Ab_Normal

So why all the hoo-hah over taking out two words? I just don't understand.

Toto

Lev - it would help structure the dialogue if your only responded to one person per message. Thanks.

Lev -

You continue to avoid the issues by interpreting every challenge as too personal to respond to.

You are the one who has asserted that David Barton (BA, Oral Roberts University) is an authority. You have not given us his evidence - you have presented him and his authoritative law review article as the evidence. I have already given you one link that details Barton's methods: he had admitted that he made up quotes from the founding fathers.

David Barton Rewrites American History

Please read the above, and the linked article, and realize that citing Barton as an authority is fatal to your credibility.

You gave us one quote allegedly from Jefferson, and I showed that it looked unreliable, compared to words that Jefferson actually wrote.

Are you going to respond to any of this, other than to wave your hands at the stack of law review articles by your computer?

For more on Barton, there is an old link, David Barton Automatons

Jefferson took religious very seriously (he produced his own version of the Bible - not something a person who is "not a very religious person" would do.) I don't know why recognizing that most of his fellow citizens were Christians takes intellectual fiber - it just takes open ears.

Your last sentence there does not make any sense to me. What erroneous assumptions? Who is more credible? Whispers in the wind??

Kevbo

Did you read the actual argument of mine, not Pug's, to which this reply is addressed? The Pledge is not a founding historical document nor something that just recognizes the belief of many Americans. Again, it's called "The Pledge of Allegience" and not "Things that some people believe."

We're talking about an officially sanctioned pledge of allegience to God, not a historical document.


No, it doesn't... Newdow attempts to strike down a law passed by Congress in 1954 which establishes an official pledge of allegience to God and which is required to be lead every day in most schools throughout the country. It doesn't say that you can't mention God, it doesn't say that you can't pray to who you want to, it doesn't say that you can't wear a cross or a Jesus fish on your car, it says that Congress has no business establishing a pledge of allegience to God that most children are lead in reciting every school day.

Haven't you heard the old adage about religion being true to the masses, false to the informed, and useful to the ruling body? If I was a politician in a country where the majority were monotheists, I'd say God was on my side too!

Buffman

Leviathan

(I read your first statement below and read no further. It cries out for an immediate response unfrettered with my additional frustrations that seem to be proliferating as you attempt to support conditioned fictions rather than verified facts.)

Barton cites too many authorities for the quotations in question, for me to just roll over and say, "ok, your bias against his bias is valid."

Please appreciate how difficult it is to tell a true believer that there is no Santa Claus. It may be even more difficult for the messenger to tell it than the recipient to hear it. David Barton has been exposed as a liar and an uncredentialed (by anyone other than the radical religious right and their supporters) historical revisionist. As a potential seeker of legal fact, you should be concerned with the veracity of the evidence I use to make that statement without concern for charges of defamation of character or suit for slander/libel. I can safely make my charge because Mr. Barton has admitted many of his errors of fact after being challenged to support his claims.

Do I have biases? Of course I do! Do I have opinions? Of course I do! That is why I do my best to apply scientific methodology when searching for the facts in order to minimize or eliminate my biases/opinions from the final conclusions. Accurate "Facts" stand all by themselves without any assistance from me.

People like Barton are not concerned with verifiable evidence that contradicts their pre-conditioned faith beliefs. They cite enormous numbers of authorities in order to lend an aura of professional respectability to their statements and conclusions...and to intentionally make it difficult to arrive at the verifiable facts concerning an issue. Citing many respected and qualified authorities would be a welcome technique if the authorities he quotes were qualified to address the issues, or were quoted accurately. Unfortunately, far too many are neither qualified to comment or quoted accurately.

One of the major differences between you and me is that I do not readily accept ("roll over") things on blind faith simply because someone cites many authorities. I check each of them for applicability and accuracy. YES!. It takes lots of very valuable time away for other endeavors. However, the search for the verifiable facts is seldom as quick and easy as the fairytale endings have led many folks to believe.

Now I will read the rest of your post and determine whether to invest any more valuable time in this discussion.

Buffman

Leviathan

A serious historical scholar would not make such a spelling error.

A serious historical lay scholar didn't. Try reading the information I have thoughtfully provided for you to read. Look at how the name was originally spelled.

http://members.aol.com/calebj/bradford_journal.html

You are correct. You are all-knowing. Good luck with your studies. If you can't be bothered getting the facts, I can't be bothered trying to provide some for you. I avoid folks who pretend that they have all the answers.

Leviathan

Well lets see, which one of the 6 or 7 people I'm conversing with, would want to go first?

Toto

Here's another one of those off hand remarks that posts ago you tried to say bring nothing to the discussion. Remember, the one where you proved you don't read my evidence?

Much like your inability to discern what is my evidence from my own statements, and your inability to correctly interpret my argument as "possible" versus "certain," here again you show your lack of reading comprehension. I responded to your "critique" of Barton, but will do so, again.

1. It seems that source does say Barton admits there was error, but I fail to see how it was malicious (as in his admission states this). What I do see is a politically motivated article (your source), wishing to bash him in the ground.

2. To weigh against this, we have a man with a little more than a B.A., but evidently you just ignored the paragraph of qualifications I presented to you. Evidently he is credible enough that, after such a "horrendous, despicable" act as "reinventing history," a credible law review such as the Notre Dame Journal of Law, Ethics, and Public Policy, finds his work respectable enough to post.

In addition, if you will note ([Level+Case+Citation:]|[Group+citemenu:])/doc/{@1}/hit_headings/words=4/hits_only?]here , Justice Rehnquist's dissent makes similar historical comparisons as Barton's law review, footnoting all of them as S. Ct. decisions typically do.

So... what's next: the ND Journal and Chief Justice of the United States of America aren't good enough for you either?

Kevbo

I understand that is your perspective. Yes, I get it. WHat I don't get is how you do not see the same comparison(s) that the Court has made. This is so clear to me: the issue is related to past S. Ct. cases, b/c 5 Justices on the Court *right now* have stated in dicta that they believe the Pledge to be constitutional, and have given their reasons. Thus, there is some persuasive, if not binding, authority for the Sherman decision, and not so much for Newdow.

Additionally, for your argument to be more persuasive, you would need to distinguish how Justice Brennan's concurrence is not correct in stating the following, "Brennan noted that the ''referance to divinity in the revised pledge... may merely recognize historical fact that our Nation was believed to have been founded Under God." To me, Brennan's argument makes alot of sense: it is just one of numerous arguments finding that the Pledge, contrary to "establishment" precedent, is *not* an endorsement of religion (your favorite opinion to give), but instead is a political act of historical recognition.

I have yet to see a rebuttal to that.

You need to understand, that "new law" gets created out of the "suggestions" and dictum of other Court decisions. Numerous scholars have argued that Newdow, in examining the holding that anything in the public sphere which could give *anyone* a psychological pressure to feel "different" from those in the norm, could be suspect via this new establishment clause jurisprudence. You can find the argument unpersuasive if you want, I'm just citing law reviews and Courts which give well-developed reasons for why you're wrong.

So you're not going to answer my question? Your opinions there seem to be nice little academic thoughts in a college classroom, in retrospect (I've had similar ones myself, not a shot at you), but the fact of the matter is the more persuasive reason for Jefferson making such references is that he saw the importance of God to the people who created this nation. How many gentleman at the Constitutional Convention were Christian again? Well over 80% you'd say?


Buffman

I'm quite aware of your belief in your "methodology," and your *supposed* belief that I'm creating a "fiction" for you.

Think about it this way: if reality is only as you perceive it, then my reality is your fiction. You telling me I have a "skewed" reality in your opinion amounts about as much to me as you telling me the sky is purple. Give reasons, arguments, *not* conclusions.

As long as we're boasting about our abilities to be "scholarly," why don't you go ahead and tell me your legal background, and how that basis is so much more superior than mine.

You see, your assumption in the quotation above is that for some reason I "take things on faith." This is ridiculous, and honestly is a stupid, stupid assertion. There's no other word for it. I have cited numerous law reviews to you: *not* because I see the title page and think, "hey that would be good for my argument!", but instead b/c I have read them, thought about them, and then I present them to someone who I know will disagree with me, to get their perspective.

I want your perspective, meaning, your argument and reasons for disagreeing with my perspective. What I don't want is your opinions that I'm creating a "fiction" with no credibility. If you are going to do that, you might as well not reply, b/c I see nothing constructive coming out of such a "debate."

The spelling comment was being sarcastic, given that Toto sought to make a jab at my "spelling" as a grave injury. If we're all going to be "thick"-skinned here, I'm sure you could get over it. Maybe. Somehow.

The irony of that statement, given your statements above I qutoed, about knowing sources better than I, is just too much.
:banghead:

Stephen Maturin

I certainly agree that there was no direct "conflict" involved with Sherman since, at the time the Court denied cert, there was no other court of appeals decision addressing the Establishment Clause implications of the Pledge. As for whether a cert denial can indicate approval of a lower court's ruling, well yes, I suppose it can. However, it's equally reasonable to infer from such a denial that not enough justices believe the issue is ripe for Supreme Court adjudication. If we've got two or more reasonable inferences to choose from, whatever choice we make is pretty much bound to be little more than a guess, especially since the Court doesn't give reasons for denying cert.

Let's take a hypothetical example. Suppose the Court denies cert in Newdow. (Yeah, it won't happen, but bear with me a moment. ) I wouldn't consider consider that a comment on the merits of Newdow any more than I consider the denial of cert in Sherman a comment on the merits of that case. It may simply mean that the Court wants to let the issue "percolate" among the circuits awhile longer before getting involved. It's not that uncommon for the Court to let conflicting circuit court opinions stand for a long time before taking a case and issuing a definitive pronouncement.

Yes, as I understand it, Newdow has filed a cross-petition for certiorari on the issue of whether the federal statute as currently worded is constitutional. The Court could duck that issue simply by denying the cross-petition. That wouldn't make much sense, though. After all, the EC problems with the school board's recitation policy wouldn't have arisen but for the wording of the Pledge, and the problematic language stems from the 1954 amendment. In any event, I surely agree that the constitutionality of 4 U.S.C. sec. 4 as amended is fair game in this discussion, despite the scaled-down ruling in Newdow II.

I see where you're coming from, Leviathan, but I don't think the Lee Court limited its holding all that much. Toward the end of the majority opinion we find:

I've got no problem with that statement. The constitution doesn't guarantee freedom from all offensiveness. Hell, I spend large chunks of most days walking around pissed off about one thing or another the government is doing. What the Court's doing here, I think, is clarifying that offense alone does not equal coersion for purposes of deciding whether a particular government action passes EC muster.

A bit later the Court notes:

I can't see the above language as limiting Lee's holding exclusively to its facts. "A relentless and all-pervasive" anything could become a constitutional violation. More than that, the next sentence of the opinion reads:

It seems to me that the Court is cautioning against attempts to restrict existing free exercise rights in public schools as opposed to limiting the scope of future EC challenges. The Free Exercise Clause and the EC are different animals. The former confers certain freedoms upon individuals while the latter imposes restrictions on a government's power to establish, support, endorse, advance or inhibit religion. It's entirely possible to restrict government power over religious matters while at the same time preserving or expanding individuals' free exercise rights.

The Court closes with this:

That's the test, and within it I see no limitation on government acts subject to EC challenges. We've already seen that Lee's coersion analysis provides support for the Newdow majority's conclusion that the school district's policy is coersive despite not technically mandating Pledge recitation. The only question remaining is whether Pledge recitation can reasonably be deemed a "religious exercise." I think it can.

One of the problems with Judge O'Scannlain's position is his unstated assumption that reciting the Pledge is either a patriotic act or a religious act, but can't be both. That's a false dichotomy. As I see it, Pledge recitation not only can be but in fact is both patriotic and religious.

I have no quarrel with viewing the version of the Pledge codified in 1942 as exclusively "patriotic." Let's contrast that with something else that gets recited, namely the Apostles' Creed. Certainly most everyone would agree that reciting the Creed is exclusively a "religious" act. There's a lot of territory between those two extremes, and within that territory lies the 1954 version of the Pledge.

By reciting the current version, one does considerably more than pledge allegiance to a flag and a country. First, you acknowledge the existence of a deity. Second, as the legislative history of the 1954 Act demonstrates, that deity is the God of the Bible. Third, you acknowledge that the deity in question exercises sovereignty over the nation to which you're pledging allegiance. That sounds mighty "religious" to me.

So yes, the Pledge does have both patriotic and religious elements. Under the rule of Lee, the state can't coerce school children to engage in religious exercises. For EC purposes, the solution is to excise the religious element - i.e., "under God" - from the Pledge.

The upshot of all this rambling is that I believe Newdow finds sound and substantial support in Lee. In order to reverse, Diana, Mary and Flo will have to modify Lee significantly, ignore it altogether, or conclude (despite all the evidence to the contrary) that Lee is inapposite because reciting the Pledge isn't "religious." It'll be interesting to see which way the Court goes.

(Offhand, I can't cite any authority for this frenetic analysis. It's just my take on things.)

The Declaration of Independence is in the clear, I think. Although undeniably an important historical document, the DoI doesn't have the force and effect of law. Ab-Normal's point ties in nicely here, too. The Pledge and the DoI are qualitatively different in effect. As the Newdow panel majority concluded:

It's also worth noting that, in many contexts, the Pledge itself is in the clear under Newdow II. Absent the coersive elements inherent in public primary and secondary school settings, government-sponsored recitation of the "under God" version of the Pledge is A-OK.

I'm even denser than usual today (now there's a terrifying thought ), but I couldn't find anything in Sherman that purports to find any such limits in Lee. Would you mind pointing it out?

Buffman

Leviathan

Is Deism a religious belief?

Is David Barton a known prevaricator?

Was Plymouth originally spelled Plimoth?

A simple yes or no answer would have sufficed.

I'm 68 and have learned just how much I don't know. Perhaps your "reality" will teach you that lesson one day.

enfant terrible

I see that this debate is going well. I just posted a new thread specifically about Sherman. Since there is no real substantive attack on Newdow, there is no need to defend that decision, so I might as well counterattack.

I didn't want to crowd this thread, though. My post on Sherman is looooooooong.

Kevbo

My position is simply that these justices are logically arguing from false premises, that is all.

But surely you've noticed that I've specifically addressed that quotation three times now? Brennan's opinion is that the pledge does not constitute "establishment" because it "may merely recognize historical fact that our Nation was believed to have been founded Under God." That specific portion of his argument is false. As Stephen Maturan said, "By reciting the current version, one does considerably more than pledge allegiance to a flag and a country. First, you acknowledge the existence of a deity. Second, as the legislative history of the 1954 Act demonstrates, that deity is the God of the Bible. Third, you acknowledge that the deity in question exercises sovereignty over the nation to which you're pledging allegiance. That sounds mighty 'religious' to me."

This is not a simple recognition that many past Americans have been Christians. It is an officially sanctioned prescription of religious orthodoxy. It is a law passed by Congress which states that the Judeo-Christian God is the correct god and that public school students may be lead in pledging allegience to this god on a daily basis. That is exactly what I would call the unconstitutional establishment of religion, as well as a restriction of the free exercise of those belief systems which do not recognize the Judeo-Christian deity in expressions of patriotism.

Again, the PoA, as of 1954, is pledging allegience to the Judeo-Christian God, not simply stating that many past Americans have believed in such a deity.

I find these arguments very unpersuasive, because I see the Pledge issue as one in which Congress is attempting to prescribe a certain religious belief to go along with belief-neutral expressions of patriotism. I am offended because this is a violation of a fundamental constitutional right.

Of course Jefferson realized that religion was important to the nation's constituency, that was my point. Regardless of what you personally believe, do you think that you'd have more success in getting your other pet issues passed during a time of heavy compromise if you acknowledged the beliefs of the majority in passing instead of railing against them? Notice that I am talking about possible success of compramise, not what's right or just.