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Samizdata quote of the day

In, you know, the first year in law school we all read the decision in Calder against Bull, which has the famous statement that the government may not take the property of A and give it to B
Judge John G. Roberts, discussing the Kelo ruling.

23 comments to Samizdata quote of the day

  • Robert Alderson

    Of course, Judge Roberts has to be careful not to make any comment about how he might rule in future cases – he seems to have made his career with this in mind.

    It seems like the first big case to come before the Court could be the pledge of allegiance in school containing the words “under God.” I would like to think that this will get short shrift as a very clear violation of the constitution.

  • Eric Sivula

    I would like to think that this will get short shrift as a very clear violation of the constitution.

    – Mr. Anderson

    Exactly which part of the first amendment is being violated?

    How is this Congress or the State of California making a law “establishing” a religion? Since there are no consequences of failing to recite the pledge, or omitting the phrase “under God”, how is this a violation of the free excerise clause?

    If this violation is “very clear”, why have some Federal Appeals courts ruled the exact opposite of the 9th Circuit, why still has the dubious distinction of being the most overruled Court in the land?

  • Robert Alderson

    The first amendment begins:

    Congress shall make no law respecting an establishment of religion

    In 1954 Congress voted to add the words “under God”.

    My contention is that Congress thereby clearly made a law respecting an establishment of religion. My objection does not involve the free exercise clause.

    Let’s break it down into three parts:

    1) Law
    2) Religion
    3) Establishment

    This matter relates to a law, it was passed by Congress and I fail to see the relevance of whether or not their are formal penalties (I will explain below why I think it inevitably establishes de facto penalties.) It is not an administrative act or a practice – this makes it subtly different from displaying the ten commandments in a courthouse or arranging school prayer.

    The words ‘under God’ seem to me to be clearly religious. I simply cannot see how they are not religious – I would be interested to read a counter argument. To me they are as religious as ‘under Allah’ or ‘under Buddha.’ I would also be interested to hear comment on the use of the words ‘not under God’.

    I can only speak for schools in my part of Florida where the pledge must be recited in full or not at all. For me this constitutes ‘establishment.’ A child is disbarred from joining her classmates in making a patriotic assertion unless she uses a form of words which are religious. I maintain that being denied the right to join the rest of the class amounts to a penalty, children can be mean and ridicule those who single themselves out; this is an eminently forseeable consequence of the law passed by Congress. The solution of allowing pupils to remain silent and omit the words ‘under God’ may just be constitutional but I still believe that it inevitably exposes those children to a degree of inappropriate exclusion.

    As for the discrepancies between the 4th and the 9th circuits sometimes it takes time to get these decisions right.

    I believe that the words ‘under God’ should be simply missed out to ensure that the pledge is an activity in which all can participate without compromising their personal beliefs. Other solutions might be a moment of silent reflection whilst the flag is raised or (for older pupils) inviting each pupil to take turns making a pledge in their own way

  • Midwesterner

    Robert, I add to that, there is much more wrong with it. Why are we swearing allegiance to the flag, the indivisibility of the nation, and the (little ‘L’) republican nature of the country? If these things are in the constitution, let’s just swear allegiance to the constitution. If they are not in the constitution, then why are we swearing an oath to something that is likely contrary to the constitution?

  • Robert Alderson

    Pledging alegiance to the flag, republic and indivisibility are overtly, ideological or political acts.

    Congress has a right to establish this type of political act but by including the words ‘under God’ it ceases to be only a political act; becomes religious and violates the constitution.

  • Long ago, the pledge was adjudicated as voluntary. You cannot be forced to recite it. The case is actually about being in a public school and being present while it is recited without option of leaving the room.

    There are two major interpretations of the 1st amendment. The first is that no individual religion may be advanced above any other but as long as the use of religion is not sectarian, general appeals to the divine are acceptable. The second is that of Mr. Newdow which is that all references to the divine are to be prohibited to the state. By no means has the question been settled in favor of that second interpretation.

    You would end up having to change quite a bit if you were to seriously follow that second interpretation. Cloaking your religious references in spanish or latin would not be any shield. Oops, there gos the city of angels (Los Angeles) among many other place names (any city with San in it, to start but such references go down to individual streets and no doubt Lousiana would have to stop calling some of its administrative units parishes).

    A great deal of DC statuary would have to be reworked and the speeches of Lincoln, Jefferson and Washington, among many others, would have to be “revised and extended”.

    Need I go on? It’s only a small bit of the problem. In short, a true wall of separation is not historical for the US and would cause a great deal of pain in adjusting to the new law. Since it would be judicially imposed law, it’s unconstitutional. Congress, were they so foolish, could do it but would not. The judiciary has no right. Hopefully, it will not.

  • Della

    If it were up to me I think they should get rid of the “under God” and “indivisible”, without them the pledge reads much better and makes more sense.

  • Eric Sivula

    Mr. Alderson, I suggest you read TM Lucas’ post. Recitation of the pledge is not mandatory, and the pledge does not make reference to any specific God. It does *not* say under Jehovah, or Vishnu, or Allah.

    And even if the reference was specific, how do this *establish* a religion? What are the tenets of this “faith”? What are the requirements, if any, for members of the priesthood? What areas are religious sites for this “religion”?

    Mentioning the generic English word for a being of superhuman power is not the *establishment* of a religion, regardless of what you, Mr. Newdow, or the Ninth Circuit think.

  • Robert Alderson

    The pledge as it stands establishes religion in the form of a reference to ‘God’ in the daily life of students. I accept that ‘God’ is a generic term which need not be associated with one particular religion (although it is probably only applicable to monotheistic religions) but it clearly has a religious meaning. It excludes polytheistic Hinduism, probably excludes Budhism and certainly excludes atheism.

    I am not suggesting that a specific religion is being established merely that the establishment of religion in general in this way is unconstitutional. If you want to think of this in terms of establishing a specific religion then I would say it is a very broad church; the tenets of which are a belief in ‘God’ and not much more than that.

    It is incorrect to suggest that declaring ‘under God’ to be unconstitutional would require renaming Los Angeles or changing the speeches of past Presidents – these are not laws passed by congress establishing religion.

    I don’t have a problem with the concept of expressing religious sentiment in the public sphere or even with prayer in school but I do have a severe problem with the idea that Congress is passing a message to our children that you can only take part in a daily patriotic affirmation if you are prepared to utter the words ‘under God’ which do not accord with the personal beliefs of many.

    As far as I can see nothing else would follow from the decision to strike those two words. America would still be the most religious country in the Western world and everybody would still be free to practice their own religion in their own way.

  • Nick

    The law (4 U.S.C. § 4) simply gives the wording of the pledge. Congress has passed no law actually requiring anyone to take the pledge. How is this establishing a state religion?

  • John K

    I’m no particular fan of the Pledge of Allegiance, which I feel is a rather modern affectation.

    Nonetheless, I cannot see how it conflicts with the First Amendment. I think this Amendment clearly has in mind that there shall be no Church of America as there is a Church of England, ie an established religion. Public mention of God, or placing nativity scenes in public buildings, do not establish a religion. If there were to be no mention of religion in public life, it would have to be illegal to swear an oath on the Bible in court. This is plainly not what the framers of the Constitution had in mind. They did not want a Church of America. There is not a Church of America. The First Amendment has done its work.

  • Although I usually try to avoid legal arguments (I care rather more about something being right rather than legal the notion there is something in the US Constitution that prevent the state of even mentioning God is rather hard to support.

    Of course take all schools into the private sector and the controversy goes away. Certainly when I went to school in the USA, I found the POA a truly bizarre spectacle to watch but I find it hard to see how it blows a hole in any part of the Bill of Rights.

  • Midwesterner

    “Of course take all schools into the private sector and the controversy goes away.”

    Not quite. I attend meetings of a local body of government that has sweeping power over my daily freedoms and property and has a wide range of arbitrary power. There are typically 10-15 government officials present and 10-20 citizens in attendance. If I were to skip the pledge, everyone would know almost immediately and would to varying degrees alter their feelings and inevitably, there decisions.

    While I agree with your stand on schools, that is not the limit of the problem.

    My solution is a simple one. I substitute ‘constitution’ for ‘flag’ and ‘which it protects’ for ‘for which it stands’ during my recitation.

    With those two qualifying statements up front, I don’t have a problem with the rest, but I can see how others might.

  • John J. Coupal

    We seem to be way off-topic on the John Roberts quote…

    Roberts is a very intelligent guy. But, his addition of the mind numbing term “,you know,” in his response kids the yanks’ everyday use of “you know” as a time filler for when we feel the need to say something, but don’t have the words to do so.

  • Steph

    I can only say that to declair the pledge unconstitutional, the justices would then have to give up this tradition.
    “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God Save the United States and this Honorable Court!”

  • Midwesterner

    Steph, I don’t have to recite that as an oath, only listen to it.

  • Wild Pegasus

    The truly galling thing is the recitation of an oath to the government. That has no place in a free society, with or without “under God”.

    – Josh

  • Why there is so much support for this socialist statist claptrap is far more worrisome than the fact that they’re throwing God into the mix as well.

  • Brett

    This issue exposes the religious conservative. He who supports such government endorsement of religious belief (establishment of religion–the constitution does not say “church”) is trying to privilege his point of view.

    That the majority of the citizens of the United States support such privilege in no way excuses this violation.

    And no, “In God We Trust,” doesn’t belong on the currency, either. A traditional violation is still a violation.

    If, in the fullness of time, the U.S. became majority Moslem, would those who favor these and other practices quietly endure the switch to Allah? Not on your life.

    They are simply trying to claim that first amendment protections apply only to the religious. Busted!

  • Brett, speaking as an agnostic who has a fine working relationship with God (I stay out of his way and tell him to do the same), I cannot see why you get so bent out of shape over this superstitious stuff. As I and others have said before, I find legal arguments arid but clearly there is NOTHING in the Constitution prohibiting the mention of God, just a prohibition against setting up an state church like the Church of England.

    Moreover, given that many people regard the existence of God as an established matter of fact, no matter how daft that may strike you, why should they tolerate not being allowed to mention God just because it upsets you? I find words like ‘The People’ offensive because it presumes collective consents that do not in fact exist, but get over the fact people are going to say it anyway.

    You can pour derision on their invocation of some invisible imaginary friend if you like but as long as they are not passing laws that force you to accept that there is a God, they has as much reasonable expectation to tolerance as your views do. Oh sure, in an ideal world you should not have to worry about the use of the word God in anything to do with your tax dollars, but that is not the correct discussion to be having: have the state spend less of your tax dollars and therefore less and less of the ‘God’ stuff being mouthed by people in government has any relevance to you.

  • Robert Alderson


    I get bent out of shape by it because my child is daily coerced into reciting a pledge mentioning God. The idea of it being voluntary might be fine in theory for sophisticated, politically aware people who are confident enough of their views and are not afraid to stand up for their principles but it is no way to treat small children who just go along with what they are told – the thought of not taking part in the pledge will not have occured to them – and the consequences of not taking part in it in terms of ostracism and ridicule would be highly traumatic.

    The pledge is indoctrination in religion (in general not a specific sect) on my tax dollar.

  • Brett


    The upshot is that the government uses its power to openly claim that religious belief is respectable and non-belief is not. Nice. I don’t see how using the time of non-believers in governmental contexts constitutes a free exercise of religion.

    I’m not deriding religion; I’m deriding religious bullying, such as we see in court every day. They slap that Bible before you first thing when taking the oath. Sure, you have the right to demur and affirm that you will tell the truth, but that immediately prejudices the believers in the jury box, the bar, and even the bench against you. The pledge and the motton on the currency are part of this bullying.

    I don’t buy the argument that this amendment is about the establishment of a church; “religion,” and “church,” are not synonyms.

    All I seek in this quarrel is neutrality by the government. Religious belief is a matter for the individual; the government has no business promoting it.

  • Religious belief is a matter for the individual; the government has no business promoting it.

    Oh I agree, being the Godless Cosmopolitan that I am… I just don’t think it is as big a deal as you obviously do.

    “religion,” and “church,” are not synonyms

    No, I do not agree. Not in the context of the time in which the amendment was written.