Thursday, March 25, 2004

The Pledge

I sometimes find it difficult to believe how many absurd arguments are being advanced about the Pledge of Allegiance.

Today, the Washington Post argues that "the court swept aside repeated -- albeit nonbinding -- statements by justices that the reference to God in the pledge does not rise to the level of a church-state problem. " Well, I haven't seen a list of those statements, or even of the Justices who supposedly made the statements, but does the Post really want to go there? I wonder how many Justices made statements during the period between Plessy v Ferguson and Brown v Board of Education... and Plessy that "separate but equal" did not rise to the level of a constitutional problem? How many justices expressed similar opinions before "separate but equal" was upheld in Plessy. The Supreme Court does not, and has never, judged its cases on the basis of the informal statements of justices over a period of time, be it days, years, or decades. If the Washington Post's editorial board doesn't understand this, they should consider hiring somebody competent to write and review their material.

Another argument which I find rather strained is the notion that the passage of a few decades of itself will transform potentially unconstitutional language into a secularized custom or tradition, thus removing any necessity of First Amendment analysis. Certainly there are traditions which have been treated in that manner - the prayers at the opening of Congress, or even the Supreme Court's famous "God Save this Honorable Court" - but we're talking about a much longer history and settings which are not coercive. It is more than reasonable for the Supreme Court to examine not only questions of "tradition", but also the circumstances under which Congress ordered the pledge changed, and whether they would permit a similar Congressional Resolution to stand if such a change were ordered today. It would be appropriate to look at the acts and statements of present politicians, including the President, when evaluating if the contentious words should be viewed as state-sponsored prayer - I think it is difficult to look at the statements of President Bush on this issue without recognizing that he favors the words "under God" for the same reasons as did Eisenhower. If that is in fact the case, then it would seem that the passage of years haven't served to effect any transformation.

Finally, I find absurd the argument, largely advanced by the right, that the Supreme Court should rule in a particular way because the majority of Americans want it to rule that way. That argument has historically been ridiculed by much of the right - and rightly so (no pun intended) - as judicial activism and "legislation from the bench". The Supreme Court is not supposed to be a barometer of public opinion. It is supposed to be issuing its decisions based upon the laws and Constitution of the United States. No matter how it rules, some people will detest its ruling - but its job is nonetheless to issue a sound, well-reasoned opinion that ideally will stand the test of history.

(By the way, I am sure that there are some equally absurd arguments being proposed by opponents of the present Pledge, but I haven't seen them covered in or repeated by the media. If you know of any, please share them in the comments and I'll give them equal time.)

Part of the problem is that the Supreme Court has, to date, failed to enunciate an adequate test for the boundaries the Establishment Clause. Granted, that's not an easy task - but the Court can't even seem to settle upon a rule, let alone a rule that doesn't require numerous exceptions. Perhaps the Court will take this opportunity to clarify the law. But I somehow doubt it.


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