Pledge Protection Act: First Amendment Violation?
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The House of Representatives really seems to like this new-found "jurisdiction-stripping" maneuver: first the Marriage Protection Act for gay marriage, and now the Pledge Protection Act for the American Loyalty Oath Pledge of Allegiance (text of the Act here).
There is a fundamental difference between the two pieces of legislation, however, that might be robust: The Pledge Protection Act implicates the First Amendment, which, it could be argued, strips Congress of its power to strip federal courts of jurisdiction.
To review:
Could one argue that the First Amendment supersedes Article III with respect to hearing Establishment Clause cases? Does "protecting" the Pledge constitute "establishment"? Does stripping federal courts of jurisdiction constitute "prohibiting the free exercise" of religion?
The whole concept of "What exactly does a constitutional amendment amend?" is complex and convoluted and varies on a case-by-case basis. And since both the Pledge Protection Act and the Marriage Protection Act seem certain to die in the Senate anyway, the question as it applies to jurisdiction-stripping will remain academic for the time being.
More commentary on the Pledge Protection Act versus the First Amendment at FindLaw Writ. Logos also has some legal history on jurisdiction-stripping.
There is a fundamental difference between the two pieces of legislation, however, that might be robust: The Pledge Protection Act implicates the First Amendment, which, it could be argued, strips Congress of its power to strip federal courts of jurisdiction.
To review:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
Could one argue that the First Amendment supersedes Article III with respect to hearing Establishment Clause cases? Does "protecting" the Pledge constitute "establishment"? Does stripping federal courts of jurisdiction constitute "prohibiting the free exercise" of religion?
The whole concept of "What exactly does a constitutional amendment amend?" is complex and convoluted and varies on a case-by-case basis. And since both the Pledge Protection Act and the Marriage Protection Act seem certain to die in the Senate anyway, the question as it applies to jurisdiction-stripping will remain academic for the time being.
More commentary on the Pledge Protection Act versus the First Amendment at FindLaw Writ. Logos also has some legal history on jurisdiction-stripping.
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- Pledge Protection Act: First Amendment Violation?
Posted by KipEsquire on
25 September 2004
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