Congess's Constitutionality Authority for the Pledge of Allegiance

[Marty Lederman]

OK, it so happens that I think the whole "limited government of enumerated powers" is much ado about nothing -- at least insofar as judicial superintendence is concerned.  See Charles Black, On Worrying About the Constitution, 55 U. Colo. L. Rev. 469 (1984).  But even if it weren't, and even if Congress doesn't, as a practical matter, have the authority to exercise "virtually unlimited police powers," 4 U.S.C. 4 is not the exercise of any "police" power:  It does not require, or even authorize, anyone to do anything.  Here's all it says:

"The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute."

Does Congress need an enumerated power to publish that sentence?

  ----- Original Message ----- 
  From: RJLipkin at aol.com 
  To: marty.lederman at comcast.net 
  Cc: CONLAWPROF at LISTS.UCLA.EDU 
  Sent: Thursday, March 25, 2004 8:50 AM
  Subject: Re: Congess's Constitutionality Authority for the Pledge of Allegiance


  In a message dated 3/25/2004 8:38:26 AM Eastern Standard Time, marty.lederman at comcast.net writes:
    Does Congress need any specific constitutional authority to "articulat[e]" anything?  Need there be an identifiable source of authority for a joint resolution?  For a "sense of the Senate" resolution?
              If we now embrace the reality that Congress is a body of virtually unlimited police powers, the answer to the above question is certainly no.  However, I try to impress upon my students that one respectable view of the objective purpose of creating a federal government in 1787 and the reason at least some people and several recent Court opinions continue to embrace this view is that the federal government is a limited government of enumerated powers.  Consequently, at least according to this (antiquated? naive? unrealistic?) conception of congressional powers, the answers to the above questions seems inescapably yes.

  Bobby

  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware
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