A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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September 14, 2005Federal cout declares pledge unconstitutionalAfter the Supreme Court ejected the issue last year in Elk Grove v. Newdow on grounds of a lack of standing - Rehnquist and O'Connor voted with the majority - Michael Newdow, the california atheist militant, has scored a minor victory in having a California Federal Judge declare the Pledge of Allegiance unconstitutional. Having been rebuffed for lack of standing in his Madalyn Murray O'Hair-like effort to use his own child as a proxy (see Abington v. Schempp), Newdow this time brought suit on behalf of three other sets of parents. An appeal to the 9th U.S. Circuit Court of Appeals will likely follow. Posted by Simon at September 14, 2005 03:59 PMComments
Here we go again... Just as a side note, the words "Under God" weren't originally in the Declaration, and it frankly scans and reads a heckuva lot better without them (purely as prose--I'm not offering argument on whether they should be there). Congress stuck them in there in the 1950's during the Cold War for better contrast with the Godless Commies. Posted by: Tully at September 14, 2005 05:05 PMLet the screaming begin... Posted by: Blue Jean at September 14, 2005 05:22 PMWell, at least now we know what the primary issue will be in the Congressional elections next year. As opposed to, for example, In my moments of conspiracy-theory-ism, I wonder if people like this Newdow are subsidized by the religious right. Just to get people stirred up. Posted by: wj at September 14, 2005 07:31 PMTo clarify, the Supreme Court did not "eject" the issue last year. Reversing the Court of Appeals for want of plantiff's standing is not a position on the issues the plaintiff raises at all--other than the issue the plaintiff raises that he, himself, suffers concrete and particularized harm. Having reached its decision to reverse on the jurisdictional ground of want of justiciability, the Supreme Court took no position, and no action (ejection or otherwise), on the merits of Newdow's case or the issue of the constitutionality vel non of the pledge. Posted by: The Jaded JD at September 14, 2005 08:00 PMThe opinion - written by Carter appointee Judge Lawrence K. Karlton - can be found here. This is the official site of the U.S. District Court for the Eastern District of California, not a mirror. TTJD makes an entirely accurate point; the Supreme Court held that Newdow has no standing to bring the case, and the District Court today re-affirms that Newdow has no case and no standing to bring a case; the opinion therefore turns on the non-Newdow litigants. Posted by: Simon at September 14, 2005 10:46 PManyone want to sign an initiative petition for "under Allah"? "under Jehovah"? "under Satan"? My technical opinion is that encouraging public school students to recite a pledge that explicitly acknowledges God is indeed an instance of the government establishing religion. The relevant constitutional passage says "..shall make no law respecting the establishment of a religion." The words say that congress is proscribed from passing any law that in any way establishes a preference for any particular religious view. But my guess is that the intent of the writers was to stop congress from passing any laws that stop citizens from founding/establishing a religion of their choice, or that gives any particular brand of religion preferential treatment over another. The current laws as interpreted are a bit of an expansion, since taken as as a whole they suggest that the clause means that the government must be entirely neutral. This is a case where I think that whatever expansion has occurred has indeed served us extremely well as a nation, and I generally support it. But even after saying all that, I think that instances such as the POA and "in god we trust" on money are trivial instances entirely unworthy of quarreling over. I have no trouble whatsoever with what I view as about as brief and generic an acknowlegement of faith as we can have. It makes a lot of people happy, and troubles very, very few. For some time now, I have chosen to view the word God as always translatable as exactly equal to "good," which in turn refers to the sum total of all that which is good in this world. Beyond that, any words that describe in further detail the nature of God, or good, fail to encompass the concept in its entirely. It's a bit of an eastern concept, that "the way is forever nameless, to speak of the way is to speak of less than the way..." My personal view is that even most agnostics and atheists believe in the possibility and the power of good, and that such people would be well served to think of any reference to god as a reference to that good which they acknowledge. By "well-served," I mean only that if they tried it for a few months or a year, they'd like it. It's a very painless, useful, enlightening, and indeed unifying viewpoint. I personally believe in God in this way, which is a way that is substantially different from the way in which many or most other people believe in God, as an omnipotent individual being analagous to individual humans such as Christ. Here's the thing, when you say God, you are free to let it mean what you truly believe it means in YOUR heart, and leave aside any notions of what other people insist is means. This transforms it from a word that can embody contention over the nature of the world into a powerful personal acknowledgement of how you yourself view the world. For the supple mind, it's actually an opportunity... Posted by: bk at September 15, 2005 09:21 AMI've heard that there have been contract disputes during which counsel for one of the parties argued that "acts of god (God?)" was not a valid term because there was no proof of God's existence. These arguments were quickly dispatched by the assertion that "God" is a metaphor in such instances. Perhaps the same applies here, and is not inconsistent with bk's notion of God. Whether or not God exists as a being unto himself, God exists as a concept, even if a subjective one. Posted by: WHQ at September 15, 2005 09:49 AMBut my guess is that the intent of the writers was to stop congress from passing any laws that stop citizens from founding/establishing a religion of their choice, or that gives any particular brand of religion preferential treatment over another.Ah, but if originalists and non-originalists can agree on anything, surely it's that the framers' intent is not binding on us - the words they bequeathed us, ratified via the article V process are what is binding. No doubt the framers did not intend to incorporate the first eight amendments, but I - and most others - would argue that the words they chose had that effect, intended or not. The disagreement, I suppose, turns on whether the words should be read as if tey had been written yesterday, or whether we should acknowledge the passage of two centuries and compensate accordingly. ;) The original words of what became the religion clauses were introduced by Madison in the House, June 8, 1789, to be inserted into Art. I §9. The words were: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience [see J. Leland, The Rights of Conscience] be in any manner, or on any pretext, infringed.As mentioned above, the intentions of the Framers do not bind us, but because men rarely choose words entirely inapposite to their intentions, and thus may serve as a guide to meaning, taken in appropriate context. "The Framers understood an establishment necessarily to involve actual legal coercion" (Van Orden v. Perry, Thomas, J., concurring); "The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty" (Lee v. Weisman, Scalia, J., dissenting). Furthermore: George Washington added to the form of Presidential oath...the concluding words “so help me God.” The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.” President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ”, thus beginning a tradition of offering gratitude to God that continues today. The same Congress also reenacted the Northwest Territory Ordinance of 1787, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection. These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. President John Adams wrote to the Massachusetts Militia, “we have no government armed with power capable of contending with human passions unbridled by morality and religion. … Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Thomas Jefferson concluded his second inaugural address by inviting his audience to pray: “I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” James Madison, in his first inaugural address, likewise placed his confidence “in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.” Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” ...As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, repeated with approval in Lynch v. Donnelly, Marsh, 463 U.S., Abington Township.(McCreary County v. ACLU) (Scalia, J., dissenting) (internal citations & quotation marks removed). If comrade Newdow wants to remove the words "under God" from the pledge, then that is a perfectly legitimate political goal. All he has to do is convince enough of his fellow citizens that the Pledge of Allegiance, as codified at 4 USC §4 is a bad idea, and send to Washington a majority in the U.S. House of Representatives and U.S. Senate who so believe, and a President willing to sign the bill. Newdow's goal is political. But his position is shared by so few people - 11%, according to a poll taken by ABC News for crying out loud, so call it less than 10% - that he has no chance of enacting his agenda by democratic means. Democracy works; it is not an inconvenience to progress, it is a mechanism of ensuring that a small minority do not impose themselves on a majority, which is precisely what Newdow and his associates are using their children to attempt to do, just as Murray O'Hair did a few decades ago. That's how the situation seems to me. It's just a troublemaker who wants to run for election, but who's pissed that people won't vote for an atheist (See opinion of the court at p.19 n.15). Posted by: Simon at September 15, 2005 10:12 AMWhile I agree that the use of "under God" probably does constitute an impermissible establsihment of religion (although it's arguable that the framers intended to totally separate all religion from government), this is a situation where the use of the courts will hurt the cause far more than it helps. I agree with Brian, this is a minor issue important mostly to purist zealots. But now that it has been raised, it's going to be difficult for the courts (and probably ultimately the Supreme Court) to escape ruling on this and, most likely,as the District Court did, declare it unconstitutional. This is only going to lead to more craziness, as did the Mass courts legalizing gay marriages. I'm sure the next step will be a constitutional amendment to protect the use of "God" in the Pledge of Allegiance. And, of course, constant whining from the religious right about how persecuted Christians are in this country--which will, of course, help them raise more money and allow them to push their agenda even more. When that happens, I hope Newdow and his co-idiots are happy. Posted by: Marc at September 15, 2005 10:15 AMSimon, What's your argument that a government declaration of what everyone's views are (as in "in god we trust) is not coersive? Are you taking coersion to refer only to physical coersion and not mental coersion? Posted by: bk at September 15, 2005 10:38 AM"But even after saying all that, I think that instances such as the POA and "in god we trust" on money are trivial instances entirely unworthy of quarreling over. I have no trouble whatsoever with what I view as about as brief and generic an acknowlegement of faith as we can have. It makes a lot of people happy, and troubles very, very few" Couldn't have found a better way to say that myself bk..you are right on there. What percentage of people REALLY have a problem with this? "In my moments of conspiracy-theory-ism, I wonder if people like this Newdow are subsidized by the religious right. Just to get people stirred up" ...an interesting observation. Nothing fuels the Christian Conservative movement quite like this kind of controversy. Well, I suppose this is one of the problems we face when we have people placed in life-long positions. In my opinion, nobody should be guarenteed a job for life. That being said, I highly doubt that the words of the POA will be changed over this. Posted by: todd at September 15, 2005 10:41 AMThe thing that you have to remember about Newdow is that he is an _atheist_, not an agnostic. An agnostic says "God is 'not proven.'" But Atheism is a strictly matter of belief, just as much as any other religion: it takes, AS A MATTER OF FAITH, that there is no God. Newdow is a True Believer in atheism. Just as much as any other true-believing fundamentalist, he will take actions which are otherwise inexplicable, simply because his faith drives him to do so. And he will keep doing so, regardless of whether he wins or loses any particular battle (in court or otherwise) -- forever. Sue to take "In God We Trust" off the money? Sure. Sue to force the Supreme Court to stop invoking God in their opening ceremony? Why not? (Except as a matter of tactics, and even that is unlikely to disuade him in the long run.) Posted by: wj at September 15, 2005 11:27 AMI heard Michael Newdow speak a few months ago, and would make a couple comments: 1) He is very sincere, very bright, and almost painfully pleased with himself. I personally would like nothing better than a super-secular state, but my feeling is that Newdow is likely to do secularism more harm than good by picking these fights over things that the American public overwhelmingly doesn't see as offensive. Posted by: Phil at September 15, 2005 11:38 AMI very much approve of Brian's suggestion that the phrase "under God" be construed broadly to mean that we are a nation devoted to upholding the highest moral principles, i.e. the good. I would think that the people who are hostile to the good are few in number and are a disturbing lot: criminals for instance who know what is good, and nonetheless do the opposite. Likewise, people who embrace a strong form of relativism, while not criminal, are not the kind of people I would appoint as leaders of a society, for how can they have any vision towards which they believe society ought to progress? Similarly, the phrase "God save this honorable court" can be interpreted to mean, "May justice prevail in our proceedings." Nonetheless, I would oppose the removal of the term God for several reasons. First, it is grounded in many years of civic tradition: not necessarily the pledge per se, but in other areas. Second, for many people, the invocation of the term God has deeper meaning and is more likely to more firmly anchor them to the good. Although it is possible to be an atheist and be good, it seems to me that there is a threshold of goodness that it is hard for an atheist to pass. Look, for example, at Gandhi or MLK. It is easier to be good, if one's entire metaphysics rests upon a transcendent and limitless source of good. Instead of one person vs. a cruel and uncaring world, one can view oneself as allied with the principle that undergirds the universe itself. While I am no friend of traditional religion nor of the Christian right, and while I understand that the use of the term God could cause some to feel excluded, in that it irritates atheists, is contrary to the understanding of Buddhists and is too unitary for pagans, all I can say is get over it. I kind of view it as a cool cultural flair. If I go to Japan or India, I would hope the government there retains some ancestral flavor and civic religion. Just wink and nod at it, and inwardly snicker for God's, er , um, sake. I don't think the founders intended to outlaw any form of civic religion. Oh yes, I know, intention is bad constitutional grounds. But look, I can't be a whore to inflexible principle regardless of the results. I think the purpose was to prevent violation of religious liberties and to prevent a state church. I hardly think an atheist's child's ear hearing God constitutes a grave violation of that child's civil liberties. It's part of the culture. Wink and nod and smirk inwardly. Do people really think the Supreme court will find it unconstitional? Wow. If it did, would the rest of civic religion also crumble? Posted by: Adam at September 15, 2005 12:35 PMAdam, I think that your argument for keeping God in the POA etc is the strongest one I've heard, that it keeps more people more strongly rooted to supporting that which is good. But I don't agree with you about atheists. They can have just as high a moral sense as anyone else, and they can have just as much belief in good as anyone else, without ascribing it to some supernatural all-powerful being. And when they do, they are exercising faith, just like theists. They may not be aware of it, but they may well be acting on a powerful faith that there is such a thing as good, and that is it is manifestly obvious and that they feel compelled to act accordingly upon this perception. The peculiarity of the viewpoint (in cases where atheists do have a faith in good) does not lie in the incongruity of insisting that their particular brand of mysticism about God/good is superior. That's common. In fact it's predominant among the brands. The peculiarity lies in denying that it is faith, and therefore mystical, in other words, not accessible to reason at its core. I hardly think an atheist's child's ear hearing God constitutes a grave violation of that child's civil liberties. To belabor my previous post's point, there is a WAY to hear it that makes it NOT a violation of your liberties, but rather an opportunity to connect, at liberty, with your own personal views regarding what you feel the nature the nature of "good" is. Now some people might object to that notion, that each person is free to decide what "under God= under good" means. But that's the whole point. F**k 'em! Have the strength to declare what good is, for yourself. Posted by: bk at September 15, 2005 01:32 PMI very much agree with you, Brian: I think I was aiming at something subtler with the comments about atheists. My general point was although an atheist could have a refined sense of morality, I just think that it would be harder for an atheist to be, say, a shining paragon of virtue, like Gandhi. Although I would consider Buddha a paragon of virtue, and he could have been an atheist (though he neither confirmed or denied this), I think he must have found some deep reservoir of strength within himself to overcome. My point was that if you adhere to a strict materialist metaphysic, I think it is harder to acheive the very highest level of moral virtue. There is a correlation between an atheistic materialist metaphysic and immorality that can be found even if ancient times with Epicurus. I don't subscribe to the notion of some person in the sky, but I subscribe to the notion of some transcendental reservoir of the good, like a Platonist or a transcendentalist. So I believe that a non-materialist metaphysic, if used properly, can be used to augment one's virtue and may be necessary if one is to acheive the very highest level of morality--Gandhi-level for instance. But we probably just disagree on this point. I guess my basic point, and this we agree on, is that the use of the term God can be used to improve our national character if we let it. Lord knows we could use some reflection on higher principles in the age of reality TV :) Posted by: Adam at September 15, 2005 02:15 PMAnd, of course, constant whining from the religious right about how persecuted Christians are in this country--which will, of course, help them raise more money and allow them to push their agenda even more. When that happens, I hope Newdow and his co-idiots are happy.I'm no constitutional legal scholar but I am curious how this will play out with SCOTUS given the recent 10 commandments decision and the whole concept of "civic religion". Also, I'm probably in the minority of moderate to conservative christians in that I don't expect the government to reinforce/acknowledge the value of religion (if only historical) in American society. However, I can't help but comment on the political fallout of this. We've already commented on what will likely happen (i.e. overshadow other items like Katrina, Iraq etc.) That should not be construed as the Religious right "making political hay". I think the Left misreads the American public regarding such issues. Remember the (what I thought was) surprisingly negative votes on gay marriage in several states. I perceived it less as the "religious right manipulating public opinion" but more as a broader swath of the American electorate saying "hey wait a minute". Likewise, I think there will be a fair number of Americans who say "hey wait a minute" regarding the banishment of "under God" from the Pledge of Alleigience. Will the Religious Right capitalize on this, most likely. Will the Left respond in kind; (for their own sake) hopefully not. I'll be especially curious how Sojourners deals with this. If they follow the liberal left line then they will have become to the Left what the Moral Majority was to the Right. Posted by: c3 at September 15, 2005 02:24 PMSimon, No, originalists and non-originalists cannot agree that the intentions are non-binding in all cases. Originalists cannot even agree that among themselves, nor can non-originalists. The interpretive value of intent is a factor that distinguishes textualists, intentionalists, and purposivists--but originalist and non-originalist schools of interpretation all have textualist, intentionalist, and purposivist branches. So while, for example, textualist originalists and textualist non-originalists would agree with your premise, both intentionalist originalists and intentionalist non-originalists would disagree with it. Posted by: The Jaded JD at September 15, 2005 02:57 PM"My point was that if you adhere to a strict materialist metaphysic, I think it is harder to acheive the very highest level of moral virtue. " Adam, You are certainly entitled to your point of view, but I think it's a bit presumptious for you to decide that an atheist's morality is limited. What does the "very highest level of moral virtue" even mean? I guess you are saying that an atheist could not be a Ghandi, but I see no basis for which you can make that conclusion. You could just as easily make the claim that theists aren't really moral, they are just acting out of fear of what will happen after they die. Posted by: Marc at September 16, 2005 03:38 PMMarc, Really these things turn on individual intuition and the above and below are just that. Nonetheless, some of my reasons follow. But as an aside, according to a traditional definition, I could even be considered an atheist because my notion of the divine is highly unorthodox. Here are reasons why I think it is harder for an atheist to reach the highest level of virtue. Case I: Some higher benevolent power does exist. In this case, an atheist would have a harder time tapping into this source. Case II: Some higher benevolent power does not exist. In this case, I would think psychology would aid the agent. If someone has faith in a higher source, this would augment their generosity, love, and fortitude via a placebo effect. I hasten to add though that I tend to view religion as a mixed bag when it comes to effects on a person's morality. If it is literalist and exclusionary, religion would tend to damage someone's capacity for virtue. If it were inclusive and non-literalist it would tend to augment it. I would also contend that someone with traditional religious beliefs would also be hindered from reaching the highest level of morality due to most religions exclusionary roots and judgmental themes. Gandhi embraced all religions and considered God synonymous with Truth. Also, if you look at the history of philosophy, sensualists and materialists are much more likely to be atheists than vice versa. You should realize when I use the term atheist I mean someone who has no faith in any sort of transcendental metaphysic whatsoever. I think atheism produces a sort of drag on someone's compassion. But so can zealous religiosity. I view atheism as far left and traditional religion as far right. Both are incomplete and even perhaps deleterious. Agnosticism is sort of the mushy middle. Broad-minded expansive spirituality is the radical center. I just think our most prominent "saints" will come from the radical spiritual center's ranks. Name one great shining moral examplar on the level of Gandhi or MLK who did not have a deep spirituality? And I think many of the most illustrious people in history have come from their ranks. Einstein, Newton, Thomas Jefferson, Abe Lincoln. All of them had highly unorthodox religous views yet nonetheless had a deep faith in something higher. Basically, I have a hard time seeing how an atheist could be deeply inspired and thus reach the pinnacle of virtue. After all, in their view, it's all just matter, energy, and arbitrarily constructed purpose and meaning. We're just a shockingly transitory blip produced by wholly random processes. So for an atheist to be virtuous, he or she must swim against the current of their depressing philosophy. But a traditional religionist must also swim against the current of their narrow and often exclusionary views. You may not think atheism is depressing, but it sure depresses me. But traditional religion is also depressing or at least frightening. Eternal damnation anyone? Posted by: Adam at September 16, 2005 05:04 PMJust a historical note. When some of us were kids antidisestablishmentarianism was jjust a cool long word. What we would find out later is that it described the philosophy of those who were opposed to the separation of church and state. Some say the term originated in the 19th century over with the Church of England. Others say that it was earlier, when Madison and Jefferson were trying to remove the influence of church from the government of Virginia. In 1779, Jefferson wrote up his makes good reading.... Posted by: Marcus at September 16, 2005 09:26 PMSo if we support separation, then we're disestablishmentarians? I can live with that. Posted by: bk at September 17, 2005 04:14 PMhttp://aa.com battery buy car cast furniture garden iron cheap plus size jeans |
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