Posted on 05/23/2003 1:19:12 PM PDT by Remedy
The full 9th Circuit Federal Court of Appeals (composed of 28 judgeships) recently upheld the wildly unpopular 2-1 ruling of its smaller three judge panel, agreeing with Sacramento atheist Michael Newdow that it was unconstitutional for students to recite the words "under God" in the Pledge of Allegiance. Judge Stephen Reinhardt, concurring in the full 9th Circuit order, explained:
We may not – we must not – allow public sentiment or outcry to guide our decisions. . . . Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.
Based on this pronouncement Judge Reinhardt apparently considers himself to be a greater constitutional authority than the Founder’s themselves. For example, George Washington, in setting forth fundamental principles from within the Constitutional republic he had helped birth, declared:
[T]he fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.
Thomas Jefferson similarly pronounced:
[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man.
Contrary to Judge Reinhardt’s ill-informed assertion, our founding documents stipulate that our general public policies must represent – and not oppose – "the consent of the governed." The Constitution defines what establishes that consent: usually a Thomas Jefferson Independence National Historical Park Collection 3 simple majority, although on occasion it can be two-thirds or three-fourths, but never is a policy implemented by less than a majority. Does this mean that minorities are therefore to be disregarded or trodden upon? Of course not. As Jefferson explained:
[T]hough the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; the minority possess their equal rights which equal law must protect.
However, equal rights are not the same as equal power; the minority is never the equivalent of the majority and is never to exercise control over it. Nevertheless, despite a near 90 percent national approval for the use of the Pledge, the 9th Circuit has usurped "the consent of the governed." On what basis? Civil libertarians explain that "the consent of the governed" is nothing more than what they call the "tyranny of the majority"; however, in opposing that supposed tyranny, Reinhardt has instead instituted a "tyranny of the minority." This is especially apparent in decisions such as that on the Pledge, where individual dissident citizens (such as Newdow) provide activist judges (such as Reinhardt) an opportunity to enact policies that would be impossible to achieve through the normal legislative processes.
Judge Reinhardt (and those like him) feel compelled to usurp the rights of the people at large; they declare themselves free from the customary restraints because they claim that the judiciary must be an "independent" branch, unaffected by the will of the people. Yet Thomas Jefferson wisely cautioned:
It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.
As Jefferson explained:
A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism.
(According to Webster’s 1828 dictionary, a solecism is an absurdity and a gross deviation from the rules.)
Despite the self-evident truth of these rudimentary principles, many judges nevertheless push against their constitutionally erected restraints and ignore "the will of the nation."
Judge Reinhardt (and the fourteen other 9th Circuit judges who concurred in his ruling) considers himself independent of the people and the laws passed by them; clearly he is not well versed in historical constitutional understandings. This is not surprising, however, for Reinhardt (appointed to bench by President Carter in 1980) has a lengthy history of constitutional-revisionist rulings.
For example, he has ruled that the Second Amendment’s "right of the people to keep and bear arms" does not pertain to citizens; that there is a constitutional right to die through physician-assisted suicides; that the Fourth Amendment prohibits the use of police dogs to track down drugs or criminal suspects; and that the death penalty is unconstitutional despite the Fifth Amendment’s explicit wording.
Jefferson seemed to have judges like Reinhardt in mind when he warned:
[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power.
Considering Reinhardt’s aberrant positions (including his outspokenness about the need for openly homosexual judges to serve on federal courts), one is not surprised to learn that Judge Reinhardt was a liberal Democratic Party activist before his appointment to the bench; he has indeed carried his "passions for party" onto the bench with him. To the people’s detriment, unrestrained activist judges such as Reinhardt too often display their "passions for party, for power" through their eagerness to enact policies just as if they were duly elected legislators from a particular political party.
While the 9th Circuit’s Pledge ruling adversely affects 9.6 million students in the nine states of California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, and Hawaii, that decision is not yet the final word. US Attorney General John Ashcroft announced that the Justice Department and White House would appeal the 9th Circuit decision to the Supreme Court. As Attorney General Ashcroft explained:
For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, "God save this honorable court." The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag.
Dave Gordon, the superintendent of the Elk Grove Unified School District attacked by Newdow, announced that students could continue to say the Pledge until the Supreme Court renders its position on the issue. However, he indicated that if the Pledge is struck down that the district would find other ways to inculcate the values of the Pledge – that they would "substitute other patriotic exercises, such as a song, a poem or quotes from historic figures."
Such a policy of substitution could actually result in even more frequent references to God. For example, were students to recite the Declaration of Independence instead of the Pledge, they would acknowledge God four times rather than just once; and were they to sing the full National Anthem, they would sing "and this be our motto, ‘In God is our trust’"; or were they to read the Inaugural Address of virtually any President, they would mention God more often than in the Pledge.
Most experts believe that the Supreme Court will overturn the 9th Circuit Pledge ruling. Such a reversal would not be unusual since the 9th Circuit is the Appeals Court most often reversed by the Supreme Court.
For example, even though the Supreme Court usually accepts only about 85 cases per year from the eleven different federal Circuit Courts of Appeals, in its 1997 term, 28 of its cases – almost one third – came from the 9th Circuit. The Supreme Court overturned 27 of those 28 decisions, and nearly two-thirds of those reversals were in unanimous decisions (that is, even the liberals and activists on the Supreme Court agreed with the conservatives that the 9th Circuit had gone too far).
The Pledge decision has not gone unnoticed by Congress. Rep. Todd Akin (MO) has introduced a bill that would completely remove from federal courts the ability to hear any challenge to the Pledge. Rep. Akin – apparently unlike Judge Reinhardt – has read the Constitution and knows that in Art. III, Sec. 2, the Founders gave Congress this power as one of what Alexander Hamilton called "constitutional arms" for its own "effectual powers of self-defense." Rep. Akin therefore has filed "The Pledge Protection Act" that already has over 150 congressional cosponsors, and the list is rapidly growing.
A second and different "constitutional arm . . . of self-defense" has been introduced by Rep. Ernest Istook (OK) in HJ RES 46. Istook’s "constitutional arm" is a long-needed constitutional amendment to restore religious freedom and – according to the bill – "include protection of the Pledge of Allegiance, the display of the Ten Commandments, and school prayer." The wording is straightforward:
To secure the people’s right to acknowledge God according to the dictates of conscience: The people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools. The United States and the States shall not establish any official religion nor require any person to join in prayer or religious activity.
This simple amendment, if passed, would completely undo the past four decades of religion- hostile decisions made by every federal court in the nation, including the US Supreme Court, and would overturn hundreds of rulings.
You can contact your Congressman to let him know your feelings about either of these bills. If you do not know the name of your Representative or Senator, go to our website (www.wallbuilders.com) and on the front page under "Resources," click on "Helpful Links"; under "Legislative Policy Organizations," click on "Find Your Congressman" to take you to a site that will identify your representatives in Congress. If you want to find out more about the status of Rep. Akin’s or Rep. Istook’s bills, go to the Library of Congress website (http://thomas.loc.gov) and enter the bill numbers or descriptions.
Pledge Protection Act of 2003 (Introduced in House)
HR 2028 IH
108th CONGRESS
1st Session
H. R. 2028
To amend title 28, United States Code, with respect to the jurisdiction of Federal courts inferior to the Supreme Court over certain cases and controversies involving the Pledge of Allegiance.
IN THE HOUSE OF REPRESENTATIVES
Mr. AKIN (for himself, Mr. MCINTYRE, Mr. DELAY, Mr. BLUNT, Mr. CANTOR, Ms. PRYCE of Ohio, Mr. ADERHOLT, Mr. BACHUS, Mr. BAKER, Mr. BARRETT of South Carolina, Mr. BARTLETT of Maryland, Mr. BARTON of Texas, Mr. BASS, Mrs. BLACKBURN, Mr. BEAUPREZ, Mr. BEREUTER, Mr. BISHOP of Utah, Mr. BOEHNER, Mr. BONILLA, Mrs. BONO, Mr. BONNER, Mr. BOOZMAN, Ms. BORDALLO, Mr. BRADY of Texas, Mr. BROWN of South Carolina, Ms. GINNY BROWN-WAITE of Florida, Mr. BURGESS, Mr. BURNS, Mr. BURR, Mr. BURTON of Indiana, Mr. CALVERT, Mr. CAMP, Mr. CHOCOLA, Mr. COLE, Mr. COLLINS, Mr. CRANE, Mr. CULBERSON, Mr. CUNNINGHAM, Mrs. JO ANN DAVIS of Virginia, Mr. DAVIS of Tennessee, Mr. TOM DAVIS of Virginia, Mr. DEAL of Georgia, Mr. DEMINT, Mr. LINCOLN DIAZ-BALART of Florida, Mr. MARIO DIAZ-BALART of Florida, Mr. DOOLITTLE, Mr. DUNCAN, Ms. DUNN, Mrs. EMERSON, Mr. FEENEY, Mr. FLAKE, Mr. FOLEY, Mr. FORBES, Mr. FOSSELLA, Mr. FRANKS of Arizona, Mr. FRELINGHUYSEN, Mr. GALLEGLY, Mr. GARRETT of New Jersey, Mr. GIBBONS, Mr. GILLMOR, Mr. GINGREY, Mr. GOODE, Mr. GOODLATTE, Mr. GRAVES, Mr. GREEN of Texas, Mr. GUTKNECHT, Ms. HARRIS, Mr. HAYES, Mr. HAYWORTH, Mr. HEFLEY, Mr. HERGER, Mr. HOBSON, Mr. HOEKSTRA, Mr. HOSTETTLER, Mr. HOUGHTON, Mr. HULSHOF, Mr. HUNTER, Mr. ISSA, Mr. ISTOOK, Mr. JANKLOW, Mr. JENKINS, Mr. SAM JOHNSON of Texas, Mr. JONES of North Carolina, Mr. KELLER, Mr. KENNEDY of Minnesota, Mr. KING of Iowa, Mr. KINGSTON, Mr. KLINE, Mr. LAHOOD, Mr. LATOURETTE, Mr. LEWIS of Kentucky, Mr. LUCAS of Oklahoma, Mr. MANZULLO, Mr. MCCRERY, Mr. MCHUGH, Mr. MCINNIS, Mr. MICA, Mrs. MILLER of Michigan, Mr. GARY G. MILLER of California, Mr. MILLER of Florida, Mrs. MUSGRAVE, Mrs. MYRICK, Mr. NEY, Mrs. NORTHUP, Mr. NUNES, Mr. OSBORNE, Mr. OSE, Mr. OTTER, Mr. PEARCE, Mr. PENCE, Mr. PETERSON of Pennsylvania, Mr. PITTS, Mr. PORTER, Mr. PLATTS, Mr. POMBO, Mr. PUTNAM, Mr. REGULA, Mr. REHBERG, Mr. RENZI, Mr. REYNOLDS, Mr. ROGERS of Kentucky, Mr. ROGERS of Michigan, Mr. ROHRABACHER, Ms. ROS-LEHTINEN, Mr. RYAN of Wisconsin, Mr. RYUN of Kansas, Mr. SAXTON, Mr. SCHROCK, Mr. SESSIONS, Mr. SHADEGG, Mr. SHERWOOD, Mr. SHIMKUS, Mr. SHUSTER, Mr. SIMPSON, Mr. SMITH of New Jersey, Mr. SMITH of Texas, Mr. SMITH of Michigan, Mr. SOUDER, Mr. STEARNS, Mr. SULLIVAN, Mr. TANCREDO, Mr. TAUZIN, Mr. TAYLOR of North Carolina, Mr. TERRY, Mr. TIAHRT, Mr. TIBERI, Mr. TOOMEY, Mr. WALSH, Mr. WAMP, Mr. WELDON of Pennsylvania, Mr. WELDON of Florida, Mr. WELLER, Mr. WHITFIELD, Mr. WILSON of South Carolina, Mr. WOLF, Mr. YOUNG of Florida, and Mr. YOUNG of Alaska) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 28, United States Code, with respect to the jurisdiction of Federal courts inferior to the Supreme Court over certain cases and controversies involving the Pledge of Allegiance.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the `Pledge Protection Act of 2003'.
(a) IN GENERAL- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:
`No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:
`1632. Jurisdiction Limitation.'.
Proposing an amendment to the Constitution of the United States restoring religious freedom. (Introduced in House)
HJ 46 IH
108th CONGRESS
1st Session
H. J. RES. 46
Proposing an amendment to the Constitution of the United States restoring religious freedom.
IN THE HOUSE OF REPRESENTATIVES
Mr. ISTOOK (for himself, Mr. BISHOP of Georgia, Mr. ADERHOLT, Mr. AKIN, Mr. ALEXANDER, Mr. BACHUS, Mr. BAKER, Mr. BALLENGER, Mr. BARRETT of South Carolina, Mr. BARTLETT of Maryland, Mr. BARTON of Texas, Mr. BEAUPREZ, Mr. BISHOP of Utah, Mr. BONILLA, Mr. BONNER, Mr. BRADY of Texas, Mr. BROWN of South Carolina, Ms. GINNY BROWN-WAITE of Florida, Mr. BURGESS, Mr. CHABOT, Mr. CHOCOLA, Mrs. CUBIN, Mr. CULBERSON, Mrs. JO ANN DAVIS of Virginia, Mr. DAVIS of Tennessee, Mr. DEAL of Georgia, Mr. DEMINT, Mr. DOOLITTLE, Mr. DUNCAN, Mrs. EMERSON, Mr. EVERETT, Mr. FEENEY, Mr. FLAKE, Mr. FORBES, Mr. FRANKS of Arizona, Mr. GIBBONS, Mr. GOODE, Mr. GOODLATTE, Mr. GREEN of Wisconsin, Mr. HALL, Mr. HAYES, Mr. HAYWORTH, Mr. HEFLEY, Mr. HENSARLING, Mr. HERGER, Mr. HOEKSTRA, Mr. HUNTER, Mr. JANKLOW, Mr. SAM JOHNSON of Texas, Mr. JONES of North Carolina, Mr. KING of Iowa, Mr. KINGSTON, Mr. LEWIS of Kentucky, Mr. LINDER, Mr. LIPINSKI, Mr. LUCAS of Kentucky, Mr. MCCRERY, Mr. MILLER of Florida, Mrs. MUSGRAVE, Mrs. MYRICK, Mr. NORWOOD, Mr. PEARCE, Mr. PENCE, Mr. PETERSON of Pennsylvania, Mr. PITTS, Mr. PLATTS, Mr. RAHALL, Mr. ROGERS of Kentucky, Mr. ROGERS of Alabama, Mr. RYUN of Kansas, Mr. SCHROCK, Mr. SESSIONS, Mr. SHIMKUS, Mr. SHUSTER, Mr. SMITH of New Jersey, Mr. SMITH of Michigan, Mr. SOUDER, Mr. SULLIVAN, Mr. TANCREDO, Mr. TAYLOR of North Carolina, Mr. TAYLOR of Mississippi, Mr. TERRY, Mr. TIAHRT, Mr. TOOMEY, Mr. VITTER, Mr. WAMP, Mr. WELDON of Florida, Mr. WHITFIELD, Mr. WICKER, Mr. WILSON of South Carolina, Mr. ROYCE, and Mr. STENHOLM) introduced the following joint resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States restoring religious freedom.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification, and is intended to include protection of the Pledge of Allegiance to the Flag, the display of the Ten Commandments, and voluntary school prayer:
`To secure the people's right to acknowledge God according to the dictates of conscience:
`The people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools.
`The United States and the States shall not establish any official religion nor require any person to join in prayer or religious activity.'.
The Ninth Circuit Court of Appeals Reorganization Act of 2003 (S. 562) March 6, 2003
Ms. MURKOWSKI (for herself, Mr. Stevens, Mr. Burns, Mr. Craig, Mr. Crapo, Mr. Inhofe, and Mr. Smith) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
The Ninth Circuit Court of Appeals Reorganization Act of 2003 H. R. 1033February 27, 2003
Mr. SIMPSON (for himself, Mr. WALDEN of Oregon, Mr. NETHERCUTT, and Mr. OTTER) introduced the following bill; which was referred to the Committee on the Judiciary
Short the ninth circuit ping
30893 Total Signatures
Here in Idaho, where we are under the 9th, most of us already ignore it.
That's how the Soviet Empire ended. People just sort of started ignoring it. Once the majority of people quit taking the authorities seriously, the authorities become, mostly, meaningless blowhards.
Here...we have the guns too, and I cannot think of any National Guard or Federal personnel (outside of a few Clinton/Reno leftover rogues) who would enforce such a ruling at the point of a gun. Can you imagine?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.