Akin vows to continue fight for Pledge
By Lee Warren
February 8, 2005
ST, LOUIS – In early January, atheist Michael Newdow filed his latest federal lawsuit, Newdow v. U.S. Congress, in Sacramento, Calif., hoping to have the phrase “under God” in the Pledge of Allegiance outlawed. This was not the first time that Newdow has tried to have the phrase removed from the Pledge.
In June of 2002, Newdow filed a lawsuit claiming that the public school his daughter attends was in violation of the establishment clause of the first amendment because they utter the phrase “under God” when reciting the Pledge of Allegiance. Newdow won his case in federal court, but the U.S. Supreme Court eventually dismissed it because he did not have custody of his daughter and was therefore unable to represent her in the case.
Newdow filed his latest challenge with eight new co-plaintiffs, including parents and students in the public school system. While the U.S. Supreme Court did not initially dismiss Newdow’s first case based upon the constitutionality of the “under God” phrase in the Pledge, Chief Justice William Rehnquist, Justice Sandra Day O’Connor and Justice Clarence Thomas indicated at the time that it is not a violation of the Constitution for public school students to recite the Pledge.
Missouri U.S. Rep. Todd Akin, R-St. Louis, isn’t taking any chances. He introduced the Pledge Protection Act in the last session of Congress designed to stop what he calls “fringe groups” and an “activist judiciary” from outlawing the Pledge in its current form with the phrase “under God” intact.
Akin views Newdow and his co-plaintiffs as one of those fringe groups.
“This is a disturbing effort to stifle the right of the children of our country to echo a commitment to what the Declaration calls, ‘a firm reliance on Divine Providence,’ and must not be allowed to stand,” he said.
Akin sees Newdow’s case as yet another reason to fight against judicial activism.
“The Supreme Court and courts in general have been usurping the role of the legislative branch of government,” Akin said. “They’ve been legislating from the bench and they’ve been inventing various broad sweeping powers or inventing policy that they find intuitively in the Constitution which to any clear-minded person is not there at all.”
When Akin drafted the Pledge Protection Act, he wanted to make sure that an activist judge did not overturn the will of the people, so he considered the many different tools that the Founders gave Congress in the Constitution to rein in an active judiciary.
He said Congress could pass a resolution denouncing judicial activism, but he considers that to be the equivalent of a “BB gun” since resolutions offer only the opinions of Congress, but don’t actually do anything to stop judicial activism. He said that Congress could try to impeach activist judges, but it requires a two-thirds vote of the Senate, which is difficult to obtain. They could try to amend the Constitution, but that would be even more difficult to achieve since it requires both the approval of three-fourths of the States and two-thirds of the Senate.
The tool that seemed most prudent to Akin in making sure that an activist judiciary doesn’t thwart the will of the people regarding the Pledge of Allegiance is Article III, Section 2 of the U.S. Constitution, which says:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Rodney Albert, chairman, Missouri Baptist Convention’s Christian Life Commission, agrees with Akin’s approach to limiting the judiciary in the Pledge Protection Act.
“The Founders had the foresight to protect America from judicial abuse, so they gave the people, Congress, the ultimate authority to determine the scope of the judiciary,” Albert said. “Putting the Pledge off limits is both constitutional and necessary.”
As Akin began the process of trying to sway representatives to support his Pledge Protection Act with Article III, Section 2 of the Constitution embedded as the foundation of the bill, he made a startling discovery.
“Many of them, who are attorneys, were not aware that we could do that,” Akin said. “It was not very well known, and yet it was ironic, because while it was not that well known by Congressmen, it is done all the time by staffers on different bills.
“So part of my work was just an educational job of bringing congressmen up to speed that we had this power. And then secondly, selling the case that that power should be exercised in the case of the Pledge of Allegiance which we finally succeeded in doing with 247 votes—a clear, hammering-strong, majority.”
Even though the legislation passed the House in the last session, it never came up for a vote in the Senate, so the bill died. Akin is set to re-file the Pledge Protection Act in the new session of Congress because he believes that now, more than ever, we need a bill protecting the Pledge of Allegiance.
Jon Eidsmoe, Professor of Law at Thomas Goode Jones School of Law, Montgomery Ala., and former legal consultant to the Ten Commandments Legal Defense Team of former Alabama Chief Justice Roy Moore, is supportive of Akin’s Pledge Protection Act.
“I think Congressman Akin has a good bill and I think it is entirely in line with the Constitution,” Eidsmoe said. “The Constitution clearly says that the Congress can limit the appellate jurisdiction of the Supreme Court. The framers wouldn’t have put that check in the Constitution if they hadn’t intended that it be used from time to time and it certainly isn’t a check that is being over used today. I think it is entirely appropriate in a circumstance like this.”
And in a circumstance like this, Albert finds irony.
“In America, we respect minority views but we do not submit to them,” Albert said. “Michael Newdow has rights because our Founders said ‘all men are endowed by their Creator with certain unalienable rights.’ It’s ironic that he flaunts his rights, given by God, to deny God; and it illustrates the sacred truth of Psalm 14:1 ‘The fool has said in his heart, there is no God.’” (Lee Warren’s singles devotional book, Single Servings, will be available in May from Fleming H. Revell, a division of Baker Book House.)
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