Posted on 10/21/2003 5:30:06 PM PDT by Lurking Libertarian
THE UNITED STATES SUPREME COURT has now agreed to review the ruling from the Ninth U.S. Circuit Court of Appeals in California that challenged the use of the phrase "under God" in the Pledge of Allegiance. To nearly everyone's surprise, the lower court held that the recitation of the pledge in public schools constitutes an "endorsement of religion," in violation of the Establishment Clause of the First Amendment. As a result of this decision, public schools in the nine western states under the jurisdiction of the Ninth Circuit are forbidden to hold pledge exercises for their students. The Supreme Court will render a decision by next June.
The Ninth Circuit's decision was met by sharp criticism when it was announced last year. After all, there were few precedents for such a ruling. The Supreme Court has ruled in the past that ceremonial references to God in public places and institutions do not represent an establishment of religion. The Court has never blinked, for example, at the use of Bibles in courtrooms or the phrase "In God We Trust" on our coins or even the singing of "God Bless America" in public places. Yet the Ninth Circuit's ruling, if upheld, would almost certainly be applied to these situations, too; indeed, the plaintiff in the case, Michael Newdow, has argued for precisely such an application.
A surprising number of Americans nonetheless felt that the judges had a good point--that the reference to God in the pledge was an inappropriate endorsement of religion on the part of the government. Atheists and agnostics, they pointed out, were offended by this unnecessary reference to God in a patriotic pledge, as were adherents of exotic religions who may not worship a monotheistic God. Why should they be required to endorse the religious doctrines of the majority?
Conservatives, on the other hand, saw the decision as just the latest example of a liberal court run amok, imposing the personal views of judges on the Constitution in defiance of tradition, precedent, and common sense. Some called for the impeachment of the judges who had issued the ruling. Even the editors of the New York Times, who can usually be relied upon to take the most liberal positions on church-state issues, felt that the ruling was imprudent and impolitic. The Senate passed a resolution by a vote of 99-0 expressing support for the Pledge of Allegiance and its reference to "one nation under God." Most observers looked for a decisive reversal from the Supreme Court.
That assessment may turn out to have been premature. It is entirely possible that we could wake up some morning next June to learn that the Supreme Court has decided that the Pledge of Allegiance, in its current form, cannot be recited in the public schools. To understand why requires a closer look at the Ninth Circuit's decision.
IN ARRIVING AT ITS DECISION, the Court of Appeals placed great weight on the fact that Congress inserted the words "under God" into the pledge in 1954 as a means of advancing religion at a time when the nation was engaged in a battle against the doctrines of atheistic communism. The court further noted that when President Eisenhower signed the bill, he stated, "From this day forward, the millions of our schoolchildren will daily proclaim . . . the dedication of our Nation and our people to the Almighty." From the Ninth Circuit's point of view, the record amply demonstrated that the purpose of the act was not to advance patriotism (a legitimate secular goal), but rather to promote religion.
The court also ruled that the inclusion of "under God" in the pledge represents an unconstitutional endorsement of religion by government, particularly when the oath is recited by a captive audience of students in a public school. This conclusion was, in truth, not nearly so radical as some critics have claimed, since the Supreme Court itself has, in recent decades, moved very far in the direction of construing an "endorsement" of religion as an "establishment" of religion. Indeed, in a shrewd albeit somewhat obvious tactical feint, the Court of Appeals was able to draw support from no less an authority than Justice Sandra Day O'Connor--often the swing vote between the Court's liberal and conservative blocs--who is on record as saying that the Establishment Clause prohibits government from endorsing religion. Here the Ninth Circuit ruling quoted at length from O'Connor's concurring opinion in Lynch v. Donnelly (1984):
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions. . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community. These words are reasonably clear, and one has to concede that the judges on the lower court did not have to stretch O'Connor's doctrine all that far to reach the conclusion that the pledge, with its current wording, represents an endorsement (and thus an establishment) of religion. Still, these judges were more than a little disingenuous in citing her opinion as a ruling authority in this case, since this doctrine has not yet been endorsed by a majority of justices on the Supreme Court. Nor has O'Connor used her doctrine to clear away entanglements between religion and government. Indeed, in the case cited by the Ninth Circuit, she ruled that a local government could display a manger scene on public property during Christmas season. Such displays, she concluded, did not rise to the level of an unconstitutional endorsement of religion.
Perhaps Justice O'Connor will find that the judges on the Ninth Circuit abused her words to reach their conclusion. But, if this is so, perhaps she will also recognize that the doctrine outlined in Lynch provides little guidance as to what kinds of endorsement of religion do violate the Establishment Clause of the First Amendment. In any case, all the justices (minus Scalia, who has recused himself) must now decide if Congress exceeded its powers when it inserted "under God" into the Pledge of Allegiance.
Before this happens, however, it might be helpful to look a little more deeply into the actual history of the pledge. Why do we have the pledge in the first place? Where did Congress find the phrase "under God?" And is it true, as the Ninth Circuit implied, that the phrase, as inserted into the pledge, has no patriotic significance? These are questions worth pondering.
THE PLEDGE OF ALLEGIANCE was written in 1892 by Francis Bellamy, a Massachusetts educator who headed a committee of civic leaders that was in charge of planning Columbus Day celebrations to mark the 400th anniversary of the discovery of America. The pledge, then as now, was a statement of national principle emphasizing the post-Civil War themes of the permanence of the American union and the liberty of all of her people. The pledge, in addition, promoted patriotism and national unity during a period when the country was attracting more than 500,000 immigrants a year.
On Columbus Day 1892, several million schoolchildren across the nation recited Bellamy's pledge: "I pledge allegiance to my flag, and to the Republic for which it stands, one nation indivisible, with liberty and justice for all." It was a secular oath, with no mention of God or religion. Nor as it gained popularity did anyone, so far as is known, complain that the pledge was excessively secular. It soon became customary for children across the nation to recite the pledge at the beginning of the school day.
There was some concern, however, that the words "my flag" might cause some confusion among the large number of immigrants who were coming to America in the early years of the century. Such words, it was feared, might unwittingly encourage loyalty to the various immigrant homelands. In 1924, therefore, the National Flag Conference approved a slight change of wording in the pledge to clarify that reference. Now the pledge read: "I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation indivisible, with liberty and justice for all."
The Pledge of Allegiance continued to grow in popularity after this alteration. Many states enacted legislation to require the recitation of the pledge in public schools. It received official recognition in 1942 when Congress included the pledge in the U.S. Flag Code. In 1943, the Jehovah's Witnesses challenged the mandatory recitation of the pledge in public schools. In a landmark case, the Supreme Court ruled that governments could not force students to participate in the flag salute against their will or contrary to their beliefs--a ruling that remains the law of the land today.
The final alteration in the pledge occurred, as noted, in 1954, when Congress inserted the reference to God, so that now the pledge referred to "one nation under God." The addition of these words was not the least bit controversial at the time; nor was it the only religious reference approved by Congress in this period. In 1955, by a unanimous vote, Congress required the U.S. Mint to place on all currency the words "In God We Trust," which had previously appeared only on coins. The next year Congress adopted this phrase as our national motto. Few people at the time entertained the possibility that such enactments might run afoul of the First Amendment.
Where, then, did Congress find the words, "under God?" It is certainly true that, over the generations, many American statesmen have expressed gratitude for the blessings of God or have invoked the protection of the Almighty, though in doing so few have used the particular phrase, "under God." Where did it come from?
The proximate origins of "under God" are familiar to most Americans, because it is heard in Abraham Lincoln's Gettysburg Address. Schoolchildren who over the generations have memorized Lincoln's speech know very well that Congress did not just pull these words out of the air in 1954.
When Lincoln traveled to Gettysburg in November 1863 to dedicate a national cemetery as the final resting place for those who had died in the battle there three months before, he tried to find words that might provide deeper purpose and meaning to the terrible carnage of the Civil War. The war began as a struggle to save the Union, but had grown into a war to end slavery. Was it about something more?
After describing the purpose of the occasion and paying tribute to the soldiers who had died, Lincoln turned to the responsibilities of the living:
It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us--that from these honored dead we take increased devotion to the cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth. It is entirely understandable that Lincoln's immortal speech should have inserted into the national consciousness a number of words and phrases of lasting influence--one such phrase being, of course, "under God." It is a phrase which was very rarely used before 1863, but very frequently used in the years and decades afterward, thanks to the Gettysburg Address. Lincoln apparently inserted "under God" into the speech at the last minute, perhaps while he was sitting on the stage waiting for his turn to speak, since the words did not appear in the written draft that he prepared before embarking on his trip to Gettysburg, nor did they appear in the copy of the speech that he carried to the ceremony. Nevertheless, all who heard the speech agreed that he had used the words "under God." And Lincoln himself included the phrase in subsequent copies of the speech that he wrote out in longhand in the days and weeks after it was delivered.
The words themselves, as Lincoln used them, are subject to varying though not necessarily inconsistent interpretations. The most obvious meaning is that the United States exists not only under the protection of God, but also under His judgment--thus implying that the nation must conduct itself according to the standards of divine justice, or suffer the consequences. This is a theme that Lincoln developed some 15 months later in his Second Inaugural Address, where he suggested, with numerous references to the Bible, that the war was a punishment visited by God on both North and South for complicity in the offense of slavery. This "great Civil War," as Lincoln called it at Gettysburg, was a reminder that the Almighty does in fact watch over our affairs.
Lincoln was, moreover, acutely conscious of the fact that the course of the war had not followed the intentions or designs of any individual, party, or section, but had followed a logic entirely of its own. The scale of the conflict seemed beyond human control, which he took to be a sign that events were following a divine plan of some kind. "The Almighty has His own purposes," as Lincoln would later say in his Second Inaugural Address.
Lincoln also understood, as much as anyone, that the constitutional structure created by the Founding Fathers had failed, in the end, to maintain the Union. Some in the North condemned the Constitution as "a bargain with the devil," because of its concessions to slavery; others in the South condemned the self-evident truths of the Declaration of Independence as "self-evident lies." Many Americans, he concluded, had begun to take their institutions for granted, and to view them as instruments which might or might not be useful in the pursuit of other goals--in this case, either the expansion or the destruction of slavery.
Lincoln tried to address this crisis by promoting a civil religion among Americans, under which a sacred aura would be attached to our institutions and to the patriots whose sacrifices had made them possible. He frequently described the Declaration of Independence as "the sheet anchor of American republicanism," as "the immortal emblem of humanity," and, more to the point, as "the political religion of the nation." The Revolution, in Lincoln's view, ought to be understood by Americans as a sacred event, while the Declaration and the Constitution ought to be seen as sacred documents, to be read and debated with the same kind of reverence with which one approaches a sacred religious text. In the Gettysburg Address, Lincoln sought to add the Civil War itself, and its battles and battlefields, along with the fallen dead, to the nation's calendar of sacred events. By associating our institutions with sacred images, Lincoln tried to provide a glue for the Union that the Founding Fathers did not think was necessary. And by reminding his countrymen that their nation exists "under God," he tried to reinforce this sacred association and thus advance his ideal of an American civil religion.
There is, finally, another meaning to this reference to God that Lincoln may have borrowed from Thomas Jefferson, whose writings Lincoln studied with great care. In his "Notes on the State of Virginia," which Jefferson wrote at Monticello in 1781, he considered the question of slavery in connection with the broader liberties of free citizens. He there raised a question that continues to surprise those who believe that Jefferson's views were entirely secular:
And can [Jefferson asked] the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever. This powerful statement is not merely a condemnation of slavery, but also an assertion that the survival of liberty is intimately connected to the public recognition of God. Jefferson, who originated the concept of a wall of separation between church and state, says here not only that our liberties are a gift of God, but also that citizens must recognize this fact if they are to preserve those liberties.
The existence of slavery seemed to imply that human liberty was but a conventional right, to be granted or denied by groups of men according to who happened to hold power at any moment. The institution of slavery therefore encouraged the belief among the people that their liberty was granted by men according to convenience or interest, rather than by God owing to their nature as God's creatures. For if liberty is a gift of God, as Jefferson said it was, both here and in the Declaration of Independence, why is it not granted to slaves, too? He feared that by accepting slavery for some, Americans had undermined the foundations of liberty for all.
Lincoln's Gettysburg Address and his Second Inaugural may be read, in some part, as extended responses to the fears Jefferson expressed and to the questions he raised. We have already noted that Lincoln understood the Civil War as divine punishment for the offense of slavery--his acknowledgment of Jefferson's ominous presentiment that, "I tremble for my country when I reflect that God is just; that His justice cannot sleep forever."
Then there is Jefferson's striking assertion that the liberties of the nation have but one solid foundation--"a conviction in the minds of the people that these liberties are of the gift of God." In the concluding passage to the Gettysburg Address, Lincoln urged his audience to resolve "that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people shall not perish from the earth." What did Lincoln mean by "a new birth of freedom?" And why did he say that this new birth of freedom had to occur "under God?"
The original birth of freedom occurred when the Declaration of Independence was ratified as the founding document of the nation. In the opening-line arithmetic of the Gettysburg Address ("four score and seven years ago"), Lincoln traced the founding of the nation to this event. Jefferson, however, understood that the nation was born with a contradiction that tended to obscure the fact that the nation's liberties are a gift of God. And thus he feared that the experiment might fail. The Civil War, which would end slavery, provided the opportunity for a "new birth of freedom" that was not undermined or contaminated by any such contradiction. Still, that "new birth of freedom" had to be established on a firm basis that would remind the people of its ultimate origin. The words "under God," when linked to this "new birth of freedom," provide that reminder.
BUT WHERE did Lincoln find the locution, "under God?" Was the phrase his own creation, like many other of the memorable images that are found in his speeches? Or did he find the phrase elsewhere?
William Barton, in a wonderful little book titled "Lincoln at Gettysburg" (1930), provided a surprising answer to this question. In his research, Barton looked into just about everything Lincoln did and said on that memorable day in Gettysburg, including the origins of his most memorable lines.
Barton allowed that the phrase "under God" probably existed in Lincoln's "own stock of phraseology," which he had accumulated over a lifetime of careful reading. Nevertheless, Barton suggests that Lincoln originally found the words in Parson Weems's biography of George Washington, a book that Lincoln acknowledged he had read as a boy. This book, Barton says, was one of young Lincoln's favorites, along with the Bible, "Pilgrim's Progress," and "Robinson Crusoe."
"Under God" was one of those phrases that Weems liked to use, and it appeared frequently in his biography of Washington. When Washington delivered his Farewell Address, for example, Weems noted the effect on the public of the president's impending retirement: "To be thus bidden farewell by one to whom, in every time of danger, they had so long and fondly looked up, as under God, their surest and safest friend, could not but prove to them a grievous shock." On Washington's death, Weems wrote (as quoted by Barton): "Sons and daughters of Columbia, gather yourselves together around the bed of your expiring father--around the last bed of him to whom you and your children owe, under God, many of the best blessings of this life."
It is thus quite likely, as Barton suggests, that Lincoln picked up the phrase "under God" as a young boy while reading "The Life of George Washington." It was thus available as part of his intellectual equipment once he grew to manhood. But Barton goes further, and suggests that both Lincoln and Weems might have picked up the phrase from still another source--General Washington himself.
On July 2, 1776, as British troops assembled on Staten Island and the Continental Congress met to ratify the Declaration of Independence, Washington was rallying his troops on Long Island in preparation for a series of battles that would take place later that summer in and around New York City. In the General Orders that he circulated to his men that day, Washington wrote:
"The time is now near at hand which must probably determine whether Americans are to be freemen or slaves. . . . The fate of unborn millions will now depend, under God, on the courage and conduct of this army."
One week later, on July 9, Washington issued another set of orders, but now he was aware that the Continental Congress had approved the Declaration of Independence and had announced it to the public five days before. This document, which declared the official separation of the United States from Great Britain, was also, in effect, a declaration of war. On this occasion, he directed that the Declaration be read to the troops "with an audible voice."
Washington then expressed his hope that "this important Event will serve as a fresh incentive to every officer and soldier to act with fidelity and courage, as knowing that now the peace and safety of the Country depends, under God, solely on the success of our arms."
It is surprising, then, but also perhaps perfectly appropriate, that the now controversial phrase, "under God," had its origins with George Washington in the very week that the United States declared its national independence. It is not altogether clear what precisely Washington had in mind when he used these words. Perhaps, like Lincoln, he understood the phrase to carry many layers of meaning--an appeal for God's guidance and protection, an acknowledgment of God's sovereignty, an assertion that our liberties derive from God, a recognition that God's work on earth must be our own. Washington's words and deeds, of course, carried enormous weight in the early years of the Republic, and thus it is likely that this reference was widely noted and circulated among Americans of that time. In this way it was absorbed into our "national stock of phraseology" from which it was picked up by later writers like Parson Weems and statesmen like Abraham Lincoln.
It is also possible, and perhaps even likely, that Lincoln found the phrase "under God" through his own reading of Washington's orders--and used the phrase at Gettysburg because he knew that Washington himself had used it in connection with the Declaration of Independence. There is a small but suggestive piece of evidence for this speculation. In Washington's General Orders of July 9, 1776, he wrote that "the peace and safety of the Country now depends, under God, solely on the success of our arms." In his Second Inaugural Address, Lincoln, before he expounded on his understanding of the war, took note of the military situation. "The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself." There is enough similarity between these two statements to suggest that Lincoln had read Washington's orders--and drew the phrase "under God" from that source.
THE NATION, of course, has undergone great changes since the time of Washington and even Lincoln. Then, the United States was overwhelmingly a Protestant country; today, early in the 21st century, it is home to people holding an almost infinite variety of religious views. Though the United States remains the most religious of all Western nations, our public life is increasingly secular, and our people are not nearly as God-fearing as they were at the time of the Revolution and the Civil War. Our diversity and secularity have eroded the broad religious consensus that once existed in the nation. Many thoughtful Americans believe, therefore, that today the use of religious references in public ceremonies tends more to divide than to unify our people.
At the same time, the words "under God" in the pledge serve to remind Americans of their heritage of liberty, and the price that was paid to maintain it. Washington in the Revolution, Jefferson at Monticello, Lincoln at Gettysburg--all invoked a common spiritual image, and Washington and Lincoln explicitly and with deliberate purpose used the words "under God." When Congress added these words to the Pledge of Allegiance, it drew upon a phrase that had a long and meaningful association with the great statesmen and events in the history of the Republic.
Can the Supreme Court now strike down "under God" without at the same time striking at the very foundations of our national existence? Or has the nation changed to the point where we no longer believe such an image to be true or, even, useful to sustain our institutions?
James Piereson is executive director of the John M. Olin Foundation.
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Lemon sucks.
- President Dwight D. Eisenhower
Those who want to excise the words "under God" should bear the burden of proof of their harm.
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