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.)