"Meaning of" removing "under God"

[Robert Sheridan]

I'm still having trouble digesting this excerpt, from Mark Scarberry: 

"Retaining "under God" in the pledge -- with a right to opt out of the
phrase or out of the pledge altogether -- in no way sets up a religious
test for who can be a citizen. It is an invitation to citizens (and
others) to note that the state is not the highest authority."


My comment, if that point re: invitation, has any weight, is, "Why,
then, not let the state simply acknowledge that our constitutional law
and its subordinate laws are simply the best we can do to date, but this
doesn't mean there aren't other manmade humanitarian principles yet to
be recognized and adopted by us?"  Such as, for example, perhaps, the
abolition of the death penalty as a medieval barbarism that we are
nevertheless enamored of, by and large, despite whatever we should've
learned from the recent Illinois experience under Gov. Ryan (see the
Scott Turow reflection called "Ultimate Punishment," for particulars,
FSG, NY, 2003).

I'm willing to accept Prof. Scarberry's point that we may need to take
cognizance of other respectable law, whether called 'higher,' or
'natural,' or even, God forbid, British, German, Spanish or French, to
take just the Europeans, he chuckled as he wrote.  

It's when we delve into the supernatural that I begin to squirm, since
my supernatural is bound to be a lot different than a lot of other
folks' idea of the supernatural.

If I was able to outgrow Santa Claus (I was a fervent believer at one
point, and very disappointed when I wasn't), why am I not allowed by my
government to get past God, if I'm willing to take the heat? 

Do we have a Taliban of our own that I have to watch out for?  And
what's his name?  A-G Ashcroft?  S-G Ted Olsen?  Right-wing Christians
of a fundamentalist bent?  The right wing of the GOP?

Who is going to save me from their tender ministrations if not the Court
in the name of the First Amendment?  I may be about ready to don the
SamBenito, the robe and pointed hat worn by the condemned as they
performed their auto da fe...

I think the sooner we realize as a matter of national secular policy
that it's up to us to accept our own responsibility in picking, choosing
and otherwise devising the laws and other choices under which we'll
live, the better off we're going to be.  

Laying our problems off onto God seems to be asking for trouble, given
His/Her spotty track record, as in 'Thank God only 28,000 innocent men,
women and children were killed in the mudslide in South America' a few
years back.

Richard Feynman, physicist, observed that for many people, a sense of
uncertainty is unsettling.  They seek certainty.  Religion promises
certainty.  As for him, he said, he was comfortable with uncertainty.
It enabled him to ask why and how, to seek answers, to do science, at
which he became very good.

Why not put 'under Creationism' into the Pledge, let's say right after
'Under God'?  That ought to make a few people feel better at my expense.

Is government in the certainty business?




-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Monday, March 29, 2004 4:23 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: "Meaning of" removing "under God"

"Under God" seems a funny placeholder for the claim that "there is
something higher than the state."  Why not "consistent with the
categorical imperative."  Suppose I make the argument that lots of
religious people recognize the categorical imperative, so that phrase
should not be understood as excluding any particular theory of morality.
 Or is the claim that only religious reasons (and maybe a particular
kind of religious reason--do my Jewish beliefs count if I find them
human constructions) count as higher reasons.

Mark A. Graber

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 03/29/04 6:49 PM
>>>
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
respect.

 

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
level. 

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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