Atticus_Finch

I have reviewed some of the comments regarding the 9th Circuit's recent ruling regarding the constitutionality of the inclusion of the phrase "under God" in the Pledge of Allegiance and decided that I should add my thoughts on this issue.

First, the disclaimers. I am a Christian and most accurately described as a fundamentalist. I also work full-time and make no promises about responding to each or most posts which appear in response to mine. That being said, what follows are my thoughts on the decision.

The First Amendment to the U.S. Constitution states, in pertinent part, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof..." The constitution makes no reference to the "wall of separation" between government and religion which is commonly discussed in relation to this topic.

I am a strict constructionalist and believe that the only consistent and objective means by which courts can and should interpret the Constitution is first by the plain meaning of the words and then with reference to the intent of the framers. Three things are clear from the plain language of the amendment. First, it only applies to Congress and not the states. Second, Congress is prohibited from creating an "established" religion. What does that mean? Well, at the time, England had an "established" religion. The state declared that the Anglican Church was the church of England and paid its ministers. A number of the U.S. states, at the time the Bill of Rights was passed also had "established" state churches. Finally, it prohibited Congress from inhibiting the free exercise of religion.

Did the framers intend by the "Establishment Clause" that the federal government was to have no involvement in religion whatsoever? Did the intend that government should not show any support for religion whatsoever? One good way to know their intent is to look at there actions surronding the passage of the amendment.

The following is a quote from a law review on this subject:

"Meanwhile, despite the relatively small amount of known debate surrounding the passage of the First Amendment, many have interpreted a more narrow stance of accommodation by noting actions taken by the First Congress and early presidents, including Jefferson and Madison.
Numerous events have been cited by commentators in support of accommodation. For example, the day after House passage of the First Amendment Religion Clauses, a resolution was offered in the House asking President Washington *618 to proclaim a day for public prayer and thanksgiving. Subsequently, George Washington, John Adams, and James Madison issued Thanksgiving Day Proclamations with Thomas Jefferson as the lone dissenter among the first four presidents.
Similarly, Congressional chaplains are often cited as another accommodation of religion made by the First Congress. The citation of congressional provision for chaplains becomes even more noteworthy when pointing out that Madison himself sat on the committee that recommended the Congressional Chaplain system, yet he acquiesced making no argument of constitutional violation. And finally, early presidents often effected direct support of religion through Senate treaty agreements. In particular, President Thomas Jefferson signed a treaty agreement with the Kaskaskia Indians to provide money in support of a Roman Catholic priest and church for the Indian tribe --a treaty which reflected those made by earlier and future presidents. Such actions of accommodation as these, and others, by the authors of the Religious Clauses provide foundation for narrower interpretation than currently acknowledged, and cast doubt on the themes of strict separation between church and state and strict neutrality between religion and irreligion set forth by the Supreme Court in Everson v. Board of Education."

ROBINSON V. CITY OF EDMOND: ESTABLISHMENT CLAUSE JURISPRUDENCE AND A CASE FOR GOVERNMENTAL ACKNOWLEDGEMENT OF THE HISTORICAL ROLE OF RELIGION; Kyle D. Freeman; Copyright ©© 1997 University of Tulsa; Kyle D. Freeman (footnotes omitted).

It is clear from history that the framers would not have seen the phrase "under God" as a violation of the First Amendment.

It has only been in the last 30 years that the U.S. States Supreme Court has altered the jurisprudence on the "Establishment Clause" and attempted to erect the strict wall of separation. From a strict constructionalist viewpoint, those line of cases are wrongly decided because the ignore the clear intent of the framers.

Obviously, the 9th Circuit's opinion is most likely in accord with current jurisprudence on this issue. It takes the cases to their logical extent. However, as set forth above, that jurisprudence ignores the intent of the framers and elevates the courts to the position of amending the constitution by judicial fiat rather than interpreting it.

Therefore, I believe that the inclusion of the phrase "under God" in the pledge is not unconstitutional.

All that being said, I would probably vote to remove it from the pledge if given the opportunity. If it was ever a true statement it is no longer the case. I believe that it is appropriate for government to recognize the historic influence of religion on our country (i.e. the relief of Moses in the Supreme Court building, copies of the 10 Commandments posted in court houses) but to say this is still a nation under God is just not correct.

Regards,

Finch

(I had to complete this quickly. I will edit it later.)

hezekiah jones

It does apply to the states now.

At any rate, the addition of "under God" to the Pledge was an Act of Congress. So even to a "strict constructionist" like yourself that fact alone should be dispositive that the establishment clause does indeed apply in this case.

You're erring already. It says "respecting an establishment of religion." What do you think that means? "With respect to," or "concerning," or what?

If the framers simply wished to prevent the government from establishing a church, or even a "religion," and not from "respecting an establishment of religion," don't you think they would have more clearly said so?

Hopefully you will reply to these comments. The rest of your post doesn't get off the ground if you are incorrect with these initial assertions.

However it is refreshing to see a Christian agree that "under God" should be removed from the Pledge.

[ June 28, 2002: Message edited by: hezekiah jones ]</p>

Undercurrent

Then I will make may judgements based on the quality of your arguments, not the nature of the arguer.

Granted that the literal words "separation of church and state" do not appear in the constitution of the United States. However, these words world seem to be a synonymous with concepts contained therein as imagined by the framers. The phase itself was coined by Thomas Jefferson to describe the meaning of the establishment clause.

There are modern-day evangelists (e.g. D. James Kennedy) who claim that the use of the phrase "separation of church and state" as a synonym for some of the content of the U.S. constitution was a latter-day invention, unintended by the framers. A cursury evaluation of available historical documents shows that this is not the case.

There is, a believe, another ammendment (14th) that basically says, "Oh yeah, the states, too."

I do grant that "establishment" of religion probably was meant originally to refer to the creation of a state church. It is the free exercise clause that completes the wall. Any government endorsement of a religion, or group of religions -- even one(s) that it did not establish itself -- is an inhibitor of the free exercise of religions without such privledge.

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I certainly don't see your conclusion as obvious from your statements. I don't see a mere acknowledgement of the government that most people subscribe to a belief in a god, and some accomodation of that fact to be on par with requiring a religious reference in the pledge of allegience. The 9th district Court found that the pledge of allegence is normative, not merely descriptive. That is, the pledge of allegence decribes the way people shoule be, not how they are. Having a chaplin or a national day of prayer is, IMO, descriptive -- an acknowledgement that some people are religious, and making accomodations.

A non-religious analogy would be the mayor of a city declaring a gay pride day and allowing a parade. By doing so, the mayor is not saying "All citizens of my city should be gay", but rather "There are gay citizens in my city."

As I said above. I deny that "the last 30 years" have brought a significant change from the intent of the framers. After all, "a wall of separation between church and state" is Jefferson's (a framer) own words.

I think what has really happened in the last few decades is a social change whereby conservative religion has been taken less and less seriouly by the general populous.

This has really polarized the most conservative religious elements, who have now circled the wagons, so to speak. Some evangelists, such as D. James Kennedy, wish that the government could come in to help them re-bolster their ranks, and are not above a little historical revisionism to help them believe that the government is allowed to do that.

It is one of the specific purposes of the courts to see that laws do not contradict the constitution. The presence of "under God" in a normative statement of the nature of the nation clearly inhibits the free exercise of religions that do not have a god, and arguably inhibits the free exercise of religions that do have a god but don't call their god by the name "God".

The judement call made, was not the above statement, which plainly follows from the exact wording of the constitution, but whether the pledge was actually a normative statement, rather than a merely descriptive one.

I would point out that much of the alledged influecne of the law of Moses and the 10 commandments in the history of the United States is more of the same historical revisionism that I cite earlier, and clearly not supported by history, or even by comparing the content of the law of moses with the laws of the US. But that's another topic.

Couldn't agree more. When I look up all I see is sky, not the buttocks of some deity.

m.

m.

Shadowy Man

It is not sufficient, when discussing how one should interpret the 1st amendment as pertatining to the constitutionality of a law, to only read the text of the amendment. One has to see how the judiciary has interpreted the amendment. Do a web search on the Lemon test, which the 9th Circuit applied to this case. Judicial precedent determines what the amendment means, not a layman's reading of it.

Reverend Mykeru

I just wonder if the newly minted "strict constructionalists" on the religious right regarding the Establishment Clause, interpreting "establishment of religion" as meaning only a literal church, are also as strict in their constructionalism when it comes to the Second Amendment's reference to the right to bear arms being invested only in "a well regulated militia".

[ June 28, 2002: Message edited by: Reverend Mykeru ]</p>

Atticus_Finch

It is not sufficient to look at judicial precedent. As I indicated in my original quote, I accept that the 9th Circuit's opinion most likely follows precedent. However, my point is that the precedent is wrongly decided.

When the Supreme Court decided Brown vs. Board of Education (ruling legalized racial segregation to be unconstitutional) it had clear precedent upholding legalized segregation in the form of Plessy v. Ferguson. So, unless you are willing to say that legalized segregation is constitutional, then precedent is not sufficient.

Regards,

Finch

Atticus_Finch

Obviously this is off point but I note that you inserted the word "only" before well regulated militia. The amendment says "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bears Arms, shall not be infringed." If you look at the history of the time, the militia was, by law, every able bodied white male, often between ages 18 and 45. Each such male was required by law to own a gun and keep it in functioning order. Once a year the militia was called out to drill and you were fined if you didn't have your gun.

If you want the real story it is actually quite simple. At the time Madison drafted the amendment there were two types of provisions being proposed. One was to guarantee to the states the right to keep militias at least partly to protect them against an overbearing federal government. The second was to protect the individual's right to keep and bear arms for self-protection and to protect against tyrants. The most likely explanation for the language of the 2d Amendment is that Madison combined the two and attempted to protect both the right of the states and the individuals.

You may like guns or not. You may think crime would go down if there were no guns. I might even agree with you. However, it is a massive lie to assert that the Second Amendment was not meant to protect the individual's right to keep and bear arms.

If you don't like the 2d Amendment you should move for its repeal. It is a dangerous thing to allow unelected, life-tenured judges to mess with our rights by judicial fiat.

Regards,

Finch

[ June 28, 2002: Message edited by: Atticus_Finch ]

[ June 28, 2002: Message edited by: Atticus_Finch ]</p>

PopeInTheWoods

Why is this inherently dangerous? Unelected, life-tenured judges may be exactly what's needed to prevent minority rights from being trampled by the "tyranny of the majority".

The legislative branch of the government may bypass an "unconstitutional" ruling by amending the Constitution. The deliberate nature of such a process allows time for reflection and national debate.

Andy

Atticus_Finch

You have just struck upon a great fallacy. If a court is not bound by strict construction and the intent of the framers then corrective action by the legislature would be pointless. The court would be free to "interpret" the legislature's action to mean whatever the court wanted.

Regards,

Finch

Reverend Mykeru

Atticus_Finch

If it applied to individuals who may or may not be part of a "well-regulated militia", then why did they even bother mentioning a "well-regulated militia"?

I'm from Arizona, chuck. I owned guns. The issue is NOT my position on guns or gun control, it is your consistency in being a "strict constructionalist".

Blah-blah-blah.

In other words, you are a strict constructionalist when it comes to the Establisment Clause, but not when it comes to the Second Amendment, and switch off whenever it suits you.

Thanks for clearing that up.

[ June 28, 2002: Message edited by: Reverend Mykeru ]</p>