"Meaning of" removing "under God"

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Tue Mar 30 14:57:10 PST 2004

Prof. Schweber continues to misunderstand my point. I'm happy to have Odin
worshippers think of Odin when they say "under God" in the pledge. The whole
point of my defense of "under God" (or at least the major point) has been
that so many of us with so many different religious or quasi-religious views
can use the term in good conscience. 


Further, Prof. Schweber's notion that I must have forgotten the existence of
the Constitution if I think a belief in something divine is needed in order
to uphold liberty is also puzzling, or perhaps just dismissive. Jefferson
noted, as Dan Conkle pointed out, that belief in God was the foundation for
religious liberty. I might remind Prof. Schweber that the Soviet Union had a
constitution that guaranteed, on paper, lots of wonderful human rights. In
1954 Congress certainly had before it an example of a state (the USSR) that
rejected any notion that it was limited by any higher principles and which,
as a result, ignored the written guarantees of rights in its Constitution. 


Mark S. Scarberry

Pepperdine University School of Law


-----Original Message-----
From: Howard H. Schweber [mailto:schweber at polisci.wisc.edu] 
Sent: Tuesday, March 30, 2004 2:29 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: "Meaning of" removing "under God"


Prof. Scarberry wrote:
Send me a post suggesting that I've forgotten that the Constitution exists,
and that I'm in favor of swearing allegiance to Odin, and I'll give you a
sarcastic response too.

Prof. Scarberry is offended at the notion that he might favor the religious
preferences of Odin worshippers in addition to those of Christians.  That's
really the point, isn't it?  One man's revealed-true-God is another man's
pagan idol.  Which tells us something about the supposed ecumenicism of the
word "God" in this context.  Polytheists, worshippers of a female divinity,
worshippers of multiple divinities, atheists, and agnostics -- a group not
yet mentioned, I notice -- have reason to resent having the state tell their
children that a single, male, "God" rules over the United States.  That may
or may not be problematic under the Establishment Clause, but surely the
resolution of the issue turns on some principle greater than "the majority
likes it this way."  If the value of the religious affirmation is that it
identifies the limit to the authority of the state, how is it that the
authority of the state extends to dictating theology?

Prof. Scarberry was also upset at the suggestion that he had forgotten about
the Constitution.  I don't know what I'm missing here, but Prof. Scarberry
said that in the absence of belief in divine natural law there is no
restriction on the state.  Well, what happened to the Constitution?  The
Constitution, with its notable lack of any reference to divine authority,
stands as the greatest declaration of the Enlightenment belief that people
can be committed to a secular political order that restricts the authority
of the state.  For that matter, what other than a belief in a metaphysical
mandate has ever justified an unlimited state?  And it is not only the state
that is to be feared; religious pogroms of one kind or another have chased
as many refugees to these shores as overreaching civil authority.

Let me remind anyone who is still reading of what started this exchange.
Prof. Scarberry declared that "religious people" -- among whom, I now know,
he includes himself (which was not at all clear at the outset -- will refuse
to say the Pledge at all if it does not contain a reference to divinity
consistent with their particular conception of that term.  The proposition
that patriotic allegiance should be held hostage to satisfaction of
sectarian demands raises disturbing speculations that I will not explore

I would be interested to hear if there is anyone out there who, as a child,
declined to recite the Pledge and did not feel ostracized for doing so.
Every person I have spoken to who was in that position suffered consequences
ranging from social embarrassment to physical violence.  I also submit that
it is preposterous to think that a 5, or an 8, or a 12 year old child will
understand "[a] nation under God" to mean "the state is not omnipotent nor
legitimately omnipresent" rather than "God rules us."  Justice Kennedy had
it exactly right in Lee:  "Finding no violation under these circumstance
would place objectors in the dilemma of participating, with all that
implies, or protesting.  We do not address whether that choice is acceptable
if the affected children are mature adults, but we think the State may not,
consistent with the Establishment Clause, place primary and secondary school
children in this position."  Declare all the theistic dogmas -- in the name
of any god you choose -- at home, or in your church, or in private
conversations, or on the courthouse steps.  But do not force it on my
children in the name of "liberty."

Howard Schweber

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