion is that the Congress could use this power to foreclose judicial jurisdiction in any instance in which it would not amount to an amendment to the Constitution, because where it did so, it would nullify the amendment procedures set out in the document itself. Remember that Roe and cases like that are merely interpretations of the Constitution, and the Constitution nowhere ascribes the power to interpret the Constitution exclusively to the courts.



I agree with you. If the Congress were to restrict jurisdiction in cases affecting actual rights clearly spelled out in the text of the Constitution, the SCOTUS would probably rule they cannot do this, despite what Article III Section 2 says.

They did a similar thing in the Adam Clayton Powell, Jr. case when they ruled that Congress cannot refuse to seat a properly elected member of the House, despite the clear wording in Article I, Section 5 that each House was to be its own judge of elections, returns, and qualifications.
Link Posted: 9/23/2004 11:04:48 AM EST

Originally Posted By PAEBR332:

Originally Posted By kill-9:

Oh, I guess I was under the mistaken impression that the SCOTUS was a check and balance on the power of Congress. My bad.



READ THE CONSTITUTION BEFORE YOU SPOUT OFF ABOUT WHAT IT MEANS.




No reason to yell. I was wrong and I admitted it.
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