July 3, 2002

One nation, under law

By: Julian Sanchez

I couldn’t have been older than four when minutes after arriving at the mysterious new world of pre-school I first heard the pledge of allegiance. I hated it instantly.

There was something creepy right off about rows of children performing this strange chant in unison, like bugs in a hive, mouthing words and making promises without any apparent regard to their meaning. But contemplating that meaning didn’t help to ease my mind. I was pledging allegiance to a flag? No, I realized, the flag was supposed to stand for the country. But why would I want to pledge allegiance to that? What if the country did something I thought was wrong? Even if there were good reasons to have that allegiance, why were they leading us through this mindless ritual instead of telling us the reasons? When I learned, years later, that the pledge had been written by a socialist as a sort of toddler programming tool, and that it was once accompanied by an inverted “sieg heil!” salute until that became embarrassing, my visceral revulsion only increased.

Alas, the founders lacked the foresight to include a provision in the Constitution barring Congress from passing laws which creep me out. They did, however, restrain it from enacting statues “respecting an establishment of religion,” which restraint, the 9th Circuit Court of Appeals recently ruled, invalidates the addition in 1954 of two words, “under god,” to America’s most beloved Orwellian loyalty oath.

Now, in terms of 20th century Establishment Clause precedent, this decision’s a no-brainer. The court has stricken classroom prayer, nondenominational invocations at public school graduations or football games, and even a “moment of silence” during which prayer was suggested as one possible use of the time, as impermissible state endorsements of religion. If those practices cannot be allowed to stand, surely the endorsement embodied in a daily ritual wherein government employees support a religiously charged conception of patriotism is just an invitation to a gavel smackdown.

The pledge fails not one, but two of the traditional tests for Establishment violations. First, laws are required to have a “secular legislative purpose.” What possible secular purpose is served by a law which, as did the one passed by Congress in 1954, does nothing more than add a religious reference to a preexisting text? The remarks of President Eisenhower upon signing the bill into law make clear that its purpose was, of course, wholly religious. He said: “millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.” Then there’s the “neutrality” test: laws are not permitted to advantage one sect of religion, or religion over unbelief. Do I need to argue that having government teachers affirm daily that this is “one nation, under God” fails this test?

Well, apparently I do, since even many libertarians seem to think the 9th Circuit erred in its decision. Some argue that, so long as students are not forced to recite the pledge, no harm, no foul. That line of argument is the product of a libertarian tendency to focus on coercion as the supreme evil — a tendency generally healthy, but here quite inappropriate. The Establishment Clause is not really about the rights we have, it’s about the rights government doesn’t have. In particular, government doesn’t have the right to start running television ads declaring that “Jesus Saves” or build huge Hindu temples on federal land, whether or not people are compelled to stay glued to their TVs or go visit Ganesh.

Coercion is sufficient to trigger bad Establishment mojo, but not necessary. Among those who acknowledge that much, many seem to think that the presence of a brief reference to God is nevertheless too trivial to be subject to First Amendment scrutiny. But if that’s so, why did the Senate feel compelled to stop its other business when the decision was announced and issue a unanimous declaration condemning the ruling? Why have conservative pundits been claiming that this marks the downfall of America, and a fatal blow to mom and apple pie? Certainly, proponents of the religiously charged pledge don’t appear to be treating it as trivial. Nor, I imagine, would that be the opinion of atheist or polytheist third-graders in strongly religious communities enduring dirty stares from teachers and peers as they exercise their right to very conspicuously opt out of the state-run morning chant.

Others seem to worry about the sorts of precedent this sets. Does the ruling mean that we all have a right not to hear religious views which offend us? Of course not: it only means that we’re entitled to expect that agents of a government which is supposed to represent us all not speak for one religious group in a way that excludes others. Does it mean that any mention of God as found in, for example, the Declaration of Independence, is to be barred from public classrooms? Again, not in the least: government is barred from endorsing religion, not from acknowledging its existence.

A final set of objections come from certain strict constructionists, who grant that Establishment Clause precedent supports the 9th Circuit’s decision, but reject that precedent as inconsistent with the original intent of the founders. Since I myself would toss quite a few hoary precedents, including most Commerce Clause decisions between the New Deal and Lopez v. U.S., that critique is one I can’t ignore.

Many argue that the point of the Establishment Clause was to prevent the establishment of a state church, and that’s about all. More robust interpretations which invoke a “wall of separation” between church and state, they say, are mere judicial creativity. Even if we ignore the fact that, from a strict constructionist perspective, writing loyalty oaths is prohibited by dint of being absent from Congress’s enumerated powers, this view is not terribly consistent with the original debate surrounding the Bill of Rights. The founders did consider more narrow language, which would have ruled out only the establishment of a national church or religion. But that language was rejected in favor of the familiar: “Congress shall make no law respecting an establishment of religion.” In other words, they meant to carve out a wider space, to make the entire neighborhood of establishment off limits, so to speak.

Exactly how much space did they intend to carve out? Frankly, I neither know nor care — and I doubt they would have been of one mind on the subject anyway. We are bound by the Constitutional principles the founders articulated, not by speculations about the way in which a majority of them would have applied those principles in particular cases. If someone tells you to buy the fastest car you can, you follow their instructions by inquiring into which car really is fastest, not by trying to figure out which one they believe, possibly mistakenly, is fastest. Constitutional interpretation must work the same way, if we are not to be trapped in impossible guessing games.

Consider, for example, the question, contentious in the early 20th century, of whether tapping a phone line counted as a “search” under the Fourth Amendment if police did not enter the physical property of a suspect. Do we really believe that the question of whether the founders would have called it a search is either meaningful or relevant? If the authors of the Fourteenth Amendment thought that granting all citizens “equal protection of the laws” was inconsistent with school segregation, should we hesitate to say that, dammit, equal protection means equal protection, whether they thought so or not? If we discover a diary indicating that James Madison would’ve been perfectly happy to band nudie magazines, should we conclude that “free speech” as written in the First Amendment doesn’t really mean “free speech” for Larry Flynt?

I hold that none of these things follow. Perhaps (a majority of) the founders did not recognize that, in a pluralistic society, the requirements of liberal neutrality demand a government with fully secular purposes. Fortunately for us, their lack of understanding was not written into the Bill of Rights, and we now have an opportunity to be better adherents of the principles they did write down than they were. This is not a case of “changing” the meaning of the Constitution; it is a case of choosing a meaning to fill a gap that always existed, consistent with the concerns that motivated the protected right in the first instance.

The founders did not always leave us a fully fleshed-out roadmap; at best, we have a series of signposts, and our only consistent option is to follow them in the direction of full church/state disentanglement. If we abandon the “wall of separation” interpretation, then we are bound either to the idea that nothing short of full establishment is banned — a result the founders clearly rejected — or to another vague, indeterminate, ad hoc “balancing test” which begs that the boundary be redrawn anew with each shift of the political tides.

We live in an era so perversely wrapped in the tendrils of the state that some have accused church/state separationists of trying to exclude religion “from the public sphere,” as if the public sphere were no more than the sphere of government. Ironically, I, the atheist, seem to have more faith than the pledge’s most ardent defenders. I don’t believe religion too feeble to survive without the crutch of the state.