It is time for the Congress to follow the advice of Alexander Hamilton and educate the judiciary by removing judges who are assaulting American society.
Hamilton writes in Federalist 81, "The important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There can never be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations."
Make no mistake, the decision that having children say the Pledge of Allegiance was unconstitutional because of the phrase "under God" was one more step in a direct assault on American civic culture.
For 40 years there has been an ongoing assault by a judicial elite against God being recognized in civil society. From school prayer to religious symbols, including the 10 Commandments, to now the Pledge of Allegiance elitist lawyers have used the power of the judiciary to reinterpret American civil society.
The plaintiff, Michael Newdow, has made clear that he is an atheist committed to driving God out of public life. He asserts he was motivated by reading, "In God we Trust" on a dollar bill while waiting in line in the grocery store. He promises this first successful assault is merely the beginning of what will be a series of lawsuits battling against the last remnants of God's recognition in our civil society.
The dissenting judge, Ferdinand Fernandez, asserted "My reading of the stelliscript suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings. 'God Bless America' and 'America the Beautiful' will be gone for sure; the first and second stanzas of the Star Spangled Banner will still be permissible but we will be precluded from straying into the third. And currency beware."
Fernandez is right and the time to act is now. Ninety-nine senators voting for a resolution is symbolic, so too was the rush to the Capital steps by members of the House recite the Pledge of Allegiance but this fight runs too deep to be won by symbolic gestures.
Congress must follow up its gestures with meaningful action because they, and only they, may possess the power to act.
Under the Constitution the legislative branch can remove the two judges who voted the unconstitutionality of the Pledge of Allegiance.
The Congress can assert that the country was founded with a Declaration of Independence, which proclaims, "We are endowed by our Creator."
The Congress can note that recognition of a Supreme Being has been central to our existence and from Washington's Farewell Address to Lincoln's second inaugural, the leaders of this nation have asserted again and again that a belief in God and an effort to understand and obey God is at the heart of the American civic experience.
Given that understanding of America it is clear that any judge who would drive recognition of God from the public arena so profoundly misunderstands the nature of America that they should not be allowed to stay on the bench.
Therefore, these two judges should be removed preferably before the August recess.
Protectors and defenders of the judicial elite will complain that this power to impeach is inappropriate. They will assert that impeachment for anything but criminal behavior is wrong. They will be defending the rights of lawyers to rewrite the Constitution and destroy American civil society while the rest of the society must be defenseless.
This narrow interpretation of impeachment is explicitly wrong. After all, lawyers are not the only people who define America. Every American and the elected representatives of every American have a right to join in that process of definition.
(Newt Gingrich was Speaker of the United States House of Representatives from 1995 until 1999 and a Republican representative to Congress from the state of Georgia beginning in 1978.)