"Meaning of" removing "under God"
VOLOKH at law.ucla.edu
Sun Mar 28 13:12:02 PST 2004
Well, I can't speak for religious conservatives on this list (except to say that, despite Sandy's kind words, there actually aren't that many who post here regularly -- check out the archives at http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/2004-March/author.html and see for yourselves).
But I am pretty sure that this debate, as with most debates about government religious speech, is chiefly about symbolism. Recent threads have focused on the symbolic meaning of the "under God" -- but I suspect that many religious conservatives would worry about the symbolic meaning of *removing* "under God." My guess is that many of them would see that meaning as being (1) a repudiation of the importance or even the existence of God, (2) a repudiation of the propriety of acknowledging God in public life (in public schools or otherwise), or (3) a broader endorsement of a secularist worldview over the religious worldview.
Now one can certainly argue that people *shouldn't* ascribe such a symbolic meaning to the removal of under God. Perhaps they should conclude that such removal merely means that religion is so important and sacred that it ought not be tainted by connection to government, or that religion is wonderful but religion will flourish more if the government doesn't speak religiously, or that the spiritual objections of some students are so important that we must honor them even while we think that religion plays an important role in public life. Perhaps. But my guess is that they simply don't find those claimed meanings to be as plausible as one of the three meanings I identified in the previous paragraph, or something close to it.
If that's so, then some of them might even agree that things would have been better if "under God" had never made its way into the Pledge -- but conclude that, now that it's there, the symbolic harm of removing it far exceeds than the symbolic harm of maintaining it.
From: conlawprof-bounces at lists.ucla.edu on behalf of Levinson
Sent: Sun 3/28/2004 3:35 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Re: RE: RE: Meaning of
I don't want to sound ungracious, but I note with interest that none of the ordinarily voluble religious conservatives on this list (whose participation I cherish--I told some people I was with last week that by far the most diverse troup with which I regularly interact is the people on this (and the religionlaw) list) has responded to my question as to their preference between the upholding the pledge under the rubric "civic deism, i.e., it really shouldn't be taken seriously" or striking it down on the premise that "under God" indeed asserts something very important (and very theological). (I assume, incidentally, that a Supreme Court decision upholding the Ninth Circuit would be followed within 48 hours by Rove/Bush announcing their support for a constitutional amendment putting the words back, and I would be shocked if Bush, however much Rehnquist dismissed him as an authority on the meaningn of the pledge, would justify putting it back in on the grounds offered by his Solicitor General. I assume that he would stick to what he had written earlier (and which Newdow quoted so effectively) about indeed recognizing the existence of God.
I note, incidentally, that Chief Justice Burger, in the last case involving loyalty oaths, Cole v. Richardson (arising, perhaps appropriately, out of Massachusetts) upheld the "affirmative," "I will be faithful to the Constitution,-" oath on the ground that it was just-this-side-of-meaningless (in contrast to the view, say, of Kurt Godel, that affirmation of loyalty to the Constitution, taken together with a no-holds-barred view of Article V, committed him to affirm the validity of Naziism so long as it came through the Article V process). I had a student many years ago who was sufficiently warped by my teaching as to ask the Texas Bar, before he would sign sign the rote oath of fidelity to the Constitution, what exactly their theiry of "the Constitution" was. They regarded the question as beyond the pale and refused to let him sit for the bar. Shades of George Anastoplo!
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