Vincent Philip Muñoz argues in the January edition of First Things that the Senate should “quietly kill” the Pledge Protection Act that passed the House last year. The bill would block the federal courts from ruling on the constitutionality of the pledge.
Muñoz argues that if the bill passes, state courts will feel compelled to follow Supreme Court precedents–and these precedents cast doubt on the constitutionality of the Pledge. “The result could be a myriad of confusing and conflicting state court decisions with ‘under God’ constitutional in some states and unconstitutional in others.” It would be better, he suggests, for would-be Pledge protectors to get the Supreme Court to rule in favor of the Pledge (which they can’t do if the bill passes and is respected). Muñoz thinks that Justice Kennedy might vote for the Pledge. Muñoz helpfully supplies Kennedy with some rationales for reaching that result without having to rethink his church-state jurisprudence from the bottom up, while making it clear that he, Muñoz, doesn’t believe those rationales.
The possibility that there might be “confusing and conflicting” rulings from state to state seems much less horrible to me than it does to Muñoz. (This isn’t my primary reason for downplaying this worry, but it should be noted that the theoretical possibility of reaching a uniform national rule has not prevented the Supreme Court from creating confusing and conflicting rulings all by itself.) If kids in California recite the Pledge differently from kids in Texas, the republic will survive.
Nor does the upside from Muñoz’s alternative seem compelling. All he is offering is the possibility of a modest improvement in the Court’s church-state jurisprudence–and not even an intellectually satisfying one. And let’s be clear about how modest that improvement would be. If the Pledge won, it would almost certainly be with the help of a doctrine good for that ruling only. The Court would find some way to distinguish the Pledge from every other issue under the sun, no matter how similar, in order to preserve its freedom of action in the future.
Reclaiming the power of the political branches to set limits on the federal courts, on the other hand, would be a pretty big deal. In the long run, it offers more hope not only for saving the pledge from the federal courts, but for reining in an imperial federal judiciary, than doctrinal improvements from the Supreme Court do. They would, that is, advance a project of saving the Constitution as well as the Pledge. Muñoz should reconsider.