THE HOUSE is scheduled today to take up the Republican leadership's latest attack on the federal courts. In July the House passed a bill to strip the courts of the power to hear challenges to the Defense of Marriage Act, a 1996 law that ensures that states do not have to recognize gay marriages performed in other states. (The Senate has yet to consider that power-stripping measure.) Today the House may vote on a bill to prevent the courts from ruling on challenges to the Pledge of Allegiance. Never mind that this year the Supreme Court overturned the one major lower-court opinion that had struck down the pledge and that there is no reason to think the court is having second thoughts. As far as House proponents are concerned, judges should never again even be able to consider whether the words "under God" are constitutional in the pledge.
How much power Congress has to block judicial consideration of the constitutionality of its laws remains, somewhat surprisingly, an open question -- because Congress wisely has chosen not to test the question. It has, rather, accepted judicial review -- the idea that the courts can strike down legislative enactments that offend the Constitution -- as integral to the system of checks and balances. So while legislators have sometimes been tempted to yank controversial matters from the court's jurisdiction, cooler heads have prevailed. They should prevail now too. Whether the pledge violates the First Amendment's separation of church from state is a legal question. Congress has no business obstructing the courts from answering it.