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).

If you think the Pledge is unconstituional, refute all of that, please.

I don't have to refute any of that to support the notion that adding "under God" to the Pledge of Allegiance violates my interpretation of the Establisment Clause (I say "my interpretation" because all opinions on the issue are interpretations of one form or another). Just because someone who helped draft the Constitution then goes out and does something that in my opinion would violate part of the Constitution, doesn't mean on it's face that what he did was constitutional.

Throughout our history men in power have done things that are unconstitutional. Are we now to say that those things were constitutional because they were done? Just because something is done by the President or by an act of Congress does not by default make it Constitutional. The Lincoln haters would certainly agree on that point.

That said, here's the refutation you requested.

Points 1 and 2 have no bearing on the Establishment Clause whatsoever and therefore are meaningless. The Establisment Clause specifically targets Congress not individuals. These points are Strawmen.

I need more context on Point 3. When was this law supported? Before or after the Constitution was written? On it's face I would say though this is also a meaningless point because The Establishment Clause does not pertain to State Legistlatures (although it has been applied to state legislatures which I think is a mistake).

Point 4 is meaningless. This issue hasn't come up before a Court of Law so no decision has been made to either remove or keep the religious symbols in the Judiciary. But I would say that this does not violate the Establishment Clause because the Clause does not pertain to the Judiciary and as far as I know Congress has passed no law mandating those things there.

Point 5 is meaningless. Or would you argue that Brown vs. Board of Education was a mistake because Plessy vs. Fergeson had been the established law for decades? Like it or not both Conservatives and Liberals change their views over time. Nobody today would support Plessy.

Point 6 is meaningless. Regardless of what the Northwest Ordinance currently says (if the law is still valid and I'll take your word for it if it is) nobody has standing to challenge it on the Establishment Clause because we haven't admitted a new State in decades and in all likelihood never will again. You have to keep in mind that some of these things that technically violate the Establishment Clause have to be challenged before they can be ruled on their Constitutionality. I doubt anyone's challenged it. But that doesn't make it Constitutional.

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

Fair enough. Here's something for you to chew on then. If there is no faith involved in the phrase "Under God", why are so many people complaining about how this decision is an attack on Religion? If the Pledge is so religion neutral and God is just a being, why all the Religious rhetoric then? It seems to me that an awful lot of people are complainging on religious grounds to a phrase they claim has no religious significance. It seems to me they are undermining the very claims they seek to make.

Also if you want to include people's commments about the laws they write as basis for what they wanted to attain, then Eisenhower's comments alone make the modified pledge a violation of The Establishment Clause.

Please keep this in mind. I thought this was a stupid decision. It's nitpicking. It's not worth the struggle. The dissenting judge was correct in that regard. It only succeeds in riling people and diverting attention from more pressing matters. The Pledge in its current form doesn't bother me and I wouldn't seek to take the Government to court over it or a bunch of other Establishment Clause cases that we've seen over the years (particularly X-mas scenes). But I think that technically it was a Constitutionally correct decision.

Petition to the President of the United States and Members of Congress

I speak as an American citizen. The recent decision of the 9th Circuit Court of Appeals in San Francisco where the Pledge of Allegiance was ruled Unconstitutional is an attack on America by way of the legal system. We are indeed "One Nation Under God."
To declare that anyone who pledges allegiance to the Flag of our Country is breaking the law is to declare the President of the United States and every member of Congress to be law breakers.
It has become abundantly clear that the two judges that voted for this must be impeached and removed from office. Please use the authority that you have been invested with and immediately vote to impeach judges Stephen Reinhardt and Alfred Goodwin.
To sign the Petition, click HERE.

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