June 27, 2002
Establishment Clause
You should check out the take Spoons has on the Ninth Circuit's recent decision that the Pledge of Allegiance violates the Establishment Clause of the First Amendment to the U.S. Constitution ("Congress shall make no law respecting an establishment of religion..."). Here's a hint as to his point of view: his post is entitled "The Ninth Circuit Got it Right."
I'm not a constitutional lawyer, but I think he may be partially right, yet critically wrong. The action by Congress to amend the Pledge of Allegiance in 1954 so that it included the phrase "under God" is probably what the Founders would have considered a law, and hence is unconstitutional. I think Spoons (and the many respectable conservatives and libertarians who agree with him) is too willing to accept the court's framing of this issue, however. Let me explain.
First, please indulge me in leaving aside the evolution of Constitutional law on this issue. The question I want to address is not whether, given the precedent of earlier Supreme Court rulings on the Establishment Clause, the Ninth Circuit's reasoning is out of bounds. It is increasingly the case that when one discusses Constitutional matters, one must distinguish between an interpretation of the Framers' intent, and the evolution of Supreme Court rulings, which in many cases are wildly beyond the intent of the Framers. Thus we may ask: 1) Is this ruling in accordance with the wording of the Constitution, as reasonably intended by the Framers; or, 2) Is this ruling in accordance with the wording of the Constitution, as subsequently interpreted by several generations of judges?
I prefer to stick to #1, because I think that takes us to the question of whether we can be outraged at the Ninth Circuit Court's recent decision, which is really what this debate is about. I think it's fairly clear that the Ninth Circuit Court would be correct in ruling that the action of the Congress in 1954 was unconstitutional (but for you precedent-worshippers, i.e., those who want to stick to Question #2, above, you are obligated to explain why we don't adhere to the precedent set by the courts in 1954, when they decided not to rule said action unconstitutional). But what does such a ruling get us? Nothing, really, beyond the conclusion that the national state and its organs cannot compel citizens to recite this version of the Pledge, or take any action to restrain the recitation of alternative Pledges, or spend any public monies promoting this particular version of the Pledge.
So, what if we construe the recitation of the "under God" version of the Pledge as voluntary? In other words, what if today, millions of students decide, during the requisite morning "moment of meditation," to recite the "under God" version? I don't think one can reasonably argue that affording them the opportunity to do so in the government schools is itself unconstitutional, which is what the majority on the Ninth Circuit Court has asserted. (Indeed, one might argue that in forbidding Congress to make such laws the Framers never intended to forbid all state government expressions of faith, but this is another can of worms.)
In short, a fair reading of the Establishment Clause suggests that while it is within the boundaries of the Framers' intent to declare the 1954 Congressional amendment of the Pledge unconstitutional, it is decidedly out of bounds to conclude that this precludes the recitation of the "under God" version in government schools, so long as students are not compelled to join in.
Many of you want to argue, and will argue, that condoning this practice on government property is tantamount to a violation of the Establishment Clause. I think in doing so, you step into Question #2 above, i.e., you are making an assertion based on the framing of this question by decades of loose constructionist judges, rather than on the wording of the clause itself, and most importantly, on the information about the intent of this wording that can be derived from the actions and statements of the Framers themselves. A reasonable reading of the Framers' intent makes clear that they did not forbid utterances of faith on government property -- as witnessed by the fact that they permitted prayer in their own assemblages.
So where does that leave us? It seems to me that while the Ninth Circuit Court is legitimate in declaring a 1954 act of Congress unconstitutional, it is equally legitimate for government school teachers to thumb their noses at the Court, and continue to lead their students in the Pledge, so long as students who choose not to participate are not censured. And thumbing our noses at the Court, especially the Ninth Circuit, is probably a good thing. The Founders, I'm quite certain, would wholeheartedly approve.
Posted by Woodlief on June 27, 2002 at 07:45 AM
Now, why didn't I read your post before I went and got all squishy on my blog? Sometimes (a lot of times) I should just keep my mouth shut.
Great post.
Posted by: susanna at June 27, 2002 10:50 AM
"...so long as students who choose not to participate are not censured."
And their parents don't get their houses burned down.
Posted by: beanbag at June 27, 2002 11:14 AM
Having the Pledge said, especially with those words, actually did cause me significant discomfort, both private and public, when I was in school. I was sent to the principal's office in 9th grade for refusing to stand and had to actually cite Supreme Court precedent and watch as my principal looked it up to see if I was right before they would allow me to excercise my rights. Even younger than that, in 4th or 5th grade, I didn't say the Pledge, and when the other kids noticed, I got grilled, and then teased mercilessly for my religious beliefs. And this was in a tolerant district, fairly liberal and willing to listen to kids and actually try to follow the laws. There are hundreds of schools out there what wouldn't have even heard me out and would have punished me for my perfectly legal behavior. No 5th grader should have to defend herself from her school and hear her friends tell her that she's going to hell because of a situation the government created.
Posted by: Amy Phillips at June 27, 2002 12:36 PM
Amy,
I was an atheist in high school, and I empathize. But there is no constitutional protection against discomfort incurred for defying social norms. We can expect government to protect us from incursions on our person or property, and we have the right not to be punished by government for our views, but that's it. To deny people the right to say the Pledge in school because some schools may break the law in punishing those who don't say the pledge is, to me, backwards for a society that espouses rights. We should punish government officials who break the law in such a fashion, not infringe upon the speech rights of others as a hamhanded preventative measure.
Posted by: Tony at June 27, 2002 3:18 PM
Nice post, Tony, even though I don't agree.
This is kind of a frustrating issue for me, to be honest. I mean, I don't really CARE about this. I don't give a rat's ass whether they say the pledge, or whether it says under God in it. I have bigger things to worry about. Still, the Court had the case in front of it. It's not like they went looking for it, or even that they could have decided not to take it. The Circuit Courts of Appeals don't have a discretionary docket.
I hate being on the side of the anti-religious whackos on this one, too, because I think they're wrong 90+% of the time. This one though is different. For the record, to me, the issue isn't just that it's at the public schools. The issue is that the Congress decided that they wanted to reaffirm that this is a God-fearing nation (to stick it to the athiestic Commies) and so they passed a law in 1954 adding "under God" to the pledge.
That's taking an affirmative position one way or the other on the issue of religion. That's the one thing the Establishment Clause really is designed to prevent (as opposed to things like private religious displays, open to everyone, put on city property, or school vouchers -- both of which I believe are constitutional).
As a P.S., why do you say that the Founders would have liked the idea of people thumbing their noses at the Court?
Posted by: Christopher Kanis at June 28, 2002 12:52 AM
When I was a kid, we all mindlessly mumbled the Pledge when asked to do so. It was a gesture, a mere formality, that was supposed to insinuate in us the idea that there is a condition we all share as citizens of this country. Amy would have us believe that, when she was in grade school, she had already deconstructed the Pledge with the acuity of both a literary critic and a constitutional scholar, and had found it objectionable philosophically. She would have us believe also that her peers picked her voice out of the crowd and then singled her out for illiberal treatment. What a load of bullshit.
Anyone who has had even a fleeting encounter with a history book cannot fail to realize that our ancestors' recognition of a higher power underlies much of our legal system. The entire structure of our jurisprudence is "contaminated" with religion -- specifically Judeo-Christian religion -- in a thousand different ways.
But there is more. The Amys of the world don't seem to realize that the law provides, in most cases, the lowest common denominator for behavior. The things that really keep a society stable are deeper traditions that the greater body of citizens do not subject to legalistic analysis and defiant, but fatuous, displays of high principle. If this country had 275 million posturing individualists shoving their self-assertion down the throats of their fellow citizens, it would be a far, far worse state of affairs than the horrible persecution that our Amy suffered from her fifth-grade inquisitors.
Posted by: jim at June 28, 2002 1:27 AM
Christopher,
You wrote: "...the issue isn't just that it's at the public schools. The issue is that the Congress decided that they wanted to reaffirm that this is a God-fearing nation..."
We differ on a very subtle but critical point -- I view these as separate issues, and it appears that you (like the Ninth Circuit Court) intertwine them. Can you agree that the action by the Congress was unconstitutional, yet that the voluntary recitation of the Pledge by school students is constitutional? I see no logic that dictates a conclusion that the latter is unconstitutional based on the unconstitutionality of the former -- yet this is essentially what the Ninth Circuit ruled.
Posted by: Tony at June 28, 2002 9:32 AM
Actually, I don't see the difference. Under the law, the School Board (which derives its authority from the state) is constitutionally identical to the state itself. And the First Amendment, though addressed specifically to "Congress" has been specifically incorporated to apply to the states and local governments by virtue of the Fourteenth Amendment.
Bottom line, if Congress can't do it, the School Board can't do it.
I sense though that perhaps I am misinterpreting your point....
Posted by: Chris/Spoons at June 28, 2002 12:48 PM
Chris,
I'll avoid the sticky wicket of how far one can push the 14th amendment (referring back to the difference I indicated in my original post between interpreting the constitution per se, and evolved judicial interpretations of the constitution). So, conceding your point, I think there is still a key difference here. The Ninth Circuit conflated the Congressional act (law) with government school practice. The latter is arguably voluntary behavior, and hence very different from law ("Congress shall make no law..."). My point is that the First Amendment, even by prevailing judicial interpretation, does not prohibit displays of religious sentiment on school grounds, so long as dissenters are not forced to participate.
It seems that the Ninth Circuit took its solid ground (clear violation of the Establishment Clause by the Congress) and used it as a stealth weapon to essentially bar the free exercise of religion (a right guaranteed by the First Amendment) in schools. A minimal intervention standard (i.e., do the least necessary to remedy the legal problem) suggests enforcement of existing laws against school coercion of religious behaviors, not blanket prohibition of the recitation of the Pledge.
Posted by: Tony at June 28, 2002 1:17 PM
"My point is that the First Amendment, even by prevailing judicial interpretation, does not prohibit displays of religious sentiment on school grounds, so long as dissenters are not forced to participate."
Not quite right. Purely private expressions of religion on school grounds are permissible (and protected by the free-exercise clause). School sponsorship and/or encouragement of religion has been held impermissible. The school prayer cases are instructive.
Posted by: Christopher "Spoons" Kanis at June 30, 2002 9:45 PM
I shouldn't have hung that line out there ("...even by prevailing judicial interpretation...") given that I am making an argument about the meaning of the Constitution, rather than the meaning invested in it by a string of judges. So I'll fall back on that -- extract the offending phrase from my last post.
Posted by: Tony Woodlief at July 1, 2002 6:56 AM
