marty.lederman at comcast.net
Sun Mar 28 13:58:15 PST 2004
Recall that in Barnette itself, in support of the proposition that "[a]ny credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations," Justice Jackson gave the following examples (footnote 14): "Use of 'Republic,' if rendered to distinguish our government from a 'democracy,' or the words 'one Nation,' if intended to distinguish it from a 'federation,' open up old and bitter controversies in our political history; 'liberty and justice for all,' if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement."
----- Original Message -----
From: "Levinson" <SLevinson at mail.law.utexas.edu>
To: <fred.shapiro at yale.edu>
Cc: <WDellinger at OMM.com>; <CONLAWPROF at lists.ucla.edu>
Sent: Sunday, March 28, 2004 1:16 PM
Subject: Re: RE: RE: Meaning of
Fred Shapiro writes:
Actually, the Pledge of Allegiance was written in 1892...
I'm not sure that this vitiates Walter's point that "one nation indivisible," as of 1892,requires every white Southerner to concede that their parents and grandparents (and themselves, if they are old enough to have fought for the CSA) were fundamentally wrong, perhaps even traitorous (as suggested by Lincoln in 1861 but not, interestingly enough, in the Second Inaugural). Or maybe the way to explain it, to a child who asks, is that "indivisibility" is an aspiration, but not in fact a constitutional requirement. As Walter suggests, it is not clear that the four dissenters in the Arkansas term limits case--though I believe they were right on the merits--are committed to Lincoln's theory of the indivisible Union. Kennedy was at that time, but who knows if (or believes that) he has a coherent theory of what I have elsewhere called "the ontology of Union"? No one so committed to the "dignitary interests" of "sovereign states" could easily explain why they can't simply up-and-leave if they feel that they are imprisoned in a humiliating relationship that refuses to treat them with the respect their status merits.
So much of the pledge creates difficulties in one actually takes it seriously! It's so much easier to treat it as meaningless cant...
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