The Pledge Protection Act of 2004

The House of Representatives has passed the Pledge Protection Act of 2004. (from NYT). The act strips the federal courts of the ability to hear constitutional challenges to the governmentally mandated use of the words "under God" in the federal Pledge of Allegiance. The Senate has not acted on the bill, and probably will not do so for some time.

The Pledge Protection Act of 2004 is a shameless act of political pandering. It is also unconstitutional. The first statement needs no explanation. Explaining the second is the purpose of this post.

The bill provides:

`Sec. 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.'.

Representative F. James Sensenbrenner, Republican of Wisconsin and chairman of the House Judiciary Committee, explained that the purpose of the bill was to allow individual states to decide whether or not to use the phrase "under God" in recitations of the Pledge of Allegiance: "A federal judge sitting hundreds of miles away from your state will not be able to rewrite your state's pledge policy."

The authors of this statute must have assumed that, following the Newdow decision, it was too risky to allow either the lower federal courts or the Supreme Court pass on the question whether the use of the term "Under God" in the pledge of Allegiance is unconstitutional under the federal Establishment Clause. By contrast, they believed that only a few state courts would interpret the Federal Constitution in this way, and those that did could not impose their decision on the other states. As Sensenbrenner explained, the bill would allow each state to determine its policy with respect to the Pledge of Allegiance.

This, in a nutshell, captures the basic problem with jurisdiction stripping statutes of this kind, particularly when they affect constitutional questions. There are many legitimate reasons for Congress to limit the jurisdiction of the federal courts. But one reason that is not legitimate is the one that Sensenbrenner offered-- to ensure that each state gets to decide for itself what is consistent with the Federal Constitution and what is not. Legislation passed for this purpose violates a key structural principle, because it strips the Supreme Court of appellate jurisdiction in these cases.

The Supreme Court plays an important structural role in our constitutional system. It provides the possibility of uniformity in the interpretation of federal law, and particularly the interpretation of federal Constitution. To play that role it does not have to enforce uniformity immediately whenever a conflict arises. Indeed, in some situations, imposing immediate uniformity may not be desirable. First, it may be a good idea if the Court lets issues percolate for some time in the lower courts and the state courts. Second, "protestant" constitutional interpretations from various courts, legislators, and members of social movements, play an important role in the formation of constitutional understandings and the shape of constitutional doctrine over time. The circulation of multiple constitutional interpretations in the public sphere is part of how the system works. Nevertheless, the Supreme Court (or a federal court equivalent) has to be available, in the last instance, to harmonize conflicting decisions by state and lower federal courts about questions of federal law and particularly federal constitutional law. Although different interpretations about a particular question might circulate for some time, the Supreme Court would always be available to provide a single judicial construction when necessary.

What the House of Representatives proposed would not serve the structural purposes mentioned above, because the Supreme Court would never play its assigned role of harmonization. Instead, the law of the Establishment Clause would be forever fragmented between the decisions of various state courts.

Oliver Wendell Holmes, Jr., once said "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states." He meant that the Supreme Court plays an important role in harmonizing conflicting constitutional interpretations about the constitutionality of state statutes. This point applies equally well, I think, to the case of jurisdiction stripping in cases involving the construction of federal law.

In the 1816 case of Martin v. Hunter's Lessee, Justice Story took a similar view. He pointed to the

necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different States, and might perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable. . . .

My colleague Akhil Amar has argued that Story's structural argument has a textual basis in Article III of the U.S. Constitution. Amar argues that Congress must preserve federal court jurisdiction for federal questions, including questions of federal constitutional law, as well as admiralty cases and cases involving ambassadors (which are within the Supreme Court's original jurisdiction). In all other cases, for example, diversity cases (those involving suits between citizens of different states), Congress may limit the federal courts' jurisdiction. Amar points to the fact that Article III says that the judicial power "shall extend to all cases" in the first group-- federal question, admirality, and cases involving ambassadors, but does not use the same phrase in reference to the second set of cases. He calls this the "two-tiered" theory of federal jurisdiction.

Amar summarizes his argument in the following five propositions:

First, Article III vests the judicial power of the United States in the federal judiciary, and not in state courts, or in Congress. Second, the federal judiciary must include one Supreme Court; other Article III courts may -- but need not -- be created by Congress. Third, the judicial power of the United States must, as an absolute minimum, comprehend the subject matter jurisdiction to decide finally all cases involving federal questions, admiralty, or public ambassadors. Fourth, the judicial power may -- but need not -- extend to cases in the six other, party-defined, jurisdictional categories. The power to decide which of these party-defined cases shall be heard in Article III courts is given to Congress by virtue of its powers to create and regulate the jurisdiction of lower federal courts, to make exceptions to the Supreme Court's appellate jurisdiction, and to enact all laws necessary and proper for putting the judicial power into effect. Fifth, Congress's exceptions power also includes the power to shift final resolution of any cases within the Supreme Court's appellate jurisdiction to any other Article III court that Congress may create. The corollary of the power is that if Congress chooses to make exceptions to the Supreme Court's appellate jurisdiction in admiralty or federal question cases, it must create an inferior federal court with jurisdiction to hear such excepted cases at trial or on appeal; to do otherwise would be to violate the commands that the judicial power "shall be vested" in the federal judiciary, and "shall extend to all" federal question and admiralty cases.

Whether or not the use of the words "shall extend to all" in Article III is by itself decisive, the structural argument that motivates Amar's textual argument is quite powerful; it is what makes that particular reading of the text persuasive. At the very least, if Congress's purpose in jurisdiction stripping legislation is to free state courts from harmonization of federal law by the Supreme Court, this violates the structural purposes of Article III.