StrictSeparationist

This is the last time I will address the deference argument. From the beginning, my problem with it has been that it is far too shallow and obvious a factor to merit the emphasis you continue to give it, Leviathan. Not to impugn your legal education or anything, but your repeated attempts to showcase "deference" as somehow being a critical factor in a decision like Schenck smacks to me of a high school civics class level of understanding. I could do something similar with another famous First Amendment case and a similarly mundane and obvious factor. Let's take, for example, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and the "cases or controversies" requirement of Article III and see what wacky legal hijinks ensue.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous publications. Those statements do not foreclose our inquiry here... Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

As you can see here, Justice Brennan says that a libel charge cannot be allowed to trump the First Amendment. He's also implying that the libel situation involves a case or controversy, which Article III says is what the federal courts can hear. Clearly, the Cases or Controversies Clause is determinitive here, because if the case weren't a case, then the Supreme Court couldn't decide it.

Now, all sarcasm aside, whether or not that example was instructive, I no longer care to discuss this particular issue. I think it is clear that we're not going to agree on the importance of the individual vs. the majority. I think it's so blindingly obvious as to be completely out of place in what I thought was a relatively sophisticated discussion of a specific principle of constitutional law; you, on the other hand, seem to be ready to right a law review article about the importance of one of the most easily observable aspects of a relatively complex system. Go ahead and do so, but I truly think that this particular side discussion no longer belongs in this thread.

Now, I understand that you may not be able to get to the Establishment Clause portion of this argument immediately. That's fine- just put together a reply when you have the time, please.

Edited to add: as to the hypothetical example of millions of Christians continuing to say "under God" in the Pledge, even after it's been struck down, that doesn't sound like a constitutional question so much as a matter of school discipline, since most of this activism will be taking place in the public schools. As Bill Snedden remarks, there may be coercion, but so long as it isn't state-sponsored coercion, it's not a First Amendment issue. And as to the communism vs. capitalism argument, I don't think that political grandstanding (which is all the 1954 Act really was) justifies an overt violation of the First Amendment.

Leviathan

Is this another one of those statements I'm supposed to magically infer something from? There is no basis for this opinion. When you provide the foundation for your legal education, in denying my reading of Schenck, showing me how I'm misreading the paragraph by maybe bolding areas where it says its not talking about deference/majority v. individual, maybe then I'll take your opinion with a little more seriousness.

My "legal education" in Constituitonal law centered around one general premise: there is a constant struggle between governmental power, and individual freedom, the interests of the majority versus the interest of the individual. How you find that to be a "high school civics" lesson either evidences that you're a highly sophisticated legal scholar, or forgetting one of the most important lessons concerning the rule of law.
So basically you've said that, although you ADMIT that deference/balancing of interests constantly occurs in Bill of Rights cases, you ignore my argument it happens mostly with the First Amendment, that we can group the FA around that characteristic, and say "I don't agree" in the aforementioned paragraph.

Your misinterpretation of my argument, though, does warrant this discussion is dead. Stephen seemed to be picking it up rather easily, so perhaps we'll continue that later.

Concerning the hypo: I could argue the State's allowing the students to continually protest constitutes an acceptance of their protest, and given the State was against Newdow from the beginning, thus it is indirectly state action.

Bill Snedden

Yes, you could argue that, but as the State would also be equally allowing the non-theistic students to say the pledge without the "under god" part, it would necessitate arguing that the state was "coercing" both sides.

Not a very good argument, IMO...

Regards,

Bill Snedden