9TH CIRCUIT COURT: PLEDGE OF ALLEGIANCE IS UNCONSTITUTIONAL

Fox News ^

[Recovering_Democrat]

UNBELIEVABLE. BREAKING ON FOX: SF APPEALS COURT SAYS PLEDGE OF ALLEGIANCE ENDORSES RELIGION, AND IS THEREBY UNCONSTITUTIONAL.

[Dimensio]

The US Constitution was a compilation effort, not the result of a single individual's work. As such there really isn't a single person who can be identified as the "father" of the document.

[Jzen]

Or how about an earlier Supreme Court decision?

"Our Laws and our Institutions must necessarily be based upon the teachings of the Redeemer of Mankind. It is impossible that it should be otherwise; and in this sense and to this extent, our civilization and our institutions are emphatically Christian." --U.S. Supreme Court, 1892 decision

[E Rocc]

Where in the Constitution is the nation's subservience to God declared?

Although it's not declared, it's generally accepted.

By whom? On what grounds? We are a nation of explicit written laws.

If we did not have one single Founding document, such an assumption might logically be made. But we do: a document which is the one single supreme law of the land.

In that document, there are two places where one could clearly have made a reference to the nation being subordinate to God. One is the Preamble:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The other is Article VI:

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Yet neither place stipulates this. Indeed, the last part of Article VI states that a person who does not believe in God may not be barred from holding office on those grounds alone.

-Eric

[tortoise]

The Founders, through Locke, based their system of inalienable rights on natural law, which they understood to come from God.

Yes, but the Founders, as religous or unreligious as they may have been, conspicuously removed their belief from the Constitution, the only founding document with legal weight. Many unstable systems of law have come from a religious pretext, and I think they were aware of this. People such as Jefferson almost certainly were (his library was very impressive and broad, even by modern standards). In a sense, I think they tried to construct a system of law that was even more immutable than ones premised on religion, but which didn't exclude reasonable religious practice from the private life. I think Natural Law is in many ways orthogonal to all this; the Founders' primary concern appears to have been the long-term stability of a fair system of law, as that was a repeated problem in Europe (and still is). I tip my hat to them for their very shrewd effort.

[Jzen]

Duh, gee I thought it was just one person who wrote it up. It was a title given to him, a title he even refused to wear. He contributed a great deal in getting the Bill of Rights on the table, which came after the fact.

[hellinahandcart]

It's not about the pledge itself for me. It's about the basis for the ruling: that what makes the pledge unconstitutional is the reference to God, because the mere mention alone is "an endorsement of religion". Do you not see the problem?

Congress is forbidden from ESTABLISHING a religion. The way I see it, Congress could pass a resolution tomorrow endorsing religion to the skies--"Be it resolved that religion is a GOOD thing and a benefit overall to society" etc., and there would be no problem with it constitutionally because they have neither established religion nor prohibited the free exercise thereof by its citizens (though one could certainly and reasonably have other problems or disagreements with such a resolution). An endorsement of, an acknowledgement of, an homage to, or even a mere nod to the existence of religion as a fact in our history is not the establishment of religion. But the Ninth Court has somehow ruled that it is.

They can only get away with this sort of ruling because the nation's schools--the very battleground of this decision--have gone to a lot of trouble to make sure that people no longer understand the true meaning of words, let alone the true meaning of our Constitution. Notice how many on this thread know so little about basic sentence structure that they believe "under God" is forced worship, or that they're pledging to God.

[cascademountaineer]

What was ruled was that a school's direction of the recitation of the pledge with the "under god" wording amounted to an establishment of religion.

For better or worse, what was ruled on was this,

Judge Alfred T. Goodwin wrote for the three-judge panel that "...A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion..."

The court said the phrase violates the so-called Establishment Clause in the Constitution that requires the separation.

However, the actual wording of the "Establishment Clause" is "...Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

That is why I suspect most scholars have said the 9th's ruling may very well be overturned. The larger problem is not the religious issue for me, that to me is irrelevant. Religion is no serious concern of mine, and I have no interest in promoting it or degrading it. It simply is and those who are believer can enjoy it as they wish for whatever it gives them.

It was a choice to say the pledge before, now its not. It is now illegal to say in a formal setting.

What concerns me, is that a certain portion of the national narrative is being written out. This isnt so much an issue of religion as it is the removal of a national continuity.

[Dimensio]

Well, I'm actually avoiding the merits of the actual ruling because IMO it's more fun to point out what many people seem to incorrectly believe that the ruling implies -- it's so odd to find so many people who honestly think that this ruling makes illegal the act of anyone uttering the pledge of allegiance on public property.

[Dimensio]

It is now illegal to say in a formal setting.

What do you mean by this? All that I see is that schools (public schools, actually) are no longer allowed to recite the pledge with the "under god" wording included. Individuals would still be free to insert any words they chose, and you would be hard-pressed to find anyone who would argue that the "under god" wording should never be uttered when studying the pledge from a historical context.

[E Rocc]

"Our Laws and our Institutions must necessarily be based upon the teachings of the Redeemer of Mankind. It is impossible that it should be otherwise; and in this sense and to this extent, our civilization and our institutions are emphatically Christian."

-U.S. Supreme Court, 1892 decision

That particular quote is from "dicta" in the Holy Trinity case. Dicta are individual statements of a justice that have no bearing on the law or precedental value. I can give you actual decisions both before and after that contradict it.

-Eric

[Hemingway's Ghost]

Let me be clear: I do not believe that a belief in God or an acknowlegement, however tacit, that a power higher than man exists an endorsement of "religion." In my opinion, religion is man's fallible attempt to codify God. God means everything to me, religion means very little. And I do tip my hat to the Framers for creating a document that pays homage to God through natural law without endorsing or stipulating that Christianity is the de facto religion of America.

[cascademountaineer]

Yes, it is now illegal to utter the pledge on public property in a formal setting.

I can take an American flag on a zippo, and say that constitutes a decent formal use of an icon for national purposes, however the higher courts would and have disagreed.

There are certain formal issues that go along with what amounts to a national symbol (during visits by heads of state, in national mourning etc.) and that is the crux of what this is dealing with.

[Jzen]

TO me, it is mostly about how they influence our kids with such nitwittery. For the last darn time, if people would read history they would figure out that the founding fathers didn't want an enforced religion. On the same note, isn't liberalism considered a religion or how about atheism? It is a belief followed by many.

[E Rocc]

"We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God."

-James Madison

Madison never said such a thing. The quote was spread by David Barton during his campaign to convince people that the Founders intended America to be a Christian Nation.

Madison scholars found it to be completely contradictory to other statements of his. They couldn't find it, and requested that Barton provide a source. He was unable to, and ended up admitting the quote was false. He also admitted he couldn't find sources for several other quotes he used.

-Eric

[Dimensio]

A "belief" does not a religion make. Atheism is not a religion, and in fact it is actually not defined by any beliefs but rather a lack of belief.

[E Rocc]

That is part of my point. Making school children mindlessly repeat that "oath" with or without even understanding what they are saying dilutes any value it might have on its own.

Absolutely. I would expect any decent American History program to include the Pledge as part of its topic matter. How does one explain the phrase "One Nation Under God" without using religion?

-Eric

[hellinahandcart]

Well, I'm actually avoiding the merits of the actual ruling because IMO it's more fun to point out what many people seem to incorrectly believe that the ruling implies

I've read this entire thread, and I think you've had enough fun for one day. Now it's my turn. Do what you've avoided til now and talk about the merits of this stupid ruling. Please. :D

[Hemingway's Ghost]

If the religious references in the Pledge are so inconsequential, then taking them out should not bother you.

I wouldn't cry. My interest in this case is academic.

[mindprism.com]

What we need is an inherently stable theory of law (i.e. one that has real world consequences if you deviate from it) or you end up with what he have now, where laws are subverted in strange but theoretically consistent ways.

I think you have atomized your way into a cruder realm when you talk about 'inherently stable theory of law'... let me give an example to see if we are on the same page:

There is an idea that comes up under certain circumstances, like when someone breaks into your house, or someone assaults you, and the question arises: What is the proper response that you can take toward the threat - deadly force, etc.

I call this the "ya get what ya get" area. When someone breaks in, if the 'public concensus' is that a homeowner is not allowed to 'simply kill them on the spot' then the public is asking the homeowner to assume a risk, all the risks involved in subduing the intruder.

Does the public really have that right to demand that? I say no. I say "you get what you get".

Lets look at another case where someone steals something, say an apple (to exaggerate the example). Now, the 'public legal system' says: "Well, it was only an apple, so the crime was not great".

Ok, but we are using a value system of the general public -- in other words the crime victim may be very rich or very poor and place a different value on that 'apple'. This is an interesting dilemma when it comes to fines: Is justice served when the fine is the same for rich or poor?

All of this is meant to point out an area I think our laws erode, the concept and efficiency of 'jungle justice'. How often do we see themes like this: A predatory 'boyfriend' or other nefarious individual, stalks and harasses people and the people cannot get any justice or protection from the system. The system is constantly putting the accused on parole instead of incarcerating them, and the victims are afraid to "do what we did in the old days" -- namely kick his ass to ensure he got the point.

In summary, the law cannot be the end-all no matter how we perfect it because it relies on the publics idea of what is just instead of the victims idea, along with other intrinsic faults. Therefore we must recognise there are areas that the law cannot be applied rationally, where the application ends up twisting and contaminating the law in an attempt to satisfy the convoluted world of reality.

[Dimensio]

Yes, it is now illegal to utter the pledge on public property in a formal setting.

I don't see that apparent in the ruling. I don't see how the ruling could be construed as to criminlize the act of an individual uttering the pledge with the "under god" word insertion during a formal setting on public property. If you could be so kind as to define what constitutes a "formal setting", I'll be happy to take the first opportunity I have to go to such a formal setting on public property and utter the "forbidden" pledge. I'll even try to record it, so you'll have video documentation should you want to prove your point by having me arrested... say...if it is illegal, what federal or state code would be violated and what would be the penalty for someone who committed this "illegal" act?

Taking a Zippo to a US Flag might actually get you in trouble if there are certain burning ordinances (though I know that some extreme howlers will argue with that). It might also get you into trouble if there are certain ordnances nearby, but that would be a different kind of trouble.