Is the Pledge Unconstitutional

October 14, 2003 8:58 AM

A follow upon the debate concerning the Constitutionality of the pledge of allegiance. Apparently the Supreme Court is going to hear it.
posted by sourbrew (26 comments total)

My understaning is that the US supreme court usually only agrees to hear cases they are inclined to overturn. So that would make this announcement perhaps bad news for anyone that liked the previous ruling.

On the other hand, there are some folks in Georgia that will probably cheer. Who would want separation of church and state so long as the right religion is the one that is established. Now insert a reference to Mohammed or a monument to the Koran into peoples daily interactions with the state, and that would be bad for sure. Wrong religion you see.
posted by jester69 at 9:23 AM on October 14, 2003

Note particularly that Justice Scalia has recused himself from consideration of this case, possibly because of his public comments on the merits. This may set the stage for a 4-4 split on the court, which would have the effect of affirming the Ninth Circuit decision, but would have little precendential value. More commentary here and here.

My understaning is that the US supreme court usually only agrees to hear cases they are inclined to overturn. So that would make this announcement perhaps bad news for anyone that liked the previous ruling.

Jester, that's not quite true. The typical grant of certiorari comes in cases on which there is a split in the Circuits, e.g., the Seventh Circuit thinks the pledge is just fine, while the Ninth Circuit thinks "under god" must be striken. I don't have definite numbers in front of me, but the Supreme Court affirms quite a few of the cases it takes. It wouldn't surprise me if they affirm as many as or more than they overturn.
posted by monju_bosatsu at 9:26 AM on October 14, 2003

[pet peeve]Nobody, not ever, said that the Pledge of Allegiance itself is unconstitutional. The ruling was that it is unconsitutional for state-run institutions to require people to say the pledge (having it as part of a daily recitiation counts). Kids wanna run around the playground chanting it, they're fine.[/pet peeve]
posted by Karmakaze at 9:31 AM on October 14, 2003

Nobody, not ever, said that the Pledge of Allegiance itself is unconstitutional.

Actually, that's exactly what the court in Newdow I said. However, that opinion was withdrawn after the en banc call failed. Newdow II is limited to, as you mentioned, teachers and school children reciting the pledge in school. One difference, though, not only it it unconstitutional to require students to recite the pledge--that has been the law for fifty years--the Ninth Circuit held that it is unlawful for the teacher to recite the pledge with the words "under god" in front of the school children.
posted by monju_bosatsu at 9:40 AM on October 14, 2003

Monju, so you're saying that the original ruling said that Joe Average, walking down the street, would be breaking the law by reciting the Pledge of Allegiance? That a school child with the Pledge of Allegiance written on her noteback in white-out must be expelled from school? Then the Pledge of Allegiance itself was not "declared Unconstitutional".
posted by Karmakaze at 9:47 AM on October 14, 2003

Monju, so you're saying that the original ruling said that Joe Average, walking down the street, would be breaking the law by reciting the Pledge of Allegiance?

No, of course not. That is not what it means for something to be unconstitutional. When a law is declared unconstitutional, that means it is beyond the scope of permissible government authority. Prayer, for example, is clearly unconstititional--meaning that the government cannot engage in offically sanctioned prayer activities--but that certainly does not make it illegal. What Newdow I said was that it was unconstitutional for the Congress to put the phrase "under god" into the pledge--meaning that Congress did something it was not allowed to do, not that Congress did something no one was allowed to do.
posted by monju_bosatsu at 9:55 AM on October 14, 2003

insert a reference to Mohammed or a monument to the Koran into peoples daily interactions with the state, and that would be bad for sure

The main public argument for keeping christian icons and dogma IN public institutions is this:

"But it's what our country was founded on."

It brings a tear of laughter to my eye to see the Christian nutters on television, picketing for their right to display the holy tablets alongside Blind Justice, or mandate a religious chant in our schools.

They're confident they'll win, because, in their own words "the majority of people want this."

Unfortunately for these blithering idiots, our country was also founded on slavery, pogrom, and male supremacy. And the role of a democracy is not only to empower the majority of the voters, but to protect the rights of the minority against the caprice of that majority.
posted by scarabic at 9:58 AM on October 14, 2003

on preview, monu_boatsu beat me to it. unconstitutional isn't the same as illegal.

i would like some explanation on why putting the words "under god" into the "pledge" is unconstitutional in and of itself, rather than the practice of forcing kids or leading kids in reciting it.

on second thought, i guess it is required of new citizens as well. i thought it was more like "in god we trust" on coins, but i'd bet the pledge has broader implications.

i agree with the 4-4 vote. and Scalia is a pussy. no surprise on SCOTUS taking the case. they pretty much had to.
posted by mrgrimm at 10:07 AM on October 14, 2003

Monju, right, so the Pledge of Allegiance is not, and never was declared unconstitutional, because it's not a law, it's a poem. That's my peeve. A poem, by definition, cannot be "unconstutional". A law about a poem can be, and a policy about a poem can be, which is what this is about. But a poem can't be.

When people hear "Pledge of Allegiance has been declared unconstitutional", they take it to mean that it's forbidden by law, regardless of context. Look at the whole fuss following the original ruling, with people hysterically declaring that nobody could take away their right to teach their children the Pledge - because the ruling was being taken isolated from the context.

This annoys me the same way as the "Impeach Florio" stickers (from decades ago, in New Jersey) annoyed me, since it meant all those people didn't understand the difference between and impeachment and a recall.
posted by Karmakaze at 10:11 AM on October 14, 2003

Could me worse, could be Colorado.
posted by kaemaril at 10:23 AM on October 14, 2003

Ahem. Could BE worse.
posted by kaemaril at 10:24 AM on October 14, 2003

A poem, by definition, cannot be "unconstitutional".

Um, yes, it can. You're making the same mistake you claim to be peeved about. An unconstitutional act is, by definition, something that when done by the government, exceeds the government's lawful authority. The pledge has the words "under god," which, in the Ninth Circuit's estimation, meant that when the government said them it was acting in excess of its lawful authority. Ergo, the words "under god" in the pledge are unconstitutional.

I recognize that we're largely arguing about semantics, but I think my point is a valid one. Constitutionality, or conversely, unconstitutionality, is not an intrinsic property of any act or object. It only gains that property when coupled with government action. When I say that the pledge is unconstitutional, the government action requirement is built into that statement. It is perfectly valid, therefore, to say that the pledge of allegience is unconstitutional. I think we both agree, though, that doesn't make it illegal.
posted by monju_bosatsu at 10:26 AM on October 14, 2003

I apologize for not clarifying in the FPP that the decision was about schools.

I personally would like to see the wording changed, i think that messages that support god in our money and national pledge help reinforce the idea of "One Nation Under God." Not being a christian myself i have special affinity with the separation of church and state. I have no desire to live in the church state described by Scarabic.

I have no real hate or dislike for my fellow americans of the religious right, i merely have no desire to be like them, live my life like them, or acknowledge their religious practices in my daily life. Religion belongs at home, anyone who doesn't think that should look at the last 2000 years of Christian and Islamic relations.
posted by sourbrew at 10:39 AM on October 14, 2003

What bothers me about this story is actually the AP article itself:

WASHINGTON - The Supreme Court said Tuesday it will decide whether the Pledge of Allegiance recited by generations of American schoolchildren is an unconstitutional blending of church and state.

By "generations," the AP writer obviously meant, umm, you know, two, what with the Pledge only existing for sixty years and the words "Under God" only existing since 1954.

Sorry if it's nitpicky, but "generations of American schoolchildren" reeks of "apple pie and the flag how dare you change anything EVER it's America for God's sake" bullcrap.
posted by XQUZYPHYR at 10:52 AM on October 14, 2003

Dear Christians,

Every time you see the word "God" in the schools, on money, or anywhere near a state-run institution, mentally substitute "Our Dark Lord Satan" for a small taste of why the rest of us find it distasteful. For extra credit, try substituting "Allah", "The Tooth Fairy", or "John Tesh".
posted by majcher at 10:57 AM on October 14, 2003

Yeah, but no one worships John Tesh...do they? oh dear.
posted by agregoli at 11:02 AM on October 14, 2003

NOO!!!! Not John Tesh!
posted by kaemaril at 11:02 AM on October 14, 2003

When I say that the pledge is unconstitutional, the government action requirement is built into that statement.

In which case, the pledge is not unconstituional. The government action is. If you do not specify the government action, then the phrase is meaningless. Congress decreeing a change to a poem can be unconstitutional. A school requiring people to recite a poem can be unconstutional. The poem itself - just a poem.

If you don't specify the government action, then you wind up with the problem I described, where people assume (usually incorrectly) what action has been proscribed.
posted by Karmakaze at 11:16 AM on October 14, 2003

I think I could have written that much more clearly. Try this: "The Pledge of Allegiance is unconstitutional" means that "the Pledge of Allegiance exceeds lawful governmental authority." I still don't see how that's a problem.
posted by monju_bosatsu at 11:27 AM on October 14, 2003

John Tesh damn it! Will you guys stop bickering and get down to the serious business of spreading His word. Tesh died for your sins and all you can do is argue semantics.
posted by Outlawyr at 11:40 AM on October 14, 2003

Justice Scalia has recused himself from consideration of this case

Sorry to sidetrack, but I always wanted to know how a public servent could simply decide not to do their job at will and still get paid for the day. Does it work like that for anyone here?
posted by LouReedsSon at 12:41 PM on October 14, 2003

Law student dorkery ahead (all links PDF)

Court order granting certiorari (see page 2)
Ninth Circuit order denying rehearing en banc, Feb. 2003
9th circuit panel decision, June 2002

LouReedsSon, apparently Scalia made a speech earlier this year condemning the circuit court's decision. So having him hear the case would impeach his *cough* impartiality. His loss, though: The chances are quite good for a 4-4 tie, which would revert to the status quo under each circuit's jurisdiction.
posted by PrinceValium at 1:09 PM on October 14, 2003

Thanks PrinceValium, and I hear you about Scalia, but what about Senators, Congressmen, etc who opt not to vote on an issue? Shouldn't they always be required to do their damn jobs?
posted by LouReedsSon at 1:28 PM on October 14, 2003

Congressmen usually have to be three or four different places at any given moment when Congress is in session. If your MC is there voting on a bill making a minor change to some existing program (say, adding Gulf War II to the list of wars the VA can cover) that is going to pass 400-0 anyway, that's time that (s)he's *NOT* spending doing crazy stuff like actually writing law, or going through reports to see what laws should be, or meeting in committee, or meeting in another committee, or trying to keep the bureaucracy from getting farther out of line, or...

But your feelings are common, so a lot of MC's spend a lot of time doing stuff that's not going to make any difference instead of actually doing the work they were sent to do.
posted by ROU_Xenophobe at 5:11 PM on October 14, 2003

LouReedsSon, members of both Houses of Congress can be compelled to attend sessions when too few show up to constitute a quorum, as provided in Article 1, Section 5, Clause 1 of the U.S. Constitution. State constitutions - such as that of Texas - also contain such provisions, which is why the Democratic members of the Texas State Legislature had to flee the state to escape the jurisdiction of the Texas Rangers when they broke quorum in protest against redistricting.

As for voting, sitting on committees, etc., they still have to answer to their constituents every two/six years regarding their job performance.

And if you've ever watched C-Span for long periods of time (as those of us who are unemployed have), you may have noticed that long stretches of time are often expended on quorum calls, repeated votes, and other procedural minutiae that legislators use as opportunities to negotiate with each other; that is, when they're not in the committee meetings where things actually get done. Requiring legislators to be present for every vote would, like most micromanagement measures, actually impede efficiency by making it more difficult to work out the compromises that makes poiltical achievements possible.
posted by skoosh at 5:41 PM on October 14, 2003

hmmm... Thank you all for trying to educate me, and I mean that. But it still irks me that there seems to be the privilage to pick-n-choose issues they'll vote on. Me thinks that can lead to corruption, but then I'm incredibly ignorant in these matters! Thanks again though.
posted by LouReedsSon at 6:35 PM on October 14, 2003