The Pledge of Allegiance and Conservative Hysteria
A federal judge in California ruled yesterday that group recitation of the Pledge of Allegiance in public schools is unconstitutional. The decision predictably resulted in an instantaneous and deafening chorus of conservative faux-outrage. Amid these cries of "judicial activism" and condemnations of the "secularist agenda," the basic facts of the matter were, as usual, entirely ignored.
For instance, how many right-wing pundits noted the most obvious fact: that the judge in this case had virtually no choice but to rule the way he did? He is bound to apply 9th Circuit precedent. The 9th Circuit has already decided this exact issue. Though the Supreme Court later reversed that decision, it did so on standing grounds (i.e. a procedural technicality). Therefore, the substance of the 9th Circuit's opinion is still good law in the 9th Circuit. If Judge Karlton had ignored that controlling precedent, he would truly have been guilty of judicial activism. The intelligent right-wingers know this, of course, but they don't let it get in the way of their pleasing narrative.
What's so frustrating about this particular issue is that the conservative position is so very wrong and yet so overwhelming supported by public opinion. Polls suggest that 9 out of 10 Americans do not wish to see the phrase "under God" removed from the pledge. Yet very few Americans are aware that, for most of the Pledge's history, that phrase was not a part of it. The following quote from the aptly-named blog Conservative Thinking is a fairly typical expression of this ignorance:
Aside from the fact that this sort of logic would justify the constitutionality of slavery and segregation, it's simply factually inaccurate. The phrase "under God" was not originally part of the Pledge. It was added in 1954, amidst McCarthy era hysteria, for the express purpose of endorsing religion (for a good history of the Pledge see this 2002 Slate article). The phrase "under God" is not some meaningless bit of boilerplate language dating back to the founding of our country. David Greenberg (in the Slate article) notes:
In fact, as Greenberg explains, the impetus for adding the phrase "under God" was a sermon delivered to President Eisenhower by his Presbyterian minister. After the phrase was added, Eisenhower observed that "millions of our schoolchildren will daily proclaim in every city and town the dedication of our nation and our people to the Almighty."
It's simply beyond reasonable dispute that the phrase "under God" was added to the Pledge for the express purpose of endorsing religious belief, and therefore, is quite clearly unconstitutional under well established precedents. If this were a question on a law school exam, the standard conservative answer would be awarded zero points. Indeed, this is undoubtedly why the Supreme Court chose to punt when faced with the issue this year. Rather than issuing an opinion on the merits, they found a procedural cop out. The conservative justices on the Court didn't relish the legal gymnastics they would have to go through to find the Pledge constitutional (and the liberals weren't looking forward to the public outcry that would inevitably result from issuing the correct ruling).
Conservatives never fail to note how overwhelmingly unpopular the 9th Circuit's decision is, as if that fact is somehow relevant to the merits of the decision. Putting aside the fact that most Americans are not constitutional scholars and are greatly misinformed about this particular issue (thanks in no small part to conservative efforts), do conservatives really think that constitutional issues should be decided by popular vote? Besides going against everything conservatives have ever said about "judicial activism," I don't think such a policy would work out too well for conservatives in the long run, particularly in their efforts to overturn Roe v. Wade.
But none of this will stop conservative politicians and pundits from decrying this ruling as rank "judicial activism." They know that public opinion is on their side and they couldn't care less about the facts or the legal merits of the issue.
For instance, how many right-wing pundits noted the most obvious fact: that the judge in this case had virtually no choice but to rule the way he did? He is bound to apply 9th Circuit precedent. The 9th Circuit has already decided this exact issue. Though the Supreme Court later reversed that decision, it did so on standing grounds (i.e. a procedural technicality). Therefore, the substance of the 9th Circuit's opinion is still good law in the 9th Circuit. If Judge Karlton had ignored that controlling precedent, he would truly have been guilty of judicial activism. The intelligent right-wingers know this, of course, but they don't let it get in the way of their pleasing narrative.
What's so frustrating about this particular issue is that the conservative position is so very wrong and yet so overwhelming supported by public opinion. Polls suggest that 9 out of 10 Americans do not wish to see the phrase "under God" removed from the pledge. Yet very few Americans are aware that, for most of the Pledge's history, that phrase was not a part of it. The following quote from the aptly-named blog Conservative Thinking is a fairly typical expression of this ignorance:
"In 1892 when the pledge of allegiance was
originally written it was acceptable to say God.
One-hundred years go by and suddenly it's not
acceptable anymore? That's insane!"
Aside from the fact that this sort of logic would justify the constitutionality of slavery and segregation, it's simply factually inaccurate. The phrase "under God" was not originally part of the Pledge. It was added in 1954, amidst McCarthy era hysteria, for the express purpose of endorsing religion (for a good history of the Pledge see this 2002 Slate article). The phrase "under God" is not some meaningless bit of boilerplate language dating back to the founding of our country. David Greenberg (in the Slate article) notes:
"It's an old shibboleth of those who want to inject
religion into public life that they're honoring the
spirit of the nation's founders. In fact, the founders
opposed the institutionalization of religion. They
kept the Constitution free of references to God.
The document mentions religion only to guarantee
that godly belief would never be used as a
qualification for holding office."
In fact, as Greenberg explains, the impetus for adding the phrase "under God" was a sermon delivered to President Eisenhower by his Presbyterian minister. After the phrase was added, Eisenhower observed that "millions of our schoolchildren will daily proclaim in every city and town the dedication of our nation and our people to the Almighty."
It's simply beyond reasonable dispute that the phrase "under God" was added to the Pledge for the express purpose of endorsing religious belief, and therefore, is quite clearly unconstitutional under well established precedents. If this were a question on a law school exam, the standard conservative answer would be awarded zero points. Indeed, this is undoubtedly why the Supreme Court chose to punt when faced with the issue this year. Rather than issuing an opinion on the merits, they found a procedural cop out. The conservative justices on the Court didn't relish the legal gymnastics they would have to go through to find the Pledge constitutional (and the liberals weren't looking forward to the public outcry that would inevitably result from issuing the correct ruling).
Conservatives never fail to note how overwhelmingly unpopular the 9th Circuit's decision is, as if that fact is somehow relevant to the merits of the decision. Putting aside the fact that most Americans are not constitutional scholars and are greatly misinformed about this particular issue (thanks in no small part to conservative efforts), do conservatives really think that constitutional issues should be decided by popular vote? Besides going against everything conservatives have ever said about "judicial activism," I don't think such a policy would work out too well for conservatives in the long run, particularly in their efforts to overturn Roe v. Wade.
But none of this will stop conservative politicians and pundits from decrying this ruling as rank "judicial activism." They know that public opinion is on their side and they couldn't care less about the facts or the legal merits of the issue.
posted by A.L. at 10:42 AM
4 Comments:
The case against the pledge may be air-tight, but it's still an enormous liability for liberals. Republicans will be able to use this ruling to great political effect. There's no dirtier word in American politics than "Atheist," and rulings like this allow conservatives to paint liberals as godless elites. It's not fair, but politics never is.
Can't we just come up with new Pledge? The old on is so stilted.
How about this:
As an American, I pledge allegiance to the values that this great nation has come to represent and must always strive to uphold: equality, liberty, and justice for all.
Couldn't we please abandon that silliness of "liberty for all"? The plain, explicit meaning of that phrase would require release from prison of all criminals there. If "all" means "all people of Earth", then we in the US would also have to have a totally free immigration policy with no border controls and no deportation of illegal immigrant aliens. "Liberty for all" is a bit of pious nonsense.
Your suggestion also implies that people can be both free and equal. In fact, if people are free, their accomplishments will be unequal just as their abilities, ambitions, and level of effort are unequal. You could clarify the issue by making the expression "equal before the law".
It's funny how all the controversy about the Pledge stems around the words "under God." As if the Pledge itself were not an issue. Freely elected governments should EARN their citizens' allegiance, not force them to recite it mindlessly like a bunch of lost sheep braying for their shepherd. What other civilized countries require their citizens to go through such a juvenile exercise?
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