Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I really hate to be an ``I told you so,'' but when, in 2003, we considered legislation to strip the Federal courts of jurisdiction, in that case to hear cases challenging the Defense of Marriage Act, I warned that there would be no end to it.
In fact, when we first marked up this bill, I asked my friend, the chairman of the Constitution Subcommittee, whether there would be other court-stripping bills. He assured me that this and the marriage court-stripping bill were the only ones ``so far.'' As we know, he was being, as always, truthful.
Our former colleague Bob Barr, the author of the Defense of Marriage Act, whose legislation Congress was purporting to protect in that case, said, no thanks.
Bob Barr was right. Today it is the turn of the religious minorities.
Once upon a time in this country a student could be expelled from school for refusing to cite the Pledge because it was against his or her religion. In 1943, the Supreme Court in West Virginia Board of Education v. Barnette held that children, in that case Jehovah's Witnesses, had a first amendment right not to be compelled to swear an oath or recite a pledge in violation of their religious beliefs.
This legislation would, of course, strip those families of the right to go to court and to defend their religious liberty. Schools would be able to expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces.
As dangerous as this legislation is, even for an election season, it is part of a more general attack on our system of government which includes an independent judiciary whose job it is to interpret the Constitution even if those decisions are unpopular. It is their job to protect individual rights, even if the exercise of those rights in given instances are unpopular.
Sometimes we do not like what the court says. I don't like that the Supreme Court struck down part of the Violence Against Women Act, or that they struck down part of the Gun Free Safe Schools Zones Act, or that they are misapplying, in my opinion, the commerce clause and the 11th amendment in order to gut some of our civil rights laws. I really didn't like it that Republican-appointed justices traversed, perverted justice in order to put someone in the White House who got more than half a million votes less than the other candidate who really won the election.
I don't hear my colleagues on the other side screaming about judicial activism by unelected judges in these cases.
As wrong as I believe the current Supreme Court to be on many issues, I understand that we
cannot maintain our system of government and especially our Bill of Rights if the independent judiciary cannot enforce those rights, even if the majority doesn't like it.
Again, I will refer to the Soviet Stalinist Constitution of 1936, which had many rights in it, freedom of speech, freedom of association, freedom of the press, freedom of religious and antireligious propaganda, as they quaintly put it. But, of course, it wasn't worth the paper it was written on because they had no judicial enforcement of it, and if you tried to bring a lawsuit to enforce your right, they shot you before they brought you to court. Any constitutional right without the ability to enforce it in court is no right.
This House appears infected with hostility toward the rule of law. This bill is a perfect example. Even more egregious is the way it has reached the floor. The Judiciary Committee twice voted against reporting this bill to the House. The ``no'' vote was bipartisan. Now the Republican majority is abusing its power to bring it to the floor anyway.
Neither the Parliamentarian nor the Congressional Research Service has been able to find any other case like this. They report, ``We found one instance of a bill, a joint resolution, between the 100th Congress and the current Congress, in which a committee specifically voted not to report a measure that was later considered by the House.'' That measure was a 1996 agriculture bill that was rejected in committee and later folded into a reconciliation bill.
Now the Republican majority exceeds even that arrogance. We are asked to vote on a bill that guts our system of government and guts the protection of our individual rights when the committee tasked with the consideration of this bill rejected it. It must be an election year.
To return to Justice Jackson and the flag salute case, he observed that, and I quote because it is very apposite here, ``The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.''
But now some would strip the courts of any ability to protect these individual rights against a temporarily intolerant majority.
As to the complaints about unelected judges, I would refer my colleagues back to their high school civics textbooks. We have an independent judiciary precisely to rule against the wishes of the majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one and we should protect it.
As Alexander Hamilton said in Federalist Number 78, ``The complete independence of the court of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.''
Where would this bill leave religious liberty? The Republicans tell us State courts can protect those rights. What would this mean? It would mean that your rights might be protected in one State, but not in another. I thought the 14th amendment to our Constitution settled that issue.
One of the reasons we have a Supreme Court is so that the Federal Constitution means the same thing in New York as in California or Mississippi or Minnesota. This country must be one country, not 50 separate countries.
We are really playing with fire here. Do you really hate unpopular religious minorities so much that you are willing to destroy the first amendment? I urge my conservative colleagues especially to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities, even if the majority hates them or hates the expression of their opinion.
If someone doesn't want to recite the Pledge of Allegiance or doesn't feel conscientiously able to recite the words ``under God,'' that is their privilege. Our Constitution protects it, our civil liberties protect it, this country should protect it, and I urge the defeat of this bill.
Mr. Chairman, I reserve the balance of my time.