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Pledging Allegiance to the "Eternal Separation of Church and State."--

After reading some of the online comments on the Pledge of Allegiance case this week, I offer some casual thoughts on the words "under God" in the Pledge. I am not analyzing recent Court jurisprudence, and am addressing only the establishment clause issue (which is how Newdow was previously presented to the Supreme Court), not any free exercise or free speech claims:

1. Although I am a fervent atheist, I wouldn't call my belief a religion.

2. The words "under God" have no business being in the Pledge of Allegiance, no matter how religious the country currently is or was.

3. I wish that the Senate didn't have a chaplain, but this has been held constitutional, as have military chaplains.

4. If the Supreme Court were not so confused, the Pledge of Allegiance case would be an easy one on establishment grounds. First, it does not involve a statute of Congress respecting the establishment of a state religion. Second, even if one were to extend this part of the first amendment to the state of California's statutes, still California has not enacted a state religion, nor has it passed a statute respecting the establishment of religion.

5. One shouldn't confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn't. Therefore, the establishment clause should not prohibit the words "under God" in the pledge. Again, this is not an analysis of how the Court usually approaches establishment clause cases.

6. The phrase "Separation of Church and State," as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK's jurisprudential agenda. It was included in the Klansman's Creed (or was it the Klansman's Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the "eternal separation of Church and State." In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment's establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

SimonD:
After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
Could anyone provide sources and citations for this assertion? I've not heard it before, but it seems like a pretty powerfull argument if correct.
9.15.2005 11:28am
Gary McGath (www):
A nation "under God" is a nation in which the supreme authority is a deity (or rather, an alleged deity). Pledging allegiance to a nation under God is pledging allegiance to religious authority. That's establishment of religion.
9.15.2005 11:41am
Chris Jones (mail):
I don't see why atheists should object to the words "under God" in the Pledge. The words are there to protect the conscience of believers, not to assert or require any particular religious belief. "Under God" indicates that the allegiance we are pledging to our country is subordinate to, and limited by, the allegiance which we owe to God. That is, our country is important and worthy of our loyalty, but it is not absolutely important and not worthy of our ultimate loyalty.

I should hope that even those who don't believe in God would still agree that the state is not to be given absolute, unqualified allegiance; that the state is not the highest good. We Americans are not fascists.

Chris Jones
9.15.2005 11:46am
Derek James (mail) (www):
As an agnostic who strongly believes that the phrase "under god" should be removed from an oath sworn by children in public schools, I have never understood why the primary argument for this has been based on the establishment clause, and not free exercise.

It seems very clear that the First Amendment guarantees my right to not believe in a deity and to raise my children accordingly, and that including an utterance that explicitly recognizes a diety grossly undermines my right to exercise my beliefs freely. That is, if we aggree that 1) The use of the phrase as "ceremonial" is hogwash (as Jim seems to recognize) 2) There is a coercive element to the recitation of the pledge in a classroom setting led by an authority figure who is an employee of the state.

I agree that arguments with regard to the establishment clause are weak, so why are arguments not made with regard to free exercise, which seems a much stronger argument?
9.15.2005 11:47am
John T (mail):
It's also difficult to discuss the concept of the separation of Church and State's history without discussing the animus towards non-Protestants (especially Catholics, due to their numbers, but also others including Jews and atheists) that motivated it. Many of the initial ideas were framed so as to exclude any particular church from being involved in state policy, and to prevent state funds from going to anything run by a church. The idea was actually to prevent Catholics and other minority religions from getting control over funds, as well as prevent the establishment of a single state church; the assumption was that the state would continue to perform "nonsectarian" religious duties, understood as meaning essentially Christian activities acceptable to the broad Protestant majority without favoring any one particular Protestant church. For example, Catholic schools could not receive public funds, but public schools could have Bible study lessons which were fairly explicitly Christian, so long as they weren't associated with a particular church.

I believe he's referring to the amendment proposed by Republican James Blaine, which failed in Congress but was adopted into many state constitutions as so-called "Blaine Amendments." He could be referring to something else, though.
9.15.2005 11:50am
alkali (mail) (www):
One shouldn’t confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn’t.

Call me one of the benighted masses who cannot understand why having the government promulgate religious doctrine "obviously" isn't establishing a state religion.
9.15.2005 11:59am
anonymous coward:
Point #10 is a classic example of how to be a hack: juxtapose facts (or what I assume are facts) without explictly drawing casual links. This makes it hard to attack the writer, while leaving the casual reader with the impression that the author made a far stronger claim than he actually did.

You should argue for the causal links (concerning the KKK's influence on the legal views of Hugo Black and the "organization" that had unnamed "ties" to the Klan) if you believe they exist, not leave them implied.
9.15.2005 12:00pm
JonBuck (mail):
If there is no seperation of Church and State, what prevents a majority religion from using the coercive power of the state to enforce its doctrine?
9.15.2005 12:04pm
Duncan Frissell (mail):
Derek - There is a coercive element to the recitation of the pledge in a classroom setting led by an authority figure who is an employee of the state.

Powerful agument against government schools. Not as powerful an argument against any particular pedagogy within government schools. There are many things taught by teachers in government schools that I object to which is why I didn't turn my kids over to them. The argument you made would apply to all of them.
9.15.2005 12:04pm
random (mail):
It too bad Tim takes such a narrow view of religion.

What is religion? Every one has it whether they want to call it such or not. It is an open question about us.

Who is God? That is for each of us to determine--and we never will. The answer is again part and parcel to the question of our own existence.

Why do we need this phrase in the Pledge? Because we are a nation whose entire base of laws are built on the premise that there are intrinsic natural rights--that we are more than an assemblage of interacting atoms. We exist.

Tim, you need a reminder as you go about your daily life that you live. We can't build a society on people that consider all mankind to be objects like rocks and dirt.

There is no one to answer your question about who or what is God, but you should be aware that as long as you are expected to be a contributing member in this society that there is some component of your existence that demands that a question of relevance be asked.

You don't have to like it. In fact, it is good that it irritates you.
9.15.2005 12:05pm
M. Lederman (mail):
OK, Jim -- but it appears that your set of arguments would also result in reversal of Engel, Schempp, Lee v. Weisman, Santa Fe, Edwards v. Aguillard, Stone v. Graham, and Epperson -- that is to say, the entire line of precedents involving state-approved religious expression and teaching in public primary and secondary schools, beginning with the school prayer decisions themselves. Do you agree? If so, two questions:

1. Do you think the Court should overrule that line of decisions?

2. If not, do you think that the insertion of "under God" in the Pledge -- as recited by public teachers in primary classrooms every day of young students' educational lives, as part of a solemn joint affirmation of allegiance -- is constitutional, *assuming the continuing vitality of those precedents*?

P.S. Eugene, if you're "listening" in -- same questions. And yes, of course opposition to "under God" is s a very unpopular position. But I don't recall that you ordinarily give much credence to opinion polls when you're analyzing the First Amendment. That is to say: *If* you think recitation of "under God" in public schools is unconstitutional -- and I don't mean to suggest that you do -- shouldn't you say so on your blog, notwithstanding public opinion to the contrary? (Of course, if you think it *is* constitutional, I'm sure I'm not alone in being very interested to hear why not -- again, assuming you accept Engel, Lee, etc., as correctly decided.)
9.15.2005 12:15pm
rico:
Some points:

- Chris, Gary is correct is saying that the pledge places the authority of the state beneath the authority of God. As a Christian, I believe that this is correct. I do understand atheists who don't like the assertion.

- The first amendment prohibits making laws respecting "AN establishment of religion". This was to prevent the designation of a specific state religion, like the Church of England. It had nothing to do with whether the state should encourage or discourage religion in general, as long as specific religions were not enshrined as official.

- I don't believe that saying the pledge in the classroom places an undue burden on the children who don't participate. I went to Department of Defense schools in Germany for grade school, and we had a British girl in our class. She stood silently through the pledge, and no one harrassed her for it. If anything, atheists who have their children refuse to recite the pledge are teaching them to stand up for what they believe in, and are making them stronger in the process.
9.15.2005 12:19pm
MCO:
Derek:

If the phrase "under God" is a violation of the Free Excercise clause, why isn't the entire pledge a violation of the Freedom of Speech clause? By your logic, implicit in the concept of Freedom of Speech is freedom not to speak, yet in the Pledge situation, even though students may opt out if they wish, you are arguing that they are being coerced to recite the Pledge, God or no God.
9.15.2005 12:20pm
huggy (mail):
Atheism is a belief. What you are requesting is that your belief be ruled correct by SCOTUS. I think you believe in pledges because you care about the words.

I don't believe in pledges or SCOTUS. I believe in personal prayer. Summed up: In the long run you get what you pray for...so pray for good things. Hugs are nice!
9.15.2005 12:21pm
Jeff Dege (mail):

It seems very clear that the First Amendment guarantees my right to not believe in a deity and to raise my children accordingly,


But the First Amendment guarantees everyone the free exercise of religion.

You have a right not to participate, and to have your children not participate.

You do not have a right to not be exposed to others who do.

Freedom of religion means you may choose not to have a religion. It does not mean that you can prevent others from exercising their religious beliefs in your presence.
9.15.2005 12:22pm
Bryan McGraw (mail):
For citations about the liberal Republicans and the amendment Jim cited (the Blaine Amendment was, it seems, but a watered down version), see Hamburger's Separation of Church and State, pp. 287-334. It's a pretty interesting story.
9.15.2005 12:23pm
SimonD:
Derek,
Please explain to me the difference between these statements:
It seems very clear that the First Amendment guarantees my right to not believe in a deity and to raise my children accordingly, and that including an utterance - the Pledge of Allegiance - that explicitly recognizes a diety grossly undermines my right to exercise my beliefs freely. There is a coercive element to the recitation of the pledge in a classroom setting led by an authority figure who is an employee of the state.
And
It seems very clear that the First Amendment guarantees my right to not believe in a deity and to raise my children accordingly, and that including a curricula - such as evolution - that explicitly denies a diety grossly undermines my right to exercise my beliefs freely. There is a coercive element to the teaching of any subject which may have implications for religious belief in a classroom setting led by an authority figure who is an employee of the state.
9.15.2005 12:24pm
von (mail) (www):
Regarding Point 10:

That Justice Black was once a member of the Klan is well known. What's completely unknown, however, are the facts supporting your claim that Judge Black's membership in the KKK influenced his First Amendment jurisprudence on church/state issues--particularly since Justice Black repudiated his Klan membership. In addition, your description of Justice Black's involvement in the KKK does not match the description given in the lengthy biography of Justice Black on my self; perhaps you can provide a cite or two for that as well.

Y'know, but for 10, I found this post to be pretty convincing and well reasoned. Yet, because of 10 -- filled with insinuation and slander at the expense of citation and evidence -- I'm beginning to wonder why I should trust the rest of the post.

If you have evidence to support 10, provide it. If not, the honorable (and smart) thing to do would be to retract 10.
9.15.2005 12:24pm
Chad Okere:
So seperation is bad because "the KKK" supported it? Therefore, people who agree with it also agree with the Klan. Nice ad-hominm thrown in there. Of course "liberal republicans" also supported seperation, and they were hardly pro-klan.
9.15.2005 12:25pm
Philip F. Lee (mail):
The whole notion of a "pledge of allegiance" required to be recited by children too young to be held responsible for their actions should be objectionable. Since they are not legally responsible for their acts, the pledge is void and it is obviously being performed as an exercise in indoctrination.

Allegiance is best decided by a mature and responsible individual as a voluntary act.

As such an individual, my allegance goes to the Constitution of the US and might, under some circumstances, actually cause me to oppose the "one nation, under God" represented by the flag if it were the case that serious violations of Constitution by the nation endangered "liberty and justice for all".

That is hardly the vision of those promoting the pledge, but the only reasonable position for a thoughful member of the sovereign citizenry.
9.15.2005 12:27pm
lucia (mail) (www):
Why do we need this phrase in the Pledge? Because we are a nation whose entire base of laws are built on the premise that there are intrinsic natural rights--that we are more than an assemblage of interacting atoms. We exist.

How does the second part answer the question?

You could teach your child to insert "Under Bugs Bunny", and we would still be a nation whose base of laws is built on the premise of natural rights. Admittedly, one might conclude you thought Bug Bunny was the higher power involved in creating these natural rights. But, that just suggest the use of "under god" has religious connotations.

In my opinion, when people justify inclusion of "under god" on metaphysical grounds, and then advocate reciting the pledge in school, they are trying to teach the children god exists.

That said, I think forcing kids to recite anything similar to the pledge seems more a free speech than an establishment issue. What if the kid doesn't want to pledge allegiance to the flag? Or the republic? Or anything else?
9.15.2005 12:29pm
gab (mail):
I have no problem with the idea, but can we change the phrase "under God" to "under Allah" for us Muslims?
9.15.2005 12:29pm
guest:
Re: points 9 and 10 - how do you expect people to take you seriously as an academic when you make arguments like this?? "Bad people supported policy X, therefore policy X must be bad!"

How about this - today, terrorists support integration of church (mosque?) and state. Ergo, integration of church and state is bad.
9.15.2005 12:30pm
von (mail) (www):
Incidentally, here is the relevant passage from Justice Black's opinion in Everson, cited in 10:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.
9.15.2005 12:30pm
anonymous coward:
I would like to think Lindgren was simply throwing out interesting historical tidbits without thinking too carefully about making an argument (or bothering to give a citation for the facts, like the apparently extensive nature of Black's involvement, that are not common knowledge). But #10 still reads like bad op-ed innuendo to my eyes.
9.15.2005 12:36pm
Rebecca Oris Davidson (mail) (www):
Assuming, arguendo, that Lee v. Weisman, 505 U.S. 577 (1992), was correctly decided, and 14-year-olds really are such fragile, impressionable creatures that being subjected to a bland prayer offering thanks and asking for vague blessings at a non-mandatory event that will occur twice in their public school educations (Miss Weisman was graduating from middle school) constitutes unconstitutional religious "coercion," then the Pledge issue ought to be a no-brainer. No one <i>has</i> to recite the Pledge. Likewise, no one <i>has</i> to attend graduation ceremonies. I knew plenty of people in high school who were "too cool" to go to graduation ceremonies, or who didn't attend for other reasons. No one thought twice about it. Not attending graduation is much less visible than keeping silent during the Pledge, especially among younger children. Further, Miss Weisman merely had to sit through a rabbi delivering two short prayers. Children are expected to recite the Pledge themselves, and it's done every day. I really don't see how asking small children to recite the words "under God" daily can pass Constitutional muster without overturning <i>Lee</i>.

Even without the precedent of <i>Lee</i>, inclusion of the phrase is sketchy, especially since it was inserted 50 years ago (recentness negating tradition-based arguments) for the purpose of showing "those Godless Commies" that we were a good Christian nation (clearly a state embrace of a particular religion over others).

Also, I'm curious about your inclusion of the KKK's role in instituting the "wall of separation." I assume your purpose was something other than to discount the appropriateness of such a wall by saying it must be bad because the KKK supported it? Please explain.
9.15.2005 12:39pm
Syd (mail):
I think there are several issues here:
(1) Congress mandated the words "under God" in the Pledge of Allegiance. I think that is unconstitutional under the establishment clause. If Congress hadn't done that, having the words there wouldn't matter, as long as people aren't coerced into reciting them.

(2) Nobody can be legally coerced into saying the Pledge of Allegiance. That violates the second Jehovah's Witness decision. It violates freedom of speech. Once the words "under God" are in there, it also violates free exercise of religion. There's a big difference between saying the words voluntarily, and saying them because a law tells you to, even if you want to.
9.15.2005 12:43pm
M. Lederman (mail):
In response to Syd: Actually, the federal statute (4 USC 4) doesn't "mandate" anyone to do anything. It's basically hortatory, expressing Congress's view of what words the Pledge ought to consist of, and how persons "should" recite it:

The Pledge of Allegiance to the Flag: ''I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.'', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.
9.15.2005 1:01pm
michael (mail):
huggy: Dropping "under God" from the pledge is in no way an endorsement of atheism. Does the First Amendment endorse atheism becaues it does not refer to any deity? Instead of subverting the country to some unspecified deity, an "under God"-less pledge stays mute as to what higher powers, if any, exist -- which is the appropriate position for government to take.

rico: If the First Amendment means that, why does it not say "regarding the establishment of a religion"? The phrase "regarding an establishment of religion" is much broader than necessary to express what you indicate.
9.15.2005 1:02pm
SKlein:
It is not clear to me that "under God" necessarily is an acknowledgement that loyalty to country is subordinate to loyalty to God. I always assumed it meant something like "protected by." I also think that close textual analysis is probably beside the point; a pledge is a ritual affirmation of community, not a philospohical disquisition. That said, "protected by" obviously carries religous content and raises 1st amndment issues, but I'm not sure that either the establishment or free expression arguments are quite as strong if it is not understood as a statement of ultimate loyalty to god.
9.15.2005 1:05pm
Aultimer:
I like the 3rd Circuit reasoning in strinking down the Pennsylvania required pledge statute. The only question that remains is whether having the comparatively large and very powerful state employee in the front of the room lead the moment during which all children must stand and either (1) recite some laudatory words about the government, optionally including two words about God, or (2) remain politely and conspicuously silent, is close enough to having a law on the topic.

Also, suggesting that its character-building to buck the coercive and conformist atmosphere of the classroom is either unfit to be, or is not, a parent.
9.15.2005 1:08pm
Cynicus Prime (mail) (www):
As a fellow atheist, I appreciate your rational thoughts here. While I don't think "under Gawd" should be included in the Pledge, I don't think a judge should be able to throw out the whole thing because it offends someone. Just don't farking say it. I don't.
9.15.2005 1:16pm
kobayashimaru:
After reading all the posts on this issue, I think I'm going to have to change my long-held belief that the Pledge (or the Under God portion) is unconstitutional on Establishment Clause grounds. The better argument for not mandating that the pledge be recited in schools certainly falls under the Freedom of Speech clause.

But as an agnostic (who refused to recite the pledge in school), I'd rather the Pledge recitation be overturned on Freedom of Religion grounds, so that "In God We Trust" would also be removed as the national motto.
9.15.2005 1:19pm
GGULaw Student (mail):
The issue that several (but not all) people are ignoring is the fact that the District Judge and the 9th Circuit are bound by precedent. Lee set out very clear what the rules were in schools. Trying to compare this to McCreary and VanOrden is off because those were not about school issues. The Supreme Court has established in a long line of cases that there is a different standard for children because they are more susceptible to coercion.
9.15.2005 1:25pm
Clayton E. Cramer (mail) (www):
The better argument for not mandating that the pledge be recited in schools certainly falls under the Freedom of Speech clause.
Very true. But there's a lot of mandated speech in school. If you don't answer the question, you will lose points. Isn't that a violation of freedom of speech? What about being punished for talking during tests? That sure sounds like a violation of freedom of speech! There comes a certain point where you have to tell the ACLU to go climb a tree, because reality has to intrude.

But as an agnostic (who refused to recite the pledge in school), I'd rather the Pledge recitation be overturned on Freedom of Religion grounds, so that "In God We Trust" would also be removed as the national motto.
Practically speaking, in what way is your freedom of religion impaired by either? If you are required to recite the Pledge, I can see that violating your freedom of religion--just skip those offending words "under God" if you prefer. I certainly don't want you to be a hypocrite. How does "In God We Trust" impair your religious freedom? You may not approve of it on your money, but does it actually prevent you from expressing your religious beliefs (or lack thereof) in any way?
9.15.2005 1:29pm
guest:
Lindgren: still waiting for an explanation re: 9 and 10. Thanks.
9.15.2005 1:31pm
rico:
Michael, the phrasing was made as such because the meaning of "establishment" was clear; it's not merely anything we choose to establish:

"Main Entry: es·tab·lish·ment
Function: noun
1 : something established: as a : a church recognized by law as the official church of a nation or state and supported by civil authority . . ."

Source: Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

SKlein, Even if "protection" is the meaning implied, doesn't stating that our nation is under the protection of God imply that God is more powerful than our nation and in a position to protect us? I do realize that this is a little different than our pledge to the State being subordinate to our loyalty to God.

Aultimer, I AM a parent, and as fit as most. I have been bucking coercive and conformist atmospheres throughout the course of my academic, religious, and employed life, and I have found it to be quite character-building. This world would be a better place if more people questioned authority, even if that authority is then obeyed the vast majority of the time.
9.15.2005 1:37pm
Dilan Esper (mail) (www):
I think Lindgren gets this basically right. He may be a bit more skeptical of the separation of church and state than he should be, but the truth is, the Pledge of Allegiance is harmless. Silly (because as another commenter pointed out, children have no idea what they are pledging allegiance to anyway), and inappropriate (because our laws are not constrained by religious principles or God, but by a Constitution and principles of limited powers), but ultimately harmless. Other claimed violations of the establishment clause get much closer to state-compelled religious practice.
9.15.2005 1:47pm
gcm (mail):
"...the First Amendment means at least this: Neither a state nor the Federal Government can set up a church." Actually, strict originalists need not concede a state's establishment of religion as unconstitutional. Certainly there was to be no Federal church like the Church of England, but States did have established and favored denominations, with many clergy being paid out of tax monies.

Jefferson didn't like it, and wrote against it (mostly privately), and I see much wisdom in a wall concerning denominations, but Jefferson had the minority view at the time when he coined the term "separation of church and state."--which words are clearl absent from the Constitution.

Where we are all headed is the inevitable mature view that speech and religion are inseparable. Everyone has a philosophy he or she lives by, whether they realize it or not, and whether they call it "religious" or not. Some philosophies are more amenable to natural law, some less, but they can all be vigorously argued as "philosophical" or "religious"--no matter how emphatically denied (cf. #1: "...I wouldn't call my belief a religion").

I'm not married to the necessity for the Pledge, but taking out the phrase "under God" is every bit as much a religious act (if not more so!) as having put it there in the Fifties. Unprovable beliefs (whether there is a God or no) and their corresponding philosophies are fundamentally of the exact same nature, and the Courts will eventually concede this point for all establishment clause issues--but how soon?
9.15.2005 1:54pm
Carol Anne:
random wrote (in part): Why do we need this phrase in the Pledge? Because we are a nation whose entire base of laws are built on the premise that there are intrinsic natural rights--that we are more than an assemblage of interacting atoms. We exist.

This is a belief, not evidence-based reason. The Constitution exists. I have an existance proof that I exist. And, unless the Turing test has been passed, I have evidence that someone calling him/herself "random" exists.

But, after 60+ years, I'm still waiting for evidence that "God" exists. I am reluctant to Pledge Allegiance when it posits that the entity to which I pledge is "under God," where there is no evidence that there is such an entity at all.

Now, don't read me wrong: I have a great faith and belief in spirituality, and have practices I engage in daily...despite proof that it has any consequence at all. It is comforting to me to believe I'm part of something larger than myself. That "something" is definitely my hierarchical governmental structure (I'm proud to label myself "Californian" and "American"). However, do not hold the belief that my life is determined or governed by a "God," except as that concept is a metaphor for a reasonable implementation of Kant's Categorical Imperative.

Show me concrete irrefutable evidence there is a Constitution, and I believe it. Show me concrete irrefutable evidence there is a God, and I'll believe it, and change my opinion, accordingly.

Belief and Reason are different concepts.
9.15.2005 1:59pm
SKlein:
RICO--I acknowledged that "under the protection of god" is a statement of religous belief and possibly offensive to someone who doesn't believe that we are under the protection of god. If there is a distinction for 1st amendment purposes (and I'm not sure that there is) it is that it has less religous content (or, is more blandly vacuous) than the alterante reading in which our loyalty to country is subordinate to our loyalty to god.
9.15.2005 2:07pm
anonymous coward:
gcm: "Unprovable beliefs (whether there is a God or no) and their corresponding philosophies are fundamentally of the exact same nature..."
It is difficult to argue that anything (even logic or science) is "provable" in the broadest possible sense.
That doesn't mean we can't have good reasons for what we believe, or that every belief has equal value.
I can't prove that Xenu didn't nuke a bunch of space aliens millions of years ago in the Pacific, but that doesn't mean I think Scientology's beliefs should be treated with respect.

I have no idea what this has to do with "under God" in the pledge. Without, it respects those who believe in God, those who believe in a God or gods different from their classmates, and those who don't believe in any god at all.
9.15.2005 2:11pm
Brian Hauptman:
Lacking such options as private and "home" schools, the coercion argument would be much stronger. I agree with the poster who thought this issue should bring into question the necessity of supporting State Schools.
9.15.2005 2:12pm
TNugent:
Syd, for those here (like Derek, apparently) who are unable to do so for themselves, I'll connect the dots that you've so helpfully laid out:

The second Jehovah's Witnesses case, W.Va. State Board of Ed. v. Barnette, held that a state law requiring recitation of the pledge violated the free speech guarantee of the First Amendment, as applied to the States. Because any coerced recitation of the pledge would itself be unconstitutional, any consideration of coercion in an analysis of whether the inclusion of "under God" violates the establishment clause is improper. Therefore, the question that must be considered is this: Is the inclusion in the pledge of the words "under God" establishment of religion if no one can lawfully be required to say those words? That question is what the law refers to as a "STUPID QUESTION," and it is an utter waste of the court's time and our tax dollars to consider it.
9.15.2005 2:13pm
Nobody (mail):
Point 4--I take it you're arguing as Justice Thomas does, that the Establishment Clause does not control state (as opposed to Federal) action. This is a losing (indeed, lost) battle. I don't think it represents the understanding of the constitution accepted by the vast majority of the American people (though I have no polls or statistics to back that up.) In any case, it's not relevant. That's why Thomas is in dissent.

Point 5--"One shouldn’t confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn’t." Oh, it OBVIOUSLY doesn't. Why didn't you say so? I wasn't convinced until I read that multisyllabic adverb. That did the trick. .....This is the kind of reasoning used by 1L's in September and October that gets them yelled at by their professors. Come back to the table when you have an argument stronger than an adverb. It's not so "obvious" to me that the government forcing me to pay my oral respects to a deity is any different from the government declaring that deity the official deity of the state.

Point 6--Relevance? What does this phrase, and its existence or non-existence in the constitution, have to do with the question at hand?

Points 9 and 10--The logical fallacy of guilt by association.

Ultimately, Lindgren's whole argument comes back to the word "obviously." The rest is fluff. "Obviously," and as discussed above, his argument lacks any merit.
9.15.2005 2:18pm
Anon.:
Derek, free exercise clause might be a sufficient grounds for striking down a law making pledge recitation compulsory, but there's a broader ground for arriving at the same conclusion -- free speech. In fact, there's actually a Supreme Court case right on point, which applies to compulsory recitation of the pledge even without the words "under God" included. The inclusion of the words "under God" in the pledge are even less meaningful than the inclusion of "in God we Trust" on the currency. It's not "establishment," if for no other reason, than the utter absence of any coercion (if there is any coercion, the law fails on free speech grounds, regardless of whether "under God" is included in the language; so it is never necessary to consider either the free exercise or establishment clause).
9.15.2005 2:24pm
PersonFromPorlock:
The phrase should be dropped for a very simple reason: it isn't true. There is no person of any religion in the US who can say "American secular power yields to my God" without being laughed out of the room (or arrested). What's left is an empty piety that affects nothing.
9.15.2005 2:25pm
jonzyx (mail):
I was just curious if anyone has thought of what people who do believe in God would do if the phrase was removed. This is purely speculation, but would some people refuse to cite the pledge? Or perhaps they would then refuse to omit them and instead of atheist simply not saying the words, you would have others saying them anyway. Suppose a teacher is leading a class along in the pledge without the "under God", but half the class says it anyway. Will they get into trouble for talking out of turn? Will a judge end up hearing that case?
9.15.2005 2:30pm
SKlein:
Porlock--you've gotten to the heart of the issue--does the constitution prohibit the voluntary utterance of empty pieties that affect nothing?
9.15.2005 2:32pm
Public_Defender:
Ascribing the concept of separation of church and state to slaveholders and the KKK is as fair as ascribing any tough-on-crime measure to Nazis.

The concept separation of church and state is a traditional Baptist idea that dates back at least as far as the founder of the real First Baptist Church in the U.S. In 1644, Roger Williams wrote of the "hedge or wall of separation between the garden of the church and the wilderness of the world. . . ."

See, http://www.bjcpa.org/resources/pubs/pub_wordsoffounders.htm
9.15.2005 2:32pm
michael (mail):
To those who argue that a public school principal reciting "under God" as not being an establishment of religion because students may opt out, M. Lederman's comment requires an answer.

How do you address cases such as 1962's Engel v. Vitale? The teacher-led prayer in that case allowed students to opt out of the prayer, but the Supreme Court ruled it violated the establishment clause. Was that (6-1 decision) wrongly decided? Have the facts changed since 1962?

Similar questions can be asked for each similar decision that was not based entirely on Engel's precedent.
9.15.2005 3:00pm
yojimbo (mail):
I often wonder why the orgins of the phrase "under god" in the pledge isn't used more as a reason to remove it. It was added to single out a group—athesist communists.

In 1954, after a campaign by the Knights of Columbus, Joe McCarthy's Congress added the words, 'under God,' to the Pledge. The Pledge was now both a patriotic oath and, in effect, a public prayer which would out any "reds." (If only it could have been so simple.)

"Under god" was added as a political tactic during a paranoid and fanatical time. Yes, I am a proud capitalist and, yes, I'm glad the cold war tipped in our favor, but I do think it is time revert to the pre-1954 pledge. I don't see its removal as an affront to (christian) religion, but a return to normalcy—we won!


Then again, according to this article...

www.decaturdaily.com/decaturdaily/news/050703/pledge.shtml

(not very good at creating links, yet)

...which mentions certain 'pledge' traditions I'm sure we can do without restoring:

"Another part of the pledge that changed was the way participants positioned their right hands. Ellis's book describes the original gesture as a salute with the arm extended and the palm raised into the air. After Hitler came to power in Germany in the late 1930s, the American gesture seemed too much like the "Heil Hitler" salute. Americans then changed the gesture and pledged their allegiance with right hand over heart."
9.15.2005 3:11pm
Challenge:
This coercion stuff is nonsense. Is a kid with racist views "coerced" from not sharing those views because they happen to be unpopular?

No, I am not implying atheists are the equivalent of racists, but those with unpopular views, whatever they may be, are not entitled to sensitivity just because people view them as wrong, immoral, or distasteful. In a word, deal with it. I'm an agnostic and I find no problem with the words. Even if one doesn't believe in a God, those words should not provoke offense. Unless the idea of God is offensive, which is a strange position.

"How do you address cases such as 1962's Engel v. Vitale?"

Easily. It and EVERY case which applies the Establishment Clause against state action is wrong.
9.15.2005 3:23pm
Bezuhov (mail):
Without separation of education and state, separation of church and state is problematic for a lot of our fellow citizens. I, for one, have difficulty in proving them entirely wrong or their concerns entirely without merit or undeserving remedy.

Might policy be a more fruitful place to seek solutions than jurisprudential fine-tuning?
9.15.2005 3:24pm
Anon.:
Michael, the answer is that the pledge is not a prayer.

Nobody, the government does not force you to pay your oral respects to a deity (just what religion do you practice?), nor does it force you to pay your respects to the flag or the republic for which it stands. That was the whole point of Barnette. The issue was settled in 1943. Consider this your update.
9.15.2005 3:24pm
P Duggan (mail) (www):
I think the country is strengthened by having "under God" in the pledge, because it allows relgious citizens, whose faith commitments demand the recognition that God is supreme and makes supreme claims over every nation, that they are pledging allegiance to an entity that it not making claims to be absolutely supreme over the claims of diety.

The US *isn't* claiming that right? So saying we are 'under god' in that sense is good politics, as it doesn't exclude unsecular citizens.
9.15.2005 3:25pm
Anon.:
Challenge, of course you are correct, for the same reason that the Constitution in no way prohibits the Supreme Court from opening its sessions with a prayer.
9.15.2005 3:27pm
Texican:
I may have missed this, but what exactly is the penalty for not saying the Pledge? Jail?/Fines? I don't think the recitation of the pledge is compulsory anywhere.


BTW, you may not think of atheism as a religion, but it is certainly a belief system requiring faith. Or do you somehow KNOW what happens after death?
9.15.2005 3:31pm
James Lindgren (mail):
I just returned from my morning teaching and had these responses to some of the lively comments so far:

1. The amendment I refer to in my post is detailed in Hamburger's book, which is linked in my post. Bryan McGraw (above) provides the cite. And no, the well known Blaine amendment is not the one that I was referring to, though they were part of the same general anti-Catholic movement. Hamburger found some amazing stuff in territory that one would think was already well researched. Hamburger, who is unrivalled as an archival researcher, sets out the evidence at great (and sometimes tedious) length in his book. It is a careful, sober, and thoughtful book.

2. I agree that free exercise or free speech would be a much better ground for attacking the Pledge than the establishment clause, especially if a student was prohibited from staying silent or prohibited from leaving out the words “under God” while saying the Pledge. In the 1980s, Bill Marshall had a terrific law review article on this general point (that religion cases often made more sense as speech cases).

3. For those who think that the words "Under God" establish a state religion, precisely which religious sect has the state of California established as the state religion? Further, the first amendment was intended to prohibit Congress from establishing a national religion, not to prohibit a state (such as Maryland) from doing so. Query whether the 14th amendment changed that?

4. In answer to M. Lederman’s question about overruling existing cases, I quite explicitly said that I was not applying recent Supreme Court case law. I am not a judge or a justice, and find much of what the Supreme Court writes about as persuasive as a politician’s stump speech.

5. The suggestion that I didn’t provide evidence for my claims about the KKK is odd, since I did provide some very specific facts in #10 to back up my claims in #9. And earlier in the post I referred and linked to the leading book on the subject, which details the history I recounted in my post -- and much, much more. Obviously, in a blog post, I could highlight only some of the more interesting facts that people might not know. From the response here, it appears that these facts did come as a surprise to many.

6. Point 9 in my original post reads: “In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.” When I said that there was a near consensus, I was including many secularists, many Jews, many atheists, most educated people, and a unanimous Supreme Court. That’s what a “near consensus” meant to me. Many of these groups would have been diametrically opposed to nativist groups on most issues, but that didn’t change the importance of the nativist influence on the reception of separation.

7. As readers point out, there is a form of argument (which I have recognized as fallacious since I was in high school and indeed have written about long ago): 1. The Soviet Union emphasizes science education. 2. The Soviet Union is bad. 3. Therefore, emphasizing science education is bad.

I do not say that separation is bad because it was pressed by nativist groups. I say: “nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.” That is true. Should I have left out this fascinating point because people don’t generally know this and are surprised by this fact. I thought that a great reason to include it.

5. Hamburger details the influence of nativist groups on the movement for separation, including the Klan and factions of the Masons. My point 10 was providing some tidbits of evidence for my point 9, which might have appeared gratuitous without evidence. Please read Hamburger's book for the evidence on points 9 &10, as well as the other historical assertions in my post. Even some of Justice Black's defenders argue that he was a Klansman not because he was racist (though he certainly used racist appeals early in his career as a litigator) but because he was anti-Catholic. Before Hamburger's book, people were aware of the anti-Catholicism behind much of the movement to embrace separation, but not aware of the influence of particular groups, such as the KKK. As for the nature of the organizational ties between the plaintiffs in Everson and the Klan, again read Hamburger’s book.
9.15.2005 3:39pm
TomH (mail):
One thing that occurs to me is that the Pledge as it stands right now, doesn't require an allegiance to god, but only the flag which represents the Republic, and lets you know that, notwithstanding "your" allegiance to Him (as per St. James), god lords over the US.



Compare to language that re-orders the phrasing:

I pledge allegiance to the God who lords over the United States of America and the flag which represents the Republic, one nation, indivisible . . .
9.15.2005 3:39pm
anonymous coward:
"BTW, you may not think of atheism as a religion, but it is certainly a belief system requiring faith. Or do you somehow KNOW what happens after death?" Well, do you KNOW that fairies don't exist? That the world isn't flat? That your wardrobe isn't a portal into another world? That Greek myths aren't actually factual?

You don't KNOW these things, but I'll bet you don't believe in them, and for some pretty good reasons.
(I don't mean to argue that you can't believe as well as disbelieve in god for plausible reasons. I'm just sick of hearing people repeat that all beliefs are equally a matter of faith regardless of reasons for holding them.)
9.15.2005 3:49pm
Quarterican (mail):
A (sincere) question for those who believe that the history of Establishment Clause jurisprudence has been hopelessly misguided, perverted, etc., that the Establishment Clause should only have ever been read to prohibit the imposition of a literal religious establishment (i.e., tax dollars to the national church, as in many European countries), and never should have been incorporated to the states via the 14th Amendment:

Do you nonetheless support the principles which led to the doctrine of separation of church and state? Would you have supported/would you support a constitutional amendment to that effect (on either or both the state and the national level)? If your answers to these questions are yes, what level of assurance that such an amendment could be passed is necessary before you're comfortable with the Supreme Court actually reversing this lengthy list of precedents?
9.15.2005 3:52pm
Allan (mail):
The question underlying this debate is, why do Christians insist on injecting their beliefs into otherwise secular contexts? Why did the Knights of Columbus lobby to insert "under God" into the Pledge? Why place a religious monument into a publicly-owned square? I have no objection to organized prayer in parochial schools, and I don't mind at all if a church--or my next-door neighbor--place a marble effigy of the Ten Commandments on their front lawn. As long as its done on their property, I'm fine with it.

The point's been made elsewhere--it's true that "separation of Church and State" doesn't appear in the Constitution, but neither does "We are a Christian nation."
9.15.2005 3:56pm
Public_Defender:
It's perfectly fair to point out the view of the KKK on the subject, but the post made it look like the first use of the doctrine was the defense of slavery. (I realize that a short post on the subject can't be comprehensive.)

But the doctrine did not originate from secularists, atheists or slaveholders--it originated from religious people who believed that government and religion would corrupt each other (and especially that government would corrupt religion).
9.15.2005 4:08pm
anonymous coward:
As expected, Prof Lindgren defends himself on the grounds that he is simply highlighting interesting facts. They certainly are interesting, but they are presented in a manipulative manner. Perhaps the juxtapositions were accidental, but it sure feels like I'm reading the Nation or the WSJ editorial page. My comments in brackets:

"Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the 'eternal separation of Church and State.' [So Black was pushing separation long before he was on the Court! Now comes the slight-of-hand:] In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church &state." [The implication is that this judgement was reached because of his abandoned Klan ties--or anti-Catholicism--not because that's how he read the law. I suppose that leaves the hidden motives behind the other Justices' argeement to be explained. In any event, there is no attempt to establish the implied causal link.]

There is no reason that these interesting facts need to be phrased in a manipulative way. It pissed me off.
9.15.2005 4:09pm
scott (mail):
John Adams - "Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." October 11, 1798

James Madison - In 1812, President Madison signed a bill which economically aided the Bible Society of Philadelphia in mass distribution of the Bible.

Benjamin Franklin - In his 1749 plan of education for Pennsylvania public schools, he insisted that schools teach "the excellency of the Christian religion above all others, ancient or modern."

George Washington - During his inauguration, he requested a bible upon which to take the oath of office, added the words "so help me God" to the oath and kissed the Bible. On the day the First Amendment was passed by Congress in 1789, he proclaimed a day of "public thanksgiving and prayer, to be obsserved by acknowledging with grateful hearts the many and single favors of Almighty God." In his farewell address, he stated that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle..."

You do not have to agree with these Founders, and you certainly do not have to believe as they did (and I am not arguing that theirs was necessarily the best policy), but in the face of these facts (and many others), to assert that they authored a Constitution and Bill of Rights that prohibited the mention of God in a public school, in a pledge, on currency or elsewhere, or a prayer in a school, courthouse or on any other public property, requires an extraordinary leap of blind faith. A faith so pure and intense, I would argue, that it rivals that of any "true believer" of any religion.
9.15.2005 4:09pm
SimonD:
It seems to me that, to determine what "establishment" meant in 1792, you need to look to the relationship between the Church of England and the English state circa 1792, and its evolution subsequent to the Reformation (call it 1534); it might even be appropriate to look at what establishment meant in countries such as France and the pre-Unification Italian and German states. The Federalist papers are full of discussions of foreign systems, and so it seems reasonable to assume that the framers were on some level aware of what an established religion meant, and if we can determine what establishment actually meant in 1792, then I think we will fairly clearly be able to define what the scope of the establishment clause is.

Isn't it funy how liberals demand a very expansive reading of the commerce clause and the due process clause, but demand a very narrow, restrictive reading of the establishment clause and keep and bear arms clause? I am so often reminded of Waxman's comment during the Florida Prepaid argument, which for me just seemed to sum up the whole standardless, unprincipled democrat / living constitution view of things: "we are attracted by any notion, or principle, the logic of which carries us to a result we think is just". Whatever works, in other words; whatever they can cobble together to press their agenda. No principles, just a bottom line: get the result and move on. And sadly, the GOP seems to have adopted this cancerous mindset.
9.15.2005 4:19pm
Hans Bader (mail):
I don't think the Pledge of Allegiance is unconstitutional (although it actually flowed better before Congress inserted the words "under God" into it in the 1950's).

But I also don't think it's fair to impute separation of church and state to the Klan because Justice Hugo Black, a repentant ex-Klansman (who joined the opinion Brown v. Bd. of Education in rightly striking down segregation), happened to refer to the metaphorical wall of separation in passing in his opinion in Everson.

In that case, Justice Black UPHELD state support for parochial school children AGAINST an Establishment Clause challenge, both writing the majority opinion and supplying the deciding vote for the decision.

It was a 5-to-4 decision which UPHELD state help for religious schools as part of a larger scheme of providing assistance to both religious and non-religious students.
9.15.2005 4:37pm
michael (mail):
Challenge, many forms of religious expression prohibited to the government are also not prayers, so whether the pledge is a prayer is irrelevant. A pledge subordinating the country to any deity's authority is religious advocacy just as much as a prayer would be.

Furthermore, why are my beliefs -- or anyone's -- relevant at all, unless your support for "one Nation, under God" is really support for "one Nation, under Challenge's preferred God"? If that is the case, I submit that the clause is much more the advocacy of a specific religion than you admit. (I dismiss the alternative explanation, that your question was a prelude to an ad hominem attack based in a dispute with what I believe.)

TomH: The argument is whether it is proper for the government to advocate for the belief that "god lords over the US". It is a question of religion whether there is a deity who actively supervises the universe, a deity who set it in motion and left it to its own workings, some other sort of single deity, a multiplicity of deities, no deities at all, and so forth; as such, the government may not endorse one religious theory over others.
9.15.2005 4:42pm
Bezuhov (mail):
This mindset itself is not necessarily cancerous, its merely the common American pragmatism (from the Greek pragma, meaning "result" among other senses). The cancer comes from that pragmatism wrought both overly large, and thus overshadowing other values, and overly narrow, and thus not seeing the results that ensue from the single-minded application of this approach itself.

Judge Roberts spoke skillfully of balancing pragmatism and principle in his answer to Schumer regarding his relatively willingness to discuss prior cases.
9.15.2005 4:48pm
Jon Rowe (mail) (www):
I'm still getting through Hamburger's book.

While I think it very interesting about the Klan and their support for Separation, this point seems to be one of the weakest parts of Hamburger's book, not because it's historically inaccurate, but because it seems so misleading.

Gary Wills had a good line about this on Peter Robinson's Think Thank: "You can support the right thing for the wrong reason." As I understand, the Klan is against affirmative action as well.

The notion that Black supported Separation because of his Klan background is patently absurd. What did the Klan think of the Brown decision? Why did Black vote in the majority in that decision? Why didn't his Klan colors come through in that case?
9.15.2005 4:57pm
Bezuhov (mail):
"The question underlying this debate is, why do Christians insist on injecting their beliefs into otherwise secular contexts?"

This would be the question if those beliefs were not originally there and therefore required injecting. In the narrow case of the Pledge, where "under God" was added to the original, the question is pertinent. As to the larger questions for which the Pledge case is taken to be emblematic, it is not at all clear that this is the case. The related question as to whether these beliefs should enjoy "squatter's rights" is also pertinent.
9.15.2005 4:58pm
Wince and Nod (mail) (www):
Allan,

I can answer your question: [W]hy do Christians insist on injecting their beliefs into otherwise secular contexts?

Christians, and members of other faiths, don't believe in secular contexts. We are supposed to live our whole lives in a way that is faithful to God. Driving my car in a way that is faithful to God involves obeying driving laws, driving in an attentive, courteous, considerate and safe manner, conserving fuel, and even minimizing the crud my vehicle spews into the air. Am I always a good Christian when I drive? Sadly, no, and I apologize for that, both to you and to God.

This, too me, is an argument for a small government. The larger the government, the more likely it is to intrude into our daily lives. This will set up a natural tension between those who object when their faith is removed from that large intrusion in their lives and those who object when someone else's faith is imposed on them from that large intrusion in their lives.

The case we are discussing involves 7 hours out of 179 days for at least ten years in Kansas. That's 12,530 hours. As a 24/7 prison term that would be almost one and a half years. As a job at 50 40 hour weeks per year would be a six year commitment. Any way you cut it, that's a large government intrusion into our lives, and Christians should be just as unhappy if God is excluded as atheists are if God is included.

Yours,
Wince
School choice - it's only fair
9.15.2005 5:15pm
PersonFromPorlock:
SKlein - Porlock--you've gotten to the heart of the issue--does the constitution prohibit the voluntary utterance of empty pieties that affect nothing?

That's why I said I was a little OT: my comment is really irrespective of the phrase's constitutional standing, I just object to its insincerity.
9.15.2005 5:29pm
PersonFromPorlock:
Whoops! Said I was 'a little OT' in another thread I posted to today, not this one. It's true here too, though.
9.15.2005 5:32pm
TNugent:
Jim, atheism is indeed a religion, if religion means a belief or system of beliefs held on the basis of faith. One can no more prove the non-existence of God than one can prove the existence of God. Substitute "atheism" for "religion" in the free exercise and establishment clauses of the Constitution, and the meanings of those clauses doesn't change within the scope of "atheism" -- that is, it prohibits government establishment of atheism, but also prohibits government infringment on the free exercise of one's atheistic beliefs. Atheism is indeed within the set of "religion."
9.15.2005 5:38pm
anonymous coward:
TNugent: "Jim, atheism is indeed a religion, if religion means a belief or system of beliefs held on the basis of faith." Why? "One can no more prove the non-existence of God than one can prove the existence of God." Thus: "Atheism is indeed within the set of 'religion.'"

So what do you believe we can "prove"? Can we prove the non-existence of Lephrecauns? If I happen not to believe in Lephrecauns, is that a religion, too?
(I am not making an argument in favor of atheism. I am making an argument that you can believe something for good reasons without providing "proof.")
9.15.2005 5:54pm
random (mail):
lucia,

Please see the answer to the first two questions.

(So no, you couldn't insert "under Bugs Bunney" and have the same meaning. "God" is a special term for the source of trancententalism among many other things in our lives--a term you should also ponder--"lives").
9.15.2005 6:29pm
random (mail):
Here is a task for those who think they understand democracy:

Formulate a closed set of rules that establishes a stable democracy under which all people are intrinsically equal in the eyes of the law.

Your answer must include a basis for the law within the closed set of rules.


P.S. It has never been done yet in the history of the world without an appeal to the trancendental. Goodluck!
9.15.2005 6:39pm
lucia (mail) (www):
So no, you couldn't insert "under Bugs Bunney" and have the same meaning. "God" is a special term for the source of trancententalism among many other things in our lives--a term you should also ponder--"lives").

Random, I read your answers to your first two hypothetical questions. How does the fact that people disagree about who or what god make the use of the term "under god" non-religious?

If Bugs Bunny changes the meaning, for the reasons you say, then "under god" is already religious. Otherwise, the only objection to "under Bugs Bunny" is the fact that it is silly.

As to pondering "lives" in "our lives", I would normally assume "lives" was plural to match "our" and leave it at that. I suspect if I pondered further, I would also conclude you are dicussing religion of some sort. Of course, my suspicion may be incorrect. Could you clarify?

As far as I can tell, your position is: "religion is good meaningful,and enriches people lives, the words 'under god' encourage religion and therefor we could permit public officials to strongly encourage kids to recite pledges containing thos words".

That might be fine and dandy, but it sounds a lot like establishing religion. We can argue whether or not it's such a feeble attempt as to be nearly meaningless, or whether it is coercive and should be forced. But, it has the elements.

At least when I was at school the Nuns didn't pretend forcing us to recite the Hail Mary was not a religious activity.
9.15.2005 6:52pm
David M. Nieporent (www):
As an agnostic who strongly believes that the phrase "under god" should be removed from an oath sworn by children in public schools, I have never understood why the primary argument for this has been based on the establishment clause, and not free exercise. [...] I agree that arguments with regard to the establishment clause are weak, so why are arguments not made with regard to free exercise, which seems a much stronger argument?

Because it doesn't go where the advocates of the SeparationOCAS want to go. Free exercise, like freedom of speech, is an individual right. It protects the right of individual students not to be forced to say the pledge. But that battle has already been won (West Virginia v. Barnette).

Newdow et al. don't want to protect their kids from saying the pledge; they want to "protect" their kids from hearing the pledge. Free exercise doesn't help there.
9.15.2005 7:14pm
alkali (mail) (www):
Prof. Lindgren writes:

3. For those who think that the words "Under God" establish a state religion, precisely which religious sect has the state of California established as the state religion?

a) The First Amendment says "shall make no law respecting an establishment of religion," not "shall not establish any particular sect as a religion, but may make lots of laws about religion."

b) To answer the question a bit more directly, the language "under God" is congruent with Judaism and some sects of Christianity, and not Islam, Hinduism, Buddhism, etc. (N.b. I understand that Islam is monotheistic; however, it has a particular liturgical language that has a name for the deity, and "God" ain't it.)

c) The fact that no one sect is preferred can't be dispositive. Suppose Congress decreed, "Accept Christ on pain of death, but feel free to make up your own mind as regards infant or adult baptism." That both Baptists and Methodists are accommodated under that law doesn't save it.

Further, the first amendment was intended to prohibit Congress from establishing a national religion, not to prohibit a state (such as Maryland) from doing so. Query whether the 14th amendment changed that?

Er, yes, it did. There is of course an ongoing (and 99 44/100% academic) argument on this point, but in reality this is settled law not pertinent to this particular question. You might as well wonder if courts have the power to strike down a duly enacted law as unconstitutional.
9.15.2005 7:25pm
random (mail):
Lucia,

I tried to be as clear as possible.

Everyone is religious whether they think they are or not. Just the fact that they believe they are autonomous actors invokes trancedentalism. It is impossible to say that people are autonomous and determinant without the notion of trancendentalism.

"Under God" is religious--but we are all religious. In fact, we must be, because we could not form a working democracy without trancendentalism. For any two people, one would always be greater in some respect than the other thus entitled to some differing amount of power in the political system. (The political system would have to be constructed on a negotiated power balance of the observable, itself being underpinned by raw power).

The answer to the "lives" question is the fact that we are not rocks. Where does life come from? Life, the ability to organize the environment in a directed way continuously is something of an affront to science. We can't explain it except to appeal to the transendentalism. So, again, we are all discussing religion.

Religion is not a good, it is simply our description of this predicament of life we find ourselves in and our search to understand it. It just is. Some people have a communal organized approach to it and some people are purely empiracists. It doesn't matter. Happily, the notion that there is some central purpose--a source--is also sufficient justification for establishing equality under the laws.

On the other hand, Buggs Bunny is just our creation. Why would you want to view that as a source of sovereignty? It is a product.
9.15.2005 7:28pm
von (mail) (www):
Professor Lindgren:

"The suggestion that I didn’t provide evidence for my claims about the KKK is odd, since I did provide some very specific facts in #10 to back up my claims in #9."

What a weird non sequitor. In fact, the "suggestion" was that you didn't provide evidence for your claims about Justice Black; you still haven't. (I, at least, didn't challenge your claims about the KKK or other natavist groups.)

It seems that you're just not spending the time required to understand why your assertion "10" exhibits poor advocacy &reasoning. [And that's leaving aside the possibility that your conclusion may in fact be correct!] Granted, we've all have bad days. But there's no point for me to waste further time on this post, given that you're unwilling or unable to address the criticism (much less answer it). On a different thread, then, when I expect you'll be back to your senses.
9.15.2005 7:48pm
Clayton E. Cramer (mail) (www):

A (sincere) question for those who believe that the history of Establishment Clause jurisprudence has been hopelessly misguided, perverted, etc., that the Establishment Clause should only have ever been read to prohibit the imposition of a literal religious establishment (i.e., tax dollars to the national church, as in many European countries), and never should have been incorporated to the states via the 14th Amendment:

Do you nonetheless support the principles which led to the doctrine of separation of church and state?
Not as the ACLU understands it. There is simply no reason for suits challenging the historical context of a cross in the County of Los Angeles's seal. The suits attempting to remove Ten Commandments monuments from public parks, courthouses, statehouse grounds, etc., are absurd.
9.15.2005 8:03pm
Quarterican (mail):
random -

It is possible that I am misunderstanding your use of transcendentalism. Allow me to present a variety of responses to your arguments, all of which I find plausible, none of which I'm actually asserting as my personal truth.

(1) It may be difficult for me to believe that I am an autonomous actor without, at least, recourse to (Kantian) transcendentalism, but I'm not familiar with why the level of transcendentalism necessary to believe in autonomy ought to be considered "religious" belief (well, see (4) below, but supernatural, spiritual belief).

(2) It is possible that I do not consider myself an autonomous actor. I may behave as though I believe that I am, since that's the only convenient and sane way to live life, but I also behave as though I believe Newtonian physics is, strictly speaking, true, even though it is contradicted and superceded by subsequent models. It's possible I could consider myself - and everyone else - to be purely mechanistic with no true autonomous capacity, no free will, and only enough self-reflection to realize that we require the illusion of autonomous free will in order to conduct the higher order behaviors we engage in.

(3) I can form a working democracy by starting from the principle of putting myself in someone else's shoes - the Rawlsian veil of ignorance, or whatever he calls it. Imagine that I am going to construct a society without knowing what my place in it will be. If I don't know but am aware it's possible that I'll be polydactyl, I'm considerably less likely to create a society that treats polydactyls as circus animals. This requires something like the capacity for empathy. I am certain that empathy is a live possibility in my example (1), open for debate as to whether it could exist in my example (2). (Perhaps empathy is the mechanism by which we arrange ourselves for the greatest utility of society?)

(4) If I grant you that everyone is religious - there's a lot of context-based slippage about what religion means, and I can construct a definition much like the one you seem to be employing which essentially means "if you're no religious you're a heartless unthinking sack" - then you still need to address discrimination between religions. Discrimination between theistic religions (and between mono- and poly- theistic religions) and atheistic religions (if we're going by this definition of religion, then atheism isn't a religion, but a type of religion, and it encompasses people who follow the teachings of such varied individuals as the Buddha, Emerson/Thoreau, Kant, Plato, or any other person whose body of beliefs has been adopted as an organizing principle by someone else). And "under God" is still left with the problem of being discriminatory between religions. Towards the top of this thread you write that we need "under God" in the Pledge because everyone has a God. Nice platitude, but neither in 1954 nor 2005 does anyone seriously committed to keeping or removing the phrase "under God" from the Pledge of Allegiance think that "God" is a nonspecific, that "God" could be Bugs Bunny, or Vishnu, or The Golden Rule, or the owner of the Washington Times. "God" in the Pledge means Jehovah/Allah, the God of the Middle Eastern monotheistic tradition. If it doesn't, Wince and everyone who shares his perspective will start to get agitated.
9.15.2005 8:07pm
Quarterican (mail):
Clayton E. Cramer -

Could I trouble you to make a positive statement about how you do understand the doctrine of separation between church and state? I presume from your answer that you think it does/should not emanate from the First Amendment, but that you think there should be something. Would you be amenable to a constitutional amendment? (And do you know what you would want it to say? - I haven't given remotely sufficient thought to how I would want to phrase such a creature, partly for the host of pragmatic issues involved.)
9.15.2005 8:13pm
Jim Lindgren (mail):
Von,

Really, this is all covered in Hamburger's book. I summarized some of the evidence in my post. It is not reasonable to expect me to read the book again for you and write a longer summary than the one I gave. Or do you just want me to look in the index to Hamburger's book and give you the page numbers, which I can spend a half hour doing if it would really satisfy you? Yet if you care so passionately about it, aren't you going to have to read the book yourself to judge it?

Here is an excerpt from an article on the web by Prof. Daniel Dreisbach, who also has a recent book on separation out:


Not surprisingly, this separationist rhetoric returned to fashion in the 1830s and 1840s and, again, in the last quarter of the nineteenth century when waves of Catholic immigrants, with their peculiar liturgy and resistance to assimilation into the Protestant establishment, arrived on American shores. Nativist elements, including the Know Nothings and later the Ku Klux Klan, embraced separationist rhetoric and principles in a continuing, and often violent, campaign to restrict the role of Catholics in public life. Again, in the mid-twentieth century, the rhetoric of separation was revived and ultimately constitutionalized by anti-Catholic elites, such as John Dewey, Hugo Black, and their fellow-travelers in the American Civil Liberties Union and Protestants and Other Americans United for the Separation of Church and State, who feared the influence and wealth of the Catholic Church and perceived parochial education as a threat to public schools and democratic values.[i] The chief architect of the modern “wall” was Justice Hugo Black whose affinity for church-state separation and the metaphor was rooted in virulent anti-Catholicism. Philip Hamburger has argued that Justice Black, a former Alabama Ku Klux Klansman, was the product of a remarkable “confluence of Protestant [specifically Baptist], nativist and progressive anti-Catholic forces. . . . Black’s association with the Klan has been much discussed in connection with his liberal views on race, but, in fact, his membership suggests more about [his] ideals of Americanism,” especially his support for separation of church and state. “Black had long before sworn, under the light of flaming crosses, to preserve ‘the sacred constitutional rights’ of ‘free public schools’ and ‘separation of church and state.’” Although he later distanced himself from the Klan, “Black’s distaste for Catholicism did not diminish.” Hamburger, Separation of Church and State, 423, 434, 462. In summary, the terms “separation of church and state” and “wall of separation,” although not necessarily expressions of intolerance, in the American experience they have often been closely identified with the ugly impulses of nativism and bigotry. These phrases, in our cultural and political experience, have been so freighted with nativist and bigoted connotations that I believe we must reconsider the propriety of their continued use in legal and political discourse.


I wouldn't endorse everything Dreisbach said (especially his lumping of the ACLU, an organization that I have worked for, in with groups with anti-Catholic motives), but he summarizes more evidence and concurs in Hamburger's conclusion about the role of nativist groups. There is more in Dreisbach's article and he goes farther than I did.

Do you find this helpful? If not, please read Hamburger yourself.

Jim Lindgren
9.15.2005 8:30pm
random (mail):
Quarterican,

Everyone has the capacity to ask a self-aware question about their existence. At least, all people that we have ever asked to some degree of another.

Whether they consider themselves autonomous or not is irrelevant. If we cannot predict their behavior and thoughts and they cannot either, for t->00, then for all intents and purposes they are autonomous. We can call this functional autonomy.

Self-aware and functional autonomy seem to me to be sufficient properties for trancendentalism. If we realize that we cannot prove to ourselves that we are deterministic, we are functionally religious. In fact, we can be in a state of belief that we are deterministic, but lacking proof of it we are still religious. But, if we could prove that we are rocks, then we would be rocks. Thinking rocks like a computer.

It is sufficient to think of yourself as free, but it is not necessary.
9.15.2005 8:41pm
von (mail) (www):
Do you find this helpful? If not, please read Hamburger yourself.

Inasmuch as you've now actually addressed the criticism? Obviously, yes, I find it helpful. More helpful, however, would be if you would buy me a copy of Hamburger's book and send it to me first class mail, postage prepaid, with a three-page outline of its arguments prepared by you.

Weren't my criticisms, first, that assertion 10 was unsupported and, as such, unfair; and, second, that your purported response to "criticism-the-first" somehow failed to address criticism-the-first? Why wouldn't I be happ(ier) when you actually address the criticism?

(BTW, if you don't want to address something, don't. It's not like "von's" disapproval has an effect on anything; and, anyway, as I tried to make clear in my last comment, I'd hardly hold it against you.)
9.15.2005 8:50pm
Jon Rowe (mail) (www):
I'll repeat. Black turned out to be a lefty liberal. The Klan are anything but liberal in the classical or leftist sense. This is the same Black who voted in the majority in Brown and like cases.

To say that his views on Separation had anything to do with his past in the Klan seems to be at the very least speculation and unproven. If he voted up and down the Klan party line it might be a different story.

And Hamburger and Dreisbach don't explain why every other member of the Court, none of whom were Klan members, also endorsed the "Separation" metaphor, even in more zealous ways than Black.
9.15.2005 9:06pm
Misc.:
Athiesm obviously is a religion. If it wasn't, then the government would be able to establish it. Therefore, the words "under God" in the Pledge take a governmental stance on a religious question, and establish it.
9.15.2005 10:11pm
Jonesy:
David M. Nieporent

It has nothing to do with 'not wanting to hear the pledge', you can say 'under god' or prayers or talk about religion all day long in school if you want, as long as your not disturbing a class - and I would defend your right to do so. Just don't try to use the governement to coerce/influence others to, thats the issue.
9.15.2005 10:37pm
Wilson:
It has always bothered me that we pledge allegiance to a flag. It seems that we should be pledging our allegiance to the constitution, since that is the contract under which our rights and privileges are described (not necessarily defined and limited, but otherwise set forth in writing).

Or perhaps we should just forget it and pledge allegiance to the goverment or the president and forget the concept of a higher power. That seems to me to be what we would pledge to if there were no invocation of a higher power than government
9.15.2005 11:37pm
SimonD:
I understand that Islam is monotheistic; however, it has a particular liturgical language that has a name for the deity, and "God" ain't it
I don't agree. Correct me if I'm wrong, but isn't "God" a direct translation of the arabic word "Allah"? In that sense, wouldn't "Allah" not be a name (in the way that "Yahweh" is the name of the Hebrew God), but rather, the exact same thing as "God"?
9.15.2005 11:57pm
Just some guy:
The Blaine Amendment argument is misleading. It was not introduced until after the Slaughterhouse cases in which the Court said that the Privileges and Immunities Clause essentially meant nothing despite good historical evidence that it was likely intended to apply the Bill of Rights against the states. After those cases, it was unclear whether the Bill of Rights did apply against the States, so it was entirely reasonable for Senators to think that despite the commonly understood meaning of the Privileges and Immunities Clause when the Fourteenth Amendment was passed, they needed to pass a constitutional amendment to apply the Establishment Clause against the States.

Regardless, the Blaine Amendment was more about anti-Catholic bigotry as opposed to a grander view of the Constitution much in the same vein that the Alien and Sedition act has little to do with constitutional law and a detailed understanding of the Free Speech Clause. (Likewise, the mini-state Blaine amendments that sprang up in states had more to do with religious bigotry and as a reaction to the Slaughterhouse cases than anything else.)

Finally, it seems ironic that the conservatives, particularly Catholic conservatives, don’t learn from the shameful anti-Catholic bigotry in our nation’s past. One of the biggest points of contention between Catholics and Protestants during the 19th Century was whether the Bible should be read in schools. Protestants, closing following the conservative arguments of today regarding the pledge, argued that reading the bible, without note or comment, was in fact “neutral.” Catholics, on the other hand, who believe that the bible must be explained to people, found reading the Bible (the Protestant version of course) was anything but neutral. There are cases reported from the late 19th century where courts upheld Catholic students being beaten by public school teachers for not wanting to read the Bible.

Finally, the “Separation of Church and State” doesn’t really seem to translate well into constitutional doctrine. Many commentators (myself included, if I can be called a commentator), don’t accept or understand the “Separation of Church and State,” but think that the pledge is unconstitutional.
9.16.2005 1:03am
Penta:
SimonD: Sort of.

Lah is the actual Arabic for God (Al is the equivalent of 'the', if I remember correctly), but, yes, it generally translates as such.

Howver, God is not a translation of Allah. (The etymology of God is a subject I know almost nothing about, but I know that much.)

They just mean more-or-less the same thing, and happen to refer to more-or-less the same deity.
9.16.2005 1:15am
Jim Lindgren (mail):
Just Some Guy,

I was not referring to the Blaine Amendment, which indeed was designed to target Catholic schools, but to allow general public schools to continue to be Protestant. But the liberal Republicans had made a stronger proposal before Blaine and made a much stronger separationist amendment proposal in 1876 that did far more than the Blaine amendment. Indeed, it was in part designed to prevent public schools from being run by Protestants. Its express purpose was to introduce separation into the US Constitution. Its history is told on pp. 296-311 of Hamburger's book, and had been largely overlooked before Hamburger's book.

Jim Lindgren
9.16.2005 1:33am
Jim Lindgren (mail):
I think there is still some confusion here. Elsewhere, those who praise separation often point to its pedigree, particularly Jefferson’s 1802 letter. I am not saying that separation is a bad idea because it was pushed for so long and so successfully by anti-Catholics. But the dark side of its pedigree should give people pause, and cause them to judge separation on its merits, not as some necessarily lofty principle supposedly long enshrined in the first amendment’s establishment clause.

John Rowe wrote: “The notion that Black supported Separation because of his Klan background is patently absurd.” And: “Black turned out to be a lefty liberal. The Klan are anything but liberal in the classical or leftist sense. This is the same Black who voted in the majority in Brown and like cases.”

Black formed a strong antipathy to Catholicism early in his life, and has been described as continuing to hold anti-Catholic views throughout his life (Hamburger, pp. 425-26, 427-28, 430-33, 462-63).

As Black’s son said in defending Black:


The Ku Klux Klan and Daddy, so far as I could tell, only had one thing in common. He suspected the Catholic Church. . . . He thought the Pope and bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and did not return enough of it.” (Hamburger, p. 463)

Black ran as effectively the Klan’s candidate for Senate in 1925 and 1926 (see Hamburger, pp. 422-29). He had no official campaign manager, relying on the head of the Alabama Klan as his unofficial campaign manager. The finance chair of his campaign was the law partner of the head of the Klan, and himself an Exalted Cyclops of the Klan.

Black’s campaign was based substantially on anti-Catholicism and anti-immigration. Black went to nearly every one of Alabama’s 148 Klaverns to speak against the Catholic church. The Alabama Klan head said that Black wouldn’t talk about politics in these campaign speeches, just about the history of the Catholic Church. The head of the Klan said that “Hugo could make the best anti-Catholic speech you ever heard.” Further, Black also spoke often in Protestant churches about the “history of the [Catholic] church.” His campaign slogan was “America for Americans,” which involved vicious anti-immigration policies.

Black ran by appealing to the Klan and to the “Dry-Protestant-Progressive Voters” of Alabama. As Hamburger reports (p. 427), “the Baptists supported the Anti-Saloon League, the League and the Klan often seemed to blur together, and the Klan included ‘nearly all the preachers.’”

Black signed a private letter resigning from the Klan at the suggestion of the head of the Klan (his unofficial campaign manager). Black signed his resignation using Klan code: “Yours, I.T.S.U.B. [In The Sacred, Unfailing Bond], Hugo L. Black.” (campaign described in Hamburger, pp. 426-29).

After Black was confirmed by the Senate in 1937, it was revealed that he had been a Klan member. In his radio address that successfully saved his appointment, Black artfully avoided denouncing the Klan, instead saying that “a planned and concerted campaign was begun [against him] which fans the flames of prejudice and is calculated to create racial and religious hatred.” Black goes on to mention the spirit in 1928 (i.e., anti-Catholicism, when the Klan and other nativist groups boycotted Catholic businesses). Black warns that opposition to him will result in business men going bankrupt because their religion does not accord with the majority religion in their community. In more plain words, Black was sending a message to Catholics that opposition to him will lead to boycotts by nativists against Catholic businesses. I would recommend reading the excerpts from his speech on pp. 429-34 of Hamburger’s book.

There is nothing inconsistent with Black being a progressive populist, who was fiercely anti-Catholic. As political scientists have noted, Southern Democratic senators in the mid-1930s tended to be stronger supporters of the New Deal than Northern Democratic senators, because of their greater populism, yet these Southern Democratic senators also tended to be strongly racist. Black tended to be less racist and more anti-Catholic than most of these Southern New Deal senators.

(Remember that President Wilson, who is considered a progressive by many, was the most racist of 20th century presidents, who re-segregated the federal government to the extent he could, demoting black supervisors simply because they were black. And remember it was the progressives who were mostly those who were pushing eugenics.)

Projecting 1960s-2005 left-right politics back on the 1920s and 1930s really doesn’t work very well. In the South at least, populist politics were tied to pushing the interests of the white Protestant middle and lower-middle classes, which meant that its targeted base could embrace significant parts of both Southern progressivism and the Klan, strange but common bedfellows.

Jim Lindgren
9.16.2005 3:13am
Public_Defender:
But the dark side of its pedigree should give people pause, and cause them to judge separation on its merits, not as some necessarily lofty principle supposedly long enshrined in the first amendment’s establishment clause.

As I said above, it's fair to look at the misuse of the idea. But you included no information on the noble origin of the concept in the US. Specifically, it was pushed in the 17th Century by Roger Williams, an anti-slavery minister who supported freedom of religious practice. He founded Rhode Island, where he also started this country's first First Baptist Church.
9.16.2005 6:47am
random (mail):
Penta et al.

And it is worth mentioning that Muslims, Christians, Jews, Budhists, Atheists, etc. all have no real understanding of what/who/if God is to the point that they can describe the trancendental with a definitive label.

The label is their label of choice and reflects only their understanding and pov. A rose by any other name ...


(And adding the phrase, "transcendental source" just doesn't have the ring that "God" has -- hard for kids to pronounce also although it may be good for their vocabulary.)

Only idiots and liars would argue that "God" is this or "God" is that as if it is some fact that they have complete knowledge to the exclusion of all else. They can discuss how they understand God.
9.16.2005 7:50am
David M. Nieporent (www):
I don't agree. Correct me if I'm wrong, but isn't "God" a direct translation of the arabic word "Allah"? In that sense, wouldn't "Allah" not be a name (in the way that "Yahweh" is the name of the Hebrew God), but rather, the exact same thing as "God"?

Essentially so. Arabic speaking non-Muslims use the word "Allah," also.

Oh, and "Yahweh" is not "the name of the Hebrew God." Jews have many names for God; YHVH is one of the most important, but the idea that this word is pronounced "Yahweh" is a myth. Actually, nobody knows precisely how it was pronounced. (Quick summary here)
9.16.2005 8:55am
Jon Rowe (mail) (www):
— As I said above, it's fair to look at the misuse of the idea. But you included no information on the noble origin of the concept in the US. Specifically, it was pushed in the 17th Century by Roger Williams, an anti-slavery minister who supported freedom of religious practice. He founded Rhode Island, where he also started this country's first First Baptist Church. —

As I'm sure Lindgren will note, Hamburger deals with Williams in detail as well.

It's interesting, as I noted (and as Gary Wills said on this episode of Think Thank which discusses Hamburger's book in detail), you can support the right thing for the wrong reason. And sometimes people have the most bizarre (or what we would consider irrelevant) reasons for supporting or coming forth with idea X, but X turns out to brilliantly solve an entirely different concern.

Facts: Williams coined the phrase (or a similar phrase) "Separation of Church and State," argued for religious liberty (even for non-Christians), and for government that was essentially "secular" in its purpose and functions. Williams was one of the first, if not the first Christian thinkers to argue for this, and keep in mind he made his case well before Locke and the Enlightenment.

Hamburger notes, correctly, that Williams was a fanatical fundamentalist. Now, the religious right may therefore endear Williams, as they sometimes argue that "religious toleration" is a "Biblical" idea brought to us by "Christians" like them. But wait, as Hamburger notes, Williams didn't really care about the well-being of those being persecuted, rather Williams, as a "religious nut" had a fanatical desire to keep Christianity "pure" from corrupt worldly influences of which civil government certainly was one.

And as Hamburger notes, Williams's views were not at all dominant; in fact, he was practically an anomaly (and was banished from Mass to found Rhode Island for his dissident thoughts). Well, what then were the dominant views? You'd have to look to Mass. and other colonies: There was not only no distinction between Church and State, but the entire Bible was deemed appropriate to write into the civil code...and the results were disastrous. The God of the Bible is a "Jealous God" and as such civil codes forbade the open worship of any God but He, and prescribed the DEATH PENALTY for open worship of false Gods and Idols (this was the dominant view of the fundamentalists, as represented by John Winthrop, founder of Puritan Mass., the antithesis of religious toleration).

Compare Winthrop's views with Williams's sentiments:


All civil states with their officers of justice, in their respective constitutions and administrations, are . . . essentially civil, and therefore not judges, governors, or defenders of the Spiritual, or Christian, State and worship. . . . It is the will and command of God that, since the coming of His Son, the Lord Jesus, a permission of the most Paganish, Jewish, Turkish or anti-Christian consciences and worship be granted to all men, in all nations and countries; and they are only to be fought against with that sword which is only, in Soul matters able to conquer, to wit; the sword of the Spirit—the Word of God. . . . God requireth not an uniformity of religion to be enacted and enforced in any civil state; which enforced uniformity, sooner or later, is the greatest occasion of civil war, ravishing consciences, persecution of Christ Jesus in His servants, and of the hypocrisy and destruction of millions of souls. . . . An enforced uniformity of religion throughout a nation or civil state confounds the civil and religious, denies the principles of Christianity and civility, and that Jesus Christ is come in the flesh.


Now I don't care why Williams came forth with that sentiment, which was an absolutely novel way to interpret the Bible for his time. It's brilliant sentiments like that which, after becoming more influential, helped "solve" the "religious problem" of bloody Christian persecution in the US and Western nations.

In other words, it was the *right* sentiment, regardless of what motivated him to come up with it.
9.16.2005 9:27am
PVMaro:
Misc, undoubtedly, "under God" or any other reference to a deity is a reference to religion. Equally true is that the inclusion of those words in what amounts to language suggested by Congress for citizens who opt to recite a pledge of allegiance does not amount to "establishment" of religion.
9.16.2005 10:05am
Public_Defender:
Jon,

I don't think we disagree. I argue that the separation of religion and state is essential to both institutions.

I also don't think modern conservative Christians are endeared to Williams. In the intra-Bapist fights, Williams is a hero to the Left, and a villain to the Right. The Southern Baptists, for example, have sharply departed from traditional Baptist teachings and fought against the separation of church and state. They will argue that they are returning to a more correct interpretation of Scripture, but that's an argument for another forum.

One thing's clear. I need to check Hamburger's book out from the library (which fits a public defender's budget more than the book store).

Williams views may have been an "anomaly" in his time, but he has won the separation battle over Winthrop, at least for the moment.
9.16.2005 10:22am
Public_Defender:
Jon, I forgot to add that your post was very nicely done.
9.16.2005 11:09am
SKlein:
I don't question there there were many anti-Catholic bigots, but isn't it a bit glib to dismiss 19th century roots (or perhaps branches) of the separation doctrine as "anti-Catholic bigotry? Is opposition to clericalism merely and always anti-Catholic bigotry? Was there not a strong clericalist strand in 19th Century Catholic doctrine? Are modern Islamicists correct in asserting that the West is anti-Islam?
9.16.2005 1:02pm
Derek James (mail) (www):
David M. Nieporent (www):


Because it doesn't go where the advocates of the SeparationOCAS want to go. Free exercise, like freedom of speech, is an individual right. It protects the right of individual students not to be forced to say the pledge. But that battle has already been won (West Virginia v. Barnette).

Newdow et al. don't want to protect their kids from saying the pledge; they want to "protect" their kids from hearing the pledge. Free exercise doesn't help there.


That case involved forced expulsion for students who refused to salute the flag.

Do you deny the coercive nature of a teacher leading children in the recitation of a daily oath? In effect, it doesn't matter to what extent some children may feel uncomfortable or awkward because of their refusal to join in a daily group activity on religious grounds because they shouldn't be put in that situation in the first place.

When a government employee charged with the education of the state's children is leading an oath that explicitly recognizes the existence of a diety, at that point the government is NOT facilitating the free exercise of religious beliefs. There is a conflict with any child whose household may not take those beliefs for granted.

Those that say the phrase "separation of church and state" are not in the constitution are absolutely correct.
But the phrase "free exercise" IS. The government is compelled to the greatest extent possible allow me to worship or not worship whatever I want. Whenever a government representative leads a recitation of a phrase with a very clear religous claim (god exists), they are not staying out of the way. They are not facilitating the free exercise of religion.
9.16.2005 1:52pm
Carol Anne:
random hurls a bogus challenge: Formulate a closed set of rules that establishes a stable democracy under which all people are intrinsically equal in the eyes of the law.

I believe Kurt Godel proved, in 1923, that is a logical impossibility: You can define any "closed" system completely within rules of that system. That simply means it cannot be done, not that "transcendent" solutions provide the answer.
9.16.2005 2:20pm
Carol Anne:
Allan hits the nail right on the head: The question underlying this debate is, why do Christians insist on injecting their beliefs into otherwise secular contexts?

Whatever my beliefs, I don't impose them on other people. I expect the same in a free and open society. These efforts with "In God We Trust" and "under God" are just ways for a particular group to impose their beliefs on everyone, irrespective of their beliefs.

If we are a "nation of laws," it is law that should govern our behaviors.

"Wince and Nod" may hold the belief that his faith gives him moral compass, and if it works for that particular person, that's fine with me. However, I don't believe anyone has the right to impose their beliefs on others. (And, no, I'm discussing beliefs, not imposing my beliefs on you with this post.) So long as we live under the same Constitution and the same laws, why should "God" (or similar concept) intruding on our adherence to law?
9.16.2005 2:26pm
Carol Anne:
Misc. writes (in part): Athiesm obviously is a religion.

So, what's the difference between a belief (i.e., acceptance of something as fact without evidence) and religion? I believe you just conflate the two.

An "athiest" is, literally, "without theology." Since, theology is the study of "God or gods," it is separate and distinct from religion. In other words, theology is synomous with religion in this context.
9.16.2005 2:36pm
Carol Anne:
Oops: I wrote "You can define any "closed" system..." at http://volokh.com/posts/1126793989.shtml#20240.

I meant, "You cannot define any "closed" system
9.16.2005 2:39pm
Wince and Nod (mail) (www):
Carol Anne:

My preference is for a voucher system, so that I can take myself and my children out of your secular context, where I won't offend. I don't want to impose my views on anyone. But the coercive nature of the public school system forces Christians into those secular contexts. Stop forcing us into secular places, places where many of us do not want to be, and places where many others would prefer that we either not be, or that we sit down and shut up.

In other words, expand choice, so that your views aren't forced on my kids and my views aren't forced on yours.

It's a win-win.

About 95% of all elementary schooling in this country is done via government run schools. Imagine that 95% of the people in this country got their 200 cable channels, their daily newspaper, and their weekly and montly magazines from the government. The other 5% paid $5000 to $7000 per year for private sources.

What would you say that would do to freedom of speech and freedom of the press?

I don't know how we can justify government run schools without an equal subsidy of privately run schools in terms of the broader freedom: freedom of thought. Free speech, free press and religious freedom are all examples of freedom of thought.

School choice fixes these pressing constitutional problems using the American way: liberty.

Yours,
Wince
9.16.2005 3:27pm
Challenge:
"Whatever my beliefs, I don't impose them on other people."

Except, like, your belief that "under God" should not be in the pledge. But that is, like, exempt or something, right?
9.16.2005 3:49pm
SimonD (www):
An "athiest" is, literally, "without theology."
Uh...No it isn't. Theology, theism, polytheism and atheism all share the same root. An atheist isn't someone "without theology" (theology being "The study of the nature of God and religious truth"), it is "one who disbelieves or denies the existence of God or gods."
9.16.2005 5:22pm
Public_Defender:
Wince,

You don't want my tax money because you don't want the strings I (and my fellow citizens) can attach to it. Almost by definition, any government that creates a voucher system is conservative, but governments change.

Your school could become dependent on government money, and then find that the government has placed restrictions on that money that are unacceptable to you (a ban on discriminating against gays, for example)

When religious schools accept government money, they accept the oversight that comes with the money, and the compromises that come with that. Just ask a pacifist religious university that wants to bar the military from recruiting on campus.

Roger Williams was right, religion does better when it avoids the compromises government requires.
9.16.2005 6:51pm
Wince and Nod (mail) (www):
Public_Defender,

Yes I do. I'm willing for there to be two classes of private schools, those who take government money, and those who don't, and then fight against those government strings. I know of churches which are debating their corporate structure to avoid IRS restrictions on what you can say from the pulpit.

We run into this all the time. The same sort of argument came up in the Faith-Based Initiative debate. I didn't find it persuasive then, either.

So why am I not worried? A voucher system will reduce government power by giving more people options. The government will immediately seek to impose it's power again. It always does this, not matter what we do to reduce its power. All of these victories are temporary.

BTW, if the government were, as part of this system, to offer money to home schoolers, I wouldn't take it, for precisely those reasons. A single mother might reasonably make a different choice. I'd like to make sure she can.

Roger Williams was right for Roger Williams. Others, in other situations, may find that other compromises compromise their faith more than those the government requires.

Yours,
Wince
9.16.2005 8:20pm
random (mail):
Carol Anne writes:

I believe Kurt Godel proved, in 1923, that is a logical impossibility: You can define any "closed" system completely within rules of that system. That simply means it cannot be done, not that "transcendent" solutions provide the answer.



State your own axioms if you wish and don't be intimidated by the word "closed".

The boundary is whatever you choose, but it would be nice if you could have it conform to our social-political boundary.
9.16.2005 11:33pm
random (mail):

I believe Kurt Godel proved, in 1923, that is a logical impossibility: You cannot define any "closed" system completely within rules of that system. That simply means it cannot be done, not that "transcendent" solutions provide the answer.


On second thought, lets run with this idea.

Actually, it does (transcendental solutions are required). The boundary must be dimensional e.g. R v. R2


Good point.
9.16.2005 11:41pm
scott (mail):
I've been monitoring this thread for two days now and, while I am impressed by the knowledge exhibited, I am amazed by the vacuousness of the analysis. I have read post after post on the meaning of religion, and all of the metaphysical implications contained therein, but very few of you want to straightforwardly address the actual words of the constitution and the associated Federalist Papers. It is clear that the Founders did not want a national religion. It is clear that they credited "God" with their inalienable rights. It is also clear that they felt NO aversion to government acknowledgement of this source of these rights. From the beginning, executive, legislative and judicial officials were sworn in by an oath to God. The Founders referenced God without exception. They voted to allow religious figures to occupy positions in the executive and legislative branches. They had no objection to court sessions beginning with "God save this honorable court." They even had no objections to State's having an official religion.

Given the foregoing, please stop trying to tell the American people that the Constitution forbids any mention of God in the public square or by any public official. This could arguably be the best public policy, but it is not in the Constitution. If it is the best policy, amend the Constitution. The Constitution is the people's protection against an overreaching government.

At present, you see the threat as religious belivers, so you seem willing to accept whatever it takes to squelch religion. The Constitution represents the limits, i.e. the rulebook. It provides for its amendment, but is purposely difficult. If you accede to the view that the parts you don't like can be changed merely by vague public opinion or your view of "common sense" or "fairness," I can promise you that, one day, such notions will be used to rid the Constitution of principles that you agree with.

The Constitution is a governing document unsurpassed in the history of mankind, and altering it was made difficult for a very good reason. If you care about this Country, I would urge you to lessen your focus on Kant, metaphysics and deconstruction, and concentrate on what is necessary to fully attain a truly free society that seeks to maximixe human productivity and happiness. America is far from perfect, but it does these things better than any society throughout history.
9.17.2005 5:52am
Jam (mail) (www):
This treaty was ratified unanimously when John Adams was POTUS:

The Barbary Treaties:
Treaty of Peace and Friendship,
Signed at Tripoli November 4, 1796


ARTICLE 11.
As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
9.17.2005 10:37am
Rhymes With Right (mail) (www):
SimonD -- this is a reference to the Blaine Amendment, which was designed to make sure that Catholics could never get funding for their schools in a day and age in which public schools were centers of Protestant indocrtination in the name of "Americanism".

Congress actually required a number of states to incorporate Blaine Amendments into their constitutions as a condition of admission to the Union.

The Blaine Amendment never got ratified, but its terms and conditions have more or less been incorporated into contemporary First Amendment jurisprudence.
9.17.2005 2:02pm
Jam (mail) (www):
I thought that the [Southern] States never left the Union? Why would they have to apply for readmission then? Wait a second, did the Southern States got to ratify the 2nd version of the proposed 13th amendment?

I think that the Constitution of the CSA is a much better document. And I like the Articles of COnfederation even better.
9.17.2005 2:21pm
Buck Turgidson (mail):
To Jeff Dege
You do not have a right to not be exposed to others who do.

Uhmm... Not quite. Exposure, in your argument, implies a private action. That would be fine--if someone wants to express his dogmatic evangelism to me, that's fine. I can leave tire tracks all over his face and ignore his verbiage.

However, this is not a case of private action. This is a governmental action of exposing me (or my kids, or someone else's kids) to the beliefs of others. That is an endorsement of those beliefs, if I've ever seen one. This is precisely the action to which some people object. Even if it is a small minority (and Jehovah's Witnesses, for example, were always a very small minority), that is no excuse for not being recognized by the Court. In fact, this is the only recourse the minority often has in the face of stupidity and boorishness by the overwhelming majority. If this were not the case, we'd be living in Nazi Germany, or, more to the point, in Nazi States of America.

Remind me to keep children away from huggy--too creepy!
9.17.2005 4:56pm
scott (mail):
Buck:

To use your words - Uhmm, not quite. Again, all of you need to realize that the First Amendment prohibits Congress from making laws respecting the ESTABLISHMENT of religion. It does not, in any way prohibit the citizenry, government, or government officials from commenting on, endorsing or even promoting religion in general or even a specific religion. If Nancy Pelosi said that the only way to peace is Islam, such statement is constitutional. If a school board decided to incorporate this sentiment in its curriculum, that is constitutional. Absent penalties, there is no ESTABLISHMENT. The people, however, can remove the school officials that inserted this belief if they want to.

As a Christian, I disagree with, and am sometimes offended by, atheism. But, I would never even contemplate arguing that a student in his valdictory address could not espouse such beliefs. Judging by experience, I believe most people on your side of this argument would agree. But, magically, they would disagree with the right of the same student to extoll the values of Christianity. This is hypocrisy at best, and absolutely illogical at worst. Your side says that to include "under God" in the pledge is coercive. Well, to prohibit the 80% of the people who want to say "under God" from doing so is equally coercive. Thus, the only logical way to judge the constitutionality of this issue is to look at the Founders, the Federalist Papers and what the citizenry understood at the time of ratification. The constitution was approved in 1789. If the people had intended what your side says they did, it wouldn't have taken until the 1920's and 1930's for these "establishment issues" to have been raised (yes, I realize the the Pledge issue did not arise until the 50's, but the legal arguments are remarkably similar).

As I have said before, if you don't agree with the Constitution, amend it. But please stop acting as if you have suddenly discovered some secret meaning that no one had noticed before. If the people that authored and approved the Constitution readily did things that you now think are prohibited, then you are most likely misguided rather than they. This is elementary statutory and constitutional interpretation. Their concurrent actions best demonstrate their intent. Your meandering views and worrying about possible coercion and self-esteem some 150-200 years later later are utterly useless in any worthwhile analysis of what the original document actually means. A "Living Document," as proponents like to call for, is no document at all. The Founders intended for the document to be enduring, and thus "living" only in the sense that it could be amended if enough support existed.
9.18.2005 5:55am
Jon Rowe (mail) (www):
-- If the people that authored and approved the Constitution readily did things that you now think are prohibited, then you are most likely misguided rather than they. This is elementary statutory and constitutional interpretation. Their concurrent actions best demonstrate their intent. --

Not really. Your statement is an expression of a particular jurisprudential philosophy, and it is not at all clear that our Founders shared it.

Another competing philosophy, for instance one espoused by Justice Souter, is that the Constitution establishes very high and lofty ideals, ideals, which aren't always easy to lived up to in practice.

And Justice Souter has none other than James Madison, the father of the Constitution, on his side. Madison did indeed on a few occasions as President "take cognizance" of religion and otherwise intermigle Church &State. And in his later writings, he regretted doing so and noted he felt he violated these lofty constitutional ideals.

For instance, in his Detached Memoranda, Madison held that the establishment of Congressional Chaplains "is a palpable violation of equal rights, as well as of Constitutional principles."
9.18.2005 12:53pm
Carol Anne:
Wince and Nod clutches at straws: My preference is for a voucher system, so that I can take myself and my children out of your secular context,

You wrongly presuppose that I support government-run schools...and I don't. I believe government should promulgate good educational standards to ensure a productive and informed electorate...and stop there.

There is nothing that prevents you, today, from withdrawing your children from schools of which you disapprove and enrolling them elsewhere. Except, of course, that you've already paid (in part) for education through your taxes.

In fact, schools should be models of independence from religion...and religion has no place in the classroom except as a field of study so students learn more than the limited view of the world their preachers would impose.

Finally, how did we go from my assertion about a logical fallacy to schools, anyway.
9.18.2005 1:48pm
Carol Anne:
random disputes my definition of "atheist."

1. Go read the Greek, where the term originates.

2. Study elementry entymology, particular the prefix "a-".
9.18.2005 1:49pm
Carol Anne:
Challenge(d) wrote: "Whatever my beliefs, I don't impose them on other people."

Except, like, your belief that "under God" should not be in the pledge. But that is, like, exempt or something, right?


Are you really that logically dense, or just a troll?

You and your ilk imposed that belief into the Pledge of Allegiance; I only want it removed.

I know, thinking is "hard work," to quote your President.
9.18.2005 1:51pm
Carol Anne:
Again, I seem to go way over the head of 'random.'

My only recommendation: Go read the source material and understand what a "closed" system it. The field is called cybernetics, in case you haven't heard of it.

Godel simply proved that any system (he was specifically addressing Russell &Whitehead's "Principia Mathematica") cannot be fully defined within itself. In lay terms, every system exists in a context.

However, from inside that system, you cannot know those rules imposed, nor the rules you haven't yet discovered. To assume there is some over-arching spirituality or God over our lives is belief, not reason. Read Bishop Berkeley's Paradox.
9.18.2005 1:56pm
von (mail) (www):
random disputes my definition of "atheist."

1. Go read the Greek, where the term originates.

2. Study elementry entymology, particular the prefix "a-".


For the love of God, Carol Anne: Reading Greek and studying etymology are well and good, but there's a better route to determine how "atheist" is defined in American English: Go to a dictionary. The American Heritage Dictionary defines "atheist" as "One who disbelieves or denies the existence of God or gods."

Looking at roots is a useful way of understanding how a particular term developed and to get a general sense of an unfamiliar word's definition. It's great for the SATs. Given that language is fluid, however, suggesting that etymology provides the dispositive definition of a word is, well, barking at butterflies. Or tilting at windmills, if you'd rather the cliche'.

von

p.s. I normally wouldn't mention this point, but you're being a nudge.
9.18.2005 2:04pm
Carol Anne:
scott, you make some good points.

The only place where you and I would appear to disagree is in interpretation.

The 18th Century constitution is an amazing document. At the same time, it is the product of it's author's mental capacities and beliefs. It is, in short, a product of it's times.

Just as Bible-thumpers misunderstand the meanining of the words (especially in the translations to which they always refer), many of the statements were products of the cultural norms and beliefs of the times (e.g., women as chattel, having many, many children as an insurance polciy for old age).

The Constitution, as well, is infused with some beliefs that the authors--no doubt--took for granted and accepted without further discussion. They never anticipated the national boundary implications, for instance, of international air travel. And, I contend, they never questioned their beliefs in God. Given the heritage of their ancenstors, who were largely religious and came to the New World to escape what they perceived as persecution for some of their more extreme beliefs, it's no wonder they believed in God. And, they had negligibile exposure to other religions (e.g., the polytheism of India, or Muslim beliefs that are different from Christian beliefs).

It's hard to tease out those ideas there were encapsulated in the Constitution (and the Declaration) as the result of real debate and discussion, and those simply adopted as unexamined consensus...but a reading of the original documents of the time helps.

My memory of those readings suggest that inclusion of "God" was not as serious debated as, say, the concepts of how to limit governmental power.
9.18.2005 2:07pm
Carol Anne:
scott writes (in part): I would never even contemplate arguing that a student in his valdictory address could not espouse such beliefs. Judging by experience, I believe most people on your side of this argument would agree. But, magically, they would disagree with the right of the same student to extoll the values of Christianity. This is hypocrisy at best, and absolutely illogical at worst.

Interesting, if illogical, shift from "I" to "they."

In fact, if we'd all agree to let everyone express their beliefs as they wish, without governmental imposition of any preference, I think you 'n' I'd be in total agreement.

I have no complaint when a valedictorian expresses Christian beliefs. I do have a complaint when that valedictorian asserts that everyone should or must hold the same beliefs. It's the difference between "I believe..." and "You should believe..." I have a major complaint when government says that belief in God is a prerequisite to pleding allegience to that government.

As human potential movement advocates like to say, "Don't should on yourself...or others."
9.18.2005 2:15pm
Carol Anne:
Jam: Nice, factual, addition to the discussion. I hadn't known about the wording of that Treaty.

Question to the lawyers: Does this contribute to precedent?
9.18.2005 2:17pm
scott (mail):
jon rowe-

I respectfully disagree. It is not just one jurisprudential philosophy. Words have definitions, and laws mean what they mean using these definitions. This is not just a "philosophy," rather it is the only way a society can communicate and, indeed, exist without anarchy. Many on your side have tried to promulgate the idea that words having specific meanings is just one of many competing philosophies precisely because they want to change those meanings whenever they think they know better but without bothering with that cumbersome amendment process.

The Founders included lofty goals and ideals in places, but they were very specific in many others. Check out the Federalist Papers on the various draft versions of the First Amendment. They chose "establishment" very carefully and for a reason. Equally important, they did not prohibit "endorsement," "promotion" or "mention."

Wise policy? That is completely debatable. What is not actually debatable, and never was thought to be for the first 150 years of this country, was that the Founders were smart enough to know what they drafted and intended it to mean what the words used therein actually do mean - sometimes lofty and ideal, but often quite straightforward and specific.
9.18.2005 2:36pm
scott (mail):
carol anne -

Thanks for the comments. I don't find my shift from I to they illogical. The shift comes at the point where I and They begin to disagree. It was perhaps inartfully done.
9.18.2005 2:45pm
Jon Rowe (mail) (www):
The issue is far more complicated than you make it out to seem.

For instance, many founders, Madison included, would argue that the exact wording of the Bill of Rights is less important than you think because the BOR was largely redundant (keep in mind we had no BOR from 1787 to 1789). Indeed, the redundancy of the BOR was one of the main arguments framers used against including it. That, plus the fact that once specific rights were enumerated, government would get the wrong impression that if it's not on the list, individuals don't possess such a right (hence, why we got the 9th Amendment).

A few other things to keep in mind: 1) The federal government is one of limited enumerated powers; if it's not on the list, government doesn't have the power to do it. Where in the document does the Federal government have the power at all over religion (except to deal with government violations of religious rights)? 2) Natural law/natural rights theory recognized that men are by nature free and equal and as such have substantive liberty and equality rights, antecedent to majority rule (this is the theory that undergrids the 9th Amendment). Notice how Madison, in his complaint about Congressional Chaplains, said that they violated not only "Constitutional principles" but also "equal rights." The text of the Constitution at that time didn't say anything about "equal rights" in the religious context, even though an earlier draft of the First Amendment submitted by Madison (but ultimately voted down) did. I would submit that Madison's earlier draft of the First Amendment (you can find it here) specifying that individuals have "equal rights of conscience" is a better statement of the natural rights ideal on religious rights than what was actually adopted. Morever, I would suggest that Madison's original should be imputed into Constitutional law (even though not adopted in 1789) because it represents a natural rights ideal, a non-negotiable norm, antecedent to majority rule. In terms of the textual authority, we would look beyond the EC to the 9th Amendment, the Privileges or Immunities or Equal Protection Clauses of the 14th, and the Declaration of Independence to vindicate the constitutional principle that individuals have Equal Rights of Conscience in religious matters.
9.18.2005 3:02pm
scott (mail):
You make some very good points, but just a couple of quick things. I understand the redundancy issue of the BOR and the associated concerns. However, once it was decided to include the BOR, the wording was arrived at with much thought and debate. Secondly, we are not talking about the government having "power over" religion. Mentioning something approvingly or even openly advocating that something is good is not asserting power over that thing. The government can, and does, recommend that people have regular checkups, get exercise and watch their fat intake. This is not an impermissible intrusion on their control over their bodies or on their general liberty, nor is it coercive in any true sense. If, on the other hand, the government tried to force them to do, or prevent them from doing, these types of things, then it is asserting "power over" them and it has crossed the line. Finally, I agree that natural law/natural rights are implicit in the Constitution, so maybe it is just your wording, but I am extremely uncomfortable with the idea of imputing into the Constitution the meaning of a draft version that was explicitly rejected by the framers and thus never ratified by the people. Thanks for the interesting discussion.
9.18.2005 3:54pm
Jon Rowe (mail) (www):
Thanks. I'll give you the last word.
9.18.2005 5:44pm
random (mail):
Carol Anne

Here again was the challenge:

Formulate a closed set of rules that establishes a stable democracy under which all people are intrinsically equal in the eyes of the law.

There are two conditions to set up: equality and stability in a system that is self-consistent.

You can define whatever boundaries you desire and declare the system closed under those boundary conditions--entirely consistent with Godel. I claim that the boundaries must be dimensional boundaries and you should know that anything is "closed" within a dimension. Static, perhaps not, but I only insisted on stability.

For example:

1. All people are equal
2. All people are dead


See if you can write something more interesting.
9.18.2005 6:59pm
Carol Anne:
random hurls another random challenge: See if you can write something more interesting

That it is uninteresting to you is just prima facia evidence you haven't a clue what Godel wrote.

As for constraining a system to two variables "equality and stability:" Your example suggests you could use a lesson in basic syllogims. Conconcting two premises does not a useful, productive system (no argument) make. Certainly, positing two static conditions does not make a dynamic system.

Ashby's Law (Law of Requisite Variety) suggests you've posited a dead-end model...which you demonstrate with your example.

Bah! Let's just let your ignorance rest in peace.
9.18.2005 8:07pm
Jim Lindgren (mail):
Some of you note Madison's invocation of "equal rights" in talking about religion. Equality in religion was indeed an important goal.

In one of Hamburger's earlier articles in the Supreme Court Review, Hamburger shows that "equal protection," which had previously been thought to be a 19th century concept was in fact a mid-18th century concept borrowed from religion. Those who are curious might want to read that article as well. Those who read Hamburger's Separation book will also see that most religious dissenters at the time of the first amendment wanted equal rights with other religions (not separation), but they didn't get as much as they wanted. They got, not a guarantee of equality, but simply free exercise and nonestablishment of a federal religion and noninterference with the states' establishment activities.

Further, those opposing the religious dissenters at the time accused them of wanting separation of church and state, but most dissenters rejected the canard that they wanted Separation.

Hamburger also has the best article on religious exemptions (in the George Washington Law Review), arguing that the framers did not intend the free exercise clause to exempt the religious from civil law (eg, that the constitution does not require an exemption for teachers who want to do peyote if their religion allows it). I believe that Hamburger favors most religious exemptions as a matter of policy. As an historian, his research leads him to believe that the framers did not think that the Constitution requires exemptions for the religious.

You might note that the same sort of (mostly religious) people who like Hamburger's conclusion on Separation tend not to like his conclusion on religious exemptions.
9.18.2005 9:35pm
random (mail):
Carol Anne,

I was referring to the null case that I gave as an example--not to Godel.

Godel is extremely interesting.

(And you are fascinating also).
9.18.2005 10:13pm
Jon Rowe (mail) (www):
-- They got, not a guarantee of equality, but simply free exercise and nonestablishment of a federal religion and noninterference with the states' establishment activities.
--

Yes, but as Akhil Amar notes, the 14th Amendment's Equal Protection Clause* does guarantee religious equality. So perhaps much of what is done in the name of the Establishment Clause and under the rubric of Separation should be done under the Equal Protection Clause.

By the by, I saw Hamburger speak last year at Princeton at Robbie George's James Madison program, laying much of this out. Hamburger specifically noted, "The Establishment Clause is not an equal protection clause," to which Professor Christopher Eisengruber in his rejoinder replied, one of the cleverest retorts I've ever heard, "yes but the Equal Protection Clause is an equal protection clause."

*Or if we view the EPC as merely a procedural clause demanding the equal application of whatever general laws are on the books, the Privileges or Immunities Clause would be the proper source of a substantive guarantee of equality.
9.19.2005 9:00am
YetAnotherRick (mail):
My solution:

"...one nation, under Canada, mostly..."
9.19.2005 10:57pm