jurisdiction over those cases. Establishment Clause cases are not among those over which the Supreme Court has original jurisdiction. Because the lower federal courts are creatures of statute according to the Constitution,36 the result is that Congress possesses the authority to deprive both the Supreme Court and lower federal courts of cases implicating the public acknowledgment of God.

39

37

That the Constitution grants Congress plenary power to regulate the jurisdiction of the federal courts is, by far, the view accepted by most constitutional law scholars. 38 While a handful of scholars have taken issue with this reading of the Constitution,** these alternative views have been widely criticized as illogical and policy-driven rather than being faithful to the constitutional text. Moreover, the Supreme Court has approved congressional regulation of the federal courts' jurisdiction based on the Constitution's text since at least 1799, and Congress has employed this power recently in a number of legislative enactments, including as recently as last year. Certainly a large number of those in Congress, and at least 13 members of this subcommittee, believe that it possesses this power as they have recently supported bills calling for removing the federal courts' jurisdiction in the areas of marriage" and the Pledge of Allegiance." Thus, there can be no doubt of Congress's power to regulate the jurisdiction of the federal courts in the fashion proposed by the CRA.

40

42

Not only is preventing the federal courts from hearing cases concerning the public acknowledgment of God authorized under the Constitution, it is also the principled thing to do. As I have already explained, there have been numerous examples of acknowledgements of God throughout the history of our nation that, until the modern Supreme Court took them under consideration, were never considered to be violations of the First Amendment. No one's right to worship (or not worship) God according to the dictates of his conscience is infringed through public acknowledgments of God.43 No one is forced to believe in God because of the words in the Pledge; no one is forced to become a Christian or a Jew because the Ten Commandments are displayed in a government building; no member of this body is forced to join in when the chaplain of

36 See U.S. Const., Art. I, § 8, cl. 9; Art. III, § 1.

37 Appendix A: "Select Bibliography on the Constitutional Restoration Act" (hereinafter “Appendix A”), part I-A.

38 See "Appendix A," part I-B.

39 See "Appendix A," part I-C.

40

See Appendix B: "A Brief History of Congressional Regulation of the Federal Courts' Jurisdiction" (hereinafter "Appendix B"). Some of the information in Appendix B may be found in William E. Dannemeyer, Article III, Section 2, THE WASHINGTON TIMES, Oct. 7, 2003, available at http://www.washtimes.com/op-ed/20031006-085845-5892r.htm.

41

The Marriage Protection Act of 2004 (H.R. 3313), which prohibits federal courts from hearing certain types of marriage cases as well as any challenge to the Defense of Marriage Act of 1996 (DOMA), passed the House of Representatives by a vote of 233 to 194 this year. The MPA has 48 co-sponsors, including three members of this subcommittee: Representatives J. Randy Forbes, William Jenkins, and Mike Pence. Subcommittee members Mark Green, Melissa Hart, and Rick Boucher also voted for the MPA.

42

The Pledge Protection Act (H.R. 2028) proposes to deprive the federal courts of jurisdiction over cases challenging the phrase “Under God" in the Pledge of Allegiance. The PPA has 224 co-sponsors, including ten members of this subcommittee: Representatives Spencer Bachus, John Carter, J. Randy Forbes, Elton Gallegly, Bob Goodlatte, Henry Hyde, William Jenkins, Ric Keller, Mike Pence, and Lamar Smith.

43 See James Madison, Memorial and Remonstrance Against Religious Assessments, (June 20, 1785) in 5 The Founders Constitution 82 (P. Kurland & R. Lerner eds. 1987).

the House of Representatives, Rev. Daniel P. Coughlin, offers a prayer before a legislative session of Congress. Public acknowledgments of God profess God's role in the past and present development of our country, recognizing the first principle upon which this nation was founded: liberty under law, God's law. They do not violate the conscience of any individual and thus removal of jurisdiction from the federal courts to decide cases concerning such acknowledgments renders no legal harm to any individual. Moreover, cases concerning actual violations of the Establishment Clause may still be heard in the federal courts and cases involving the acknowledgment of God may still be reviewed in the state court systems, so the CRA does not foreclose an individual's right to legal redress of an actual harm.

Even though the action proposed in the CRA is constitutional and principled, some still question whether it is necessary. To answer, one need only look to the number of actual and threatened lawsuits occurring each year concerning "religious" displays and practices in the public square. This past year alone we have seen challenges to the Pledge,* the decisions of the City of Redlands and of Los Angeles County in California to remove depictions of crosses from their seals because of the threat of a lawsuit from the ACLU, the filing of a lawsuit to remove the display of a Bible in front of a courthouse, a principal whose job is in jeopardy for speaking out about God, and, of course, several more cases involving displays of the Ten Commandments." There can be no doubt that as long as the federal courts continue to entertain complaints from “special interest litigators who are professionally hostile toward religion" 4 such as the ACLU and Americans United for Separation of Church and State, the right to publicly acknowledge God will continue to be in jeopardy.

45

B) The Supreme Law of the Land

,,48

47

46

Article VI of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in pursuance thereof ... shall be the supreme Law

44 Elk Grove Unified School Dist. v. Newdow, 124 S. Ct. 2301 (2004).

45 See Staley v. Harris County, F Supp. 2d ___, ____(S.D. Tex. Aug. 10, 2004).

46 Boca Raton, Florida principal Geoff McKee is taking heat for speaking about God in at least three staff meetings and for attempting to start a Bible study at school. See Lois K. Solomon, Boca principal under fire for making references to God, THE SUN-SENTINEL, August 25, 2004, available at http://www.sunsentinel.com/news/local/palmbeach/sfl-pmckee25aug25,0,236086,print.story?coll=sfla-news-palm.

4?

For example, there is a movement in Boise, Idaho to return a Ten Commandments monument the city recently removed from its public park. See Brad Hem, Boise mayor says no to election on monument: Coalition moves forward with petition, says it might sue for public vote, THE IDAHO Statesman, June 23, 2004, available at http://www.idahostatesman.com/apps/pbcs.dll/article?AID=/20040623/NEWS01/ 406230331. City officials in Everett, Washington are fighting against Americans United for Separation of Church and State to keep a Ten Commandments monument on city property. In a sign of the times, officials turned down an offer of free legal representation from a Christian organization because they did not want the defense to appear to be too religious. See David Olson, Everett turns down help with monument fight, THE HERALD, June 11, 2004, available at http://www.heraldnet.com/stories/04/06/11/ loc_monument001.cfm. The borough of Hanover, Pennsylvania is also fighting Americans United to keep a Ten Commandments monument located in its public park. See Julie Sheldon, Group helping to keep memorial: Ilanover association gives $1,000 for fight to keep Ten Commandments monument, Evi‹NING SUN, June 10, 2004, available at http://www/eveningsun.com/cda/article/print/0,1674,140%7E9956% 7E2204951,00.html.

+49

of the Land,' and it requires that all “judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution.50 Thus, the Constitution is the governing law and federal judges are required to rule in accordance with it because it is from the Constitution that federal judges derive their authority. Unfortunately, federal judges, even some of those on the United States Supreme Court, appear to be forgetting that oath as they have increasingly begun to look to international law-rather than the text of the Constitution for guidance in their decision-making. This trend began in Atkins v. Virginia11 in which the Court struck down state laws applying the death penalty to convicted murderers who are mentally retarded, and the trend continued in Grutter v. Bollinger2 in which the Court concluded that student body diversity is a compelling state interest that can justify using race as a factor in university admissions without violating the Equal Protection Clause of the Fourteenth Amendment.

53

However, the reality that the Court is starting to substitute rulings of international law in place of the authority of the U.S. Constitution is best demonstrated in Lawrence v. Texas in which the Court struck down state laws criminalizing homosexual sodomy, Over fifteen years before Lawrence, the Supreme Court declared in Bowers v. Hardwick that the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. In Lawrence, the Court boldly proclaimed that “[homosexuals'] right to liberty under the Due Process Clause gives them the full right to engage in [sodomy] without intervention of the government. In overruling Bowers, the Court stated:

55

9556

"To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest_in circumscribing personal choice is somehow more legitimate or urgent.' Thus, the United States Supreme Court relied in part on foreign law to declare several states' laws unconstitutional even though in 1986 it declared that such laws did not violate the Constitution.

157

Such reliance on foreign law for constitutional decision-making directly contradicts Article VI's declaration that the Constitution is the supreme law of the land and it is a manifest breach of the judicial oath of office. So, as a secondary but related

58

measure, the CRA prohibits federal courts from relying upon any source of foreign law other than the common law of England in interpreting the United States Constitution. Violation of this provision by a federal judge is an impeachable offense. The problems attendant with applying international law in our judicial decisions range from those of legitimacy to the failure to take cultural differences into account, but the specter of using foreign law to warp our fundamental principles, such as religious freedom, makes passing of the CRA all the more imperative. One need only look at France, where earlier this year all religious articles and symbols were banned in its state schools, to see the dangers attendant with following international precedents. France, like several of its European counterparts, is already a highly secularized society devoid of almost any references to God or even religion in general. We also appear headed down such a path, but reliance upon foreign law as authority for constitutional decisions would only serve to speed up that journey toward destruction. Thus, in a very real way this provision of the CRA also helps protect the right to publicly acknowledge God that holds such a vital place in this nation's history and continued survival.

III. Conclusion

I have attempted here to provide an adequate explanation of why the CRA is constitutionally permissible, practically viable, and socially vital for the protection of our right to publicly acknowledge God. The CRA would cover not only the issue of the Pledge, but also so many other issues that are dealt with by the federal judiciary under the guise of Establishment Clause jurisprudence. The members of this committee should be inspired to support this important piece of legislation and I hope you all will endeavor to convince your fellow Congressmen to do likewise. The bottom line is that CRA will halt the federal courts' distortion of the law of the Constitution in this area. The courts have been given ample opportunities to answer the call for returning to the objective standard of the Constitution as the rule of law for religious expressions in the public square. They have failed and in so doing have shirked their responsibility as expositors of the law. It is therefore up to Congress to make use of its responsibility as the law-making branch. I urge the Congress to answer the call to this responsibility on behalf of the People so that the fundamental right to publicly acknowledge God may be pulled back from the precipice of extinction it has been pushed to by the federal judiciary.

58 Some scholarly critiques of the use of international law by the American judiciary are listed in Appendix 4, part IV.

APPENDIX A: Select Bibliography on the Constitution Restoration Act

1. Congressional Regulation of the Federal Courts: The "traditional view" is that Congress has plenary authority to regulate and even abolish all jurisdiction of the lower federal courts and it has near plenary authority to restrict the jurisdiction of the United States Supreme Court.

A. The traditional view is explained and advocated in several pieces, including:

1. William J. Quirk, The Fourth Choice: Ending the Reign of Activist Judges, Chronicles, June 2004, available at http://www.chroniclesmagazine.org/ Chronicles/June2004/0604Quirk.html.

2. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984).

3. James McClellan, Congressional Retraction of Federal Court Jurisdiction, 27 Vill. L. Rev. XX (1982); McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 511516 (3d ed. 2000).

4. Charles E. Rice, Congress and the Supreme Court's Jurisdiction, 27 Vill. L. Rev. 959 (1982); Rice, Withdrawing Jurisdiction from the Federal Courts, 7 Harv. J. L. & PP. 13 (1984).

5. Ralph A. Rossum, Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court: The Letter and Spirit of the Exceptions Clause, 24 Wm. & Mary L. Rev. 385 (1983).

6. Julian Valasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. L. Rev. 677 (1997).

7. William Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973).

B. The traditional view has been challenged by a group of scholars who wish to ensure the dominance of the Supreme Court in American law:

1. Akil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985).

2. Lawrence Gene Sager, Constitutional Limitations on Congress's Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17 (1981).