The American Spectator : Living Under God

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Living Under God

By Ken Blackwell on 3.18.10 @ 6:08AM

The Liberal Ninth Circuit – of all courts – has just sung the praises of limited government.

In 2002, the United States Court of Appeals for the Ninth Circuit cemented its reputation for left-wing judicial activism -- and drew nationwide outrage -- by ruling the words "under God" in the Pledge of Allegiance unconstitutional. The Supreme Court reversed that decision  on a technicality, and last Thursday, the Ninth Circuit got to try  again. This time it ruled in favor of the Pledge. But the big news is  not that the Ninth Circuit came to its senses and aligned itself with every other court that has addressed the issue. The big news is that  the Ninth Circuit did so in uniquely and dramatically conservative fashion.

Let me explain. There are two basic arguments for why "under God" is constitutional. One argument -- pushed by the Department of Justice at  the Ninth Circuit, and adopted by every other court to uphold the Pledge -- is that "under God" is just an innocuous example of what the  Supreme Court has called "ceremonial deism." This theory holds that there have been many references to God in our nation's history, but that over time, through rote repetition, these sorts of references have lost their religious meaning -- indeed, all meaning whatsoever – and are therefore harmless. Kind of like a doddering old relative who says embarrassing things, but no one minds because he doesn't know what he's saying.

The other argument -- pushed by the Becket Fund for Religious Liberty, which argued the case at the Ninth Circuit -- is that "under God" is neither meaningless nor a primarily religious statement, but an important statement of political philosophy. Specifically, when Congress added the phrase "under God" to the Pledge, it was tapping into a venerable political philosophy of natural rights and limited government -- namely, the idea that our rights are inalienable because they do not come from the state, but from a "higher power" beyond the state.

The Becket Fund's legal brief on this point is a historical tour de force -- tracing the idea that government is limited because it is "under God" from the writings of Bracton and Coke in the 13th and 17th centuries, to Blackstone and the Founders in the 18th, to Lincoln's Gettysburg address, and to the present day. Men are "endowed by their Creator with certain inalienable rights," said the Declaration of Independence; "[t]he fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army," said General Washington of his troops; and the Civil War was fought "that this nation, under God, shall have a new birth of freedom," said Lincoln's Gettysburg address. Thus, as the Becket Fund said, "From this history, it is incontestable that since even before the Declaration of Independence, it has been an important part of our national ethos that we have inalienable rights that the State cannot take away, because the source of those inalienable rights is an authority higher than the State." To strike down "under God" would not only be historically wrongheaded, but would also rule anathema the very political philosophy of limited government on which this country was founded.

Remarkably, in an opinion joined by the liberal Judge D.W. Nelson, the Ninth Circuit adopted the Becket Fund's argument: "The phrase 'under God' is a recognition of our Founders' political philosophy that a power greater than the government gives the people their inalienable rights. Thus, the Pledge is an endorsement of our form of government, not of religion or any particular sect." The Court continued: "The Framers referred to the source of the people's rights as the 'Creator,' the 'Supreme Judge,' and 'Nature's God' [citing The Declaration of Independence]. The name given to this unknowable, varied source was not crucial, but the source was a necessary prerequisite to the concept of limited government that formed the basis of our nation's founding."

In response, Judge Reinhardt, one of the Court's most liberal members, suffered what can only be called a judicial hissy fit. In a rambling, 133-page dissent, he called the majority's limited government argument "pure poppycock," first taking an irrelevant swipe at Sarah Palin, then derisively linking the majority's position to the Tea Party: "The majority's explanation of the phrase bears a suspicious resemblance to the platform of the Tea Party movement, which proclaims itself to be a 'group of like-minded people who desire our God given Individual Freedoms which were written out by the Founding Fathers.'" In Reinhardt's view, it was "absurd" to think that "under God" was anything other than an attempt to "indoctrinate[] public schoolchildren with a religious belief."

Reinhardt's temper tantrum aside, it is remarkable to reflect on what has happened here. The most liberal court in the United States just struck a blow in favor of limited government, acknowledging that this nation is founded on the idea that our rights come from somewhere higher than the state -- from the "Creator," the "Supreme Judge," and "Nature's God." Contrary to what oversensitive atheists would have us believe, it is not unconstitutional for the government to refer to this political philosophy, even when using its traditionally theistic terms. Thus, this ruling safeguards not only the Pledge, but many other traditional references to God in the public square.

Champions of limited government everywhere should be celebrating this ruling (and the Becket Fund) for enshrining their most important philosophical point in the nation's most liberal court.

(Mr. Blackwell is an advisor to the Becket Fund for Religious Liberty.)

topics:
Pledge of Allegiance, Ninth Circuit, Church and State

About the Author

Ken Blackwell, a board member of the Becket Fund for Religious Liberty, is a former U.S. ambassador to the United Nations Human Rights Commission and a senior fellow at the Family Research Council.

Letter to the Editor View all comments (33) | Leave a comment

Ret. Marine| 3.18.10 @ 7:13AM

Thanks to the Becket fund, the lefty hissy fitters, are not being forced to acknowledge what We the People have always acknowledged before us, the gubmint does not own me. My soul belong to God and God only.

Ted| 3.18.10 @ 9:28AM

The Becket Fund, bless their hearts. They are a fantastic organization. Check them out here: http://www.becketfund.org/

basur| 10.27.10 @ 6:01AM

To steal from the garden of the constitution, even the smallest bit of fruit that is a secular nation, is to deprive all others the nourishment of it's freedoms.

Anthony| 3.18.10 @ 10:07AM

The insufferable Judge Reinhardt once quiped about being reversed so often, that the Supremes "can't catch them all."
Guess what Judge?, we can and we will. It's a new day, keep your passport current.

Ken (Old Texican)| 3.18.10 @ 11:04AM

You know, folks, I thank God every day for pretty simple things.

These days, I find myself thanking Him for truly huge things, and my list keeps getting longer and longer.
This country was founded after untold thousands of years of tyranny.

It is no accident that our founders looked up to God to guide their pens....and their rifles.

Tim| 3.18.10 @ 12:57PM

Texas you're one of them there "bitter clingers" aren't you?

Ken (Old Texican)| 3.18.10 @ 1:37PM

Actually, Tim,
I am a joyful clinger..."to that symbol of suffering and shame"
"...and I will trade it someday for a crown".

Tim| 3.18.10 @ 3:45PM

"The Lord has promised good to me.
His word my hope secures.
He will my shield and portion be,
As long as life endures."

Sam| 3.18.10 @ 9:59PM

Spare me all the biblical quotes. I fail to see how the invocation of 'God' is somehow not religious, if he is so important to all of you.

darcy| 3.19.10 @ 10:39PM

God was important to the signers of the Declaration of Independence -- we agree with them.

It's the foundation (our inalienable rights from God) of our free country, and happy we are that the state must do violence to that foundation to implement their utopian/godless schemes. It reveals them for the enemies of our founding that they are.

God Bless America.

Pat Korten| 3.18.10 @ 11:11AM

For the record, The Becket Fund's client in this case is the Knights of Columbus, which played a key role in persuading Congress to add the words "under God" to the Pledge in 1954.

DrClue| 3.18.10 @ 3:24PM

To steal from the garden of the constitution, even the smallest bit of fruit that is a secular nation, is to deprive all others the nourishment of it's freedoms.

The thief, while gorging on his ill gotten gains is seen to ask, "who does it harm", for it is not he who will feel the pangs of hunger.

Totally blind to the emptied plate of others for indeed his plate is filled to overflowing.

So we go forth on the journey to the masters of the garden to seek their counsel and justice , knowing that while the journey will be long and fraught with the jeers of those picking their teeth, that the scales to be used by the masters in weighing the tool of theft are well known.

The supreme court's "Lemon Test" is composed of three parts.

1. The statute must have a secular legislative purpose.
2. Its principal or primary effect must be one that neither advances nor inhibits religion.
3. The statute must not foster "an excessive government entanglement with religion."

Decide for yourself if the 1954 law adding the words "Under God" to the pledge passes the test.

Len| 3.18.10 @ 6:32PM

Sigh! When I read articles like this I can only moan about how so many miss the actual problem involved in so many political issues today. NOWHERE in the US constitution is there a grant of power concerning public education. Such power was actually specifically rejected, thus we are dealing with a strawman here in the argument of constitutionality.
If the people of a state choose to have something silly like the pledge of allegiance (we are not one nation, but a union of 50 nations[ not to mention the absurdity of training children to pledge allegiance to the state]) in their school then the federal government has no say in this period.
Federal courts are to decide issues that arise under the US constitution, so again the who cares what they decide, when there is no authority for such a decision. Much of this stems I think from the also absurd notion that the 14th amendment grants the federal government authority to interfere in the internal affairs of states. First, to say that people can be forced to submit to legislation at gunpoint and say that such is then an actual amendment flies in the face of a constitution enacted and a government formed for the protection of the states.
Second, if those who wrote the amendment did not put in there that it gives the federal government authority to enforce the Bill of Rights against the state then it does not. There is no such thing as secret intention.
Further on this point the preamble to the Bill of Rights says that these amendments were added as further RESTRICTIVE and DECLARATORY amendments so that the power of the federal government would not be misconstrued, so how then can they be turned against the states, when they were never repealed?
The insanity of all this mind boggling.

Larry| 3.19.10 @ 2:00AM

Wow! This is amazing, coming from the Ninth Circuit. They obviously got the hint, if not from the Supreme Court, then from somebody "upstairs" (hint, hint). Great job by the folks from the Becket Fund, thanks to all of you who contributed to the brief.

Larry| 3.19.10 @ 2:07AM

DrClue, you have no clue. The Lemon test is an improper distortion and unwarranted expansion of the meaning of the First Amendment, as formulated in particular by the Warren Court. That court was responsible for the secularization of this country and the improper repudiation of religious-based values in public life, in the supposed name of "protection" of religion. In the end, it has almost "protected" religion out of existence. If your rights do not stem from a greater power than man, the fruits you caterwaul about (your prose, by the way, is insipid) will be worthless to share with anyone, because they will be gone. Taken away by the government who will claim they were never yours in the first place. That will be the real thief.

Tenn Slime | 3.19.10 @ 8:46AM

QThe most liberal court in the United States just struck a blow in favor of limited government, acknowledging that this nation is founded on the idea that our rights come from somewhere higher than the state UNQ
Hoo Rah
Opine
Glenn Beck etal has been providing the USA Electorate with this data for sometime. Here in the Fly Over Land it is common knowledge, albeti not taught overtly in our schools. One has to ferret out the subject intensely.
SO. Reccommendation...
1. Copy, paste and promulgate the news.
2. Conservatives, Independents, Liberals, all need to hear this. Seldom does a Court such as the Ninth district of Liberalism ever acknowledge the Founders at al....
bt
Again HOO RAH.
Semper Fi
We Will Prevail using Faith, Hope and Charity.
end

Betty| 3.19.10 @ 12:02PM

I pledge allegiance to the flag of the United States of America, and the the republic for which it stands, one nation UNDER GOD, indivisible, with liberty and justic for all.

Betty | 3.19.10 @ 12:07PM

Oops, I should have checked for errors better before I posted. I meant, I pledge allegiance to the flag of the United States of America and to the republic (not the the republic) for which it stands, one nation UNDER GOD, indivisible, with liberty and justice for all.

MadAsHell| 3.19.10 @ 10:02PM

Who is more irrational? A man who believes in a God he doesn't see, or a man who is offended by a God he doesn't believe in.

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Michele San Pietro| 3.21.10 @ 11:06AM

It is essential to live under God for a wonderful country created by God like the Unites States.

Ralph Novy| 3.21.10 @ 9:50PM

Ken:

Surprisingly found myself in agreement with you on your central point about the source of constitutional rights.

I seem to be in a distinct minority in taking the Ninth Amendment seriously. Went to law school some 25 years ago. Took constitutional law, of course. On several occasions raised the issue of the Ninth Amendment's possible applicability to the case at hand. Invariably came the scoffing, snorting, guffawing.

I consider myself a "progressive," but I fail to understand why most liberals/progressives are so afraid to say that our government has only the powers delegated to it -- rather than that we, as individuals, have only those rights as carved out against plenary governmental power.

Sigh.

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