I know everyone’s sick of the pledge stuff by now, but having thought about it this much already, I decided to do an LFB column on the subject. Here we go:
Under Law
I couldn’t have been older than four when, minutes after arriving at the mysterious new world of pre-school, I first heard the pledge of allegiance. I hated it instantly. There was something creepy about the mindless uniformity of it, the idea of making “allegiance” a matter of ritual, not reasons. When I learned, years later, that the pledge had been written by a socialist as a sort of toddler programming tool, and that it was once accompanied by an inverted “sieg heil!” salute until that became too embarassing, my visceral revulsion only increased.
The founders, alas, lacked the foresight to include a provision in the Constitution barring Congress from passing laws which creep me out. They did, however, restrain it from enacting statues “respecting an establishment of religion,” which restraint, the 9th Circuit Court of Appeals recently ruled, invalidates the addition in 1954 of the words “under god,” to our beloved loyalty oath.
Now, in terms of 20th century Establishment Clause precedent, this decision’s a no-brainer. The court has stricken classroom prayer, nondenominational invocations at public school graduations or football games, and even a “moment of silence” during which prayer was suggested as one possible use of the time, as impermissible state endorsement of religion. If those practices cannot be allowed to stand, surely the endorsement embodied in a daily ritual wherein government employees support a religiously charged conception of patriotism is just an invitation to a gavel smackdown. The pledge fails not one, but two of the traditional tests for Establishment violations. First, laws are required to have a “secular legislative purpose.” What possible secular purpose is served by a law which, as did the one passed by Congress in 1954, does nothing more than add a religious reference to a preexisting text? Then there’s the “neutrality” test: laws are not permitted to advantage one sect of religion, or religion over unbelief. Do I need to argue that having government teachers affirm daily that this is “one nation, under God” fails this test?
Well, apparently I do, since even many libertarians seem to think the 9th circuit erred in its decision. Some argue that, so long as students are not forced to recite the pledge, no harm, no foul. That line of argument is the product of a libertarian tendency to focus on coercion as the supreme evil — a tendency generally healthy, but here quite inappropriate. The Establishment Clause is not really about the rights we have, it’s about the rights government doesn’t have. In particular, government doesn’t have the right to start running television ads declaring that “Jesus Saves” or build huge Hindu temples on federal land, whether or not people are compelled to stay glued to their TVs or go visit Ganesh.
Others say such a brief reference to God is nevertheless too trivial to be subject to First Amendment scrutiny. But if that’s so, why did the Senate feel compelled to stop its other business when the decision was announced and issue a unanimous declaration condemning the ruling? Why have rabid conservative pundits been claiming that this marks the downfall of America, and a fatal blow to mom and apple pie? Certainly, proponents of the religously charged pledge don’t appear to be treating it as trivial. Nor, I imagine, would that be the opinion of atheist or polytheist third-graders in strongly religious communities enduring dirty stares from teachers and peers as they exercise their right to very conspicuously opt out of the state-run morning chant.
Others seem to worry about the sorts of precedent this sets. Does the ruling mean that we all have a right not to hear religious views which offend us? Of course not: it only means that we’re entitled to expect that agents of a government which is supposed to represent us all not speak for one religious group in a way that excludes others. Does it mean that any mention of God, as found in, for example, the Declaration of Independence, is to be barred from public classrooms? Again, not in the least: government is barred from endorsing religion, not from acknowledging its existence. The 9th circuit made a big deal out of the difference between the “normative context” of a daily pledge, and the descriptive content of a history lesson.
A final set of objections comes from those who flatly reject the current Establishment Clause precedent as inconsistent with the “original intent” of the founders. My fellow LFB columnist Wirkman Virkkala, alas, offers a doubly confused interpretation. He says that the 1954 law “did not concern any establishment of religion, if by establishment we mean any organization.” But, of course, that is not at all what “establishment” means in the context of the First Amendment: “Establishment of religion” is a verb-phrase, as when one “establishes” a custom or rule, not a noun-phrase describing an “establishment” in the sense that a church building is “an establishment.” Other critics remain only singly confused: they argue that the point of the Establishment Clause was to prevent the establishment of a state church, and that’s about all. More robust interpretations which invoke a “wall of separation” between church and state, they say, are mere judicial creativity.
The problem is that the founders did consider more narrow language, saying only that Congress must not establish a national religion. But that was rejected in favor of the familiar: “Congress shall make no law respecting an establishment of religion.” In other words, they meant to carve out a wider space, to make the entire neighborhood of establishment off limits, so to speak.
Exactly how much space, though, did they intend to carve out? Frankly, I neither know nor care — and I doubt they would have been of one mind on the subject anyway. We are bound by the Constitutional principles the founders articulated, not by speculations about the way a majority of them would have applied those principles in particular cases. If someone tells you to buy the fastest car you can, you follow their instructions by inquiring into which car really is fastest, not by trying to figure out which one they believe, possibly mistakenly, is fastest. The founders did not always leave us a fully fleshed-out roadmap. At best, we have a series of signposts, and our only consistent option is to follow them in the direction of full church/state disentanglement. If we abandon the “wall of separation” interpretation, then we are bound either to the idea that nothing short of full establishment is banned — a result the founders clearly rejected — or to a vague, indeterminate, ad hoc “balancing test” which redraws the boundary anew with each shift of the political tides.
