Elections to the House - and Constitutional Review
by Adam Reed
When the new Constitution of the United states provided for judicial review of "all Cases ... arising under this Constitution," it did something that no such document had ever done before: it gave the ordinary individual American, a person like Rosa Parks, or John Lawrence, or Michael Newdow - and not just elected legislators and officers of the government - a mechanism by which to challenge the constitutionality of any government action affecting that individual's rights. Of all the innovations of the American Constitution, it was this provision that gave the United States a purpose different from any other government that had ever existed on Earth: not merely the embodiment of national sovereignty, or the expression of popular will, but the protection of individual human rights, which the individual American was now entitled to hold firmly against unconstitutional usurpation.
The principle of individual rights, and its corollary, that an ordinary individual American is entitled to judicial review of ANY legislative or executive action that adversely affects his or her individual rights, suffered an extraordinary 247-173 defeat in the House of Representatives on 23 September 2004. H.R.2028, the "Pledge Protection Act of 2003," bars all federal courts, including the Supreme Court, from reviewing cases involving the Pledge of Allegiance. The "Act" is based on a truly bizarre misreading of the second clause of Section 2 of Article III of the US Constitution. That clause reads:
"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."
In the context of the last sentence, it is clear that the "Exceptions" that Congress can make, are to the rule that Supreme Court has only appellate jurisdiction "in all the other Cases." For example, Congress can accelerate the constitutional review of some act by giving the Supreme Court original as well as appellate jurisdiction in a small number of early cases under a new, controversial law. H.R.2028, on the other hand, would read this clause as giving Congress the power to exempt its legislation from all review by the federal courts. This reading directly contradicts the preceding provision that "The judicial Power (of the United States) shall extend to all Cases, in Law and Equity, arising under this Constitution." Since the ordinary individual person cannot initiate constitutional review except through the judiciary, in H.R.2028 the legislature arrogates to itself the power to do anything at all to any individual, as it may please, without constitutional review at all. H.R.2028 clears the way to the death of the principle of individual rights in the operation of our government.
I am neither a politician nor an officer of the government, neither a constitutional scholar nor a lawyer in the courts. I am a teacher of Information Systems in the business college of a large public university, and thus one of the ordinary Americans whose access to constitutional review of government action H.R.2028 cuts off. And I am one American who will never, under any circumstances, vote for a legislator who voted in favor of H.R.2028. And I have a message for my fellow voters: in the coming election, the individual whose rights you save might just be yourself.
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