"Meaning of" removing "under God"

Conkle, Daniel O. conkle at indiana.edu
Wed Mar 31 07:34:22 PST 2004

Thanks to Paul for his gracious comment, but I think it actually was
Mark who cited the religious language in the Declaration of
Independence.  What I noted was Jefferson's reliance on God in
justifying his Virginia Bill for Religious Liberty; and I earlier
suggested that nonsectarian and symbolic references to God have a long
history and tradition in American governmental practice.  I do think
that my points and Mark's, coupled with Tom Berg's helpful arguments on
the religionlaw list, indicate that this issue may be more complex --
certainly as a historical matter -- than some might think.
Paul's points help highlight that complexity for those who share Mark's
sentiments, and Mark's arguments, as well as my points and Tom's, might
add some complexity for those inclined to agree with Paul.
Dan Conkle 
Daniel O. Conkle 
Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Wednesday, March 31, 2004 12:51 AM
Cc: 'Scarberry, Mark'; Conlawprof at lists.ucla.edu
Subject: Re: "Meaning of" removing "under God"

	Quite franklly, I doubt you would be so easy going about this if
the pledge said "one nation under Allah" or "under Zeus" or "under the
Great Spirit."  Yours is sadly typical of what de Tocquville identified
as the tyranny of the majority.  Your faith is not offended by the
pledge, so you naturally assume that everyone else should be happy with
	I also think the arguments about Jefferson are a bit out of
context, despite my respect for Dan Conkle.  What the men Dan mentioned
had in common is that they all refused to put in our public documents
any acknowledgement of God in the context of the Jews or the Christians.
Instead, they carefully and thoughtfully used terms like "nature's God"
or "their creator" and specifically prohibited religious tests for
officeholding.  You on the other hand, endorse a daily religous test for
good citizenship.  I a religious test for the President and the Congress
is offensive to the Constitution, then surely it must be offensive to
the Constitition have Congress and the President team up to impose such
a test on 5 year olds in order for them to prove their patriotism.
	Paul Finkelman
	Paul Finkelman
	Chapman Distinguished Professor of Law
	University of Tulsa College of Law
	3120 East 4th Place
	Tulsa, OK   74104-3189
	918-631-3706 (office)
	918-631-2194 (fax)
	paul-finkelman at utulsa.edu



		-----Original Message-----
		From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
		Sent: Tuesday, March 30, 2004 2:57 PM
		To: Conlawprof at lists.ucla.edu
		Subject: RE: "Meaning of" removing "under God"


		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



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