Buffman

Leviathan

Of course there is an argument about the interpretations of the Constitution and the 1st Amendment. Of course I make personal assumptions absent positive and constructive responses to my queries. However, you might note that the first time I addressed a comment to you was July 18, 2003 at 03:10 AM. I identified your statements with which I took exception. Instead of reading the URLs I provided to support the reasons for my having taken exception, and requesting that you provide reference documentation to cointernmy exceptions, you elected to belittle my use of URLs. Why don't you reread how you responded to me for the first time.

I was not interested in discussing, let alone debating, the legal issues of this string. I was only interested in being sure that the most accurate information available had already been reviewed by you. Unfortunately, it has become increasingly evident that accuracy is of little concern for/to you. (Leviathan: It doesn't matter.)

I believe that it matters a great deal...especially when discussing Church-State relationships stemming from the interpretations of the words and unique ideals found in the Constitution and 1st Amendment. I am not talking exclusively about original intent. We are well over two centuries beyond the level of accurate knowledge available to the peoples of those times. (That's why I took the time and effort to share the Robert Heinlein philosophy with you. To aid you in better understanding and appreciating my own.)

I have provided members of this forun with many lists of references from which to formulate more accurate interpretations than the ones currently being offered in support of the Christian Nation and government founded on the Judeo-Christian bible beliefs being touted by some radical supernaturalists and their vested interest clones. However, I feel confident that others can tell you that I am even more apt to hammer a non-religionist for inaccurate posts than a religionist. The accurate facts are out there in many cases. It just takes a great deal of research (homework) and time to track them to their original sources. That is one of the primary reasons I recommended that you spend a good deal of time reviewing the information available at Jim Allison's Church-State URL. (i.e.: From whence came the commonly held belief that G. Washington cut down a Cherry tree, or was seen kneeling in prayer in the woods at Valley Forge? Are either of those "beliefs" factually accurate? In isolation, would it matter? But what about in conjuction with an effort to paint Washington as a devout Christian all his life? Have you examined the facts behind his supposed boyhood prayerbook diary?)

http://members.tripod.com/~candst/index.html

Jim provides some of the most meticulously researched and documented source materials on the WWW devoted to Church-State. Should you challenge any of his opinions stemming from the source documents he cites, I suggest you challege their authenticity and accuracy, not only the associated commentaries.

If you are fully aware and conversant on the information available in Neil H. Cogan's "The Complete Bill of Rights; The Drafts, Debates, Sources, & Origins" Oxford University Press, New York/Oxford, 1997, Chap. 1 (pgs. 1-82), then you will have an outstanding reference book of original documents and sources ...ones which few, if anyone, can or would argue.

Leviathan

And time and time again your personal assumptions have been wrong, like the latest example: somehow you get to the point of saying that b/c I have a different interpretation with you about the First Amendment, that this renders me a Bible THumper believing every word of the Bible as literal, unquestionable truth.

Nothing could be further from the truth: this just exhibits further my only continuing point to you: I'm not concerned with your political ideology, that isn't the point of this thread, and contrary to your continuing long-winded paragraphs about the *same topic*, over and over, I honestly am just not concerned with your belief that my thoughts on the Bible are that its "unquestionable."

It is personal assumptions like these that only side track debate, and further convince me that you want nothing of it.

Why do you honestly keep replying? Is it b/c I reply back to your personal assumptions, and thus you *just believe* you are forced to reply? If so, don't feel led to, you're not contributing to the legal analysis of this debate anymore: you're only sidetracking it with personal remarks.

So maybe I'll have to cut you short: you needn't feel the desire to reply. I'll have to make you a promise, I guess, I won't reply. I'm sick of your inane, profuse lecturing paragraphs.

Toto

Lev - you have based part of your argument on your view of American history. You have claimed that the founders of this republic were Christians. You have inaccurately claimed that "under God" is in the Declaration of Independence. You have stated inaccurately that the Constitution was based on Christian principles. When I pointed these inaccuracies out, you did not address the issues. When Buffman tries to refer you to more accurate sources of information, you change the subject.

Your refusal to address these issues or defend your position makes discussion very difficult.

Buffman

somehow you get to the point of saying that b/c I have a different interpretation with you about the First Amendment,...

I am not really sure if we disagree or not. I have been attempting to determine why you wish to see "under God" in our federal PoA.

... that this renders me a Bible THumper believing every word of the Bible as literal, unquestionable truth.

Well? Do you or don't you? If you don't, which parts and why not? Those questions all relate to beliefs in a supernatural god entity. They also can be tied to the entire "under God/national motto and money" issues mandated by our federal government.

Why do you favor an interpretation that allows the federal government to mandate a religious faith belief, ceremonial or not, as part of pleging an allegiance to our country...if you aren't a believer in the supernatural? Do you have verifiable proof the our "government" (federal republic) was crafted based on Christianity? Yes or no?

Why is it that until the "bible thumpers" started rewriting American history and natural science back in the 1950's (and over the last 20 years), this was hardly ever a bone of contention?

Why is it necessary for our government to depart from a proscribed federal neutrality concerning individual religious or non-religious conscience?

Why do you continue to duck the simple questions I asked several days ago? Why are you only concerned with your version of what is "true" and what is not...as though no one could possibly be more accurate than you or David Barton...or one treasured professor?

It is personal assumptions like these that only side track debate, and further convince me that you want nothing of it.


One could easily label that remark as an excellent example of immature arrogance. Thank you.

Why do you honestly keep replying? Is it b/c I reply back to your personal assumptions, and thus you *just believe* you are forced to reply? If so, don't feel led to, you're not contributing to the legal analysis of this debate anymore: you're only sidetracking it with personal remarks.

That is accurate. I am more concerned with the basis of the beliefs that have led us to the laws we have enacted. There is the distinct possibility that if the basis is inaccurate, so are the laws. (Slavery, equal rights for women,, the U.S.Patriot Act of 2001, etc.) What is the law? Anything that can be enforced? Jews have 613 Laws supposedly mandated by a supernatural entity. Are they always enforced? If not, why not? Our federal politicians claim that "we" have ten laws (commandments) by which "we" should all abide..because they were mandated by a supernatural entity. Whose? Which one? Prove it! ---- I keep replying because I can't believe that you are incapable of accurately analyzing the basis of your own belief system....but you are certainly causing me to have second thoughts about that.

So maybe I'll have to cut you short: you needn't feel the desire to reply. I'll have to make you a promise, I guess, I won't reply. I'm sick of your inane, profuse lecturing paragraphs.

Always an option in a public forum. I guess I keep hoping that you will finally try answering one of my original questions rather than dashing off into a new personal tirade concerning your distaste for me....someone you have never met, about whom you have a minimal amount of knowledge, and obviously whom you appear reluctant to engage in a discussion of accurate Early American history that has, and could again have, a bearing on our federally constituted laws. Laws that have not always provided protectection for the minorities from the tyranny/ oppression of the majorities.

I guess I just have concern and compassion for those that place blind faith beliefs before verified facts...regardless of their age or political label.

Stephen Maturin

Before I forget yet again, the "Diana, Mary and Flo" comment in an earlier post refers to Diana Ross, Mary Wilson and Florence Ballard, the Supremes. A law professor of mine regularly called the Supreme Court "Diana, Mary and Flo."

And now, back to . . .

II. NINTH CIRCUIT'S APPLICATION OF LEE V. WEISMAN (cont'd):

I don't see any such assumption in the argument. The vast majority of negative public commentary I saw in the wake of Newdow I was premised on the notion that we are are nation "under God" in the here and now. The critics viewed (and continue to view) the decision not as simply robbing the nation of its history but rather as another facet of the Evil Atheist Conspiracy's ongoing efforts to "ban God from public schools." So yes, I think the overwhelming majority of critics do in fact view "under God" as a religious symbol.

At bottom, calling ceremonial deism a "legal fiction" is being overly kind. In point of fact, it proves to be an outright lie in the Pledge context. The simple truth of the matter is that "under God" has NOT "lost through rote repetition any significant religious content." Were that the case, we wouldn't have seen such passionate reactions to Newdow.

Although they're all too few and far between, there are a number of accomodationist judges honest enough to speak out against ceremonial deism. Check out Judge Manion's concurrence in Sherman for an example.

1963, if memory serves, a full twenty-nine years before Lee.

And I believe it's a distinction without a difference since Pledge recitation qualifies as a religious act that, in the public school context, is even more coercive than the graduation prayer at issue in Lee. But yes, it's entirely possible that the Court will distinguish Lee on exactly the basis you've identified.

Yes indeed, the "evolving standards of decency" test has been part of Eighth Amendment jurisprudence for quite some time. It makes eminent sense in that context since ideas of what constitute "excessive" bail and fines or "cruel and unusual punishment" change over time. It's pretty much impossible to enforce the Eighth Amendment in any meaningful way without taking those changes into account.

That approach is singularly ill-suited to First Amendment jurisprudence, though. To take an admittedly extreme example, let's suppose a consensus emerges that the U.S. is a "Christian nation," whatever that means. Suppose Congress acts on that consensus by setting up a national non-denominational Christian church in which membership is voluntary. Suppose further that a majority of people support the law. Should Congress's actions pass muster under the Establishment Clause based on consensus alone? The implications of a majoritarian approach for the free excercise rights of religious minorities is more than a little frightening, too.

There's also a practical problem with using such an approach in Newdow. So far as I'm aware, the record contains no evidence on which the Court can base a finding that "a vast majority of students (since we're talking about the psy. coercion of a student) do not find the Pledge to be a religious act." Should the Court simply declare that to be the case as a matter of law, sans evidence?

The other cases you've cited - Korematsu and the FDR era Commerce Clause cases - I view as rather odious examples of what can happen when a federal court abdictates its constitutional responsibilities and bows to political will. Personally, I'd like to see that approach restricted rather than expanded.

Apropos of nothing at all, I caught the tail end of a PBS documentary on Fred Korematsu one night last week. It was pretty damn good!

Cool. That's what we like to hear.

Sorry, man. I just don't know enough about the founders' religious beliefs to comment intelligently on the subject. It seems to me that the more important inquiry isn't what they believed but rather what they did (adopted a constitution with no references to God, a "no religious tests" provision, etc.).

See Toto's post above regarding the wording of the DoI. I'd have no problem at all with your position if the 1954 Pledge was worded something like, "one nation, founded by men who believed rights are derived from God." However, the actual wording of the 1954 Pledge, not to mention the legislative history of the 1954 Act, speaks for itself. The words "under God" are religious and their inclusion in the Pledge was religiously motivated.

Looks as though we've reached another impasse.

Yes. Thank goodness.

Oh yes, courts regularly defer to legislative findings and statements of purpose in cases involving statutory construction and application. Not so much in the field of constitutional law, though.

As you've mentioned, after Newdow I both houses of Congress "reaffirmed" the 1954 Pledge and included in those bills a lengthy recitation of "findings" designed to support the conclusion that the 1954 Act was constitutional. That's all well and good, I supposed, but issuing the final word on constitutionality is the bailiwick of the courts. It's the courts' job to assess the validity of those congressional findings and determine whether those findings actually support upholding the 1954 Act.

Deference-based arguments always appear to boil down to:

P1: Congress says the inclusion of "under God" in the Pledge was constitutional.
C1: Therefore, the inclusion of "under God" in the Pledge was constitutional.

Setting aside the fact that the conclusion simply doesn't follow from the premise, that seems like passing the proverbial buck to me. I'm not saying it won't happen here, but I do think it's a poor way for the Court to go about its business.

Au contraire, my friend. Psychological coercion is a test dealing with "religious exercises." And I've seen nothing in Lee or any subsequent Supreme Court cases suggesting that the coercion test was a one-shot deal. If that's the case, the justices really ought to tell us, don't you think? They'll have a chance in Newdow, but I rather doubt we'll see a ruling that limits Lee exclusively to prayer cases. It's much more likely that the Court will distinguish Lee by holding that Pledge recitation in public schools isn't a "religious exercise." I disagree with that, but unfortunately I don't get the final say.

Yep, I reckon it might be viewed as such an invitation. I guess my point is that the challenge, if it comes at all, will come whether it's invited or not.

I agree entirely.

Actually, that statement's spoken by the Marshal of the Court while the justices enter the courtroom. The whole spiel goes as follows:

Sure, a plaintiff could argue as you've suggested, but the argument won't go anywhere. The issue here, as I understand it, is whether Newdow places us on a slippery slope that will lead to the removal of all religious references from government praxis. It doesn't. The Ninth Circuit's holding is premised on Lee, which doesn't even arguably apply to the statement quoted above.

Yeah, Lemon has been the Supreme Court's ugly redheaded stepchild for a long time. Even so, the Lee Court expressly declined to overrule the Lemon test, so the Seventh Circuit arguable should have applied it. That said, I have no doubt that Judge Easterbrook would have found a way to hold the Pledge constitutional under Lemon.

Oh no, the Ninth Circuit found quite the opposite, namely that it was bound to follow at least one of the existing EC tests. After describing all three tests, the Newdow II court found:

That's an entirely accurate statement of the law.

Leviathan

Good argument Stephen, I'm writing an appeals brief to the Supreme Court of my state for this week, so I won't be able to respond, but never fear: I'll be back! (just saw T3)

Wish me luck.

ohwilleke

A few thoughts on how Newdow plays out:

1. Getting cert is not a sure thing. The Supreme Court has danced around this issue for decades and sucessfully avoided it. I could see a denial of cert again, to allow more circuit courts to rule and develop the split of authority. Declining to rule might lead to a constitutional amendment which would take the issue out of it jurisdiction, e.g., "The pledge of allegiance of the United States is: "

2. If the Supreme Court took the case, I would expect Thomas, Scalia and Rehnquist to argue that the U.S. is monotheistic and that's fine, or perhaps to argue that ceremonial deism is fine. I would expect Ginsberg, Beyer and Souter to argue to affirm Newdow. I would expect Stevens, Kennedy and O'Connor to take a middle provision, but to provide the same remedy as its prior pledge case, which is to permit children to consciencously object from the pledge, rather than to prevent it from being uttered.

Leviathan overstates the importance of the precedents and commentary here. This issue has been squarely addressed by two circuit courts which have reached opposite conclusions. The remaining authority is stuff you only mention because of the dearth of authority on the issue. A footnote here, a dicta there, an odd trial court decision that never went anywhere. Simply put, everyone in the constitutional law community is aware that the Pledge is at odds with the logical conclusion of the First Amendment jurisprudence of the U.S. Supreme Court in the past couple of decades, and also knows that is the Pledge is very popular, which is why judges prefer not to rule at all.

At the U.S. Supreme Court level, precedent is at its weakest. It is not "bound" by any other decision. It cannot be overruled. Anything the author of the opinion can convince four other judges of is the law (to paraphrase a famous California Supreme Court justice). The recent ruling on sodomy laws, flip flops on the death penalty issue, the overruling of Lochner, flip flops on states rights, the reversal of Plessy v. Ferguson, Gideon v. Wainwright (which reversed Betts v. Brady (1942)), and similar high profile cases are testiments to the fact that the U.S. Supreme Court can and will overturn its prior rulings on high profile issues. It recent decisions to uphold Miranda, Bakke and Roe, while rejecting Bowers v. Hardwick, also shows that even this conservative court is to a great extent still carrying out the Bill of Rights agenda begun in the Warren Court.

In any case, in the U.S. Supreme Court, prior Supreme Court precedent, such as Barnette and Wallace (1985) (no moment of silence for prayer), and Weisman, means much more than the decisions of any lower court. I would fully expect the justices to give little more than lip service to either the 9th or 7th circuit decisions on the issue, and the instead, launch in on an examination of its own prior precedents.

With regard to the amendent of the pledge the Court could try to say that regardless of the prior purpose the current intent is secular as it did with Blue laws. McGowan v. Maryland (1961), but this is much harder given the direct religious content of the pledge.

Barnette (1943) which allowed opting out, and School District of Abington (1963) which does not allow opting out, provide contradictory messages for Newdow, distinguishable perhaps because Barnette involved Free Exercise, while Newdow involves the establishment clause, to which the significant burden test does not apply.

Weisman makes the distinction between student prayer and the case Marsh v. Chambes (1983) which looks at legislative prayer. Since Newdow involves an elementary school, this does not provide an easy out.

Cases like Widmar v. Vincent (1981) (can't deny religious groups use of public university facilities), and the Cleveland vouchers case, are more what the U.S. Supreme Court had in mind when it talked about excluding religion from the public sphere, than Newdow.

The U.S. Supreme Court has ample ability to justify any result it reaches in this case if it takes it up. Either under the ceremonial deism line of "In God We Trust" cases, or under its plain vanilla First Amendment case law, or on standing grounds. The cases that have argued for the legality of the pledge's "under God" clause have by and large been poorly reasoned fig leaves for a political decision contrary to the Constitution.

StrictSeparationist

A few thoughts on how Newdow plays out:

1. Getting cert is not a sure thing. The Supreme Court has danced around this issue for decades and sucessfully avoided it. I could see a denial of cert again, to allow more circuit courts to rule and develop the split of authority. Declining to rule might lead to a constitutional amendment which would take the issue out of it jurisdiction, e.g., "The pledge of allegiance of the United States is:"

I think that a cert. grant is absolutely inevitable, simply because of the practical consequences of allowing the Ninth Circuit to stand. I think that Thomas, Rehnquist, and Scalia can hardly fail to find a fourth to agree that the nine western states must be allowed to have their schoolchildren recite the Pledge, "under God" and all. I think that the right-wingers on the Court aren't willing to wait for a constitutional amendment that may or may not get ratified.

2. If the Supreme Court took the case, I would expect Thomas, Scalia and Rehnquist to argue that the U.S. is monotheistic and that's fine, or perhaps to argue that ceremonial deism is fine. I would expect Ginsberg, Breyer and Souter to argue to affirm Newdow. I would expect Stevens, Kennedy and O'Connor to take a middle provision, but to provide the same remedy as its prior pledge case, which is to permit children to consciencously object from the pledge, rather than to prevent it from being uttered.

If the three you identify as moderates do indeed take the course you describe, what we get is no ruling at all. A straight affirmance of Barnette would be pretty anticlimactic, don't you think? The most likely outcome is a summary reversal (or maybe they will have arguments, hard to say) on standing grounds. That leaves moderates happy- status quo preserved, at least until a petitioner with standing that can't be disputed comes before the Ninth Circuit.

Leviathan overstates the importance of the precedents and commentary here. This issue has been squarely addressed by two circuit courts which have reached opposite conclusions. The remaining authority is stuff you only mention because of the dearth of authority on the issue. A footnote here, a dicta there, an odd trial court decision that never went anywhere. Simply put, everyone in the constitutional law community is aware that the Pledge is at odds with the logical conclusion of the First Amendment jurisprudence of the U.S. Supreme Court in the past couple of decades, and also knows that is the Pledge is very popular, which is why judges prefer not to rule at all.

It's that popularity that will save the Pledge, and not, as you've said, and real consensus among the judiciary that the 1954 Act could possibly be constitutional under Wallace if it hadn't become such an integral part of the American patriotic conciousness in the meantime.

No comments on the rest, which is completely correct in its analysis of the way the Court gives lip service to stare decisis while really obeying only the rule of five.

Leviathan

Stephen:

Exactly why is C.D. a "legal fiction?" How is it an "outright lie" in the Pledge context? Stating "Under God" is just not a religious endorsement of anything: especially to a bunch of high school kids who do it out of tradition anyway.

You are concluding its a religious act, thus your presupposition that they aren't distinguishable really centers on the very assumption you're trying to prove. I've labelled some critical distinctions in my previous post, about why Lee is an entirely different animal, and this is going to have to be another agree to disagree point.

I understand your argument, it works for the 8th Amendment, but won't for the 1st. I'm using the jurisprudence to prove the general point that sometimes courts defer to legislative will. The Commerce Clause is one area, hell the First Amendment has been one: (I'm sure you're aware of Schenck v. United States, just for starters).

I understand your argument, but such a law clearly and overtly violates the First AMendment: no questions asked. If there is any Legislative intent behind the First Amendment, the prevention of an establishment of a church is certainly its purpose, right?

Whether we can apply that to a *political* act in schools, I'm skeptical.

The Court should declare it as law b/c in my view its common sense. The majority opinion they should cite is not the students, but the legislative findings to 4 U.S.C. 4.

A court that does not defer to the legislative intent and will in areas that it should, is an activist court threatening the liberty of all citizens. Yes, a legislature can trample on a man's rights, but so can a court.

I will give you Korematsu is an "odious" example, but I find it very hard to see the S. Ct. decisions on the Commerce clause, such as Nebbia v. NY are more odious than the stream of cases they overturned: Lochner v. NY.

Is it your argument that Lochner is more "correct" law, than Nebbia and its predecessors? Lochner applied more judicial scrutiny to strike down legislation to aid in the economic equilibrium of workers during the 1920's. Nebbia et al. overturned that precedent by *lowering* judicial scrutiny and defering to the legislative intent. Justice HOlmes spearheaded such a movement in his dissent to Lochner, which I'm sure you're aware of as all lawstudents (and thus lawyers) are: "general propositions do not decide concrete cases."

I believe my argument, with those examples, provide evidence that sometimes judicial deference is in the will of the people.

Thats an opinion, sure.

Note the following:
A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected for several reasons: First, on our precise problem the historical record is at best ambiguous, and statements ca be readily found to support either side of the proposition. - Justice Brennan, in Abington.

While I'm inclined to agree with Brennan, there can be no question that at the time of the adoption of the Constitution, many of the states had religious requirements which, one may infer, if you examine that evidence in the context of ratifying the Constitution, it must say the people of the many states had no problem with the First Amendment as it was written. Such a view accomodates the accomidationist view, wouldn't you agree?

But it wouldn't make the song have a good beat, so we just said "Under God!" j/k.

Yes, its another impasse.



Do courts not have to interpret the Constitution, and thus are dealing with issues of statutory construction? Holy Trinity et al anyone?

Prayer: religious exercise, Pledge: not religious exercise.

And I'd say that Lee's restraint argument is exactly where the court was telling us to be weary of going off into la-la land. But we've already discussed that, so its rehash. Agree/Disagree.

Review Sherman. Sherman found that Lemon was "put on hold" by Lee. They didn't reaffirm it, but said they would review it later. The judges that advocated this, *after deciding Lee* have made dictum statements criticizing Lemon.

Lemon isn't just the redheaded stepchild, its that Uncle you just can't stand to see coming to Thanksgiving dinner.

Ohwilleke:

1. nice name
2. nice analysis of constitutional history...

Save this.

Its not just a "footnote here," etc., the majority of evidence points to the Court resolving the issue in the way I've stated it, I believe, and Newdow simply stands alone, with an expansive view of Lee which no court has ever found reasonable.

If you would be happy to tip the scales of evidence for me, and show me some court decisions which support the expansive Newdow view, by all means share your knowledge.

fix tags - Toto

StrictSeparationist

Leviathan, you haven't faced the Lemon issue squarely at any point in this thread. Not particularly surprising to me, since of course the first prong of the test clearly sinks the 1954 Act, no questions asked.

Your main objections to Lemon seem to be that it's been subject to criticism from lower courts and has not been squarely endorsed by the Supreme Court in a decade or so. The former is, of course, immaterial: the lower courts can bitch and moan all they like about Supreme Court precedents they don't like, but they're bound to follow them until those tests are overruled. The latter is more significant, but not quite as true: four Justices have gotten behind Lemon, and O'Connor has shown reasonably consistent support for it with her endorsement or disapproval addition. And the fact remains that until the Court sees fit to overrule Lemon, the presumption is that it's good law.

If we can simply accept the Lemon formulation as correct, which it pretty clearly is, we can ignore all the rather more metaphysical musings that the coercion test or the free-standing endorsement or disapproval standard entail. The secular purpose prong, as clearly articulated in Wallace v. Jaffree, destroys the 1954 Act without us ever having to worry about the exact implications of quasi-mandatory recitation in public schools by impressionable youths. What's so tough about that?