Pledge:

This year, as most years, teaching John Locke got me thinking about the Pledge of Allegiance.

One major issue in thinking about Locke’s Second Treatise is the difference between express and tacit consent. Most people most of the time only tacitly consent to the government they’re living under. They accept the protection of the laws for their persons and their property, and so they accept the duty to obey those laws in turn. They, like the foreigner who’s just passing through on the roads, have accepted the existing government’s jurisdiction for as long as they’re present, but have an arm’s-length relationship to it. Only a minority ever become “members” of society by expressly consenting to the government. As I read Locke, this makes them eligible to vote, be taxed, and be conscripted, and makes them ineligible to emigrate and may affect their eligibility to rebel in accordance with natural law. (I’m still not sure about the last; and I seem to be idiosyncratic in thinking that the terms of Locke’s argument leave only express consenters eligible for taxation.)

In the United States, native-born citizens are very unlikely to ever expressly consent. Immigrants swear an oath of citizenship, but native-born citizens do not. The oath taken upon joining the military might count, but it’s insufficient to make a citizen out of a noncitizen (noncitizens may serve in the military), so maybe not.

Except…

Except that nearly every schoolchild in America, every one who doesn’t make a spectacle of him or herself by conscientiously objecting, is expected every schoolday to

pledge allegiance to the flag of the United States of America
And to the Republic for which it stands
One nation under God, indivisivible, with liberty and justice for all

which is, really, an awful lot like an oath of loyalty and citizenship. It’s a thicker oath than the formal citizenship oath,

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”

In particular, immigrants aren’t required to swear that they consider the United States “indivisible” (still a controversial claim in the 1890s, when the pledge was written), that they consider it “one nation” (still a controversial claim even now), or that they understand there to be any particular relationship between the nation and God (though their oath itself is taken in God’s name). Neither are immigrants expected to engage in the odd bit of iconolatry that is swearing allegiance to a flag, and only secondarily to the republic for which it stands. The substance of the Pledge is actually quite strange all around, making no mention of Constitution or laws, and elevating the concepts of flag and nation all out of proportion to their real importance in the American republic. It’s a relic of both a nasty moment in American assimilationist and ethnic-nationalist ideology (the same moment that gave rise to the Blaine Amendments that are blocking school choice and that conservatives rightly perceive to be anti-Catholic anachronisms) and of a time when the Civil War remained in living memory. It was never a neutral statement of the patriotic values everyone ostensibly shared; it was a deeply partisan account of what those values were.

Maybe too much under Locke’s influence, I’m of the view that oaths of loyalty matter, that they are to be taken seriously, and that their content is to be taken seriously. The current defenders of “under God” seem to be saying simultaneously that the Pledge is a matter of utmost civic importance and that it’s a bit of harmless ceremonial claptrap. “Ceremonial Deism” is the phrase the Supreme Court has used in the past about, e.g., the announcement “God Save this honorable court!” and the motto “In God We Trust;” such stuff is held not to violate the Establishment Clause more or less on the grounds that it doesn’t matter very much.

But there does seem to me something profoundly different between walking around with quarters in one’s pocket that say “In God We Trust” and expecting millions of schoolchildren to swear an oath, every day, to “one nation, under God.”

I know, I know, the Plegde isn’t in any legal sense an oath of citizenship or loyalty. But it had the form and words of such an oath. The primary reason why it’s not such an oath is that it’s spoken by children who are incapable of understanding and consenting to its terms. But that seems to me good grounds for objecting to the whole business. If the words spoken meant what they said, then they shouldn’t be expected of children, and shouldn’t have to be repeated over and over again. If they don’t mean what they say, then they degrade language and the sense of solemnity that should accompany the swearing of loyalty oaths. If the words are serious, then they’re inappropriate for the context (and ‘under God’ is a violation of the Establishment Clause). If the words are not serious– and they’re not, anymore– if they’re just mindless blather, then they demean something that shouldn’t be demeaned.

If we were to switch from the Pledge to a one-time citizenship oath sworn at age 18, I think– I hope– that the words wouldn’t look much like the Pledge’s words, and would look more like the extant citizenship oath, minus the passages about foreign princes and potentates.

None of this decisively tells one way or the other about the constitutionality of “Under God.” If the whole pledge is mindless blather, then “Under God” is ceremonial Deism and is constitutional. But it does seem to me that the defenders of the Pledge ought to commit as to whether they think the words are mindless blather or not; and that there’s something deeply objectionable about the whole enterprise either way.