The Pledge Protection Act and the Conflicting Fundamental Rights Limitations on the Article III Power to Control the Supreme Court’s Appellate Jurisdiction
Binford E. Parker III, 54 Loy. L. Rev. 467 (2008)
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This Comment examines the potential consequences of the 2007 PPA to the fundamental rights of American citizens should state courts decide the question of the constitutionality of the pledge differently. When state courts declare “under God” either constitutional or unconstitutional, the state courts are also assigning fundamental rights relative to the phrase “under God.” A state court declaring the phrase constitutional simultaneously declares that “under God” is expression protected by the First Amendment’s fundamental right to free speech. By contrast, a court that finds the phrase “under God” unconstitutional declares that the fundamental right to the free exercise of religion will not be burdened by the governmentally-sanctioned recitations encouraging monotheistic religion. If the courts decide the constitutionality question differently, the result will be the collective assignment of equal, yet contradictory, fundamental rights to the same speech: “under God.”
