Waiting for the Next Wave

It may be illegal for school children to say the Pledge of Allegiance to the Flag of the United States of America, Rep. Todd Akin, R-MO, dreads.

Akin fears what he calls activist judges and their ability to legislate what the American people don’t want. He spoke to the 13th Eagle Forum Collegians Annual Leadership Summit about two bills he supports designed to rein in activist judges who legislate from the bench.

The Pledge Protection Act of 2005 received a 247-173 House vote in 2005, but died in the Senate. In reaction to a 2003 decision by the 9th U.S. Court of Appeals in San Francisco, Akin introduced the bill to protect the phrase “under God” in the Pledge. The appeals court ruled in favor of atheist activist Michael Newdow and declared it unconstitutional for children in public schools to recite the Pledge.

Akin said that a foundational principle of the government is to secure the God-given rights granted to human beings. He said that throughout the history of America, God has always been tied into everyday life.

“We wanted to keep it simple, very American apple pie,” Akin said. “With elections coming up again you can imagine the picture of the police hauling a little Boy Scout away because he said the Pledge. So you can see where we can have some fun with that.”

This bill would keep the courts from ruling on issues involving the Pledge by using Article III, Section 2 of the Constitution which outlines one of the legislative branches checks on the judicial branch. Article III, Section 2 states “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.”

Akin said law schools don’t teach about that clause any more and so it’s being forgotten and passed over. But as a check on the courts, he will not hesitate to set their jurisdiction when American freedom is concerned.

“We can say to the federal courts, ‘You can hear this kind of case, but you can’t hear that kind of case,’” he said. “We can’t tell a judge how he or she is going to rule on something, but we can tell the courts, ‘You can’t rule on it at all, period. You don’t have jurisdiction to hear it.’”

As another check on the judicial system, Akin’s second bill, the Judicial Conduct Act (JCA) would serve as a reminder of Congress’ power to impeach judges. Twelve of 16 federal official impeachments have been judges, so the bill would restate the precedents from those cases and combine them with constitutional text. Serving as a reminder of this power over the judiciary, Congress would not have to impeach a single judge. It would serve as notice to stop legislating from the bench and to leave law-making to Congress.

Akin said the practice needs to stop, but the bill is lying in wait for support. He easily rallied support for the Pledge bill by enlisting the likes of House Judiciary Committee Chair James Sensenbrenner, R-WI, and 200 other congressmen.

“Politics is a lot like surfing,” Akin said. “You’ve got to have your surfboard ready to go and catch the wave when it comes along. So right now we are waiting for the right wave to come by.”

Trevor Hayes is an intern with Accuracy in Media, Accuracy in Academia’s parent group. He can be contacted at trevor.hayes@aim.org.