How is the "under God" unconstitutional?

6/27/02 | myself

[Metal4Ever]

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.

[Nancee]

Hi "BikerNYC"!

~"AMEN"~!

Nancee

P.S. I grew up on Long Island". I love New York!

[Jay W]

How is the "under God" unconstitutional?

It isn't unconstitutional.

In over 50 years of its being part of the Pledge, it has not led one bit to any establishment of religion in the United States.

[Nancee]

Bless your heart, "glennaro"!!

I haven't yet learned to do the "link thing"; so I'm grateful to you for sure!

Nancee

[Nancee]

"glennaro"

Thanks again!

And a BUMP for you!

Nancee

[Jay W]

The real outrage is that the federal government has no authority to do anything at all about education,

I understand your point of view, and sympathize with its sentiment, but actually the fedgov DOES have authority to enact legislation regarding education. See Article I, Section 8, where it can make laws pertaining to the district set aside for the national government and all other areas owned by or purchased by the fedgov. Also, Article 4, Section 3 gives Congress the power to enact laws governing federal territories and other property.

[rwfromkansas]

In my point number two, Jefferson gave the money only after it being appropriated BY CONGRESS.

[Nancee]

It's looking up now, though!

Nancee

[Rightwing Conspiratr1]

It doesnt matter if its Budda or Zues, God is undetermined regarding which religion it speaks of if any.

Yes it does matter. God refers explicitly to the Judeo-Christian God and NO other.

[ppaul]

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.

[Rightwing Conspiratr1]

It held that a teacher - an employee/agent of a state - cannot lead the class in the recitation.

And this is less obnoxious?

[rwfromkansas]

Nonsense. If you are correct on this, if the Constitution does not allow them to pass all sorts of specific types of bills, they can't do it. That is a more narrow view of the Constitution than I have heard. If you are correct, Congress can only pass a bill if it specifically is mentioned in the Constitution as being a type of bill that can be passed. Nonsense!

[Malcolm]

Ask a know-it-all LP member; they're experts on how to separate G-d from gov't. Nevermind freedom of speech and freedom of religion. That might interfer with an LP member smoking a joint or having to see the 10 Commandments on a courthouse wall. We wouldn't want LP folks to be uncomfortable, now would we? 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?

[smith288]

Where?

[Charles_Bingley]

I would say God is mentioned in the Constitution. In the Preamble the founders express they were writing the document to "secure the Blessings of Liberty," and in Article VII they tell us to whom it came from: "Done in Convention by the Unanimous Consent ofo the States ... in the Year of our Lord...."

[SteamshipTime]

Consider this. Under a libertarian form of government, there would be no public schools and we wouldn't run into these conundrums. It would be completely up to you whether your child attended The Hemp Smoking School For Young Pagans or The Southern Baptist Academy For The Advancement Of Sweet Tea. Or even the Pledge of Allegiance Academy, where the Pledge is recited every hour on the hour, 24/7.

[NEWwoman]

It helps and you make a very good point. The "under God" phrase was added much later to the pledge.
I think way way back to the early Christians of ancient Rome, who would not acknowledge (even in a token way) that Caesar was god. Persecution soon followed.
Thinking the best of the opposition, it is possible some may see the same kind of trend (hopefully not so severe as being fed to the lions) with forcing to say the pledge?