How is the "under God" unconstitutional?

1. Jefferson, a guy who wrote about a "wall of separation of church and state," attended church in the Congressional building 3 days after writing that phrase.

3. Madison, the father of the Bill of Rights, supported, alongside with Jefferson, a bill to "punish Sabbathbreakers" while in the Virginia Legislature. Keep in mind these were two of the most liberal founding fathers.

4. The U.S. Supreme Court, which ruled the public display of the Ten Commandments is wrong, has a statue of Moses and the Commandments in its chambers.

5. It was not until the 1940's when the current radical view of the separation of church and state came about. In fact, previous rulings of the U.S. Supreme Court, as well as state supreme courts, ruled in favor of things as far as blue laws mandating the closing of stores on Sundays.

6. The Northwest Ordinance, which was needed to become a new territory since I think 1787, required that schools support religion and morality.

In the Thomas Jefferson Papers at the Library of Congress, the Kentucky Resolution includes this little interesting portion:

"3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution,that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press": thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion,are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void, and of no force."

"I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the general government. It must then rest with the States."

"I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another."

"The successful experiment made under the prevalence of that delusion on the clause of the Constitution, which, while it secured the freedom of the press, covered also the the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment OF A PARTICULAR FORM OF CHRISTIANITY THRO' THE U.S.; and as every sect believes its own form is the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes, and they believe that any portion of power confided in me, will be exerted in opposition to their schemes. And they believe rightly."

(notice that this one indicates a view of the Establishment clause that is of a modern conservative, that it strictly refers to a legal establishment of a faith).

"Funny though, that from 1789 to the early 60s, there was prayer in school, and other instances of religious free speech, in and aroung gov't. Like gun ownership, if all these things were unconstitutional, why were they not banned in the 1790s?"

When the Constitution was written, a STATE *could* establish religion. The First Amendment only restricts the *federal* government ("Congress shall make no law...") from establishing religion.

If States are no longer free to establish religions, it would be the 14th Amendment that would have prohibitted states from establishing religions. The 14th Amendment says:

"1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

One interpretation of this is that the States may no longer abridge any of the rights listed in the Bill of Rights (that originally only limited what Congress could do).

As for how the states could "fail to notice" the problem...well, the Southern states had segregation up to the 1960's. Most (or many, at least) people in the year 2002 agree that those segregation laws, "...deny to any person within its jurisdiction the equal protection of the laws."

So there IS precedent for Congress not following the law for very long periods of time.

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