ouse Majority Leader Tom DeLay has announced plans to remove the federal courts' jurisdiction to rule on the constitutionality of the words "under God" in the Pledge of Allegiance.

   "Congress for so long has been lax in standing up for the Constitution," the Texas Republican told reporters last week. "There are ways to express ourselves. For instance, we could limit the jurisdiction of the judicial branch."

   DeLay said that under interpretation of Article III, Section 2 of the U.S.Constitution, Congress would presumably have the power to go as far as impeaching judges.

   "I think that would be a very good idea to send a message to the judiciary they ought to keep their hands off the Pledge of Allegiance," DeLay blustered.

   DeLay has long complained of "judicial activism" by federal judges when they render findings contrary to his ideological bias. His latest threat to intimidate the judicial system was prompted by a decision from the full Ninth U.S. Circuit Court of Appeals to not hear a review on an earlier 2-1 ruling from last June which found that the phrase "under God" in the Pledge of Allegiance was an impermissible endorsement of religion. California Atheist Michael Newdow had challenged the practice, saying that his eight-year-old daughter should not be compelled to participate in the recitation conducted each morning in her public schools.

   Writing for the majority, Justice Alfred T. Goodwin opined that the inclusion of 'under God' -- a phrase which did not appear in the original Pledge of Allegiance -- was a religious endorsement of monotheistic belief.

   The latest Ninth Circuit ruling fine-tuned the earlier decision, and stopped short of declaring the 1954 law, which ordered the words 'under God' included in the pledge to be unconstitutional. Instead, the court majority declared:

"The statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of religious belief, namely, a belief in monotheism."

   But DeLay promises to press forward with whatever it takes to overturn the Ninth Circuit decision, and continue forcing youngsters and other members of the public to recite a religionized Pledge of Allegiance. Entertaining a congressional resolution or constitutional amendment falls short of DeLay's actual goal of reigning in what he sees as "activist" judges. Citing the stay of the decision, DeLay told reporters, "This won't deter us from moving forward in trying to deal with the situation, and Congress ought to have something to say about this."

   There are early indications that some Republicans may join DeLay's crusade.

   Rep. Steve Chabot (R-Ohio), a religious right stalwart, says that the Supreme Court is likely to overturn the Newdow pledge decision. But if the court does not hear the case and rule against the Ninth Circuit, Congress could pass a constitutional amendment immunizing the Pledge from further judicial scrutiny, or try to limit the power of the judiciary.

   "I hope that it's not necessary to amend the Constitution," said Chabot.

   So far, Congress is solidly behind the "God Pledge." The Senate voted last week 94-0 to retain the present wording, and ordered Senate attorneys to intervene in the case and file an amicus brief in support of the pledge. Last summer when the ruling by the Ninth Circuit was made, the House of Representatives voted 416-3 with only 11 others voting "present" to oppose the finding. Lawmakers have also been threatening to split the Ninth Circuit for what the Washington Times described as "punishment for rulings like the Pledge."

   But DeLay's call to muzzle the judiciary system could precipitate a constitutional crisis which has played out ever since the founding of the Republic. The DeLay strategy would attempt to hijack Article III, specifically Clause 2 and Clause 3 (dealing with treason), and use it as a club against judges and judicial opinions DeLay finds offensive.

   One action which DeLay has long threatened to use is impeachment as a "cure for judicial activism." On several occasions during the late 1990s when he served as Majority Whip, Delay implored fellow lawmakers to use impeachment, and conveniently defined the offense as "whatever a majority of the House of Representatives consider it to be." Critics termed the suggestion "callous" and a "passing fantasy."

   DeLay's outburst at the Congressional Well was prompted by a relatively obscure case, UNITED STATES v. BAYLESS. U.S. Judge Harold Baer of New York's Southern District ruled that two police officers had acted improperly during the arrest of an alleged drug peddler. Drugs seized by the officers were thus deemed inadmissible.

   On Capitol Hill, more than two hundred lawmakers condemned the ruling. GOP presidential candidate Bob Dole called for Baer's impeachment, and even low level officials at the Clinton White House mulled pressuring the federal judge to resign if he did not reverse his unpopular ruling. DeLay joined the uproar, excoriating "rogue judges."

   In 1997, DeLay told reporters, "The judges need to be intimidated." He also introduced legislation designed to impose term limits on federal judges and even restrict their purview in cases involving the death penalty and voter referendums. He also released a laundry list of judges he was targeting for their decisions.

   "You have to have a good candidate for impeachment in order to make it stick," DeLay told the Washington post. "We are doing a lot of research on judges' records to see what kinds of attitudes they have."

   Critics says that DeLay's attempts to intimidate judges compromises the ability of courts to make decisions free of outside influence. They also point out that the notion of judicial independence is a key component in the American legal system, and originated within English law during the Seventeenth Century as a way of challenging undisputed Crown authority.

   DeLay has also been criticized for trying to foster an "improper form of influence by one government branch over another," according to the American Bar Association. Several constitutional scholars have spoken out, describing the impeachment strategy as "bizarre" and legally unsupportable. Incredibly, DeLay has maintained his position, and even told one reporter, "It is my opinion that anybody can be impeached for anything "(Chronicle, 1/30/98).

   For Delay and his supporters, the real threat of so-called "judicial activism" involves alleged attacks on religious freedom. Many social and religious conservatives argue that the phrase "separation of church and state" is not found in the Constitution or Bill of Rights. They also agree with Supreme Court Chief Justice William Rehnquist, who in the WALLACE v. JAFFREE dissent opined:

"The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build (a) 'wall of separation' ..."

   The argument has attained new status, especially since many federal court decisions are not widely popular. Unconstitutional activities such as prayer or Bible verse recitation in public schools, display of religious documents on government buildings or the recitation of 'under God' in the Pledge of Allegiance are often portrayed in a positive light as example of wholesome religious virtues. In the latest NEWDOW case, justices supporting a re-hearing or reversal of the original ruling even suggested that public opinion, reaction from government and clerical leaders, and the unpopularity of the decision required an automatic appeal.

   Judge Diarmuid O'Scannlain, who insisted that the recitation of the Pledge "cannot possibly be an 'establishment of religion' under any reasonable interpretation of the constitution," argued that public sentiment supported rehearing.

   "We may not -- we must not -- allow public sentiment or outcry to guide our decisions," countered Judge Stephen Reinhardt. "The Bill of Rights if, of course, intended to protect the rights of those in the minority against the temporary passions of a majority."

   DeLay and other critics of "judicial activism" disagree, and object to practices such as life tenure for those on the federal bench. Indeed, he supports the state model where about 87% of judges face popular election, thus rendering them more vulnerable to having their decisional freedom constrained by majority outcry. At a 1998 American Bar Association seminar on judicial independence, Georgetown University law professor Roy Schotland warned, "The greatest threat is in the increasing politicalization of judicial elections."

   Abner Mikva, a former congressman and federal judge concurred, noting that election of judges to the bench has become "nastier, noisier and costlier." He added the judges "need a new way to communicate to the people (and) show why judicial independence is good for them."

   In the meantime, DeLay and his allies continue to threaten the judicial system for handing down unpopular decision, and especially those rulings which protect the separation of church and state. The Majority Whip speaks for many on the Hill with his opinion that government needs to become more pro-active in legislating public religiosity, and even subsidizing faith-based groups.

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