It's a bad bill, but it passed anyway
By The Sentinel, Editorial, September 24, 2004

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In a busy pre-election session of the House of Representatives, Republican lawmakers managed to find some time to waste.

Knowing that the Senate probably wouldn't take the bill up anyway, the House nevertheless went forward debating and passing a bill to prevent federal courts from ever again ruling on whether "under God" should remain in the text of the Pledge of Allegiance.

It's not the "under God" part that troubles us. It's the notion that Congress is entitled to exempt any of its laws from judicial review.

The 1805 Marbury vs. Madison case before the Supreme Court established the precedent of judicial review. Without that principle, there really is no such thing as the "checks and balances" that allow us to scrutinize the work of the three branches of government.

Imagine if there were no judicial review of laws barring religious discrimination, voting suffrage, civil rights or desegregation, to name just a few of the important developments of the past century.

Of course, the bill can only control what happens in federal court. State courts might still hear these cases, and the sponsors of this bill seem quite happy with this because they believe state courts will rule their way on this controversy.

And that's a shabby way to legislate. Individual judges may have their biases one way or another, but courts rule on the law. So if you think an average judge might reasonably take exception to something you've written into a law, maybe that law needs a little more work.

The "under God" controversy turns on the provisions of the First Amendment, which means any argument for or against is by definition the purview of federal courts. If we still haven't managed to solve it through conventional means after all this time, it's highly unlikely this end run around the Constitution will help matters.

Especially if it is never enacted, which appears to be its fate. Apparently its only purpose was to "excite the troops," the voters who are in sympathy with the goals of this legislation. They probably feel a foolish bill like this one won't equally excite the "troops" on the other side to vote against them in November. Guess we'll just have to wait and see.