78R10287 JLZ-F


By:  Miller                                                     H.C.R. No. 194



HOUSE CONCURRENT RESOLUTION
	WHEREAS, Texas is one of numerous states in which public 
school children recite the Pledge of Allegiance; and
	WHEREAS, The practice of including the phrase "under God" in 
the pledge was established by the United States Congress in 1954 and 
reaffirmed by federal law in 2002; and
	WHEREAS, Recent polls indicate that up to 90 percent of the 
public overwhelmingly supports the practice of allowing students to 
recite the Pledge of Allegiance; and
	WHEREAS, George Washington, a signer of the U.S. 
Constitution, declared that "the fundamental principle of our 
constitution . . . enjoins [requires] that the will of the majority 
shall prevail"; Thomas Jefferson similarly pronounced that "the 
will of the majority [is] the natural law of every society [and] is 
the only sure guardian of the rights of man"; and
	WHEREAS, Thomas Jefferson also stated that "[a] judiciary 
independent . . . of the will of the nation is a solecism [wrong], at 
least in a republican government"; and
	WHEREAS, The Court of Appeals of the Ninth Circuit has 
violated these fundamental principles and abrogated the "consent of 
the governed" as set forth in our governing documents; and
	WHEREAS, The will of the people can be protected against 
further judicial usurpation by any other federal court on this 
issue through congressional action to limit the jurisdiction of the 
federal courts as explicitly set forth in the U.S. Constitution in 
Article III, Section 2, paragraph 2, which states that "the supreme 
Court shall have appellate Jurisdiction, both as to Law and Fact, 
with such Exceptions, and under such Regulations as the Congress 
shall make"; and
	WHEREAS, The intent of our framers regarding this power of 
congress to limit judicial overreach was clear, such as when U.S. 
Supreme Court Justice Samuel Chase, a signer of the Declaration of 
Independence, 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 instances) 
belongs to Congress.  If Congress has given the power to this court, 
we possess it, not otherwise"; 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 
. . . . The power of Congress [is] complete to make exceptions"; and
	WHEREAS, This position is confirmed not only by signers of 
the 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 this power of congress to limit the appellate 
jurisdiction of the federal courts, as in 1847 when the court 
declared that the "Supreme Court possesses no appellate power in 
any case unless conferred upon it by act of Congress," and in 1865 
when it declared "it is for Congress to determine how far . . . 
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 numerous 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; and
	WHEREAS, It is congress alone that can remedy this current 
crisis and return to the states the power to make their own 
decisions on recitation of the Pledge of Allegiance in public 
schools; now, therefore, be it
	RESOLVED, That the 78th Legislature of the State of Texas 
hereby respectfully urge the Congress of the United States to limit 
the appellate jurisdiction of the federal courts regarding the 
recitation of the Pledge of Allegiance in public schools; and, be it 
further
	RESOLVED, That the Texas secretary of state forward official 
copies of this resolution to the president of the United States, to 
the speaker of the house of representatives and the president of the 
senate of the United States Congress, and to all the members of the 
Texas delegation to the congress with the request that this 
resolution be officially entered in the Congressional Record as a 
memorial to the Congress of the United States of America.