What do people think the Constitution requires as to Americancross medals?

Fri Apr 23 14:34:58 PDT 2010

this is true, but of course there were no Puritans left by 1787.

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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
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From: Jonathan Miller [jmiller at swlaw.edu]
Sent: Friday, April 23, 2010 1:47 PM
To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: What do people think the Constitution requires as to Americancross medals?

I suspect that some of this discussion is confusing nativism and reassertions of religion with a dilution of Puritan opposition to use of religious symbols.  I am not a historian, but I suspect that this discussion is so focused on finding when religious symbols came to be used by government that it is forgetting that there would have been enormous reluctance by many Protestants in 18th and 19th century America to allow public use of religious symbols that would have been seen as “Catholic” blasphemy.  Given the austere nature of Puritan churches and attitudes towards religious icons, I suspect that at least some of the phenomenon of increased use of religious symbols in American public life has nothing to do with law and constitutional attitudes, but only changing majoritarian religious preferences that now prefer greater use of symbols  – I yield to the professional historians on this point though.

Jonathan M. Miller
Professor of Law
Southwestern Law School
3050 Wilshire Blvd.
Los Angeles, CA 90010-1106
Tel. 213-738-6784

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul <paul.finkelman at albanylaw.edu>
Sent: Friday, April 23, 2010 10:24 AM
To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
Subject: RE: What do people think the Constitution requires as to Americancross medals?

The Navy Cross was esablished in 1919 and fits right into the discussion -- part of a Post WWI nativism that wanted to reclaim America of Protestants.  It fits with the rise of the KKK in the Oregon and Indiana (leading to Pierce v. Soc. of Sisters); the 1921 and 1924 immigration acts with discriminated against Catholic and Jews
 (I could raise the refusal of the US to allow Jews to land to avoid holocaust here as one of the results but then I would be acused of raising the Nazi card).   It is also part of the Red Scare of 1919 and the American response to "godless" communism.

Finally, aruging in the alternative, is is worth noting that none of these crosses are in the shape of the religious cross, because the horizontal and veritcal bars are the same size.  One would not look at this and think Christian Cross because it is not.  It is also worth noting that the Air "Cross" is actually a propeller from a plane. I append links to pictures of the Air and Navy crosses.

http://www.homeofheroes.com/medals/pages_wh/2n_ncross.html

http://en.wikipedia.org/wiki/Distinguished_Flying_Cross_%28United_States%29

*************************************************
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************

________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Friday, April 23, 2010 12:56 PM
To: 'conlawprof at lists.ucla.edu'
Subject: What do people think the Constitution requires as to American cross medals?
               The recent discussion makes me ask this – does the Establishment Clause require the U.S. government to change the design and the name of the Distinguished Service Cross, the Navy Cross, and the Distinguished Flying Cross?  Or is the history of those medals sufficient to justify retaining them, even if it were impermissible to create them today?

               I’m not asking what we think the government ought to do, as a matter of sound policy (which would of course require it to consider the interests of non-Christians who might object to the medals, as well as those people, Christian and not, who might object to a change away from tradition).  I’m asking what, if anything, the government should be required to do by the courts, based on their understanding of the ban on laws respecting an establishment of religion.

               Eugene
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