Wednesday, September 22, 2004

The Supreme Court’s dismissal of Michael Newdow’s case looked like a defeat for those who would remove “under God” from the Pledge of Allegiance. In truth, it was not.

Dismissed on procedural grounds, the core issue in the case was set aside to be dealt with in another case at another time. But the court tipped its hand when five of the eight justices sent a clear signal that the first time they get a clear shot at this issue, they will rule in favor of stripping the Pledge of the words “under God” by making it unconstitutional. Therefore, before the court has that opportunity, Congress should act to strip the court of the authority to ever hear a case that would lead to that outcome by quickly passing the Kyl/Akin bill to prevent federal courts from ruling on any change to the Pledge of Allegiance.

Over 90 percent of the American people favor the right to say “one nation, under God.” With such an overwhelming consensus on this issue, the country has the right, through its executive and legislative branches, to send an instruction to the judicial branch and make its view well known. This is not an assertion of a new power. It is, in fact, power that has already been tested by a man somewhat familiar with the Constitution: Thomas Jefferson.

Jefferson was unequivocal in his support for the American people’s right to play an active role in defining and defending the Constitution. He called the notion of judges claiming to be the final, supreme interpreters of the Constitution “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” And when faced with an overreaching federal court system, Jefferson did not just talk; he took action.

After the Jeffersonians defeated the Federalists in the 1800 election, President Adams tried to appoint 18 Federalist judges during the lame duck congressional session, more than doubling the number of judges already on the bench. In response, President Jefferson, immediately upon taking office, ordered his Secretary of State James Madison not to deliver their commissions, arguing that the appointments were an effort to thwart popular will. Two years later, Jefferson again showed his commitment to the people’s ability to define the Constitution, denouncing the Supreme Court’s ruling in Marbury v. Madison, a case that actually prevented one of these judges from reclaiming his post, since the court invoked judicial review to overturn a previous act of Congress.

Jefferson was not alone in denying that the Supreme Court has the final say in constitutional matters; it was also the position of Abraham Lincoln. The second time the Supreme Court used judicial review to overturn the laws of Congress, ruling that blacks could not become citizens in the Dred Scott decision, Lincoln refused to be bound by the decision and continued to treat free blacks as citizens, issuing them passports and supporting action in Congress to restrict slavery in the territories. He warned that “if the policy of the government is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Franklin Delano Roosevelt, too, believed in the people’s right to interpret the Constitution. Amid the arguments for his New Deal reforms, he said, “the Constitution of the United States is a layman’s document, not a lawyer’s contract. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and Congress have had their way.”

The truth is that the modern notion of judicial supremacy is an invention of the Warren court. In the 1958 case Cooper v. Aaron, the court claimed that Marbury had “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” But as Stanford Law School Dean Larry Kramer has noted, the notion of judicial supremacy is “just bluster and puff… the Justices in Cooper were not reporting a fact so much as trying to manufacture one.”

The time to reassert the right of the American people to instruct the court through the Legislative and Executive branches has come. America is a free nation and it is the duty of those who would represent the American people to find mechanisms for our generation which block activist judges from stripping us of the freedoms and values we believe in. Sen. Jon Kyl and Rep. Todd Akin’s bill to prevent federal courts from ruling on the Pledge of Allegiance accomplishes this task, and is in the spirit of the popular constitutionalism of Thomas Jefferson, Abraham Lincoln and Franklin Delano Roosevelt. It should be passed immediately.

Newt Gingrich, a former speaker of the House, is a senior fellow at the American Enterprise Institute.

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