It’s fine by us if Congress and the Supreme Court leave the words “Under God” in the Pledge of Allegiance. And we fully understand the distrust of the Congress for the courts, given the activism that has infected the judiciary of late. But we’re less understanding of the logic of the measure the House of Representatives yesterday passed, by a vote of 247 to 173, known as the “Pledge Protection Act of 2004.” It says, “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance … or its recitation.”

It is certainly the case that the powers delegated to the Congress, for which we’ve long had a soft spot, include the power to constitute tribunals inferior to the Supreme Court. And it may be that Congress has some rights in respect of assigning jurisdiction to the inferior courts it creates. But for the Congress to attempt to deny the Supreme Court jurisdiction on questions in respect of the pledge, or on any statute, runs counter to 200 years of American constitutional law and common sense, going back all the way to Marbury’s landmark 1803 case against Secretary of State Madison. The opinion established the supremacy of the Supreme Court over constitutional matters. Chief Justice Marshall, call your office.

The Supreme Court, moreover, hasn’t even ruled the pledge unconstitutional. This year, in the case of Elk Grove Unified School District v. Newdow et al., the court specifically declined to make such a ruling. And to the degree there were hints, the court gave hope to supporters of the pledge. Justice O’Connor noted, “Some references to religion in public life and government are the inevitable consequence of our nation’s origins.” She wrote, “It is unsurprising that a nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes and oaths.” Even with all the reckless rulings by our courts in the past year or so, the Congress seems to be panicking prematurely here.

Particularly since, if the high court ever does find the pledge unconstitutional, the first branch will have other options. It could, for example, try to pass the pledge law again in a more constitutional fashion but with the same language. It could pass a constitutional amendment. It could try impeaching the judges. It could pass school voucher laws that would allow parents to choose whether their children attend pledge-saying schools or those that avoid the pledge. Or the Senate could make an effort to confirm more pro-pledge judges to the federal bench in the hope that they might reverse course. Congress could pack the Supreme Court, expanding its numbers to, say, 15, and seating on the court some pro-pledge judges.

We’re not suggesting any of those options would be a smart move, but the worst of them would be better than attempting to shield any law from judicial review. That would be the act of a Congress that lacks confidence in the constitutionality of the law it is passing. If Republicans succeed in using this tactic in respect of the pledge, the Democrats, if they regain control of Congress, would consider themselves invited to attempt similar efforts to avoid constitutional review. Oooooh would they like to put gun-control legislation out of the court’s reach. Or campaign speech restrictions. We’d like to think that this is why New York city’s congressional delegation, with the exception of Republican Vito Fossella, voted against this congressional power grab. And we’d like to think the Senate or the president will manage to get in touch with their inner Marshall before this act becomes law.