Pledged To Waste

Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

I pledge allegiance, to the Constitution, of the United States of America, and to the principles for which it stands, one government, divided into three co-equal branches, with limited power over each other and us.

The effort stems from the court fight earlier this year when a First Amendment (Establishment Clause) challenge to those words made it all the way to the United States Supreme Court before being rejected on technical grounds. Apparently, the fact that the courts ultimately upheld the Pledge as written isn't good enough for some in Congress, who, having failed to balance the budget or fix the economy or help solve the problems in Iraq or bring more health care to more people, have decided instead that the real enemies in the country now are "runaway federal judges" (Rep. Tom Delay, R-Texas), a/k/a/ "rogue judges" (Rep. Steve Chabot, R-Ohio).

The measure almost certainly will not pass in the Senate, where cooler heads typically prevail when it comes to low-calorie legislation like this. But even if, by some miracle, a majority of Senators drink the same Kool-Aid they now are passing around the House, the third branch of government won't take this blatant power grab lying down. Congress can legally and constitutionally tinker with federal jurisdiction in certain specific ways. And it has before. But it has been crystal clear law for over 200 years now that the legislative branch cannot preclude the judicial branch from ultimately and finally resolving constitutional issues that affect individual rights, liberties and protections.

So the House Leadership can bleat all it wants about "runaway" judges but the framers of the Constitution — whom, I shouldn't have to remind you, were by and large a far finer lot than the current crop of political leaders — purposely and expressly set up a system whereby the federal judiciary would not be beholden to public whim and caprice (i.e. legislative power grabs in the name of the "majority"). I can understand why the current crop of politicians doesn't like those rules. But in this case the rules themselves are far more important than the outcome of the game.

You don't need to be a law professor to understand why the House measure violates the separation of powers principles in the Constitution. If Congress can tell the federal courts that they have no power to decide a first amendment issue relating to the Pledge of Allegiance, what is to stop Congress next from declaring that the federal courts, including the United States Supreme Court, have no power to decide a fourth amendment case about searches and seizures, or a second amendment case about guns, or a sixth amendment case about fair trial rights?

The federal Constitution trumps federal statutes. It trumps state constitutions. And it obviously trumps a ditty like the Pledge, which, beloved though it is, has no force of law. The framework of the Constitution would be rendered meaningless if Congress could preclude the courts from having the final say on when governmental action vitiates individual rights and liberties. It would be rendered meaningless if the legislative branch could place the Pledge of Allegiance — or anything else — above constitutional review. We don't have a Gospel in public life in America but if we did it would be the Constitution, not the Pledge. To exalt the latter over the former turns our law and our history on its head.

No, you don't need to be a legal scholar to understand these fundamental principles. But if you are a law professor, if you are one of the preeminent constitutional scholars in the country, like Harvard University Law School Professor Laurence H. Tribe, you see the House measure as "jurisdictional gerrymandering ... a crude attempt to poke a black hole through the fabric" of the Supreme Court's appellate jurisdiction. Professor Tribe says that the "grandstanding on the Pledge, when the House must know that the Court, with the participation this time of Justice [Antonin] Scalia, would almost certainly uphold the inclusion of 'under God' in the Pledge, even as recited in official public school ceremonies, doesn't reflect well on Congress as a serious lawmaking body in a nation beset with real problems."

Real problems. That's what is truly mind-blowing about Thursday's vote and the effort behind it. Don't these people have better things to do with their time? How about this? If Congress doesn't want to address and try to resolve the domestic and foreign issues identified above — and why would we expect real solutions to real problems during an election year? — how about they spend their time between now and their next long break coming up with legislation that helps the executive branch fight the war on terror?

How about more statutory guidance in the area of military tribunals so the administration doesn't have to eat crow as it has in the Guantanamo Bay cases in recent weeks? How about more legislative rules for the detention of "enemy combatants" so the administration won't ever again have to be humiliated as it was this week when it had to free Yaser Esam Hamdi, the fellow we once were told was too dangerous to be tried in a regular court? How about preparing for the upcoming battle over the renewal of the USA Patriot Act?

This isn't just "busy" work. It's real and practical work that our legislators ought to be focusing upon instead of resorting to a cheap, shallow, and empty trick like pretending that the Pledge of Allegiance — written in 1892 and amended in the 1950s — all of a sudden has become more importance than the Constitution. You want something to pledge allegiance to? Pledge allegiance to the idea of "checks and balances" and the good and great reasons why the greatest minds of their generation placed them into the Constitution.

By Andrew Cohen