Posted on 06/28/2002 11:52:49 AM PDT by gubamyster
June 28, 2002 2:15 p.m.
They all believe in original intent now. In the frenzy of activity that followed the pledge of allegiance decision, the Senate passed not one but two bills, condemning the opinion from the Ninth Circuit Court of Appeals and declaring support for the phrase "under God" in the pledge. Both bills, one on Wednesday and one on Thursday, were passed 99 to 0 (the only senator not voting was North Carolina's Jesse Helms, absent because of illness).
The first bill, Senate Resolution 292, titled "A resolution expressing support for the Pledge of Allegiance," was written by the Democratic leadership and was basically a non-binding, feel-good affirmation of the pledge of allegiance. Unlike a bill that will become law, it will not go to the House for passage or to the president's desk for signature.
The second Senate action, Senate Bill 2690, titled "A bill to reaffirm the reference to one Nation under God in the Pledge of Allegiance," was authored by the Republican minority leadership. Unlike the resolution of the day before, it is a law that will go to the House and the president's desk. And, also unlike the resolution, it is a deeply political, carefully worded document that might one day come back to haunt some Democrats — and perhaps even a few justices on the United States Supreme Court.
The majority of the bill is a recitation of the importance of references to God in public pronouncements throughout American history. It begins in 1620, with the Mayflower Compact, in which the Pilgrims undertook their voyage to the New World for, among other reasons, "the Glory of God." The bill then quotes from the Declaration of Independence — "endowed by their Creator with certain unalienable rights" — and Thomas Jefferson's "Notes on the State of Virginia," in which Jefferson wrote that the nation's liberties were "the Gift of God."
The bill moves on to the Gettysburg address, in which Lincoln declared that "this Nation, under God, shall have a new birth of freedom." It then jumps ahead to several Supreme Court cases from the 1950s, beginning with a school religious observance case in which liberal icon Justice William O. Douglas wrote that, "The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concern or union or dependency one on the other. That is the common sense of the matter." If that were not true, Douglas continued, all references to God in public ceremonies, courtroom oaths, and even the opening of each Supreme Court session would be unconstitutional.
Then the bill moves on to this paragraph:
On June 15, 1954, Congress passed, and President Eisenhower signed into law a statute, that was clearly consistent with the text and intent of the Constitution of the United States, that amended the Pledge of Allegiance to read, "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."
The interesting thing about the wording is that it declares Congress's action in 1954 as being clearly consistent with the text and intent of the Constitution. Those are words that are dear to the hearts of conservatives, and with Senate Bill 2690, every one of the Senate's 50 Democrats voted to endorse them. It might seem like a small thing in an inconsequential piece of legislation, but it is nevertheless possible that in the future, when the Senate becomes embroiled in debates over "original intent" versus the so-called "living constitution," the phrase "clearly consistent with the text and intent of the Constitution" from the pledge of allegiance bill will be cited early and often, and not in a way that will make some of the most liberal Democrats happy. "The Democrats generally don't like to cite the text and intent of the Constitution," says one Republican. "They like to cite opinion polls and the emerging consensus of law professors."
The rest of the bill underscores the Republicans' point by re-codifying the pledge, as passed by Congress in 1954, including the phrase "under God." The bill also re-codifies the national motto, "In God we trust," which was also made law in 1954. The new bill inserts a note in the U.S. Code explaining that the laws were originally passed in 1954 and were specifically re-affirmed by Congress in 2002.
One of the reasons Republicans went to the trouble to reaffirm a law that was already on the books was GOP unhappiness with the Supreme Court's recent decision in the Atkins case, in which the Court outlawed executions of the mentally retarded. In that case, some of the justices relied on public opinion polls and the actions of state legislatures to argue that public views on the execution issue had changed. Senate Bill 2690 is a refutation of that kind of thinking. Not only does it approvingly cite the "text and intent" of the Constitution, it also makes clear that public views on the nation's historic commitment to God remain just as they were fifty years ago. "There cannot be any question about whether public attitudes on this issue have changed since 1954, because we just passed it again," says one Republican. That, in turn, might become useful in future cases involving religion and the First Amendment. The Senate made clear that it supports "under God" not because it sounds good, or that many Americans support it, but because it is clearly consistent with the text and intent of the Constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.