Congress saw its duty, and did it. So did the Rev. Jerry Falwell, Attorney General John Ashcroft, and even the New York Times. They all denounced, more or less (the Times was a little ambiguous), the ruling last week that the Pledge of Allegiance was unconstitutional. Two of three judges on a three-judge panel had said it violated the separation of church and state; therefore, the children in public schools must not recite it. The problem was the phrase “one nation under God,” and as Judge Alfred T. Goodwin wrote in the majority opinion, the phrase, constitutionally speaking, was just as inappropriate as a statement that “we are a nation ‘under Jesus,’ a nation ‘under Zeus’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”
Do not be unduly alarmed, though. It is a virtual certainty that the panel’s finding will soon be overruled, and indeed, the very liberal Ninth Circuit Court of Appeals, which set up the panel, is overruled more often than any other Appeals Court, just possibly because it hands down more loony decisions. At the same time, it specializes in enumerating new constitutional rights. A three-judge panel there last year found that a prisoner had a constitutional right to ship semen to his wife for artificial insemination. That was too much even for the Ninth Circuit, however. It overturned its own panel’s ruling.
So it seems likely that schoolchildren will continue to say “under God” when they recite the pledge. And it should also be noted that millions of Americans — of which I am one — never say “under God” anyway. The words weren’t there when we learned the Pledge of Allegiance. Congress inserted “under God” into the pledge in 1954 to show a difference between the American system of government and “godless Communism.” (If Congress had been serious, it would have substituted the wonderful “God Bless America” for the unsingable “Star-Spangled Banner,” but that’s another matter.)
The words “under God,” however, changed the rhythmic meter; they added a beat, and the line no longer scanned. So better to stick with the old pledge, the one we had learned in school, and consciously or unconsciously, on the few occasions now when we recite the pledge, that’s what we do. Many of us also think that putting your hand over your heart is a little silly. We would really prefer to salute.
Patriotism, of course, is the last refuge of — but let’s leave that thought unfinished now, and get on with the rest of the story. When the Senate learned of the panel’s ruling on the Pledge of Allegiance, it stopped what it was doing — stuffing pork into a military appropriation — and passed a unanimous resolution condemning the ruling. The outraged Majority Leader Tom Daschle said it was “just nuts.” Other senators said much the same, although few showed as much patriotic devotion as John Edwards. He put out a press release claiming that he “recites the pledge each morning after the Senate convenes.”
The Democrats, in fact, were better at seizing the patriotic high ground than the Republicans, and if not for Speaker Dennis Hastert, the Republicans might not have seized any ground at all. Hastert led dozens of House members on the Capitol steps in a recital of the pledge, followed by a rendition of “God Bless America.”
Meanwhile, many other voices also were heard from. Gov. Gray Davis of California said he would personally ask the Ninth Circuit to reverse the panel’s ruling. Jerry Falwell said he would gather a million signatures for a petition urging the Supreme Court to do the same. Citizens United, a conservative group, said it would lead a drive calling for the retirement of Judge Goodwin, who wrote the panel’s opinion, and the impeachment of Stephen Reinhardt, the judge who joined him.
And so on, and so on, with no immediate end in sight. As it says on the cover of the new Newsweek, the one with the three adorable kids on the cover, all with their hands over their hearts, “‘Under God’ Under Fire.”
Nonetheless do not lose hope. Some good may actually come of all this. Newsweek did not notice it, and neither, apparently, did any other big news organization, but there was a second Senate action.
The first, the resolution condemning the panel’s ruling, was drawn up by the Democrats, and attracted attention. The second, an actual bill drawn up by Republicans also was passed unanimously, but attracted no attention at all. It condemned the panel’s ruling, while quoting from, among other things, the Mayflower Compact, Declaration of Independence, George Washington’s address to the Constitutional Convention, and a ruling by Justice William O. Douglas. Then it got down to real business.
It said that in 1954, when Congress passed on to President Eisenhower the legislation inserting the words “under God” into the pledge, he “signed into law a statute that was clearly consistent with the text and intent of the Constitution.”
In the ongoing debate over “original intent” vs. “living Constitution,” the words “clearly consistent with the text and intent of the Constitution” may come back to haunt the “living Constitution” interpreters. They say the Constitution means whatever they say it means, and they keep discovering new constitutional rights. Think of a prisoner’s right to ship his semen as an example. The “original intent” interpreters see things quite differently, of course, and while it may be only the smallest of hopes, it is nice to think that when President Bush signs this new bill into law, it may help them make their case.
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