Let us put aside the historical question. If the only thing the pledge does is to accurately describe the beliefs of Americans at the time of the revolution, there is nothing constitutionally problematic about it -- no matter what those beliefs might be. I don't think the pledge can be reasonably interpreted to be an historical statement. But if that is what it is -- a statement about what the framers and founders believed -- it is hard to see a constitutional problem with it.
I'm not sure what Tom means when he suggests that government may rely on a religious rationale for basic rights and, therefore, may include the term "under God" in the pledge. Tom, what exactly does it mean for a government to have a religious rationale for something. I assume a rationale is either a statement of fact used to justify some state action or it is a statement of value. I also assume that government can not teach public school students that it is good or necessary for them to accept particular religious beliefs. So that leaves fact-based rationales. I don't think Tom is suggesting that the government may teach a religious rationale to public school students as fact. Surely, the state can not direct children to recite the following, not as an affirmation of faith, but as a statement of fact: "Jesus Christ is the Lord and Savior of mankind. Jesus teaches ............(All men are created equal etc.) These teachings are the foundation for the basic rights protected by the Constitution." I assume Tom thinks it would be unconstitutional to teach this in public schools. (If I'm wrong, I'm sure he will let me know promptly.) Government can not declare and teach children religious truth.
The message in the pledge purports to be more universal and less religion specific than the above statement. (G-d exists. G-d's teachings are the foundation for our basic rights.) But if we are really communicating a religious rationale for basic rights, I think we have to say a lot more than that government is under a higher authority. The Tories in 1776 who thought that Jefferson and the other signatories of the Declaration of Independence should be hanged were equally committed to the idea of a government "under G-d". So was George III. But they thought that government was a monarchy. There are lots of governments throughout history and in the world today that claim to be operating "under G-d" but which are not at all committed to the basic liberty and equality rights the U.S. Constitution recognizes and protects. I think a religious rational for basic rights has to refer to a specific understanding of G-d, to a G-d with a distinct message and commands. One can not insist that the pledge refers to an indeterminate generic higher authority and at the same time argue that belief in that higher authority commits us to certain specific principles.
But if that is correct, government can not declare such a rationale, a specific understanding of G-d, to constitute truth, can it? It may well be that certain religious beliefs are more conducive to having a democratic government that respects basic rights than other beliefs. But that does not mean that government can declare those beliefs to be true and teach them to children in public schools, does it? Can it teach students that acceptance of, let's say, Protestant religious beliefs provides the strongest foundation for a society committed to basic rights?
Alan Brownstein UC Davis
At 07:06 PM 3/30/2004 -0600, you wrote:
Bobby Lipkin presents an argument that government can be humane, in the sense of not inflicting suffering or cruelty -- and, would he add, can recognize something called basic rights? -- without the government acknowledging that it is "under" some higher moral authority. Perhaps that is true, but there are also arguments the other way -- for example, that basic rights are far more likely to be secure, especially in times of pressure, if they are grounded in government's recognition that it is a limited institution and is under some higher moral authority. Even if Bobby raises enough questions to prove that government *need* not rely on this latter rationale to ground rights, that doesn't prove that the government *may* not determine to rely on this rationale.
In my view, this is the most powerful rationale for upholding the inclusion of "under God" in the Pledge. It is, under this argument, a permissible recognition of a religious rationale for basic rights (for "liberty and justice for all"): that government is a limited institution subject to a moral authority of a higher order. If (as I would argue) the government may rely on a religious rationale for passing legislation such as the Civil Rights Act of 1964, or debt relief for developing nations, then it also ought to be able to rely on a religious rationale for basic rights more generally. (That includes religious freedom, which originally rested heavily on religious rationales as was referred to in Dan Conkle's first post.)
The counterargument that gives me pause -- and makes me ambivalent about the Newdow case -- is that the Pledge does not merely articulate a religious rationale for liberty and justice, but calls on citizens to affirm that rationale (even if it doesn't engage in full-fledged coercion).
Tom Berg University of St. Thomas School of Law (Minnesota)
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From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tue 3/30/2004 9:10 AM To: [EMAIL PROTECTED] Subject: Re: "Under God"
In a message dated 3/30/2004 8:50:27 AM Eastern Standard Time, [EMAIL PROTECTED] writes:
So, it can put in the form of a question: If not "under God," then under what?
Why must there be an "under" anything? Although the existential condition of being "under" nothing might generate a certain anxiety at (possibly) being alone in the universe, that only explains (for some) why the human spirit seeks such a reality. It does not explain why we must be "under" something rather than nothing. Additionally, I do not see how our being "under" anything is necessary for either morality or for constitutional government. Many of us seek constitutional government because we see it as better than most alternatives, where "better" has an appropriately modest meaning, namely, decreases the degree of suffering and cruelty in the world, and does so as judged from our perspectives or from our lights. As a first principle (again for some) decreasing the degree of suffering and cruelty in the world cannot be justified without circularity. However, with all due respect neither can the proposition that we should decrease suffering and cruelty (or adhere to any other moral code) because some independent reality deems that we should.
First principles, whether embracing the need for an independent reality to justify who we are and what we do or whether we reject such a reality, are just that first, and as Wittgenstein, and then others after him, have indicated, justification must come to an end at some point, and I would add it must come to an end for anyone and everyone.
Bobby
Robert Justin Lipkin Professor of Law Widener University School of Law Delaware
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