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Protecting America Against Partisan Zealousness

The Pledge of Allegiance v. the Constitution

by Walter Brasch President Bush Call The Decision "ridiculous."

President Bush call the decision “ridiculous.”

Sen. Maj. Leader Tom Daschle (D-S.D.) said it was “just nuts.”

New York Gov. George Pataki called it “junk justice.”

Calif. Gov. Gray Davis, in whose state the decision was issued, said he was “extremely disappointed.”

The U.S. Senate, debating a defense bill, stopped and passed a resolution, 99-0, denouncing the decision. Dozens of representatives gathered in front of the nation’s capitol to recite the Pledge of Allegiance.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled, 2-1, that the words “under God” in the Pledge of Allegiance violate the First Amendment establishment clause of separation of church and state. The 7th Circuit, Chicago, several years earlier had ruled the clause was Constitutional. The 9th Circuit decision affects only Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Chief Judge Alfred T. Goodwin, writing the majority opinion, determined the recitation of the phrase, “under God,” is “a message of state endorsement of a religious belief when it requires public school teachers to recite and lead the recitation of the current form of the pledge.” Judge Goodwin further ruled, “Given the age and impressionability of school children, particularly within the confined environment of the classroom, the policy is likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God.”

Constitutional law scholars of most political and legal backgrounds say there is substance in the Court’s decision, which carefully cited previous federal court decisions. The scholars also say the decision will most likely be overturned either by the 9th circuit’s full 11-judge panel or by the conservative Supreme Court which could decide the recitation of the phrase is more ceremonial than prescriptive.

The Pledge, written by a Baptist minister in 1892, was first recited in honor of the 400th anniversary of Columbus’s voyage to what is now the United States. A 1943 Supreme Court decision declared that children can not be forced to recite the pledge. The “under God” phrase was added by Congressional action in 1954 after heavy lobbying by the Knights of Columbus. At the time, the nation was embroiled in a Cold-War Communist witch hunt to distinguish “God-fearing Americans” from the “Russian atheistic horde” which business and government leaders thought was determined to destroy America from inside.

Sen. Joseph Lieberman (D-Conn.), as well as hundreds of lawmakers from the smallest villages to the Senate, are angrily calling for a Constitutional amendment to assure that “under God” remains in the Pledge of Allegiance.

The Founding Fathers would probably be amused. They had made it possible to amend what they thought was their work-in-progress document. But, they wisely knew that the foundation they laid for the new nation would be undermined by rhetoric, vitriol, and impassioned attempts to decimate that Constitution if there were not the most rigorous safeguards against loading the Constitution with dozens of partisan amendments that would eventually conflict with each other, rendering that document useless.

There are only two ways to amend the Constitution. Both houses of Congress must first approve, by two-thirds vote, resolutions calling for the amendment. The amendment must then be ratified within seven years by the legislatures of three-fourths of all states. The second method is for the legislatures of two-thirds of the states to call for a Constitutional convention, with three-fourths of all states approving the amendment. More than 10,000 serious proposals for amendments have surfaced in the two centuries following the ratification of the Bill of Rights in 1791. Only 17, all from Congressional resolutions, have been adopted. Among the proposals have been several to diminish the establishment clause.

In a two decade period beginning in the early-1890s, Americans proposed at least 10 serious amendments to meld Christianity into the Constitutional fabric; most declared that Jesus is the nation’s spiritual leader and the Christian Bible is the underlying document of conduct. While popular with a nation that had become more religiously fundamental, that proposal, like thousands of others, died when the people realized the wisdom of a Constitution unencumbered by divisive zealousness. Recent amendments that failed, although they had popular support, include a prohibition against burning American flags as a form of free speech, a victim rights amendment, and the Equal Rights Amendment.

Although the proposed amendment has the support of more than 90 percent of all Americans, amendments as the Founding Fathers intended should not be enacted because the people are inflamed about an issue. The issue will quickly pass. The people will have vented their anger and affirmed their own beliefs; morally-outraged and opportunistic politicians will find other ways to arouse their constituents; a higher court may overturn the decision, rendering moot all public arguments.

Whether or not the proposed amendment remains viable, there is a greater reality. In 1984, several liberal Supreme Court justices informally declared that references to God in currency, federal documents, and even the Pledge didn’t violate the establishment clause. Because of rote memorization, said the Justices, such references have no meaning. Perhaps the problem is not that saying “under God” in a morning school ritual violates the First Amendment, but that millions say it as part of a memorization exercise and have no idea what any of it means, or of the document that established the foundation of our country.

Walt Brasch is former newspaper reporter and editor, and author of 14 books. He is professor of journalism at Bloomsburg University. His latest book is “The Joy of Sax: America During the Bill Clinton Era.” You may write Brasch at wbrasch@planetx.bloomu.edu