Congess's Constitutionality Authority for the Pledge ofAllegiance

RJLipkin at aol.com RJLipkin at aol.com
Thu Mar 25 13:53:20 PST 2004


        I have no objection to the idea of the federal government having 
"inherent powers," whatever that term means precisely. However, I believe that 
under most interpretations of that term, it is incompatible with the idea of the 
Constitution creating  a limited government with enumerated powers unless the 
Constitution quite clearly informs us how these inherent powers are to be 
restricted.   

        If that's right, then not only must I reconstruct my teaching of 
American constitutional law, but more important, courts must alter their 
understanding of the Constitution and the rhetoric they use to express that 
understanding.  For example, Chief Justice Rehnquist in Lopez writes: "We start with 
first principles. The Constitution creates a Federal Government of enumerated 
powers." And, perhaps even more startling, Madison's characterization of the 
limited federal government: "The powers delegated by the proposed Constitution to 
the federal government are few and defined. Those which are to remain in the 
State governments are numerous and indefinite." The Federalist No. 45.  Is this 
simply ritualistic rhetoric that no constitutional scholar worth his or her 
salt takes seriously? 

        I suppose one could argue that the proposition that the Constitution 
creates a limited government of enumerated powers means that the government is 
limited only in some cases and that the assertion that the government's 
powers are enumerated simply refers to the existing enumerated powers and does not 
entail the denial of other implied powers.  But I certainly would not be eager 
to be the one designated to make such an argument. 

        As I mentioned in an earlier post, my query concerning the Pledge was 
not designed to create debate.  (In fact, I confess my query was motivated by 
the anticipation that my students will raise this question in class.) Rather, 
I wanted to know from those who believe that the federal government is 
limited to its enumerated powers (subject of course to additional powers arising 
from the Necessary and Proper Clause), which provision or combination of 
provisions authorizes the Pledge. (I now have no objection to include the Flag in that 
query.)

        Perhaps the question is more interesting than I intended to be. So 
let me try to refine it, if possible.  Two questions are worth exploring: (1) 
Isn't it taken for granted, an element of the party-line, or a canonical 
principle that the Constitution creates a government limited to its enumerated powers 
(subject to the caveat mentioned earlier)? and (2) If so, how should we 
regard the many historical exceptions to this principle capable of classification 
as (a) ordinary laws having no apparent constitutional basis and (b) 
non-coercive or quasi-coercive pronouncements or acts such as the Pledge or the adoption 
of  a national Flag having no obvious location in the Constitution? Leaving 
(a) aside for present purposes, the question I now ask is this. Given the 
traditional understanding of the nature of the government the Constitution creates 
wherein lies Congress' authority to engage in (b)-type conduct?

        If one scoffs at such a question as naive or pragmatically 
unsophisticated, then I believe one should explain the compatibility of the traditional 
conception of the government created by the Constitution and the numerous 
departures from this conception. Perhaps such an explanation is simply that we've 
departed from the traditional government long ago and we're better off for 
doing so, or that a proper interpretation of the Constitution can explain 
(b)-type conduct, or some other explanation.  I welcome such explanations.  However, 
I do not think it is helpful not to take this question seriously. 



Bobby

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