"Meaning of" removing "under God"

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Mon Mar 29 15:49:11 PST 2004

I can't make much sense out of Howard Schweber's response to my post.
Perhaps that's my fault. In any event, I am unwilling to swear blind, total
allegiance to the state. Perhaps Howard is. 


I am willing to give my oath to uphold the Constitution - as I did upon
being admitted to the Bar - but the Constitution includes lots of provisions
limiting the government, including the Free Exercise Clause. I have no
interest in having anyone swear allegiance to "the will of Odin," or even to
the will of God, as I understand God. I've made plain in my posts that the
reference to "under God" in the pledge is not a reference to any particular
conception of God; each person who says it can have his or her own
understanding of that term. The point is simply that there is something
beyond the state that limits the state and requires it to recognize rights. 


That is not the same as "condition[ing]" patriotism on "on our national
acceptance of a religious creed." To the contrary, it is conditioning my
personal commitment to the state on my understanding of the limits of what
the state can demand from me. I hope each of us has some limit on his or her
patriotism. Certainly the Founders had a limit on their commitment to the
King and Parliament, whose government they found "revolting"-and I think
they would have little trouble understanding the desire to place limits on
our pledge of allegiance to our Republic. 


The best understanding of "under God" in the pledge is as an invitation to
those who say it to recognize that their commitment to the state is not
unlimited, and that the state's right to demand their obedience is similarly
not unlimited. For the vast majority of Americans that recognition can be
stated with integrity by use of "under God." Those who cannot do so with
integrity must be respected; the values stated in the pledge require such


Mark S. Scarberry

Pepperdine University School of Law


-----Original Message-----
From: Howard H. Schweber [mailto:schweber at polisci.wisc.edu] 
Sent: Monday, March 29, 2004 12:13 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: "Meaning of" removing "under God"


Mark Scarberry wrote:

. . . [R]ealize that removing a phrase has a lot more meaning that just
never including it; a lot
of religious people will refuse to say the pledge if "under God" is removed,
because they will perceive the removal as sending a message that the state
does not recognize that it is limited. 

An interesting implication is that the "religious people" seem to overlook
the existence of the Constitution completely.  Our politicians swear an oath
to uphold the Constitution, not the will of Odin.  A second interesting
implication is that for these "religious people" patriotism is conditional
on our national acceptance of a religious creed.  Moreover, if the argument
above is true, then how can it not be the case that the inclusion of the
words is perceived by non-religious persons as sending a message that the
state embraces a theist position as an element of our national creed?  The
danger of an unlimited state may be met by a belief in a deity who has
established natural rights (and who, presumably, would be displeased by
their violation), but that is not by any means the only basis for justifying
a limited state.  Legitimating the political order by an appeal to a
theology seems to me just about the sine qua non of an Establishment Clause
violation under the endorsement theory.

Prof. Scarberry also wrote:
"Perhaps the need for such an invitation became clearer after we defeated
one enemy (Nazism), that held
allegiance to the state to be the highest obligation, and were in a life and
death struggle with another (Soviet communism) that held the same view. "

If the argument is that we should learn from the lessons of history, it is
worth noting that the Supreme Court in the 1940s an 1950s came away with a
very different lesson.  Furthermore, the Nazi state had plenty of support
from religious Christians, both in Germany and elsewhere, and historical
experience both before and after the mid-20th century demonstrates quite
conclusively that an appeal to divine authority does nothing to preclude
totalitarian political authority -- it may even encourage it.  One of the
things that makes America peculiar is precisely the combination of
individual rights and prevalent religiosity; historically, I submit, the two
have more often appeared in competition.  Even in the United States, today,
the "rights" that religion supports seem to be limited to those that serve
religious ends.  Where, for example, will I find an expression of
religiously inspired defense of the free speech rights of pornographers,
atheists, and communists?  Where is the religious argument that the state
has no authority to regulate sexual conduct among consenting adults, or a
religious argument against morals legislation generally?  Where do these
"limits" appear at all?  Obviously not all religious people could favor
limits on state authority in each of these areas, any more than all
non-religious people do.  But if religious faith is at the basis of our
national commitment to limited governmental powers, there should be some
indication of that fact in political and constitutional practice, shouldn't
there?  Note that the example of the civil rights movement showed the
opposite; that religious principle could be invoked to empower the
government to impose a more just social and political order at the local

Here's a thought:  divine limitation on state authority make sense primarily
against the background of a divine grant of authority to the state in the
first place.  Rhetorically, the Declaration of Independence may have needed
to include a claim to divinely bestowed rights to counteract the claim of
divinely bestowed monarchial power.  No one ever said that American
governments, at any level, got their authority from God, so there is no
obvious need for a countervailing argument that limits on those governments
have a divine source, either -- which may have something to do with the
absence of any reference to God in the Constitution.  The greater danger
that the Nazi and Soviet examples demonstrate, I think, is that a state that
claims absolute moral authority is immune from countervailing challenges to
its political legitimacy.   Constitutionalism requires moral agnosticism;
that's what distinguishes politics from war.  Liberal constitutional states
remain limited precisely because they are "secular" in the broader sense of
being uncommitted to metaphysical claims, whether neoHegelian,
nationalistic, or religious.

Howard Schweber

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