Dear Dahlia,
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StumbleUponThis pledge firestorm is all about logic versus experience.
Here's what I can glean from the opinion. A California parent, Michael Newdow, brought the suit arguing that the policy and practice in his daughter's public school of teacher-led recital of the pledge, with the "under God" phrase included, violated the Establishment Clause. Although his daughter was not required to recite the pledge herself, he argued, and a three-judge panel of the 9th Circuit agreed, that the recitation itself in her classroom violated the Establishment Clause. The court went one step further and actually declared that the 1954 addition of these words to the pledge was itself unconstitutional, apart from its use in the public school classroom. (It's hard to see how there is really standing on Newdow's part to make that last claim, but that sort of legal nicety seldom stops the 9th Circuit.)
So what are we to make of this? I think that the decision is, on balance, regrettable, but before I join the pounding on the 9th Circuit, let me say what there is to be said for the decision. There is no doubt that a religious idea is being endorsed here by the government. And that the endorsement of religion was the very reason for adding this phrase to the pledge in 1954. The sheer logic of the court's school prayer cases admittedly extends to this use of "God" as part of a government program.
And one may also say for the 9th Circuit that many attempts to defend "under God" have their logical problems. Take, for example, Justice Brennan's defense of invocations like this and "God save this Honorable Court." He said that such rote recitations over time lose their religious meaning and basically become just background noise. But, defenders of the 9th Circuit respond, "From whose perspective are we measuring the loss of religious meaning? Religious content fades into the background a lot more easily for majority adherents than it does for religious minorities (and especially for newcomers to our land) for whom 'under God' may be a lot more salient." And it troubles one friend to excuse official repetition of religious phrases on the ground that rote repetition deprives those phrases of any real religious content. "Isn't that kind of loss of religious meaning one reason why the Establishment Clause tells government to leave religion alone?" she asks.
So as a matter of logic, there is something to be said for the 9th Circuit panel's conclusion. If we really believe that private religious activity is to be protected and government religious activity to be prohibited, this sure looks like government religious activity—a program composed and instituted by an act of Congress is hardly private speech.
But it nonetheless seems to me to be an unwise decision. What the 9th Circuit panel fails to recognize is the very important proposition that every principle has its stopping point, beyond which it simply does not have enough force to carry the day. You can use Latin and call the inclusion of "under God" de minimis. Or you can get to the same place by using common sense and saying that this is not a big enough deal to make a federal case over. And that's what should have been done.
The best e-mail I got this afternoon came from a young colleague who humorously points out the complete constitutional gridlock that results if you treat minor passing references to God as rendering government acts unconstitutional. Article VII of the Constitution itself—which makes the document operative as a proposal for ratification—concludes "done in Convention … the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven … ." If "Year of Our Lord," like "under God," can make something unconstitutional, then the Constitution itself is unconstitutional and the court's decision a nullity. In fact, without the Constitution, the 9th Circuit doesn't legally exist. So we are in a logical trap!
Putting humor aside, I think a decision like this can do some harm. It threatens to bring ridicule on a very important proposition—that government has no business either advancing or inhibiting religion and no business either endorsing or disparaging religious beliefs—by stretching that proposition to its extreme limits. This decision will be a move to the head of the Parade of Horribles, now marching through downtown San Francisco, and will be cited by those who would seek to amend the Constitution to permit active government promotion of religion. I expect the full 9th Circuit, which has the power to reverse this panel, will do so quickly and let this decision, logical to a fault that it is, quietly fade away.
Regards,
Walter
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Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)