October 30, 2003
The Honorable Jim Kolbe
Arizona Congressional District 8
2266 Rayburn House Office Building
Washington, D.C. 20515-0308
Re: Your Letter Regarding H J Res 4 and HR 2028
Dear Congressman Kolbe:
I thank you for your letter of August 11, 2003, responding to my email letter to you of earlier this year, regarding First Amendment issues. A copy of that letter is enclosed for your convenience and review. This letter is in reply.
I understand your accidental vote in favor of H J Res 4, when you intended to vote against, resulting from a previous distraction by a reporter off the House floor. While I expect that must be somewhat embarrassing for you, I appreciate your honesty about the matter, both in your letter to me as well as in the Congressional Record. Since your vote did not alter the outcome of the vote, I can easily be forgiving of the matter.
What is of great concern to me, however, is the remaining content of that letter (a copy of which is enclosed for your convenience). Following your discussion of the H J Res 4 vote, you go on to spend three paragraphs explaining and describing your position on flag burning and your commitment to the First Amendment, notwithstanding your strong feelings about the matter. I do, of course, agree with that position, it being substantially my own, and the one I expressed in my original correspondence to you. Thus those paragraphs, while not unwelcome in the least of themselves, are essentially a form of preaching to the choir.
My concern is this: following those three paragraphs is the final paragraph of your letter, in which you express your co-sponsorship of HR 2028, entitled the Pledge Protection Act of 2003, which seeks to deny jurisdiction to federal courts any First Amendment questions regarding the constitutionality of the recitation of the Pledge of Allegiance. I do not argue that Congress has the legal and constitutional power to enact such a regulation. However, I must most strongly and forcefully express the foolishness of such an endeavor. Noting that a cursory investigation of the U.S. Code reveals no such regulation has ever before been enacted, I hold such an exercise of power on any matter to be most dangerous, an unbalancing of the principles of separation of powers and of check & balances that our Constitution has put in place such that each branch of government may prevent the tyrannical use of power by another. HR 2028 would allow the Congress to pass a law violating the Constitution, and it would prevent the federal judiciary from voiding that law in consequence. In effect, it substitutes the judgment of the Congress for that of the Supreme Court, placing the former above the Constitution and outside the authority of the latter.
What is this, then, but a back-door method by which to amend
the Constitution? To be sure, the
contents of the Constitution itself will not have changed, and a proposed
legislation may still violate it. But
the power to void that legislation will be non-existent, and the law will
continue to operate as though Constitutional.
This is, at best, a constitutional hypocrisy of the highest order – a
Constitution which declares certain laws to be repugnant to it, but which
nonetheless permits them to be enforced.
Regardless of the legal status of such laws, the primary effect will be to change the First Amendment – which you claimed, in your
letter, to hold in the highest regard.
Furthermore,
enactment of HR 2028 will set a precedent for future legislation by this
method, regardless of previous decision by the Supreme Court to the
contrary. H J Res 4, which you
mentioned your opposition to (notwithstanding your accidental vote), would
become unnecessary; instead of proposing an amendment, simply pass a federal
law prohibiting flag burning – with a provision included that removes the
question from the jurisdiction of the federal courts. Other cases important to contemporary constitutional
jurisprudence – Roe v. Wade,
Gideon v. Wainwright, Miranda v. Arizona, West Virginia v. Barnette, Brown v.
Board of Education, Engel v. Vitale .
. . I could go on – could be reversed by Congress with the stroke of a pen, by
removing the issues from the Court’s jurisdiction. The Constitution would not be altered – but it would become
ineffective.
If, in the opinion of the U.S. Supreme Court, the recitation of the Pledge of Allegiance (as currently worded) violates the First Amendment to the Constitution, it should be halted. In the alternative, the Pledge should be rewritten to remove it from violation.
I do not doubt that, at the time of your introduction of HR 2028, you honestly believed that to be the right thing to do at that time. Overall, your letter has demonstrated a moderation of views and thoughtful consideration not found in the more extreme wing of the Republican party. That extreme wing, however, would seize upon the passage of HR 2028, should that occur, and engage in more such legislation in the future, to the effect I pointed out above. Therefore I request that you now exercise that moderation and thoughtful consideration, and urge you in the strongest possible terms to seriously reconsider your position on this bill. Remove yourself from co-sponsorship of HR 2028, and explain to the House of Representatives why you so choose. Continue to support the Constitution of the United States of America, per your oath, and regardless of your personal feelings about the issue at hand – in the same manner as you treated H J Res 4. Remember that your ultimate duty and loyalty is to the Constitution, and act accordingly.
Sincerely,
Ian Jeffrey Slavin
Tucson, Arizona