72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3695
Senate Memorial 4
Sponsored by Senator C STARR; Senators ATKINSON, BEYER, CLARNO,
FERRIOLI, FISHER, GEORGE, HARPER, MESSERLE, MINNIS, MORSE,
NELSON, B STARR
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Urges Congress to prohibit federal courts from exercising
jurisdiction over actions challenging recitation of Pledge of
Allegiance in public schools.
SENATE MEMORIAL
To the Senate and the House of Representatives of the United
States of America, in Congress assembled:
We, your memorialists, the Senate of the State of Oregon, in
legislative session assembled, respectfully represent as follows:
Whereas Oregon, along with many other states, provides public
school students with the opportunity to salute the United States
flag at least once each week of the school year by reciting: 'I
pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all'; and
Whereas Congress included 'under God' by law in the pledge
nearly a half-century ago and last year by law reaffirmed 'the
exact language that has appeared in the pledge for decades'; and
Whereas recent polls indicate that up to 90 percent of the
American public is in favor of allowing students to recite the
pledge as written and reaffirmed by Congress; and
Whereas George Washington, a signer of the United States
Constitution, declared that '. . . the fundamental principle of
our Constitution . . . enjoins that the will of the majority
shall prevail'; and
Whereas Thomas Jefferson similarly pronounced that '. . . the
will of the majority, the Natural law of every society, is the
only sure guardian of the rights of man'; and
Whereas Jefferson also stated 'A judiciary independent . . .
of the will of the nation is a solecism, at least in a republican
government'; and
Whereas in Nedow v. U.S. Congress, the Ninth Circuit Court of
Appeals violated these fundamental principles and abrogated the '
consent of the governed' as set forth in our nation's governing
documents by preventing public school students from reciting the
pledge as drafted by Congress; and
Whereas Congress can protect the will of the people against
further judicial usurpation on this issue by limiting the
jurisdiction of the federal courts as set forth in paragraph 2,
section 2, Article III of the United States Constitution: 'the
supreme Court shall have appellate Jurisdiction . . . with such
Exceptions, and under such Regulations as the Congress shall
make'; and
Whereas the framers clearly expressed their intent for Congress
to have the power to limit judicial overreach, such as when
Samuel Chase (a signer of the Declaration of Independence and a
U.S. Supreme Court Justice appointed by President George
Washington) declared: 'The notion has frequently been
entertained, that the federal courts derive their judicial power
immediately from the constitution, but the political truth is
that the disposal of the judicial power (except in a few
specified instances) belongs to Congress. If Congress has given
the power to this Court, we possess it, not otherwise: and if
Congress has not given the power to us, or to any other Court, it
still remains at the legislative disposal'; and
Whereas Justice Joseph Story, in his authoritative '
Commentaries on the Constitution,' similarly declared: '. . . in
all cases, where the judicial power of the United States is to be
exercised, it is for congress alone to furnish the rules of
proceeding, to direct the process, to declare the nature and
effect of the process, and the mode, in which the judgments,
consequent thereon, shall be executed. . . . And if congress may
confer power, they may repeal it. . . . T he power of congress
is complete to make exceptions'; and
Whereas congressional control over appellate jurisdiction is
confirmed not only by signers of the United States Constitution,
such as George Washington and James Madison, but also by other
leading constitutional experts and jurists of the day, including
Chief Justice John Rutledge, Chief Justice Oliver Ellsworth,
Chief Justice John Marshall, Richard Henry Lee, Robert Yates,
George Mason and John Randolph; and
Whereas the United States Supreme Court has long recognized and
affirmed the power of Congress to limit the appellate
jurisdiction of the federal courts, as in 1847, when the court
declared that ' b y the constitution of the United States, the
Supreme Court possesses no appellate power in any case, unless
conferred upon it by act of Congress' and in 1866, when it
declared '. . . it is for Congress to determine how far, within
the limits of the capacity of this court to take, appellate
jurisdiction shall be given, and when conferred, it can be
exercised only to the extent and in the manner prescribed by
law'; and
Whereas Congress has on many occasions exercised this power to
limit the jurisdiction of federal courts, and the Supreme Court
has consistently upheld this power of Congress in rulings over
the last two centuries, including cases in 1847, 1866, 1868,
1876, 1878, 1882, 1893, 1898, 1901, 1904, 1906, 1908, 1910, 1922,
1926, 1948, 1952, 1966, 1973 and 1977; and
Whereas Congress alone may remedy this current crisis and
return to the states the power to make their own decisions on the
recitation of the pledge in public schools; now, therefore,
Be It Resolved by the Senate of the State of Oregon:
(1) The Congress of the United States is respectfully urged to
prohibit the federal courts from exercising jurisdiction over
actions challenging the recitation of the Pledge of Allegiance in
public schools.
(2) A copy of this memorial shall be sent to each member of the
Oregon Congressional Delegation.
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