Monday, November 17, 2003
Recently, I sat dumbfounded. On C-SPAN, a forum hosted by the Christian Coalition showed Indiana Congressman John Hostettler stating that Congress could mandate what the courts could hear.
Hostettler made the comments in light of Missouri Congressman Todd Akin's 'Pledge Protection Act of 2003' (H.R. 2028), which would restrict lower federal courts on holding hearings or making rulings on the recitation of the Pledge of Allegiance. Hostettler approved of restricting what the court could rule on based on his interpretation of Article III of the U.S. Constitution.
Under Article III, the U.S. Congress could establish a federal judiciary of lower courts under the Supreme Court. Since these courts originate in Congress' power, Hostettler feels that the lower federal courts are subservient to Congress because Congress is like a father to them.
Section 1 of Article III exactly reads "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish."
What Hostettler claims is that it is the right of Congress to restrict what they can rule on. Thus, if Congress did restrict the issues the courts could hear, then Congress would usurp its position by denying the court judicial review. Judicial review is the manner in which the court acts out its "checks and balances" on the other branches of federal government. Following Hostettler's interpretation of Congress ends in unconstitutionality and an unchecked Legislature.
Religion-based view
The reason for this offense comes from Hostettler's religious faith, and that is really the issue. He views recent Supreme Court cases as liberal tyrannous judgments that threaten Christian mores.
What is at issue is not liberal judges. In fact, all judges only interpret the law. There is no "legislating from the bench."
The Christian right does not disclose to the public the actual discourse of law. There are issues at work in interpreting the law that consequently inform judges when deliberating on matters of law. The public is kept out of this discourse. By keeping the public, public influence, political pressure and host of other factors out, judges can reason the law freely without constraints. This is why federal judges serve lifelong terms. They are free to decide matters without worry of re-election. This is also Framers' intent.
For the past 50 years, the American culture has changed. We are a dynamically growing society with a host of groups. The courts have been sensitive to protecting minorities, not the overwhelming majority's religious faith. The fear of any democracy is tyranny of the majority. In light of this fear, the Bill of Rights emerged, and it took a full two centuries to fully realize its scope. This protection of minorities applied to secularizing our institutions from the majority rule. Why should Tibetan Buddhists, who escaped mass slaughter by the Chinese in the 1950s, have their children say a prayer that is not of their faith in school? Prayer in school is just one example of how majority rule infringes upon the rights of others; preferential treatment of certain religious monuments is another.
'Special interest'
Christianity may bless people's hearts. Christianity may illuminate hope where none existed before for some. However, masquerading Christian special interest as a "taking back America" undermines the civic tradition of America. Hostettler is just one example. America provides the space of freedom for people to choose how they want to believe. This freedom to be and believe as one would choose is called America's civic religion. The Courts have just begun to respect this civic religion by protecting the rights of minorities in a post-Chief Justice Earl Warren world. Obviously, by providing so much freedom, our culture warrants the abuse of that freedom, but in no way is that abuse to be controlled by pro-religious leaders of one faith or another, even to the point of suggesting corrective means that are unconstitutional.
XJ. Edward Hackett has a bachelor's of arts in philosophy and political science from Slippery Rock University in Slippery Rock, Pa.