F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. I yield to the gentleman from Virginia.

Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, I agree with the comments made by the gentleman from Virginia (Mr. Scott). Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I claim the time in opposition.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the reason that this amendment does not include the local courts in Puerto Rico and the territories is that those courts are not created by Act of Congress, so residents of Puerto Rico and the territories will be able to file suits regarding the Pledge in the courts that have been created by their respective legislatures pursuant to the organic Act that Congress has previously passed.

Mr. SENSENBRENNER. Mr. Chairman, on September 17, 1937, President Franklin D. Roosevelt gave a Constitution day address, and in that speech President Roosevelt said in part, ``Lay rank and file can take cheer from the historic fact that every effort to construe the Constitution as a lawyer's contract rather than a layman's charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way.'' This was a statement that was made by what is conceded on both sides of the aisle as the greatest Democratic President in the history of this country. In the last Congress, both the House and the Senate passed and the President signed public law 107-206. Section 706(j) of that law says, ``Any action authorized by this section shall not be subject to judicial review by any court of the United States.'' Now, where were all of the Members who are complaining about this bill when that legislation came up, because it took away the right of the Federal courts to review legal issues relating to trees in South Dakota. If Congress can deny all the Federal courts the authority to hear a class of cases to protect trees, it certainly can do so to protect the States' policy regarding the Pledge of Allegiance. That is why this bill ought to be passed.

Mr. SENSENBRENNER. Mr. Chairman, on the point of order, the gentleman from Florida was referencing a provision in a conference report that was adopted by this body as well as by the other body and became law.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.

Mr. SENSENBRENNER. Mr. Chairman, I yield 5 minutes to the gentleman from Missouri (Mr. Akin), the author of the bill.

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman from New Jersey (Mr. Garrett).

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman from Ohio (Mr. Chabot), chairman of the Subcommittee on the Constitution.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the Pledge of Allegiance reads: ``I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stand, one Nation, under God, indivisible, with liberty and justice for all.'' Two words in the Pledge, ``under God,'' help define our national heritage as beneficiaries of a Constitution sent to the States for ratification, as the Constitution itself states, ``in the Year of our Lord,'' 1787, by a founding generation that saw itself guided by a providential God. Those two words, and their entirely proper presence in the system of government defined by our Constitution, have been repeatedly and overwhelmingly reaffirmed by the House of Representatives, most recently twice in the 107th Congress, by votes of 416 to 3 and 401 to 5, and in this Congress by a vote of 400 to 7. The first Congress not only acknowledged a proper role for religion in public life, but it did so at the very time it drafted the Establishment Clause of the first amendment. Just three days before Congress sent the text of the first amendment to the States for ratification, it authorized the appointment of legislative chaplains. And on November 28, 1863, President Abraham Lincoln delivered the Gettysburg Address and declared, in words now inscribed in one of our most beloved national monuments, ``we here highly resolve that these dead shall not have died in vain, that this Nation, under God, shall have a new birth of freedom.'' Although the United States Supreme Court recently reversed and remanded the Ninth Circuit's latest holding striking down the Pledge as unconstitutional, the Supreme Court did so on the questionable grounds that the plaintiff lacked the legal standing to bring the case. The Supreme Court's decision not to reach the merits of the case is apparently an effort to forestall a decision adverse to the Pledge since the dissenting Justices concluded that the Court in its decision, ``erected a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim.'' That does not bode well for the Pledge of Allegiance. To protect the Pledge from Federal court decisions that would have the effect of invalidating the Pledge across several States, or nationwide, H.R. 2028 will preserve to State courts the authority to decide whether the Pledge is valid within that State's boundaries. It will place final authority or a State's pledge policy in the hands of the States themselves. H.R. 2028 as reported by the Committee on the Judiciary is identical to H.R. 3313, the Marriage Protection Act, which the House passed just prior to the August recess except that it addresses the Pledge rather than the Defense of Marriage Act. If different States come to different decisions regarding the constitutionality of the Pledge, the effects of such decisions will be felt only within those States. A few Federal judges sitting hundreds of miles away from your State will not be able to rewrite your State's Pledge policy. A remedy to abuses by Federal judges has long been understood to lie, among other places, in Congress's authority to limit Federal court jurisdiction. The Constitution clearly provides that the lower Federal courts are entirely creatures of Congress as much as appellate jurisdiction of the Supreme Court excluding its only very limited, constitutional, original jurisdiction over cases involving ambassadors and cases in which the States have legal claims against each other. As a leading treatise on Federal court jurisdiction has pointed out, ``Beginning with the first Judiciary Act in 1789, Congress has never vested the Federal courts with the entire `judicial Power' that would be permitted under Article III'' of the Constitution. Justice William Brennan, no conservative by record, writing for the Supreme Court said, ``virtually all matters that might be heard in Article III Federal courts could also be left by Congress to the State courts.'' As the Dean of Stanford Law School wrote recently, ``The Constitution leaves room for countless political responses to an overly assertive Court: Congress can strip it of jurisdiction. The means are available and they have been used to great effect when necessary, used we should note, not by disreputable or failed leaders, but by some of the most admired Presidents and Congresses in American history.'' Far from violating the separation of powers legislation that leaves State courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very checks and balances provided in the Constitution. Integral to the American constitutional system is each branch of government's responsibility to use its powers to prevent overreaching by the other two branches. H.R. 2028, which has 226 co- sponsors, does just that, and I urge my colleagues to join me in supporting it. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself 30 seconds. Mr. Chairman, I beg to disagree with the gentlewoman from Texas (Ms. Jackson-Lee). It was not the Supreme Court that gave her and her ancestors their freedom; it was the 600,000 people who died during the Civil War that did that and allowed the Congress to pass three constitutional amendments which guaranteed freedom for former slaves and their descendants. Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Stearns). (Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Chairman, I yield 4 minutes to the gentleman from Indiana (Mr. Pence), a member of the Committee on the Judiciary. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman from Virginia (Mr. Forbes), a member of the Committee on the Judiciary.

Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman from Tennessee (Mr. Duncan).

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment is simple. Currently the bill prevents Federal courts, including courts created by an act of Congress, from striking down ``under God'' in the Pledge, while reserving to the State courts the authority to hear cases involving the Pledge. The District of Columbia, however, due to its unique constitutional position, does not have State courts. Instead, its courts that are the equivalent of State courts are created by an act of Congress. So, to preserve a judicial forum for District residents regarding challenges to the Pledge, this amendment simply adds the following section to the bill: ``The limitation in this section shall not apply to the Superior Court of the District of Columbia or the District of Columbia Court of Appeals.'' This sentence preserves the authority of the District's courts to hear cases involving the Pledge. I urge its adoption. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment was defeated in committee, and it should be defeated here today because it guts the bill. First, nothing in H.R. 2028 would allow State courts to deviate from Supreme Court precedent prohibiting the coerced recitation of the Pledge of Allegiance. Even when Federal courts are denied jurisdiction to hear certain classes of cases, and those classes of cases are thereby reserved to the State courts, the previously existing Supreme Court precedents still govern State court determinations. This is required by the Supremacy Clause of the Constitution; and in West Virginia Board of Education v. Barnette, the Supreme Court held it is unconstitutional to require individuals to salute the flag. In that case, the Supreme Court held, ``If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'' Under H.R. 2028 as written, that decision will preclude State courts from allowing coerced recitations of the Pledge. State courts are not second-class courts, and they are equally capable of deciding Federal constitutional questions. The Supreme Court has clearly rejected claims that State courts are less competent to decide Federal constitutional issues than Federal courts. Even Justice William Brennan wrote in Northern Pipeline Construction Company v. Marathon Pipe Line Company that ``virtually all matters that might be heard in article III courts could also be left by Congress to State courts.'' Justice Brennan was joined in that decision by Justices Marshall, Blackmun, and Stevens. Now what, then, could be the harm of adopting this amendment? Plenty. If we carve out an exception for cases in which coercion, for example, is involved, we will open the flood gates to expansive interpretations by the Federal courts that will gut the purpose of the bill. Carving out a coercion exemption will invite the Federal courts, including the very liberal Ninth Circuit Court of Appeals, to hold that excessive coercion exists to pressure a student to recite the Pledge simply when a majority of school children choose to recite it, but one or a few students do not want to. The inevitable claim will be that in the school environment, there is no such thing as free will whenever the majority of students are reciting the Pledge, because those that do not want to recite it will feel pressured to recite it simply because other students are reciting it. Yet again, the courts will strike a blow to the concept of free will and the concept of personal responsibility if we let them. The amendment should be defeated. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the time. Mr. Chairman, I will just repeat myself. The issue is settled law. There cannot be a coerced or forced recitation of the Pledge. This bill does not change that. The amendment allows the courts to determine what coercion shall be. That has far-reaching consequences. I think that the best vote to prevent unintended consequences from occurring is ``no'' on this amendment. I urge that it be defeated.

Mr. SENSENBRENNER. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 2028.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 3632) to prevent and punish counterfeiting of copyrighted copies and phonorecords, and for other purposes, as amended.