Last time I read the Constitution (I admit it's been a while), I didn't find anything like that, even in the penumbra of the penumbra.
But Justice Harlan Fiske Stone, in what has become a celebrated dissent, treated even the pre-"Under God" pledge as a kind of religious ritual mandated by the state, designed to advance "conformity" rather than "religious liberty."
And then he added this great line:
History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities.
And then three years later, a different Supreme Court (a couple of new justices) reversed itself in West Virginia State Board of Education v. Barnette, and speaking for the new majority, Justice Robert Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Yes! The pledge is a kind of forced confession of orthodoxy. No, not water-boarding, but coercion nonetheless. Especially for peer-group-pressured school kids. Even if they have the right to opt out. In past school-prayer cases, the court has resisted the idea that the state should be implicated in even the social coercion or propagation of religion.
Busybody school boards and bombastic anthem peddlers at ball games should let people find their way to allegiance in their own fashion rather than making "allegiance" an implement of state power used to extract oaths.
Is it possible—is it conceivable—that at great risk to his political ambitions Barack Obama is doing things like doffing the flag pin and putting his hands at his sides during the anthem because he is being honest about the inner reservations he may feel at such practices?
Not the pledge. He's told an affecting story about how his grandfather taught him to put his hand over his heart while taking the pledge.
Still, that picture in the viral e-mail of Obama listening to the anthem while standing—looking all casual, with hands clasped—next to two people with hands over their hearts, could be taken two ways. It could suggest that he doesn't think there's anything wrong with the anthem, but it's not as deserving as the pledge of hand over heart. Or it could be a way of saying that sacralizing a song with hand to heart is akin in meaningfulness to wearing a flag lapel pin. And that he's not going to disguise his attitude for superficial political considerations. That, in a way, he's saying, "If you reject me for being honest about this, it's your loss as well as mine."
It's probably too much to hope that it's all that deliberate. That he feels it's worth making a point, starting a debate about real patriotism, rather than faking it for the sake of making it. If he does, though, his argument is intellectually superior, however politically inopportune. And not a distraction from "real issues" like the war, because arguments about what is and what isn't "American" and "un-American" are being thrown around indiscriminately in that debate.
Justice Harlan Fiske Stone was in an 8-1 minority when he dissented and called the pledge for what it was. Now we revere his words. As we do Justice Jackson's "fixed star" analogy. I'm sure Obama, a Harvard law school student, is quite familiar with these decisions and the thinking behind them.
Is it too much to hope that's what's going through his mind? Maybe. But Obama's all about the audacity of hope, right?
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