What I read here is "Why can't the Republicans be more libertarian?" Of course the answer is that it's a conservative party, not a libertarian party. We do have libertarian elements who are trying to push more libertarian ideas.

I agree with you on some of the specific issues you raise--drugs, for example. The euthenasia issue in Oregon is a little tougher, but I could go with a states' rights argument on that, particularly if it's understood that this is part of the "laboratory" of the states. But I'm not ready to get outraged because the Bush Administration sees it as part of the culture of life they are pushing. An area where I may disagree with the President, but not such a crucial issue in my mind that I'm ready to bolt the party (or work for the election of Democrats).

You're a little off track on the judicial activism part though. I would disagree entirely that the problem is courts not protecting individual rights; rather the issue seems to be the courts' failures to protect states' rights (as in the case today banning execution for crimes committed while the defendant was a minor).

What I read here is "Why can't the Republicans be more libertarian?"

I'm sorry that you read that. I'm not lecturing or wishing that social cons be anything other than what they are. I'm simply pointing out inconsistency in the arguments that assume a natural alliance with other portions of the GOP coalition, an assumption that breeds arrogance.

Make no mistake, there will be a conflict, what's unclear is its severity. Your interpretation oversteps my intent.

I would disagree entirely that the problem is courts not protecting individual rights; rather the issue seems to be the courts' failures to protect states' rights (as in the case today banning execution for crimes committed while the defendant was a minor).

My definition of judicial activism (gleaned from common conservative definitions) is a decision that:

1. Contradicts duly created legislation, federal or state. "Legislating from the bench."

2. Decisions that use muddled interpretations of the Constitution to achieve political solutions (this would govern the conservative complaint about "privacy" establishing Roe). Not "strictly interpreting the constitution."

Individual rights often intersect with #2, and the definition of "rational conservative judicial activism" was specifically pulled from that "Center for Individual Rights" link, which makes the case for a natural alliance between small "l" libertarian GOP'ers and social cons with regard to judicial activism.

As I said, I'm not ASKING social cons to change - much. I'm just highlighting that some of their assumptions about people like me are wrong, wrong, wrong, and ignoring these considerations ignores natural moderation of their power.

So, Bill, what this gets at is the fact that social conservatives and moderates such as yourself find themselves in a temporary alliance against a common foe (for now it's Leftie Moonbats). Social conservatives are encouraged by the fact that Bush won re-election despite much foaming at the mouth, and now seek to push the country and policy the same way that they accuse the Dems of having done in the past, and as far as that goes, it's an understandable reaction, in my opinion.

Which, of course, doesn't necessarily make it right. Just understandable. I suppose the danger they face is, as you've outlined, making the assumption that there is more to their consituency than there really is, making moves to appeal to "their base", and trying to push social and legal agendas that will only wind up alienating the middle (Holy cow, does that sound familiar) and bringing candidates into office who oppose those sweeping changes.

So what happens when both sides make moves toward their perceived base? Where would the middle go?

Bingo.

The middle moves around or attempts to steer the party in their direction. When this fails they bolt to the alternate option or, as would be the case with the moderate-right's alternate option of today's horribly flawed Dem Party, they either swallow the unpalatable portions of the righty agenda, stay home or splinter into a third way - which inevitably tips the balance to the left. (see Perot, Ross)

All of this - including the social con instincts to aggressively push their agenda - is completely natural.

The real points that I'm making to social cons are - don't assume natural alliances or forget the depth of natural divisions, don't push TOO hard to the point where it's strategically counterproductive, and avoid stupid, arrogant rhetoric that unecessarily alienates your looser allies.

While I look forward to the discussion of the issues you raise, I think your view of "judicial activism" is somewhat off the mark.

In the "Death With Dignity" case, the legal issue was that the assisted suicide measure violates a federal law regulating controlled substances. The Constitution says the duly passed acts of Congress are "the supreme law of the land". Regardless of how one feels about assisted suicide, the legal issue, to be decided by the court, is whether the Oregon law violates a specific federal law, which would render it null and void. This is not judicial activism, it is the only proper way to adjudicate an apparent clash between different statutes. The alternative would be for the executive branch to pick and choose which federal laws will be enforced, and which ignored in favor of state laws.

The second case you cite seems like a rather similar instance. There is a federal law banning use of drugs that Congress, for whatever reason, believes are harmful. I'm not at all familiar with this case, but it appears to be an attempt to circumvent federal law by avoiding commercial activity and thereby evading the commerce clause (i.e. the argument is that if someone wants to give away, say, crack cocaine, Congress has no Constitutional power to regulate it, since it doesn't involve commercial activity). This seems remarkably Clintonian... In any case, what is at issue here, again, is the federal government's interest in enforcing "the supreme law of the land", in the face of state legislative nullification. Who should resolve such disputes, if not the courts?

Concerning McCain-Feingold, you cite a charge of "judicial activism" levelled by John Fund. The bulk of the article in question deals with other decisions, attempting to point out a pattern. I don't think upholding McCain-Feingold is an act of judicial activism. I think it's an act of judicial malfeasance. In this case, the court refused to uphold the clearly worded intent of the First Amendment, in a ruling that flies in the face of past rulings involving free speech (i.e. the MOST protected form of speech is political speech). To that extent, I think strong criticism is merited, although in this particular case, "judicial activism" is the incorrect diagnosis. How much MORE explicit should the First Amendment have been worded, to make it clear that the government cannot do what McCain-Feingold does? "Congress shall make no law (NOT EVEN "JUST ONE") ... abridging the freedom of speech ... AND WE'RE NOT KIDDING EITHER"?

Which brings us to the dangerous words "under God" in the Pledge of Allegiance. There are a host of legal arguments why this doesn't violate the establishment clause. Since we're strict constructionists here, let's remember what the document actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

I think a strong case could be made that ANY state-compelled speech, religious or not, would violate the freedom of speech, barring a compelling interest (such as the oath compelling witnesses to tell the truth while giving testimony). I am not so sure, in the case in question, reciting the oath was mandatory, however (were students who stood silently punished in any way?) I have not heard of a case where a student (as opposed to a parent without custody) filed suit, based on real or imagined harm resulting from reciting the pledge. If they had, we could assess the actual harm in concrete terms. If a student was disciplined or otherwise disadvantaged as a result of refusing to recite the pledge, it would seem to me appropriate to view the law that resulted in that sanction as Constitutionally invalid.

But, as concerns the establishment clause, what it says is that the state cannot establish an official religion. That's what "establishment" meant when the words in question were written, and a number of states had "established" churches at that time.

I claim (as a lifelong atheist) that the words "under God" in the pledge of allegiance do not rise to the level of establishing a state religion.

Precedent in these cases has adopted a three-pronged test of what sorts of government activities violate the establishment clause - a test far more stringent than the Constitution itself suggests, but let's suppose we can agree the test is reasonable, nonetheless.

In summary, the so-called Lemon test requires that any law must have a legitimate secular purpose, must not have the primary effect of advancing or restricting religion, and must not excessively entangle the government and religion.

The argument you cite as grounds for banning the pledge seems to me to rely on the weakest possible argument - that reciting the pledge of allegiance with the words "under God" in it has the primary effect of promoting religion. This seems to me extremely dubious. One might claim, with about equal plausibility, that a law sanctioning gay marriage fails the test since it has the primary effect of restricting religion (i.e. any government act which you disapprove of, based on your own religious beliefs, is unconstitutional).

More practically, if even the most trivial and harmless recognition of a generic and non-specific deity runs afoul of the establishment clause, the only thing that will pass constitutional muster would seem to be a society in which no public official or entity EVER even hints at religion. The words "In God We Trust" on money, the use of a bible in an inauguration ceremony, a reference to a deity in public speech, all these would be an affront. And the net effect would be a violation of the much-overlooked second half of the establishment clause: "...or prohibiting the free exercise thereof".

In any free society, we have to strike a balance between differing points of view. Freedom from a state-sponsored religion is not the same as freedom from ever hearing a government official say the word "God". Washington, Jefferson, Lincoln, and FDR, among many others, all regularly made generic (and not so generic) references to a deity, as means of exhorting their fellow citizens to do what was right. Attempting to cast utterly trivial and generic references to God as unconstitutional strikes me as an attempt to repudiate much of what has animated and inspired America for over 200 years. As such, even as an atheist, I see it as liberal, anti-American activism spinning out of control and fundamentally un-conservative. If America's past and present leaders had not been moved by a moral imperative, this would be a much poorer, and meaner, country. And not the sort of country we should bequeath to those who come after us, either.

This post is already too long. I'll try to address what I think judicial activism means, and why conservatives and libertarians of any stripe should oppose it, in a later one.

The real points that I'm making to social cons are - don't assume natural alliances or forget the depth of natural divisions, don't push TOO hard to the point where it's strategically counterproductive, and avoid stupid, arrogant rhetoric that u[n]necessarily alienates your looser allies.

I don't consider myself a social conservative (or a fiscal conservative, or a neocon), but that's clearly good advice for all concerned.

All we have to agree on now is what's "strategically counterproductive" and "stupid and arrogant rhetoric" - and how hard could that be?

The problem, to the extent there is one, is largely one of perception vs. reality, it seems to me. Hard-core libertarians see even the suggestion of some policy as an affront - even if the policy has no chance of implementation, or meaningful enforcement in practice. In other words, they see the government as far more effective in social matters than it actually is. Hard-core social cons, on the hand, see the government as not doing enough in this area. In other words they think government could be a far more effective in social matters than it actually is. And, if I may be so bold as to co-opt the language by lumping myself into the category, "realists" see this as a process in which, to quote Pete Townshend, "nothing in the street looks any different to me, and the slogans are replaced by-the-by." (i.e. it all makes very little difference in the end).

To be cynical, I guess I see it as salutary for our leaders to be vocal in support of personal responsibility, a culture that honors and protects life, and respecting the traditions that have made this country the greatest in the world. In effect, the "stupid, arrogant rhetoric" plays an important role in balancing the torrent of socially-destructive values and theories from the left and the media. Probably more important than actually putting their social-con agenda into practice through legislation, since legislation is almost completely ineffective in accomplishing anything in this area, in my view. What matters more than what's in the statute book is what's in peoples' hearts and consciences.

In my view, we are so far from a society in which social conservatism burdens our liberties, that it seems like fantasy to discuss it as though it has any chance of happening. We're about as far from that (despite what the libertarians and left may tell themselves) as the Soviet Union was from Marx's proletarian utopia and we have about the same chance of getting there anytime soon through legislative or judicial action (despite what the social cons tell themselves).

There are other areas, like defense, economic policy, etc where government is far more relevant, so it seems foolish for either side to ascribe dire consequences to the relatively inconsequential ascendency of the other. In the end, the parting on the left will become a parting on the right, the social cons will get to deliver their sermons, the libertarians will still happily smoke their pot, and the gays will still happily cohabitate, if they want to.

Thus, the general admonition against "judicial activism" has no inherent, automatically consistent ideological meaning to me.

In most general terms, I would define it as usurping their proper constitutional role. But then we have to agree on what that role is.

The landmark Marbury vs. Madison decision, which established the principle of judicial review, is a remarkable document - a treatise on the role of the courts in our system:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

If one takes a legalistic (as opposed to "make it up as you go along") attitude toward the law, it is noteworthy that in laying out the case for judicial review, the court cites clear examples where a law of congress directly conflicts with the Constitution:

It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?

The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

It seems clear that searching for "penumbras" and "emanations" was not part of the original mandate for judicial review. Rather, the principle was that the courts cannot ignore the Constitution when applying the law, and that (as Chief Justice Marshall reasoned eloquently) the explicit intent of the Constitution always trumps acts of Congress, or else the Constitution (whose primary function is to set boundaries on the power of the government, including Congress) is meaningless.

Basically the appropriate role of the Supreme Court is to resolve questions concerning the interpretation and application of existing laws and the Constitution. That includes perceived conflicts between state and federal law, between different lower federal courts, and conflicts between the laws of Congress and the more fundamental law of the Constitution.

There are probably some hard-core types who are unpersuaded by Marshall's opinion, but I find it unassailable.

What the courts all-too-often do today, though, is far indeed from what Marbury spells out. It is undemocratic for the unelected and unaccountable to legislate, and inimical to every conservative and libertarian value for a judge to arbitrarily render decisions on the basis of their personal prejudices, rather than what the Constitution and the law actually say.

There is nothing a priori "activist" about asking a court to resolve a conflict between two laws, or between a law and the constitution. What is activist, and should be condemned, is for judges to place their own personal opinions above the acts of the people's elected representatives, and the Constitution. In other words, to rule on the basis of what they wish the Constitution said, rather than what it in fact says.

I get your drift, Bill, and think the point valid, although LagunaDave makes some excellent arguments that your specific examples may not be so great.

Absolutely, if the Republican party wants to maintain dominance, it needs to not alienate too many of those groups of individuals voting for it that have widely divergent beliefs on matters, as LagunaDave says, which have no great influence on our society as a whole.

Laguna: What are some examples of judicial activism from the Right and the Left in your estimation?

Obviously politics and personal beliefs have become evident in courtroom procreedings. Do you think this has become more prevalent due to the politicization of judicial appointments, or more due to an unwillingness to "police the police" as it were?

And, agreeing that legislating morality is generally an ineffective way of persuading a society to embrace the legislator's morality, we'd also agree that there are benefits and limits to the practice, yes? Some are obvious (murder, prohibition), while others skirt a gray area (hate crime laws, obscenity laws). The judiciary plays a vital role in moderating the reach of the legislature. Do you think they have generally been fulfilling their part as the check and balance?

All to often it seems to me as the whole system blatantly abdicates it's various roles. You suggest it is generally harmless, but it is a phenomena that seems to be snowballing. At some point, the failure of the government to moderate itself could reach a boiling point.

This then, may be the ultimate role of groups such as libertarians, but for them to be a truly moderating effect, it requires the presence of true moderates (or perhaps just schizophrenics) in elected office.

I can't even address the abundance of LagunaDave's points (so, so many), but here are a couple:

In the "Death With Dignity" case, the legal issue was that the assisted suicide measure violates a federal law regulating controlled substances.

Used in a medical setting, for medical purposes. If this isn't judicial and executive activism - aggressively interpreting a controlled substance law in an effort to contravene state legislation that centers around medical choices, i don't know what is.

The mortally ill patients aren't opting for euthanasia by pot or cocaine, btw.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
I think a strong case could be made that ANY state-compelled speech, religious or not, would violate the freedom of speech, barring a compelling interest (such as the oath compelling witnesses to tell the truth while giving testimony).

This makes almost no sense to me. Your argument is bizarre, in fact. A special test and protection for religious speech was purposely added to the First Amendment, because religious belief systems are historically sources of such animation. This is why an "establishment clause" exists, front and center, in the First Amendment.

And this ...

barring a compelling interest (such as the oath compelling witnesses to tell the truth while giving testimony).

Is actually one of the few instances where the Constitution specifies that citizens CANNOT be compelled to speak. Fifth amendment.
Concerning McCain-Feingold, you cite a charge of "judicial activism" levelled by John Fund. The bulk of the article in question deals with other decisions, attempting to point out a pattern.

Uh, and the pattern is specifically completed by the McCain Feingold decision, which was my point about inconsistency in the definition of "judicial activism."

Some of these arguments are just semantical distractions, IMO. Moving on ...

In summary, the so-called Lemon test requires that any law must have a legitimate secular purpose, must not have the primary effect of advancing or restricting religion, and must not excessively entangle the government and religion.

The argument you cite as grounds for banning the pledge seems to me to rely on the weakest possible argument - that reciting the pledge of allegiance with the words "under God" in it has the primary effect of promoting religion. This seems to me extremely dubious.

1. The phrase "under God" was not added for, not does it have, a legitimate secular purpose.

2. It was specifically added 50 some-odd years ago to promote the concept that the US was a theistic nation in comparison to the USSR, and its place a pledge in a pledge in public schools certainly advances the cause of religion. Why are religious groups fighting so hard to keep it?

3. And again, the government mandating religious speech (and dont start down the road that it's "not compelled" - children would rather saw their heads off than have to make a spectacle of themselves in fromt of a classroom of their peers) is an excessive entanglement, especially examining the express purpose of the legislation that belatedly added it.

More practically, if even the most trivial and harmless recognition of a generic and non-specific deity runs afoul of the establishment clause, the only thing that will pass constitutional muster would seem to be a society in which no public official or entity EVER even hints at religion. The words "In God We Trust" on money, the use of a bible in an inauguration ceremony, a reference to a deity in public speech, all these would be an affront. And the net effect would be a violation of the much-overlooked second half of the establishment clause: "...or prohibiting the free exercise thereof".

This is the most annoying thing about this issue - absolutism. A daily, recited, effectively compelled pledge by minors in a public school is leagues different than a politician referencing God, references to God on money or a host of other religious references in govt. or public society.

These references actually meet the test of "ceremonial deism." Even an adult swearing an oath under God with a bible in a courtroom is less compelling, because an adult has greater faculty to say "no." That being said, I'd maintain that active public oaths with God and Bibles have no place in a modern courtroom.

I am not so sure, in the case in question, reciting the oath was mandatory, however (were students who stood silently punished in any way?) I have not heard of a case where a student (as opposed to a parent without custody) filed suit, based on real or imagined harm resulting from reciting the pledge. If they had, we could assess the actual harm in concrete terms.

Common high school peer reactions to atheism are horror, shock or distaste. The "harm" does not have to stem from official sanction - the "harm" from a room full of peers questioning a rather public refusal to say the pledge is a problem. In addition, if a child is taught atheistic belief at home, the state is officially contradicting the parent's chosen religious belief.

1. A minor's perception of harm is secondary or equal to a parent's right to raise the child in a chosen religious belief system.

2. A group of parents with legit custody are winding their way up to the Supreme Court as we speak.

What is particularly interesting about the argument over this issue is the inability for people to apply the concepts of minority religious belief to atheists. There are more atheists in this country than there are Jews, yet if the pledge refernced Jesus, or some other specific mention that spoke to a religion with an overwhelming majority, the case for neutralizing the language would still be much more clear.

Instinct and affection for religion, a defensiveness about the overall removal of religion from the public square, as well as a common distaste for or misunderstanding of atheism as a legitimate belief structure animates the terms of this debate, not the Constitution. In short, politics. And politics are a worthy consideration, but not when you are going by a strict standard that despises "judicial activism."

Trust me, I've met atheists that have beliefs that are as strident as an Evangelical's about the place and existence of God, and want their children raised accordingly. And once again, as an analogy, if Jews had to declare fealty to Jesus, the issue would be viewed in a different light, though it is very similar.

And again - there is a serious political component of the argument that advocates for the continued inclusion of the pledge - but my point is about the accusation that "activist judges that don't strictly interpret the Constitution" are attacking "under God." It's an inconsistent and backwards charge, IMO.

Thanks for the topic, Bill. Over the years I've struggled with making sense of the political definitions of "Conservative" and "Liberal." [Dean's got a good essay (rerun) about this at deansworld now.] Some aspects of the modern Conservative mentality bother me a lot. I find the worst tendencies to be immodest, invasive, slothful and legislatively promiscious. Early in the prior century, these people were called "Prohibitionists." The demeanor didn't change thought the liquor laws did. The modern prohibitionist lacks temperance. The modern prohibitionist infests both Republican and Democrat camps. The distemper that defines them is anti-Jeffersonian. I think it would be helpful to lump them together and begin to refer to them as anti-Jeffersonians, whether they are on the Republican or Democrat side.

The "harm" does not have to stem from official sanction - the "harm" from a room full of peers questioning a rather public

I'm sorry but this logic can be used to justify each and every form of liberal moonbatism.

Raising Atheism to the legitimacy of Judeo Christian beliefs (foundational to western civilization) is a big big stretch.

It is not a minor detail that the constitution claims rights come from God, regardless of whether a specific entity actually exists in our universe. The concept is fairly central to the whole notion.

Our rights are God given (ie not derived from state or tribe or ownership) even if there is no actual God. AFAIC atheists who enjoy the benefits of living in a free Judeo Christian country can put up with a little cognitive dissonance.

Another terrific post, Bill. I agree with you that the stresses in the party right now are the product of very natural, human urges on the part of social conservatives and libertarians alike. And, just like many other natural human urges, once we’ve identified them they need to be sternly repressed.

The role of government is one area where social conservatism seems to part company with the larger conservative movement. I don’t think it’s too unfair to describe the social conservates’ view of this issue as pragmatic—they oppose government in some areas (environmental regulation, affirmative action) and favor it in others (media censorship, marriage). This differs from the general nanny-state position only in the details—the sociocons still think that the power of government, properly applied, is the cure for what ails ya.

In fact, government is a pretty blunt, crude instrument of social policy, as some of the examples you gave made clear. It’s also rife with unintended consequences, and frequently flat-out counterproductive. Has the European welfare state done anything good for charity, family security, or good education?—all values it was meant to enshrine.

I sympathize with the sociocons when they resent having liberal values shoved down their throats, but we part company when they imply that the problem is the liberalism, not the throat-shoving. If they want to organize a protest against Buster the Bunny, I have no problem, even if I think their point is mean-spirited and idiotic. If they want to legislate or regulate the show off the air, we’ve got a problem.

IMHO, most of the issues important to the sociocons are better addressed outside the political arena entirely, aside from the strictly negative goal of opposing government when it actively promotes a competing social agenda. One point conservatives definitely have right is that politics is a smll part of life, not vice versa; at times we get so wrapped up in the game that we lose sight of that fact.

Raising Atheism to the legitimacy of Judeo Christian beliefs (foundational to western civilization) is a big big stretch.

I'm not "raising" anything. They are equal in the eyes of the law.

The "harm" does not have to stem from official sanction - the "harm" from a room full of peers questioning a rather public

I'm sorry but this logic can be used to justify each and every form of liberal moonbatism.

Most "moonbatism" doesn't stem from a compelled daily pledge of allegiance to religion in a public forum.

Once again, you are raising political arguments over a legal issue. These political arguments have weight, but don't have nearly as much weight in a realm that's strictly interpreting Constitutional Law, which is what conservatives like to trumpet as rationale. And you aren't examining the specific federal law that added the phrase "under God," not for the metaphorical expression of inalienable rights granted from a higher authority than man, rather as an explicit declaration of the United States as a theistic nation, in contrast to atheistic Communism.

Let's also keep in mind that the active removal of traditional references to God can be interpreted as endorsement of the absence of religion. Sending that message from the Federal government is far more dangerous that keeping things like "under God" in the Pledge.

Let's apply your standard to any new attempts to enshrine religious stuff into government stuff and leave alone anything that can reasonably be called "tradition". That should provide just the kind of reasonable, defensible compromise that keeps everybody just a little unhappy!

God = religion ?

If so then the constitution IS religious and law based on it would not grant equality to atheism.

But that's the wrong, wrong, wrong way to frame the issue. God is used as a concept in our system and the pledge may invoke it on that basis.

The square root of -1 may not exist but it is a necessary concept for many math systems. If you are going to base your arguments on reason, you should drop the dogmatic legalistic quibbles.

Let's also keep in mind that the active removal of traditional references to God can be interpreted as endorsement of the absence of religion. Sending that message from the Federal government is far more dangerous that keeping things like "under God" in the Pledge.

No offense, but I find this sort of preposterous.

Religion will flourish or wilt in public life on its own merits. Considering the fact that there are plenty of outlets outside of govt. for religious expression, and religion seems to be a natural inclination of humankind, I suspect it will do just fine, even if every G-O-D was stripped from government compelled discourse.

By the way, I DO object to the removal of all traditional references to God on items like money, primarily because it's a passive expression that's not compelled on others.

God is used as a concept in our system and the pledge may invoke it on that basis.

Once again, you are examining the general concept of "God" as a device in government, and avoiding the discussion of the specific 1954 law's overtly religious intent.

And the actual use of "God" in this instance does not even fulfill the standards of a metaphorical device that you cite.

In my opinion "one nation under God" can be loosely interpreted as acknowledgment that the pledge is limited in scope. "Render unto" the nation but remember there's a higher concept.

Sure, your interpretation is historically likely, but I don't think it's wise to get into item by item debate over every use of the word.

Religion will flourish or wilt in public life on its own merits.

That's a reasonable argument, but not on topic. We're talking about potential friction areas here that could shatter a coalition we would rather see remain. Social conservatives--the Religious Right--see their values being removed from public life by the Federal government. By the courts. They interpret this as endorsement of atheism.

We need to find a common principle that accomodates both sides, and "tradition" should be that principle. Once you actively support actually removing traditional religious symbols from public life, you are going over the line of "separation" and delving into disestablishment.

Whether or not religion survives or not doesn't to me seem to be the issue. Tempering your demands to accomodate people of faith in a reasonable and logically defensible fashion would seem to be the answer. Failure to take such an opportunity always seems to me like there's maybe another agenda at work here.

That's a reasonable argument, but not on topic. We're talking about potential friction areas here that could shatter a coalition we would rather see remain. Social conservatives--the Religious Right--see their values being removed from public life by the Federal government. By the courts. They interpret this as endorsement of atheism.

Good point, that is the larger discussion.

Though the specifics of this post get into social con claims of a desire for a non-political judiciary that are at odds with reality.

I don't really want to comment on the merits of your argument, aside from stating that liberterians should start their own party and try to get votes (oh wait, they've done that and failed miserably). Instead, I want to comment on how you identify yourself as a "moderate" republican.

One thing that drives me nuts is anyone either describing themselves, or someone else, as a "moderate." Doing so is an intellectual dodge and an insult to everyone you disagree with. I assume, b/c you are a "moderate" republican, I must therefore be an "extremist"?

What does it mean to be a "moderate"? Nothing. All it means is that you believe your opinions on issues to be correct and reasonable, while anyone who disagrees with you is "extreme."

Ultimately, "liberterians" must decide what they want more - a government that has no moral values whatsoever (i.e., social libertarian) or a government that is less fiscally confiscative. You can gripe all you want about social conservatives, but in the end, the choice is yours to go your separate way and see where that gets you.

Most conservatives would rather lose an election or two then go down the path of promoting "heather has two mommies" and its ilk. You argue that b/c homosexual relationships exist, we should teach about them in schools in positive ways. That is a lazy argument. Certainly all kinds of negative things exist in this world. Must we teach children about all of those negative things in positive ways in schools (i.e., molestation, incest, abortion, physical abuse - of which there is much more of than homosexuality)? I would guess that you would not condonce the same. thus, you are doing what you claim to be against, i.e. making moral value judgments - (a) is ok to teach children but (b) is not.

At least have the courage of your convictions.

One thing that drives me nuts is anyone either describing themselves, or someone else, as a "moderate." Doing so is an intellectual dodge and an insult to everyone you disagree with. I assume, b/c you are a "moderate" republican, I must therefore be an "extremist"?

What does it mean to be a "moderate"? Nothing. All it means is that you believe your opinions on issues to be correct and reasonable, while anyone who disagrees with you is "extreme."

Hey, however you want to interpret it. Most people consider "moderate" to mean just right or left of center on most issues. But milk that righteous persecution complex, friend. Savor it.

And the "courage of my convictions" states that I don't find anything inherently repellent about same sex families, not regarding them as any way analogous to issues like "molestation, incest, abortion, physical abuse." In fact, the idea is ludicrous and offensive to me, but then again, I'm not an "extremist."

And personally, given the hostility of your comment, I'd probably just skip the "extremist" label and just label you an "arrogant jerk."

Is that clear and "courageous" enough for you?

If the present Republican coalition fractures, I think will cleave along the seismic fault of Jeffersonian principles. The ˆpoliticalˆ exploitation of the Pledge of Allegiance controversy, from its legislative origins, represents a quarrel between opposing factions which both seek to prohibit, through legislation, the adoption/use of a pledge that does not honor their personally favored views about religion, be they agnostic or otherwise. Both factions seek to violate a basic premise of Jeffersonianism on which our great nation is founded. A passive reference to G_d in governmental processes or symbols does not violate the independence of the individual. But, as in the case of the "g_dified" Pledge in its unfortunately adulterated form, to have the state compel the individual to engage in such, or to be compelled to subordinate themselves to voicing or swearing to such reference is not a proper role of the state within the lives of its citizens. This is the very type of corruption of individual liberties that Jefferson and the founders sought to avoid.

I guess I was unclear on more than a few points. I'll try to be more brief...

Concerning assisted suicide, my quick and admittedly superficial research indicated that the issue involves whether federal law allows a doctor to prescribe a medicine whose purpose is to kill the patient.

In any event, this is a state law vs. federal law (as opposed to Constitutional) question, and if the federal government has the power to regulate the medical profession, or potentially harmful drugs, then it is properly decided in the federal courts. If Congress has this power, it also has the power to change the law that (may) forbid assisted suicide.

My reference to an oath had nothing to do with the Fifth Amendment. Indeed, there is an exception against self-incrimination. I was talking about witnesses other than the defendant being compelled to affirm something (because the government has a vital interest in truthful testimony).

I'm surprised you called my argument "absurd", because I thought I was (partially) agreeing with you. Compelling a person to affirm something they don't believe in (whatever the substance) seems to me a much harder pill to swallow than a vague reference to a non-descript deity.

Not sure where you went to school, but I don't remember *my* third grade class competing to see who could be the most diligent in conformance to the rules... I don't buy the argument that children are as fragile as you suggest. If so, we are in really big trouble, because they're being bombarded with countless other messages by teachers and media that are far more inimical to their well-being. As one very astute commenter pointed out in one of the earlier thread, the question is not whether values will be imposed, but whose (and I might add, to what degree).

I think this is what makes the issue disproportionately important to social (and to some degree other) cons. They perceive their children as under a relentless siege (to them, at least). They see the pledge as one of the few remaining vestiges of something more positive and wholesome. A tiny sliver of light in an otherwise bleak wasteland of moral relativism and decadence. And now you want to take that away too. The social cons have been retreating for decades, and have already conceded 90% of the ground they held a few decades ago, within living memory of many. I see their agenda as defensive - in fact, to the point of desperation. They've already lost so much that their antagonists have to go looking through the Pledge of Allegiance, word by word, to find something left to take away from them.

I'm surprised you called my argument "absurd", because I thought I was (partially) agreeing with you. Compelling a person to affirm something they don't believe in (whatever the substance) seems to me a much harder pill to swallow than a vague reference to a non-descript deity.

As I said, religion is a special, unique case, explicitly outlined in the First Amendment.

Not sure where you went to school, but I don't remember *my* third grade class competing to see who could be the most diligent in conformance to the rules... I don't buy the argument that children are as fragile as you suggest.

If you aren't aware that a child can and probably will be reviled to some extent as an atheist, then you either grew up in Haight-Ashbury or are far removed by time from a middle American classroom.

Religion should be OFF THE TABLE in school, simple as that. There is a reason for this.

We need to find a common principle that accomodates both sides, and "tradition" should be that principle. Once you actively support actually removing traditional religious symbols from public life, you are going over the line of "separation" and delving into disestablishment.

Whether or not religion survives or not doesn't to me seem to be the issue. Tempering your demands to accomodate people of faith in a reasonable and logically defensible fashion would seem to be the answer. Failure to take such an opportunity always seems to me like there's maybe another agenda at work here.

I very much agree, although I tend to think religious symbolism (including the Pledge) is largely a proxy for the real issues here.

How should we be guided by "tradition" in areas like, say, abortion, or assisted suicide, or embryonic stem cell research?

My attitude would be: let's hear the best arguments both sides can muster, and let the political process decide.

The problem with "judicial activism", in my view, is that it short-circuits this process, declaring some topics closed for further discussion. Whereas a legislative defeat can always be reversed, or at least the energies of the defeated can be channeled into trying to reverse it, once the SCOTUS gets a case, it becomes winner-take-all. This has clearly been bad for our political and legal systems, because by usurping political authority, the courts become much more deeply mired in the process they are supposed to impartially arbitrate.

Religion [God] should be OFF THE TABLE in school

This very recent modern notion reeks of intolerance.

A government founded on the basis of "endowed by our creator" is certainly allowed to mention the creator in public. The concept is not simply religion as much as you would like to conflate the two.

"All men are created equal" is a useful concept for government regardless of it's literal accuracy. Quibbling over the meaning of equal or men is just that.

A thing to always keep in mind is that democracy by its nature is made up of shifting and sometimes uneasy coalitions. This is a normal state of affairs, and in its own way is reassuring; if you have majorities who within their coalition disagree on nothing of substance, you have to wonder if something frightening isn't going on.

This very recent modern notion reeks of intolerance.

I disagree. Strongly. Vociferously. Stridently.

It is perfectly understandable that individuals will want to raise their children according to their religious beliefs, with no overt contradiction from the state.

If the Pledge said "under Jesus," this point might be more clear to you. But you can't distinguish non-belief as a form of protected religious expression.

The fact is, a lot of people have very strong opinions about religion, and their right to not have their children declare fealty - or for the government to explicitly contradict their position in a compelled statement of patriotism - is highly reasonable. The pledge is a case apart from the use of God on historical documents or money, for reasons that I've outlined over and over again in the comments above.

Public schools are not the forum for the promotion or degradation of religious belief, period.

If I were to say that I think that your failure to understand this as a legit paradigm strikes me as "intolerance" ... well, how would you like it when I use that characterization? It's quite easy to use, but that doesn't make it appropriate or rational. The Constitution is very clear.

Some religions claim faith is a gift from God. If Jesus appeared to me and said "open your heart and I will give you the gift of faith", I would first listen intently for the tell tale hum of a holographic projector. Then I would say, "you seem like a reasonable sort of deity, so I'd rather have the gift of reason."

To me, the refusal to 'tolerate' the concept underlying a very successful (naturally selected if you wish) way of life seems intolerant. It is too far a stretch of reason to advocate the elimination of a useful and successful concept on the basis of an interpretation of some words which clearly meant something else to the people who wrote them.

I'm going to have to stop arguing with you.

1. You still have not addressed the case in the context of the belated addition of the phrase.

2. You also fail to address analogies to other belief structures, like a hypothetical infringement on Jews (a smaller religious minority than atheists) if the pledge said "under Jesus")

3. You are still addressing political issues, not Constitutional ones.

This is a logic exercise, not a "feeling" exercise.

Religion should be OFF THE TABLE in school, simple as that. There is a reason for this.

I agree. It seems where we disagree is whether the Pledge constitutes religion in the classroom, or just a harmless civic-minded activity. Your attitude is either more moderate or more extremist than mine, I'm not sure which...

I didn't go to school in Haight-Ashbury (b. Detroit, 1963, actually) and I don't even remember whether we said the Pledge in my public school or not. I do remember that we did all kinds of Christmas activities, including making decorations in Art class, singing Christmas carols in Music class, in-class discussions and essays on "What Christmas means to me", etc. I'm pretty sure we did St. Valentine's Day hearts and Easter Bunnies in spring too. All I know is, as a vehicle for religious indoctrination, it failed miserably for me. I never remember being bothered by it either, frankly.

I guess what I'd like to understand is: why is this a problem a today, when it was never a problem before? This comes back to spongeworthy's point - things generally either change on their own, or we change them intentionally, for a reason. Steps to make religion disappear completely from places where it's been on the fringes for centuries seem to me to be making a statement: "This thing is wrong." And if it's wrong now, wasn't it wrong in the past too?

Absent any demonstrated harm to an identifiable victim (as opposed to an abstract point of constitutional law), it's difficult to see the why we should repudiate the past. Having to put up with something you find a nuisance is not, as far as I'm concerned, harm.

The point seems to be, there are more atheists now than in the past. You wanted to talk about legal arguments, but that's a political argument, isn't it? I mean, the law has been around for 50 years. What's changed, other than the political climate (more assertiveness on the part of some atheists)?

You say religion is a unique case, and seem to think the weight of the First Amendment falls more heavily on the side of protecting us *from* religion. I find it more balanced and symmetrical. Atheists and non-atheists both have to tolerate and respect the other.

You wrote earlier:

1. A minor's perception of harm is secondary or equal to a parent's right to raise the child in a chosen religious belief system.

Isn't this the argument most frequently cited by the other side? There will be many encounters, over the course of 13 years of school, that may challenge the parent's "chosen belief system": sex-Ed, evolution, any number of books or lessons. In many cases there may be real disciplinary or academic penalties for non-conformance, not just annoyance or teasing (perish the thought that our children might tease each other!) I don't think we should take any of these off the table, either.

If the Constitution's so clear, then why do we keep going back--and each side of this argument is guilty here--and plucking various quotes from the Federalist Papers and such to try to justify our positions? In a historical context, there isn't much to justify removing religious references from county courthouses.

And this is the crux of that issue, AFAICS--as Dave said, we've done about all we can do without really turning this crusade into the appearance of a government endorsement of secularism or even atheism.

Now the Pledge presents a special problem since the history there got mangled along the way and I could understand rolling that back. But this deal of having the Federal government get involved with a local judge citing Scripture and such is at least as dangerous as the wildest fear that could spring from him doing so. It just isn't worth it.

And sure, new science presents all kinds of problems for this leaky coalition. But those can be settled as we would settle this--reasonably and logically. And the reasonable and logical solution to keeping this issue from rending the coalition is to say, "Enough destruction of tradition. It's gone far enough. You atheists can sit on your laurels. You won, but enough already."

Frankly, it seems to me that those who cannot be satisfied with this compromise are those strident atheists who won't be satisfied until they get to scream, "It's a myth, a goddamn fable, you idiots!" into the faces of every religious person in the country.

This is an extremely interesting and important thread. I think the central issue here is the "big tent" concept the the Republican Party should be pushing. Compromise is always at the heart of democracy, and indeed, of all reasonable (non-violent) human commerce, and as has been suggested in the thread, a reasonable compromise leaves everyone a little unhappy, but no one mad.

I view myself as conservative on almost all issues, but I'm not religious at all. If anything, I'm an agnostic, yet I embrace the basic precepts of the Judeo-Christian religions, and see nothing at all wrong with the general expression of these precepts. If the pledge contains a generic reference to a deity, that is no more objectionable that those same references in our Declaration of Independence and Constitution, yet you see no effort to rewrite those documents (not yet, anyway!).

You still have not addressed the case in the context of the belated addition of the phrase

1. I did address it in this fashion:

"one nation under God" can be loosely interpreted as acknowledgment that the pledge is limited in scope. "Render unto" the nation but remember there's a higher concept.

It seems to me this is a more logical approach than focusing on the anti-commie-atheist aspect. Today's resistance to removing it may have other deeper motivations.

2. As a concept God is different than Jesus.

3. For me the issue is not political, it has bearing on the constitution and it's interpretation. The concept of rights for instance.

If the Pledge said "under Jesus," this point might be more clear to you.

If it said "under Jesus" it would be obviously unconstitutional, AFAIC. But it doesn't say that.

But you can't distinguish non-belief as a form of protected religious expression.

I can't speak for the person you wrote this to, but I not only distinguish non-belief as a form of protected religious expression, I practice it.

There's an interesting tension in this discussion between what Bill calls "political" and "legal" (or let's say more accurately, "judicial") arguments. We can either argue on the basis of "what is the right thing to do now" or "what does half a sentence written 200+ years ago REALLY mean". The political route seems more fruitful - we may be able to find a mutally acceptable compromise. The issue will be decided broadly, by everyone who wants to express their preference. At worst, you might have to come back in a few years when more people agree with you. On the other hand, the sentence in question clearly admits of a variety of interpretations, and the legal/judicial route boils down to a matter of opinion (or degree, if you like) in which one side or the other is just wrong, and once the matter is decided by one or a handful of unaccountable law-givers, they will remain "out-judged" indefinitely. It seems rather doctrinaire and inflexible, and it's what I think is fairly called judicial activism.

We are stronger and more whole as a society when we can work these things out ourselves, without appeal to legalisms and hair-splitting.

I have to agree Bill. In fact, I think libertarians are the true conservatives. Social "conservatives" actually want the same nanny gov't liberals do, just in a different way.

I used to be totally against abortion rights, gay marriage, and decriminalization of illegal drugs. But the more I learn and think about these issues, the more I realize they aren't that black and white,a dn the more I lean toward the libertarian view. Today, I support first-trimester abortion (after that, adoption should be the preferred option), I would vote for gay marriage (but don't want it imposed by the courts), and I think illegal drugs should be handled more as a medical problem and less as a criminal justice issue.

I'd like to add, tne saving grace of conservative judges is that they tend to be stricter constructionists as opposed to the legal contortions performed by liberal activist judges that tend to amount to judicial fiat. I think outrage over the anti-democratic practices of liberal activist judges has been one of the primary reasons conservatives are winning elections.

I used to be totally against abortion rights, gay marriage, and decriminalization of illegal drugs.

Which means you should be glad, now that you've changed your mind, that you didn't go to the Supreme Court to have them banned, right?

It's conceivable you might change your mind again. Any of us might change our minds about issues like this, especially ones where values are involved.

That seems to me all the more reason to prefer the more adaptable political system, which is tailor-made to respond to changing views. The legal system, on the other hand, is based on the idea that once a point of law is decided, it stays decided. Altering a Supreme Court decision (by amending the Constitution or packing the court) is the most difficult of all political hoops to jump through. There are issues so big that we need this ultimate weapon against the majority, but I think they are few, and the Pledge of Allegiance isn't one of them.

If it said "under Jesus" it would be obviously unconstitutional,

That judgment makes me chuckle. Why?

"a very "strict constructionist" interpretation of the Constitution would probably strike "under God" from the Pledge of Allegiance."

I'm curious as to how you reach this conclusion? Looking at the 1st Amendment again:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Strict Constructionist:
"Congress" - If we are referring to any government body, why does it say "Congress?
"shall make no law" - as far as a know, there is no Congressional "law" requiring the recitation of the Pledge
"respecting the establishment of religion" - the words "under God" don't come close to establishing a religion - and if they do, which religion? Protestantism? Catholicism? Judaism? Mormonism?
"or prohibiting the free exercise thereof" - even leaving out the previous points, having the words "under God" in the Pledge hardly represent prohibition of free exercise of religion - you don't HAVE to say the pledge

When combined with the 10th amendment, which reserves rights not previously granted to the Federal Govt to the states, the argument can easily be made that individual states CAN establish religion, future amendments not in the original Constitution notwithstanding.

If you wish to argue that CURRENT constitutional law accepts an INTERPRETATION of the 1st Amendment that sets up a "separation of Church and State", that's fine - but that INTERPRETATION, which is a RECENT ONE (

...finishing previous post...

anyway, the separation of church and state is a recent - less than 100 years - interpretation, and is hardly strict constructionist.

So it is NOT a conflict between strict constructionist and recognizing the rights of non-Congressional government bodies to promote a belief in a non-denomination/inter-denominational God.

go to the Supreme Court to have them banned

That whole idea of "going to the Supreme Court to have them banned" troubles me greatly. The Supreme Court should not be deciding these issues; they are supposed to interpret laws, not make them.

In any case, your premise is flawed. Should Roe v Wade should be overturned that would not ban abortion, it would just make it a state issue rather than the current federal blanket approval for whatb is often de facto infanticide. Similarly, marriage is not a right but a legal contract: again, it should be a state issue. If Mass. or Vermont voters legalize gay marriage, more power to them. I'd even vote for it. I just don't want the courts to start asserting positive rights (things the gov't must do for you) because it sets a terrible precedent.

The “one nation under Jesus” line made me smile too.

I can understand the point though. “Jesus” is obviously, patently, and unarguably a belief, or feature, or aspect associated with a certain, specific religion.

On the other hand “God” or “god” is more fuzzy. “God” could be argued to be a much more abstract, almost philosophical concept.

"God" is a feature of many religions, but it doesn't necessarily follow that all references to a god have religious significance.

drc,

Very good points re 1st Amendment that we keep making over and over but no one ever seems to understand.

Drudge states in his headline that the Supremes are now taking on the “10 Commandments” issue. I can see a whole lot of similarities between this case and the pledge issue. But I might be missing something.

Are there judicial or political aspects of this case that make it different from the pledge issue? Or are they one and the same?

"Congress" - If we are referring to any government body, why does it say "Congress?

Who exactly said anything about any governing body? And the law that added the phrase "under God" was created by Congress.

"shall make no law" - as far as a know, there is no Congressional "law" requiring the recitation of the Pledge

You would be wrong. Subsequent court decisions declared mandatory recitation unconstitutional.

"respecting the establishment of religion" - the words "under God" don't come close to establishing a religion - and if they do, which religion? Protestantism? Catholicism? Judaism? Mormonism?

The law was intended to distinguish the US as a theistic state, and it's an effectively compulsory pledge in compulsory public education. Reasonably interpreted - and by the text of the specific law - this "establishes" religion. Not "a" religion, but "religion." Which is what the document says.

A. You can play fun games and posit that a religion needs laws, rules, funny hats, etc., but a specific definition of religion is not outlined in the consititution.

B. Here lies the point: you obviously can't wrap your mind around the concept that atheism is a religious (non)belief structure on equal footing with various forms of theism.

This failure is THE fundamental disconnect between people on diff sides of this issue. I personally think that it's dissonance bred by comfort or religious bias.

And the fact that you are poorly informed about the specific law in question - it's NOT a state law, for example - sort of tanks your comment.

Are there judicial or political aspects of this case that make it different from the pledge issue? Or are they one and the same?

Well, for one, your children don't have to recite the ten commandments in an oath of fealty every day; it's a passive expression of religion.

I think it oversteps a bit, but it's much less egregious than the pledge.

I can understand the point though. “Jesus” is obviously, patently, and unarguably a belief, or feature, or aspect associated with a certain, specific religion.

God is "obviously, patently, and unarguably a belief, or feature, or aspect associated with ... ... ... religion." As the law that added its inclusion specified, in the context of the pledge.

It's not a metaphor.

The law was intended

Who cares? I don't. Is your problem with this emotional or logical?

this "establishes" religion

Or not. I say it just limits the scope of the pledge (to state) below that same "creator" who endowed us with rights.

atheism is a religious (non)belief structure on equal footing

Modern (post-modern) moral equivalence. Judeo Christian values seem to have a Darwinian survival advantage. How many suscessful societies founded on atheism?

Bill,

The Founders' intent was fairly clear. They meant to prevent the stablishment of a state religion by law enacted by Congress, under which those who did not agree with the religion would be persecuted (as the Protestants had been in England by the Church of England) by law. The voluntary Pledge falls far short of that standard.

Ironically, this has been rather disingenuously and egregiously "re-interpreted" to ban the Pledge, manger scenes in public squares, the Ten Commandments being posted in public places, and other public religious displays that the 1st Amendment was actually intended to protect rather than prohibit.

Oh, I would agree a Congressional law mandating the Pledge could reasonably be viewed as a step toward national religion and thus be thrown out on Constitutional grounds (although that still seems a bit of a reach based on the original intent). However, the 1st Amendment says nothing about a state making such a law.

The law was intended

Who cares? I don't. Is your problem with this emotional or logical?

Logical. You? The Supreme Court reviews the specific law, as well as the application. And all defenses of the Pledge rely on minimizing the stated intent of this law, which was to establish religion as a component of American government.

this "establishes" religion

Or not. I say it just limits the scope of the pledge (to state) below that same "creator" who endowed us with rights.

And I say that rainbows are made of candy canes and lemon drops.

Subjective interpretation. There are a few reasonable subjective interpretations, and you aren't the aggrieved party ... who has a reasonable interpretation. And an establishment clause and 50 years of legal precedent.

atheism is a religious (non)belief structure on equal footing

Modern (post-modern) moral equivalence. Judeo Christian values seem to have a Darwinian survival advantage. How many suscessful societies founded on atheism?

Moral equivalence? Your comment is bunk.

1. This assumes that morals formed BECAUSE of religion, when it's possible that they form in concordance with religion, or that religion stems from morals. Secular humanists are quite moral, I assure you.

2. But even granting Judeo-Christian belief the credit (and I do, to a great extent), once again, the point isn't to establish what is more popular or better - religion, or non-religion.

It's not government's job to get anywhere near rendering a judgment on belief vs. non-belief. They may not be equal in your mind, but they are equal - or irrelevant - in the eyes of the law.

I'm sort of petered out on discussing this with you:

A. It's not the only point of my post, though this thread has predictably turned into a referendum on this one issue.

B. At this point, I'd rather argue with a wall.

The Founders' intent was fairly clear. They meant to prevent the stablishment of a state religion by law enacted by Congress, under which those who did not agree with the religion would be persecuted (as the Protestants had been in England by the Church of England) by law.

Please find me the text that outlines this. Thanks in advance.

Shall I cite some quotes by Thomas Jefferson that contradict your assertion?

"Who exactly said anything about any governing body?"

The "separation of church and state" phrase which you use then ought to be "separation of church and Congress", no?

"The law was intended to distinguish the US as a theistic state, and it's an effectively compulsory pledge in compulsory public education. Reasonably interpreted - and by the text of the specific law - this "establishes" religion. Not "a" religion, but "religion." Which is what the document says."

Reasonably interpreted? You've just left strict constructionist. And if, as you argue, atheism is a valid religious viewpoint, then REMOVING the phrase "under God" is de facto support of atheism. Since you've just claimed "religion" is a generic, not a specific, you've just made the case that removing "under God" from the pledge is a violation of the separation of church and state by "establishing" atheism as the state-supported religion. Well, which is it? If "under God" establishes God-based religion, then federally-mandated removal of "under God" establishes God-less religion. Can't have it both ways.

"A. You can play fun games and posit that a religion needs laws, rules, funny hats, etc., but a specific definition of religion is not outlined in the consititution.

B. Here lies the point: you obviously can't wrap your mind around the concept that atheism is a religious (non)belief structure on equal footing with various forms of theism."

Sure I can - and, as I said, if you accept the First Amendment as banning any generic religious laws, and if you support the government-enforced removal of all references to God, and if you accept atheism as "a religious (non)belief structure on equal footing with various forms of theism", then you have just created a logical conundrum of necessarily violating the 1st amendment.

"I personally think that it's dissonance bred by comfort or religious bias...And the fact that you are poorly informed about the specific law in question"

Ad hominems reflect poorly on debating skills.

"it's NOT a state law, for example"

Lost me. I thought we were debating whether a strict constructionist view of the Constitution is contradictory with the phrase "under God" being in the Pledge. It isn't. Because "Under God" in the pledge to a flag doesn't establish religion unless any reference, or lack of reference, to God qualifies. QED.

Sure.

http://earlyamerica.com/review/fall98/original.html

There's pages of them. I can post them here if you'd like.

There's also an excellent book by David Barton called Original Intent.

The Constitution was intended above all else to prevent Federal tyranny over the States, especially a religious tyranny by law.

In fact, when the U.S. Constitution was amended to include a Bill of Rights, which includes the first 10 amendments, in 1791, many States continued to support a State sponsored religion.

By the way, we may be arguing at cross-purposes. I am arguing that the phrase "under God" contained in the Pledge is not a violation of the 1st Amendment. You may be arguing that the specific statute that PLACED the words "under God" in the Pledge does violate the 1st Amendment. I don't accept the "generic theism" as religion argument, but I can see where you are coming from - I am, in fact, ignorant of the exact phraseology of the statute modifying the Pledge.

I agree this discussion is frustrating and damn near painful at times. But at least people are trying to talk about this stuff in a (mostly) reasonable and logical manner.

I read a lot of left leaning blogs, and I can’t find anything close to this kind of debate going on over there.

"I personally think that it's dissonance bred by comfort or religious bias...And the fact that you are poorly informed about the specific law in question"

Ad hominems reflect poorly on debating skills.

Sure, if those were ad hominems.

1. You ARE poorly informed on how the Supreme Court reviews a case and about the specific law that established the pledge, by your examples. These debates aren't in a vacuum.

2. I was offering my opinion on why people are unable to accept the logic around the fact that government is not intended to compel religious references; that it does not make a preference of belief vs. non-belief. Many people can't wrap their heads around atheism, much less its equal standing under the law as a legit minority religious belief.

And if, as you argue, atheism is a valid religious viewpoint, then REMOVING the phrase "under God" is de facto support of atheism.

The phrase was ADDED. Removal removes government opinion on the matter, it does not endorse anything.

I'm sorry, but this is just semantical stupidity.

THAT was an ad hominem, btw. Sorry, but the idea that removing the reference is "de facto support of atheism" reminds me of moonbat logic.

I suppose I should clarify: It is clear that the Founders also opposed multiple national religions, or equal funding/legal standing for all religions. But I do think it stands to reason their primary goal was to prevent Congress from passing laws that would amount to religious persecution (such as outlawing a reigion) as had been practiced by the Church of England.

Sorry kids, but I'm worn out. And we have no arbitration.

So post all you want, I'm taking the rest of the night off.

Re Jefferson: I think it's especially interesting that Jefferson approved several measures appropriating federal funds to pay for missionaries to the Indians.

Do you suppose that would pass Constitutional review today? I'm guessing not.

Thansk for hosting a lively debate Bill.

At this point, I'd rather argue with a wall.

Is that a statement of fact or ad hominem attack?

quotes by Thomas Jefferson would not necessarily be a contradiction any more than my "limited scope" argument contradicts your "congress intent" argument.

the idea that removing the reference is de facto support of atheism reminds me of moonbat logic.

Seems to be the intent though. Oh, doesn't count now does it?

I tend to agree with Bill, Boris: you're arguing semantics based on sibjective interpretation, which is rarely productive.

Is that a statement of fact or ad hominem attack?

More of a statement of fact, actually. We're not getting anywhere, and you typically don't address my specifics. We're talking past each other.

The Thomas Jefferson quote was to contradict the specific assertion about intent. It's separate from my chosen arguments, otherwise I would have used it long ago.

And I don't even understand the rest of your comment.

On to the wall.

Hehe, hard to tear yourself away isn't it Bill? FWIW, imho you made a very noble and admirable effort at enlightened debate.

Well, I'm off to make dinner, feed my kittens, and apologize to my gf for being a man.

Last words:
1) Strict constructionist interpretation has no problems with the words "under God" because the "wall of separation of church and state" interpreted as "no reference to God" is not strict constructionist.
2) Current Supreme Court law also has no problems with the phrase "under God". See their 6/14/2004 overruling of the 9th Circuit Court.

In either case, regardless of your opinion of my knowledge of constitutional law, it was a poor example.

The Thomas Jefferson quote was to contradict the specific assertion about intent.

I try to be concise, sometimes overly.

My point was that Jefferson's argument may have been separate and additional. I seem to recall that the point you try to rebut with Jefferson was accurate. Just because Jefferson wrote more along your line of thought, doesn't mean his was the only or even the main line of thought at that time.

even granting Judeo-Christian belief the credit (and I do, to a great extent)

Not the belief, the values. Their success is far more impressive if there is no God. If you don't get that then of course you're not getting what I'm saying.

Evolution is about what works. Atheism could be bad in the Darwinian sense even if it's correct.

Could Atheism be correct? On the basis of the common conceptions of divinity yes. Reason tells me with near certainty that there is any number of entities within this universe capable of convincing anyone on Earth they are omniscient and omnipotent. On that basis, no, there is no possibility that Atheism is factually accurate.

Sorry, Bill, but if Buster the Bunny is the poster child for libertarianism, include me out. What's the point of all this debating, anyway? Centrist libertarians and social conservatives are never going to agree on everything. Sometimes they'll be able to make common cause and sometimes they won't. Maybe it makes more sense to consider the groups as opportunistic co-belligerents rather than as occasional allies.

In any event, this is a state law vs. federal law (as opposed to Constitutional) question, and if the federal government has the power to regulate the medical profession, or potentially harmful drugs, then it is properly decided in the federal courts. If Congress has this power, it also has the power to change the law that (may) forbid assisted suicide.

The federal govt has no authority to regulate the medical profession or to determine what chemicals the citizens of the several states may take into their bodies -- oh, it has the raw, usurped power to do these things, which it simply assumed. That the SCOTUS has countenanced Congress's doing so is something that both left- and right-wing opponents of current drug policy have assailed.

If you disagree, perhaps you could point me to where in the Constitution there is an enumerated power for Congress to regulate the medical profession, or decide what chemicals you may use, or any more general power which could reasonably encompass these areas?

To kill oneself without undue trauma and suffering, one must have access to proper drugs. Doctors know which drugs and in what quantity. Oregon wants to let its citizens have access to such advice and chemical help -- Big Brother says "no." To uphold a war on inanimate substances that has no warrant at all in the Constitution.

Me: If it said "under Jesus" it would be obviously unconstitutional,

Bill: That judgment makes me chuckle. Why?

Well, because it specifically excludes too many people and religions and singles out a specific one. I think "under God" serves a civic, not sectarian purpose. God refers to an abstract concept, not a specific target of worship. Historically, atheists (Einstein being one who comes immediately to mind) have used the word God as an abstract philosophical idea, divorced from worship or other trappings that are manifestly religious in nature. It doesn't seem to me that it must necessarily offend atheists, unless they're looking for offense.

You say you're not an "absolutist", and there are some governmental references to god that you're willing to tolerate, so you must agree that there is a line to be drawn somewhere, as do I. We just differ on where.

You call it "swearing fealty" which seems a bit exaggerated. It may mean that to you, and if it does it's clear why you think it's unconstitutional, but it may mean other things (the state is not the ultimate authority, we are united by common values, etc) to other people.

I still don't understand why a phrase that's been law for 50 years, and a more general tolerance of generic theism that's been around for 200+ years suddenly merits repudiation, unless it's due to a different political climate (i.e. atheists are now a larger minority than in the past). The First Amendment hasn't changed.

If you disagree, perhaps you could point me to where in the Constitution there is an enumerated power for Congress to regulate the medical profession, or decide what chemicals you may use, or any more general power which could reasonably encompass these areas?

None of this is a mystery, but the fact you asked the question probably indicates you disagree. In practice the commerce clause knows very few limitations. For medicines which cross state lines, it seems like an eminently reasonable area for Congress to have jurisdiction.

The general welfare clause is also pretty expansive. Where else in the constitution does it give Congress the power to legislate about education, the environment, the fine arts, etc?

Interesting new post on PowerLine that touches on this subject...

As I read the Ninth Circuit's [Newdow/Pledge] decision, it fairly describes the Supreme Court's modern (post-1947) establishment clause jurisprudence and reasonably concludes that, under that jurisprudence, the public recitation of the pledge is unconstitutional under the circumstances of that case. The Ninth Circuit's decision is the reductio ad absurdum of the jurisprudence, but the absurdity resides in the jurisprudence rather than in the Ninth Circuit's application of it.

Trunk goes on to ask whether recitation of the most well-known passge in the Declaration of Independence (which includes the phrase "...endowed by their Creator...") would be unconstitutional.

Well, because it specifically excludes too many people and religions and singles out a specific one. I think "under God" serves a civic, not sectarian purpose. God refers to an abstract concept, not a specific target of worship.

Ah. So it's a matter of exluding too many people. So that leap from the 80 some-odd percentage of people that are Christians, to the 92 percent of people that believe in God gives that extra bit of encompassing legitimacy.

God refers to "God."

What would Jesus drive?

People know what the slogan means even if they don't believe in Jesus.

The statement uses the concept to make a point. A silly one in this case, but nevertheless it is not promoting religion.

The concept of a higher authority is fairly central to the ideology of the USA. Invoking the concept is not establishing religion.

A Jew declaring the divinity of Jesus would break the 1st commandment and might therefore be subject demerits in the afterlife.

So like what downside does the Atheist incur? The wrath of the non-god in the nothingness after the meaninglessness of life?

one nation ... UNDER God ...

I was in elementary school when that was added, I remember the change. The clear intent was to differentiate us from the totalitarian commies by affirming that our nation recognized a higher authority, not to establish a theocracy.

We've gone full circle enough to loop the Beltway, but a couple of things appear to have been decided.

Someone said the Constitution is clear, but it's not. Someone said the intent of the Founders is clear. It's not.

Someone said atheism isn't a religion, so removing Biblical references at the behest of strident atheists isn't showing preference. But it appears to me that if you really don't think there's a god or a God or a G-d, you wouldn't care a whit if the word God was in the Pledge unless atheism's your religion.

Since the words "under God" disappear into the ether with no consequence whatever in your view, it ought to mean no more to you than "under Mr. Mxyzptlk" the nefarious imp of Superman comics fame. And no one's making you say those words at all! Sure' kids could be offended. Kids could be offended at attending a school named after a socialist, but much as our determined atheists claim for people of faith, they'll survive it.

It would seem that you have to drop the argument that atheism isn't a religion protected by the First or you have to concede your belief amounts to a religion to justify your offense at the words "under God". Your not compelled and the words have no meaning to you--they are as a fart in the breeze.

Anyway, thanks for hosting the chat, Bill.

boris -

I'm tired of your arguments that serve your projection of what people are saying. no one is saying "establish a theocracy." It's merely an affirmation of religious belief which is exclusionary language that violates the Establishment Clause, in my opinion:

In 1953, the Knights of Columbus, a Catholic fraternal organization, lobbied to amend the Pledge in their effort to galvanize Americans against the country's enemies. The group urged Congress to add "under God" in order to make official what they believed to be essential for distinguishing genuine Americans from "godless communists." The next year, the Reverend George Docherty became a catalyst for their cause by preaching "one nation under God" with President Eisenhower in attendance. The Scottish minister had come to Washington's historic New York Avenue Presbyterian Church several years earlier from the homogeneous British culture where he assumed that, "It was everybody's belief that God was part of society."1 Without the phrase 'under God,'" Docherty said, "the Pledge of Allegiance to the Flag might have been recited with similar sincerity by Muscovite children." (This assumes that a Soviet dictator would have permitted his subjects to express a longing for democratic liberty and justice. Docherty also unintentionally gave affront to atheistic service personnel who have fought and died for America in every war when he declared that "an atheistic American is a contradiction in terms.") ... After hearing the sermon, Eisenhower became an advocate for inserting into government documents and other texts words that belonged to religious creeds. The sermon was printed in the Congressional Record, and argument was given in Congress that the "under God" addition "would serve to deny the atheistic and materialistic concepts of communism."

Someone said the intent of the Founders is clear. It's not.

I think if you go back and look at what they said and did at the time, you can make some pretty clear inferences. For instance, even Jefferson, who is the person the anti-religious-reference arguments tend to rely on, did things that would certainly be held to violate the 1st Amendment today, such as using federal funds to promote Christianity among the native Indians, which tends to indicate Jefferson did not endorse the degree of separation we have today. This idea that we can't possibly know what the Founders wanted and thus are free to interpret their words any way we want is extremely disturbing to me because it holds unlimited potential for abuse.

One thing that is very clear is that the Founders did not want the judiciary to be the most powerful arm of gov't. They viewed this as extremely undesirable, and we are starting to see why today. The combination of an all-powerful, all-purpose "Constitutional review" and loose interpretation of said Constitution is a recipe for de facto rule by judicial fiat.

It would seem that you have to drop the argument that atheism isn't a religion protected by the First or you have to concede your belief amounts to a religion to justify your offense at the words "under God". Your not compelled and the words have no meaning to you--they are as a fart in the breeze.

You are missing something vital - what if an atheist is patriotic? Takes the pledge very seriously?

Is it true that an "an atheistic American is a contradiction in terms?"

Much of Newdow's argument centers around wanting to separate patriotism from theism. The clear intent of the law was to state that the two concepts are irrevocably intertwined. As in the case of laws (that still exist) that bar atheists from running for office, this agenda should really not be on the government's plate.

Theists do not need the government to sanction their efforts. Neither do atheists. And every argument marsahalled by strident proponents of the pledge essentially says:

1. The use of God as an abstract concept

2. Ceremonial Deism - the words are meaningless

YET - the intent of the law, as well as those that lobbied for its creation was explicitly not either of these things - AND - many of the forces that rise to lobby for the phrase's maintenance are religious orgnizations concerned about the removal of religion from public life.

So we're playing a game of cynical semantics and intellectual dissonance, arguing fervently for abstract concept or meaningless ceremony. Make no mistake, this battle represents the advocacy of religion in public life, and specifically the advocacy of religion in government, period.

I would defend unto my death the right for Christmas displays to exist in shopping malls; I don't care about God on money, because it's a passive ceremonial reference; but compelled benedictions at public schools and oaths of fealty to your country that rely on the declaration of a theistic nation probably overstep government's role.

Sorry, Bill, but if Buster the Bunny is the poster child for libertarianism, include me out.

Well, you're obviously not a liberal or libertarian. I saw the segment in question, and it was pretty benign.

What's the point of all this debating, anyway?

I suppose one could ask, "what's the point of a blog?"

Bill,

Your words:

and by the text of the specific law - this "establishes" religion. Not "a" religion, but "religion." Which is what the document says

Quibble over theocracy if you must, I was making a point not quoting.

Documenting the intent of the religious proponents is beside the point; the common english meaning of the words is closer to the anti-totalitarian interpretation.

That's the explanation I received growing up and there may be quotes from secular proponents confirming that, but so what? You seem to be saying religious motivations discredit secular results. I find that suspicious.

no one is saying "establish a theocracy." It's merely an affirmation of religious belief

More of your words:

oaths of fealty to your country that rely on the declaration of a theistic nation

And:

1. The use of God as an abstract concept

I think it's more than an abstract concept. It affirms limited soverignty of the state in absolute terms. Trying to separate "godless" from "totalitarian" seems risky to me. There appears to be a natural correlation that discomforts even agnostics like me.

"the common english meaning of the words is" that America is a theistic nation, "under God," and this theism is irrevocably intertwined with patriotism. This is both the intent on the law's creators (which you had just said was important when it was merely anti-communist), and a reasonable literal interpretation of the phrase.

I have no idea what parallel universe considers that a "secular result."

LOL I also thought the Buster Bunny "controversy" was very silly. I saw the segment and it was clearly dealing with homosexuality, not promoting it.

Now, that gay SpongeBob on the other hand is a menace to society and MUST BE STOPPED AT ANY COST!!
/fundie outrage

Speaking of misdirected fundie outrage, has anyone else seen the "NUKE SPONGEBOB!!" T-shirts? I laughed my ass off.

At the time it was implemented there was almost no controversy about religious content in public. In that context the impact of the addition was perceived as anti-totalitarian rather than pro-godly.

If the intent wa purely pro-godly, why use the qualifier "under"? Why not say, "this nation empowered by God" or some such?

LagunaDave: The entirety of Artice I Section 8 is this, and is can be seen the language you quote, in bold, is introductory of specific grants of power:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
-------------------
Our current drug policy scheme is not justified by the "general welfare" language in the first sentence, and almost no legal scholares have ever thought the phrase was anytyhing but a precursor to the enumerated, substantive powers actually listed: It is interpreted as "Congress may tax and do the following things." To find otherwise, would empower Congress to legislate in any area it decides to, which is clearly not what the Founders had in mind in seeking to limit Congress to specific, enumerated powers.

Similarly, if any activity that impinges on commerce may be regulated due to the Commerce Clause, virtually no limits are placed on Congress. (This is a common complaint of originalists/strict constructionists, that the Supremes have been reading the Commerce Clause to allow basically anything Congress wants to do, to the detriment of states' authority.)

So, can you find me any enumerated power in the Consitution which permits Congress to regulate the prescribing habits of physicians, or to tell the citizens what chemicals they may ingest?

Very good point Mona. That's another reason drug abuse should be treated as a medical problem not a criminal justice problem, expecially not by the federal gov't since it's unconstitutional for it to do so.

So, can you find me any enumerated power in the Consitution which permits Congress to regulate the prescribing habits of physicians, or to tell the citizens what chemicals they may ingest?

I already did. And you disagree.

Where is the enumerated power that allows Congress to control harmful (non-drug) substances like, say, dioxin, asbestos, arsenic, carbon dioxide, plutonium, etc?

Is it your position that Congress has no power to prevent one state from, for instance, making the dumping of pollution into a river or the air legal, thereby jeopardizing the health of citizens in a neighboring state?

That would seem fairly analogous to one state legalizing, say, heroin. We have no internal border controls to prevent drugs from crossing from state to state. Making harmful drugs available in one state would impact all others, hence it is properly a question for federal authority, just like pollution.

I agree that Congress's powers have expanded well beyond what was envisioned by the Framers (who were dealing with a much smaller country, were travel of people and goods across state lines was less common). The expansion of this power is a very long historical story. Arguing as if 200+ years of history should (or could) be reversed, and 80% of the federal laws committed to the flames, seems rather naive and unproductive.

It's this disconnect from reality, and failure to think through the obvious consequences of what they propose, that makes libertarians hard to take seriously sometimes.

Me: Well, because it specifically excludes too many people and religions and singles out a specific one. I think "under God" serves a civic, not sectarian purpose. God refers to an abstract concept, not a specific target of worship.

Bill: Ah. So it's a matter of exluding too many people. So that leap from the 80 some-odd percentage of people that are Christians, to the 92 percent of people that believe in God gives that extra bit of encompassing legitimacy.

God refers to "God."

And referring to God is not the same as establishing a religion.

I did a little reading of the 9th Circuit Court decision, and the dissents. The SCOTUS has made a pretty clear distinction between government sponsorship of religious acts (like prayer) and patriotic activities that mention God.

The Newdow dissent explains why the Pledge is not a religious act:

Most assuredly, to pledge allegiance to flag and country is a patriotic act. [...] The fact the Pledge is infused with an undoubtedly religious reference does not change the nature of the act itself. The California statute under which the school district promulgated its policy is entitled "[d]aily performance of patriotic exercises in pub-lic schools." [...] The Pledge is recited not just in schools but also at various official events and public ceremonies, including perhaps the most patriotic of occasions—naturalization ceremonies.

Generally, the Pledge is recited while standing, facing a United States flag, with the right hand held over the heart, much like the National Anthem. [...] Whatever one thinks of the normative values underlying the Pledge, they are unquestionably patriotic in nature. Indeed, it is precisely because of the Pledge’s explicitly patriotic nature that in 1943 the Supreme Court ruled that no one is required to Pledge allegiance against their will.[...]

In contrast, to pray is to speak directly to God, with bowed head, on bended knee, or some other reverent disposition. It is a solemn and humble approach to the divine in order to give thanks, to petition, to praise, to supplicate, or to ask for guidance. Communal prayer, by definition, is an even more forceful and profound experience for those present. Little wonder that the Supreme Court has recognized the "unique problem" and "particular risk" posed by school prayer to nonparticipating students. Not only does the panel majority’s conclusion that pledging allegiance is "a religious act" defy common sense, it contradicts our 200-year history and tradition of patriotic references to God. The Supreme Court has insisted that interpretations of the Establishment Clause must comport "with what history reveals was the contemporaneous understanding of its guarantees."

The majority’s unpersuasive and problematic disclaimers notwithstanding, Newdow II precipitates a "war with ournational tradition," and [...] only the purest exercise in sophistry could save multiple references to our religious heritage in our national life from Newdow II’s axe. Of course, the Constitution itself explicitly mentions God, as does the Declaration of Independence, the document which marked us as a separate people. The Gettysburg Address, inconveniently for the majority, contains the same precise phrase—"under God"—found to constitute an Establishment Clause violation in the Pledge. After Newdow II, are we to suppose that, were a school to permit—not require—the recitation of the Constitution, the Declaration of Independence, or the Gettysburg Address in public schools, that too would violate the Constitution? Were the "founders of the United States . . . unable to understand their own handiwork[?]"

did a little reading of the 9th Circuit Court decision, and the dissents. The SCOTUS has made a pretty clear distinction between government sponsorship of religious acts (like prayer) and patriotic activities that mention God.

I love your language:

The watered-down "patriotic activities that mention God"

vs. a more specific ...

"a belated law that appended a phrase about God to the pledge in order to declare theism as a fundamental precondition of the American character, in a bid to contrast this country with the atheistic communists."

Really, you can marshall all of the rationale you want, but we simply do not agree. The purpose of the 50 year-old law was explicitly religious, to declare that America was a theistic nation, and to further compel this declaration from schoolchildren.

While many consider the establishment clause as something that prevents the establishment of an official government religion (a la ye olde Church of England), I (and the injured parties) interpret it as also barring the declaration faith in God being a precondition for patriotism, which is a reasonable interpretation, given the context of the pledge.

This is buttressed by one of the law's early architects, who notably said, "an atheistic American is a contradiction in terms."

As to the framers' intent, for example, Thomas Jefferson wrote famously about separation of church and state into separate spheres, yet apparently funded missionaries among the Indians. So what does that mean?

That he's inconsistent. And each side claiming a lock on the "true" opinion, based on cherrypicked inconsistent words and deeds outside the First Amendment (I'm guilty), is merely making non-contextual, selective arguments that buttress their opinion. So I'd say it's a wash. I'd also say that atheism was about as popular as witchcraft at various points in our history, and the specific concept may have not entered into the consciousness of those writing the document. Which is why the document is interpreted for modern paradigms.

I think that the detractors on this thread are engaging in mental contortions to make the case, denying or ignoring the overt, stated religious intent of the specific law, arguing that it represents abstract concepts, citing the political value of the phrase's inclusion or even arguing for the superiority of judeo-Christian philosophy - in a legal exercise - in a government that is designed to play no favorites between types of belief - or belief vs. non-belief.

And I'm sure that you all feel that I am being similarly unreasonable in my judgment.

I also personally think that the "under Jesus" metaphor is an esential one, and that my detractors can't wrap their minds around the concept that belief in "God" is just as offensive to some people as a public call to belief in "A SPECIFIC" God (like Jesus or Allah) would be.

It's possible to be a patriotic American and view religion as something negative. And a pledge of fealty to one's country shouldn't begin to offer the potential for conflict.

Suffice it to say we won't agree?

the "under Jesus" metaphor is an esential one, and that my detractors can't wrap their minds around the concept that belief in "God" is just as offensive to some people as a public call to belief in "A SPECIFIC" God (like Jesus or Allah) would be.

I don't consider myself a detractor, but I did wrap my mind around the following:

A Jew declaring the divinity of Jesus would break the 1st commandment and might therefore be subject demerits in the afterlife.

So like what downside does the Atheist incur?

Frankly this illustrates that your "under Jesus" analogy is logically unsound. There is no right to not be "offended".

in a government that is designed to play no favorites between types of belief - or belief vs. non-belief.

This I don't buy. There are "types of belief" that are just plain toxic. Moonbats really believe that Bush stole 2000 and that they are just fighting fire with fire.

Since there was no fire to fight what they do is actually arson.

There are "types of belief" that are just plain toxic. Moonbats really believe that Bush stole 2000 and that they are just fighting fire with fire.

RELIGIOUS belief in relation to the Constitution! What the Hell are we talking about?!

You're semantically obnoxious, the rightward equivalent of a moonbat.

Really, I don't like to get too down and dirty with ad hominems, but there is no more logical, structured ground to cover with you. By this point, I just think that you're unreasonable and annoying. Please go.

It's possible to be a patriotic American and view religion as something negative.

It's possible to be a patriotic American and view atheism as something negative.

Bye.

It's possible to be a patriotic American and view atheism as something negative.

Yeah, that's the conventional wisdom, now isn't it.

Sure, the point being that you can sense that can't you. In fact, it's pretty obvious.

Turnabout might be fair play but it also might be cutting noses. I'm just sayin ...

For the last time, it's not turnabout, it's getting government out of making this distinction.

C'mon, Bill, lace your boots up. My point about Buster the Bunny was not that the episode represented anything immoral, but that the whole flap about it, and the importance you seemed to attach to it, is a ludicrous banner about which to rally the libertarian troops. And I'm all in favor of a debate; I was just wondering what you were hoping to accomplish. Are you trying to win social conservatives over, warn them against hubris, or just vent your spleen over the fact that apples aren't oranges?

but that the whole flap about it, and the importance you seemed to attach to it, is a ludicrous banner about which to rally the libertarian troops.

It was one example in a post full of examples, and it was an example of something that makes me shake my head in partial bemusement and partial annoyance. These cultural battles that cross over into perceived intolerance are at the heart of what alienates a libertarian - live and let live (those that don't harm you) - from many social cons (my way or the highway).

Actually, I think it's not a bad example. $350,000 in public funding was retroactively revoked - AFTER it was given and spent - because of a subjective moral judgment of the content. If you don't realize that seemingly small issues like this seriously alienate some reasonable people, then I think you're overlooking something.

Hell, Andy Sullivan may be an extreme example, but he basically dropped the whole defense of Western Civ priority over one personal social issue. Perhaps a better question than yours is, are you willing to fray a wartime coalition over something as dumb as Buster the Bunny? I'm not the one that initially plants a flag over such things.

And I'm all in favor of a debate; I was just wondering what you were hoping to accomplish. Are you trying to win social conservatives over, warn them against hubris, or just vent your spleen over the fact that apples aren't oranges?

Do I need a detailed plan for my personal blog? Do I want social cons to be different than what they are? They are what they are - I'm pointing out the differences. This is political discourse.

Libertarians and moderates have been very quiet about the social con agenda over the past few years, primarily because of the WOT. That doesn't mean that some issues haven't raised our eyebrows, and now that the election is over and foreign policy is on course after a pivotal juncture, it seems like a pretty good idea to toss a brushback pitch. It's not a life or death situation, but we're all making our respective noises.

Sure, some, many, social cons will just get angry, but others may take my point that they are part of a coalition, and that this recent mandate high is overblown.

I think that I've presented most of my case in pretty reasonable, thoughtful terms, so if you consider it useless venting, I'm not sure what to tell you.

PS - If it'll make you feel better, next week I'll stick to bashing obvious liberal pinatas so that we can all point and laugh.

I suppose that there is little chance anyone will see this comment at the end of such a long discussion (I read only about 60% of it), but here goes.

The Establishment Clause was meant to protect against the creation of an official state religion. The nature of state religion in those days was that - even when other religions were tolerated - the entire population was required to support the established state religion FINANCIALLY in that the state used tax money to fund the state religion. That is, the so-called established state religion was protected and nurtured by the state while other religions were ignored (or worse) and left to shift for themselves.

The notion of "separation of church and state" is of a much more recent (20th century) vintage and does not accurately describe the plain meaning of the Establishment Clause circa 1791.

Words matter. Meaning matters. One reason for the frustration one encounters in the preceding debate is the lack of common definition of terms. That is one effect of the loss of the Western Canon in public education - and in post-secondary education - in the United States. It is a pluperfect bitch trying to be a conservative without a classic liberal arts education.

I guaran-goddamn-tee you that the most virulent, heart-felt atheism expressed in this discussion is but the faintest, buried ember to my own blue-hot, galactic core, exploding star rejection of the notion of a Supreme Being. Nevertheless, all three of my children attended Catholic high school or university - to their significant benefit.

Having misinterpreted the Establishment Clause and staked out not just an atheistic but an anti-religious stance, just what are the anti-religious conservatives attempting to conserve? It is impossible to conserve Western society without recognizing the central value of religious thought.

Let me give you one mind-bending example. Greek philosophy forbade use of the notion of the infinite or the infinitesimal. As a result, Greek-based Western mathematics was stultified for almost two millennia. But, beginning in the Middle Ages, Christian philosophers began grappling with notions of the infinite is trying to explain God or God's Love or God's Mind or variations on that theme. That notion of the infinite slowly seeped into mathematics, with the ultimate result that Leibnitz and Newton developed the Calculus in the seventeenth century. That is, the most powerful single engine for technical and scientific advancement owes its creation to speculation on how many angels can dance on the head of a pin.

It is a commonplace that Western literature is founded on the King James Bible and Shakespeare. So be it. We are what we are, and there is no need to be ashamed of peculiarities of our grandfathers. Let your freak flag fly.

Religion in the United States - in the whole of Western Civilization - is a diluted, denatured, spent remnant of what it was half a millennium ago. Fighting against religion - other than its more virulent forms such as environmentalism - diminishes one rather than ennobling him. We are known and measured by our enemies. How puny one must be to count modern religion as a foe.

Well THAT was a comment that I have to bow before.

You take into account larger political and social arguments and make a greta case. To be clear - I disagree with you and DO believe the pledge is Unconstitutional, but I don't animatedly advocate for its removal because of much of the rationale that you outline.

But then again, I'm not the injured party, and individual belief systems centered around religion are pretty funny and animated things. Thus the rationale for a distinct separation between government and religion.

Religion may be genetically wired because it enables humans to face making war. War capable humans have a survival advantage beyond writing history books; breeding with the vanquished.

Notice the strong correlation between pacifism and diminishing religion. As an agnostic I'm not claiming it's a good thing, but it’s what you're up against in time of war. The people willing to fight are more religious and being needed makes them naturally more assertive.

I’ll refrain from mentioning the foxhole thingy.

Suffice it to say we won't agree?

Apparently not. On the other hand, we don't have to agree on the ultimate question to reach a compromise (not that you and I personally reaching a compromise means a hill o' beans, but the differing viewpoints).

"a belated law that appended a phrase about God to the pledge in order to declare theism as a fundamental precondition of the American character, in a bid to contrast this country with the atheistic communists."

I wouldn't agree with that formulation. Theism (although "morality" would be a better word, AFAIC) is a fundamental unpinning of American history and yes, government. I don't consider myself a theist, but I certainly don't consider myself less of an American for it. I respect the role that it's played in creating the greatest country in the world. Frankly I'm glad the Founders were men who felt they answered to a higher authority, rather than being laws unto themselves. Just like I'm glad George W. Bush feels the same way. No, faith is not the only path to this much-needed humility, nor is it necessarily even evidence of it. But historically, our greatest moral leaders have become great because of a deep-rooted conviction that America is a nation "under God", or "a city on hill".

This is not meant to be a flip question. Would daily (voluntary) recitation, as the Pledge is recited now, of the following words violate the Consitution?

"We hold these truths to be self-evident: that all men are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

or these:

"It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

I'm honestly curious. I don't imagine you'll say it is.

But then, what is the difference? The Pledge, while more recent and less historically significant, can also be viewed as a political/cultural artifact of our past. In particular, the words "under God" were added for reasons that you yourself admit were historical, and part of one of America's defining national conflicts (the Cold War, like the Declaration was for the revolution, and the Lincoln's speech was for the Civil War).

While I'm not in favor of banning or censoring the Pledge, I think there are probably equally good or better ways of achieving what I see as its beneficial purpose. One would be to add variety. Have the nippers recite other historical, patriotic passages too, like those above and others (for instance the Preamble to the Constitution, one of MLK's paeans to a color-blind society, etc).

In addition to making it less pro-forma and more educational, it would place the Pledge in the context of other parts of our heritage.

Would daily (voluntary) recitation, as the Pledge is recited now, of the following words violate the Consitution?

Perhaps. I'll say something though, and I know this is splitting hairs -

I accept (I think it was Boris's) point about references to God being literal as well as a metaphor for a power higher than man granting inalienable rights - and thus I find the first example elegant as well as meaningful outside of a religious sense - but the context of the pledge's creation is important, as well as it's use, I think. Within that context, it's pretty hard to say that the phrase is anything but an explicit religious reference - a prayer.

Reciting historical texts or studying them, etc., seems distinctive from the form of the pledge - a pledge. And from a historical standpoint, the real "historical document" that is the pledge excluded the phrase for what, 62 years prior to its inclusion? When does something become historically relevant, the day after it's written? 25 years? 50? 200?

Francis Bellamy (1855 - 1931), a Baptist minister, wrote the original Pledge in August 1892. He was a Christian Socialist. In his Pledge, he is expressing the ideas of his first cousin, Edward Bellamy, author of the American socialist utopian novels, Looking Backward (1888) and Equality (1897).
...
In 1954, Congress after a campaign by the Knights of Columbus, added the words, 'under God,' to the Pledge. The Pledge was now both a patriotic oath and a public prayer.

Bellamy's granddaughter said he also would have resented this second change. He had been pressured into leaving his church in 1891 because of his socialist sermons. In his retirement in Florida, he stopped attending church because he disliked the racial bigotry he found there.

1. Ironic that the author was a former minister and would have (theoretically) resented the change.

2. It's a little ironic (though not relevant to this debate) that the man who wrote the pledge was a socialist (though religious), and the latter phrase was added to stick it to the Communists.

By the way, I cringed when I used the pledge example, realizing that it was probably too distracting, too controversial. And look how this thread has sort of coalesced around the one example ...

It was certainly a practical flaw in creating an effective argument for my larger point.

Which was, that while liberals have claimed much of this tradition, conservatives overreach, employ judicial activism and label legitimate Constitutional cases judicial activism, when it suits their instinctive ends.

Just a reminder.

conservatives overreach, employ judicial activism and label legitimate Constitutional cases judicial activism, when it suits their instinctive ends.

I agree with this. Two points where we diverge (slightly, no more than .1 radian) from this common ground ...

Right wing kooks and moonbats are as obnoxious, but less harmful to society (my observation).

The key word is instinctive. I believe in the war/religion gene/meme. We can't change the gene, we can culturally influence the expression with judicious application of religion.

Good point Bill; there are certainly judicial activists on the right, such as the drug warriors. In fact, the guy who spearheaded the idea of the War on Drugs and the DEA (Harry Anslinger I believe it was) constantly complained about the Constitution getting in the way of passing "effective" laws. (Mike Gray's book "Drug Crazy" has an excellent history of this.)

I still like my simple test of Founders' intent vs. current practice: Take the Founders' actions, and ask whether they would be regarded as constitutional by today's courts.

I think it's better to look at their actions because as Bill points out looking at their letters and speeches can be at best ambiguous and at worst outright deceptive, like the old adage about the Devil quoting Scripture to suit his ends. In a modern context, you could certainly put together some John Kerry quotes that make him sound like a fierce Iraq hawk, and others that make him sound like the most pacifist dove.

By the way, I cringed when I used the pledge example, realizing that it was probably too distracting, too controversial. And look how this thread has sort of coalesced around the one example ...

Oh, I completely agree. I wonder to what extent, as I suggested before, the Pledge is a sort of stand-in or proxy for the real issues, perhaps precisely because it is (almost) purely symbolic.

It ranks very low in my overall scheme of political priorities, precisely because it is so devoid of practical consequences. Yes, both sides would mourn their own defeat, and both sides speculate over subjective, long-term corrosion to the fabric of society. damage, but nobody appears likely to get blown up, have their wages confiscated, or their life destroyed, no matter which way it turns out.

One might say it's a trophy issue, or perhaps a morale issue. Like a highly visible but militarily worthless hill that two armies pointlessly fight to the death over.

But not exactly, either. A military battle, in the end, is a zero-sum game. But politics need not (and should not) be. Since the same people fighting over this particular symbolic piece of real estate are in the same foxholes together elsewhere on the battlefield, defending common ground whose loss would be potentially catastrophic, maybe they should agree to focus on the more important objectives.

there are certainly judicial activists on the right, such as the drug warriors

Which laws do you think have been misapplied by the courts in relation to drugs?

I could see (but not agree with) an argument that the Congress (not the courts) have overstepped their bounds, but this is a legislative, not judicial, transgression. And our system has a mechanism for correcting legislative mistakes very easily: elections.

It would be interesting to explore where the idea of strictly limiting Congress to the enumerated powers would lead. There is no enumerated power which entitles the Congress to spend a dime on any form of education, for instance. Or the environment. Or to spend a nickel on health care, medical research, a humane standard of living for the elderly, or poverty relief.

I grant you that the Framers had no inkling of an expansive government like the one we have now. But I don't think that's a realistic or even desirable world, today. As a compassionate conservative I'm in favor of the most limited government possible. But no less.

I think there are obvious reasons why regulating drugs (including alcohol and tobacco) and other harmful substances is an appropriate government (read: citizens') interest. And if enough people agree, drugs can be made legal as easily as they can be made illegal. That's the beauty of our system, as long as the courts don't prevent it from working.

As concerns the "rights" issues: Do you believe the government could legally, if enough people wanted it to, make the sale, posession and use of bicycles illegal? There is no sane reason to do so, clearly (i.e. it would be a stupid law) but would it be unconstitutional to criminalize bicycles? Is there a constitutional right to sell, possess, or use bicycles? I don't think so, and I don't see how drugs are any different than bicycles in this case.

Back to the original topic: bi-partisan judicial activism. Hey, "Power corrupts" and all that.

The judiciary has been a source of power for the political parties since Chief Justice Marshall hijacked the Constitution in Marbury v. Madison - as deft a piece of political maneuvering as has ever swaggered down the separation-of-powers pike. Remember, the robber barons bought judges along with elected politicians at all levels of government. Roosevelt (FDR) was smacked down in his attempt to enact his legislation by packing the Supreme Court - which Court then promptly surrendered and and waved the New Deal on through - hidden under the skirts of the Commerce Clause.

Had the Republicans delivered - even marginally - on their Contract With America, we would not be facing such large budget deficits today, and we would have much less nettlesome options for addressing the plight of Social Security, for example.

Newly discovered power, like new money or newly discovered sex, makes people stupid. While the power leverage inherent in the judiciary has not been a secret for the almost 200 years since Marbury, the penetration of the judicial meme into the American consciousness has increased steadily since the "Impeach Earl Warren" drive of the 1950's. Put the Libertarians (or libertarians) in charge of the elected government, and I guarantee that they would install judges who would suddenly find constitutional language that stopped American military at our borders, legalized marijuana (and less salutary drugs), authorized assisted suicide, and put NAMBLA on an equal footing with the Boy Scouts.

That "everybody does it," of course, does not make it right. Neither does it make it desirable to permit this abuse without complaint. My own preference is that the various branches of government (and quasi-governmental entities such as the Federal Reserve) adhere to the bloodless, technical roles and boundaries as described in the Constitution and subsequent laws. Fat chance.

Still, there is a profoundly conservative undercurrent in the American psyche - based, I think, on an awareness of American Exceptionalism. We are the City on the Hill, the beacon of freedom for the rest of the world. Somehow, it seems, that God protects orphans, drunks and the United States of America.

I believe that much of the judicial weirdness will dissipate with the eventual defeat of the "Abortion For Everyone Forever" crowd. Ingrained hatred of children is a self-defeating and self-limiting foundation for politics as is the "America Last" movement. That they will be defeated, at least in part, with the assistance of the "God First" religio-politicians does not worry me at all. As I said in the previous post, religion - in the West and now in the Islamic world - is essentially a spent force. Though in absolute terms still a significant force, religion will steadily give way to a more "scientific" or "technical" view as we expand our understanding of and ability to manipulate ourselves and our world. Religion is the domain of Man's ignorance, and it shrinks steadily as our knowledge increases.

But I will do a separate post on the war/religion gene/meme.

But I will do a separate post on the war/religion gene/meme.

Ok, but spare me the obvious strawman.

I mean genetic in the sense that language is genetic. There is no "English" gene or "French" gene. The capacity and inclination are innate, not the expression.

As the saying goes: "Speaking Chinese runs in families but it's not genetic."

The expression does not have to fit someone's criteria for religion. I think revolutionary communism has religious zeal. State socialism eventually kills the zeal and the willingness to fight.

Here is the point. Fire away.

If the capacity to believe in and fight for a cause greater than oneself can be passed on to descendants, the spread by force of arms was inevitable. In expression it requires a cause (or causes) provided by society. Successful causes that lead to successful societies are subject to selection every bit as much (and on shorter time scale) as genetic traits.

I believe (strongly) a big reason for the ascendance of Judeo-Christianity together with democracy is that they promote the strategy known in game theory as: Tit for Tat

Otherwise known as Do Unto Others.

Of course compatibility with concepts like individual liberty and science are crucial as well. Islam fails all three AFAIC yet in our time seems to be growing based on stronger zeal (genetic or cultural?) and procreative output.

State socialism eventually kills the zeal and the willingness to fight.

I was thinking USSR when I wrote that, but I think Europe may soon qualify.

One more thing.

the capacity to believe in and fight for a cause

The cause one fights for and the faith one believes in don't have to be one and the same so long as both are significant factors in the cause. Faith allows one to deal with fear of death, hence affects willingness to fight.

The judiciary has been a source of power for the political parties since Chief Justice Marshall hijacked the Constitution in Marbury v. Madison - as deft a piece of political maneuvering as has ever swaggered down the separation-of-powers pike.

Have you read the Marbury decision? What parts, specifically, do you think are incorrectly decided? In what sense does it "hijack the Constitution"?

To take one of the examples cited in the opinion, is it your position that if the Constitution says "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court," and Congress passes a law allowing conviction based on the testimony of only one witness, the courts should ignore the Constitution and apply the law which contradicts it anyhow?

Yes, Marbury was a deft piece of reasoning, but the problem is not in courts refusing to apply laws which explicitly violate the Constitution (as in that case) but in adding provisions that appear are not even hinted at in the document, on the basis of "emanations" and "penumbras".

After Marbury (in 1803), the Court didn't find another piece of legislation unconstitutional until 1857. And that would be the Dred Scott case, where the court clearly blew it. And they blew it by going far beyond what is actually written in the Constitution, in a way not even hinted at in Marbury.

OK, Dave first.

Yes, I have read Marbury - just less than 30 years ago. The deft piece of maneuvering was a two-part parlay. First, Marshall hijacked the Constitution by taking for the Court the authority to declare a law passed by the Congress to be unconstitutional. Nowhere in the text of the Constitution is such authority allotted to the Court. If anything, at that time, political thinkers would have expected that the Executive would have that authority - assuming that ANY of the three branches could have laid claim to such power.

Second, Marshall, a Federalist, declared a law passed by the Federalist Congress to be unconstitutional. With the Jeffersonian Democratic Republicans in charge of both the Congress and the Executive, no one in power was inclined to dispute the decision. After all, they had "won."

Marshall had altered US Constitutionalism on the sly. His legacy is the activist judiciary that we see today. Though it took over 50 years for the next Court finding that a Congressional law was unconstitutional, they are coming hot and heavy today. That is the way of institutional change. It takes time.

First, Marshall hijacked the Constitution by taking for the Court the authority to declare a law passed by the Congress to be unconstitutional. Nowhere in the text of the Constitution is such authority allotted to the Court.

All you've done is to restate your original "hijacking" claim.

You didn't answer the question I (and Justice Marshall) raised:

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

The constitution is understood to be a fundamental set of limits on the power of the government. If the constitution says, explicitly, that Congress may not do some thing, and Congress passes a law doing it anyway, I repeat Marshall's question: should the courts ignore what the Constitution says, and give force to a law that directly contradicts it?

In the case in question, Congress passed a law giving the Supreme Court original jurisdiction in certain cases. The Constitution says the Supreme Court has original jurisdiction for a specific, limited subset of possible cases, and appellate jurisdiction "in all other cases". The Marbury case was not among the types in which the Constitution vested original jurisdiction in the Supreme Court.

What should Marshall have done? Ignored the Constitution and allowed Congress to rewrite it? What is the point of having a Constitution if its provisions have no practical meaning?

Not to be contentious, Dave, but you seem to have missed the point. The Constitution says what is says, that much you have perceived and stated correctly. But the Constitution is utterly silent as to the issue that you have raised. There is no authority in the Constitution for the Supreme Court to declare an otherwise legitimate act of Congress to be invalid because the Court believes that the act disagrees with the Constitution.

As I said, political thinkers (there were no Constitutional scholars, what with the Constitution being brand new and all) of the time did not have a ready answer to the conundrum. However, the more common opinion was that if anyone could declare an act of Congress unconstitutional, it would be the President. In fact, that was essentially the position of Andrew Jackson 25 years later when he vowed - and delivered on the vow - to terminate the charter of the Bank of the United States when he became president.

As to what Marshall "should have done," well, he could have just said, "We don't know what to do here. What do you suggest, Mr. President?" Or he could have said, "Mr. Speaker, can you advise us on the seeming contradiction we have encountered here? We are stymied, Mr. Speaker, because we are bound both by the Constitution and by an Act of Congress that we perceive to be at odds with one another."

He could also have said, "The Court perceives that we have no authority in this matter, and we defer to the other two branches of our government to settle the matter as a political issue."

He might have said, "As we are forbidden original jurisdiction by the Constitution, we commend this matter to the President with our recommendation that he declare the law null and void - or establish a joint Congressional-Executive Commission to study the matter and recommend a solution."

The actual provisions of the law are inconsequential to my analysis and to the point that I made.

My point is, I believe, very simple: Marshall resolved the contradiction by assuming a power for the Court that is not authorized - either directly or by implication - in the Constitution. That is, he struck down an unconstitutional Act of Congress by committing an unconstitutional act on behalf of the Court.

He got away with it because of the party interests that I laid out originally. Hence my original characterization.

The part that is incorrectly decided is the assertion that the Court had the authority to declare an Act of Congress unconstitutional.

My point is, I believe, very simple: Marshall resolved the contradiction by assuming a power for the Court that is not authorized - either directly or by implication - in the Constitution. That is, he struck down an unconstitutional Act of Congress by committing an unconstitutional act on behalf of the Court.

Where does in the constitution does it give the President the power to "declare a law null and void" after he, or a predecessor, has made it law? It seems rather odd to argue that concentrating more power in the hands of the President (or Congress) is a desirable separation of powers outcome.

I don't see that any of your alternatives make sense. In the first place, the law said the Supreme Court had to do something. The Constitution said the Supreme Court may not do that thing. So Marshall (and the other justices) decided the Constitution wins, and the court refused to do that which Congress by law required and the Constitution explicitly forbids.

If that isn't an act of heroism, to be applauded, not condemned, I don't know what is.

In any case, the Constitution mentions nothing about the Court "punting" as you suggest. Any action other than taking jurisdiction in a case where they had none would have been in violation of the law.

The Constitution itself only gives the color of law to those acts which comport with it:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

The problem is not Marbury; it dealt with a clear violation of the letter of the Constitution, and moreover, in way that directly affected the Court itself. Marbury is actually a textbook case of how the courts should strictly interpret the Constitution.

The problem is that a power that can be used appropriately can also be used inappropriately, and there are too many cases now where the court falls to the temptation to rewrite the Constitution according to their personal whims, rather than strictly interpreting what it actually says.

Boris: "It is not a minor detail that the constitution claims rights come from God"

Oh, the irony. It's not a minor detail that the constitution claims no such thing. Please point me to where it does, if you disagree.

While the declaration is not technically part of the constitution, as an overall set they form the basis for constitutional law.

Sure it's a quibble, I should have been more precise, as in:

It is not a minor detail that the founding documents claim rights come from our creator and not from the state.

It’s hardly a quibble. The Declaration is not part of constitutional law and you can’t just conveniently lump them together as “founding documents.” There is one fundamental law of the land and it is not the Declaration. It was written more than 10 years before the constitution and the federal system were even conceived.

I think it is very telling that in the philosophical document asserting our freedom from King George they clearly evidence a belief in a “higher power” (which no one is claiming they didn’t) but when they set out over a decade later on the pragmatic task of creating a new form of government they chose to make no mention of a god, or God or religion at all except to seek to prevent the entanglement of government and religion in the first amendment. If they wanted this nation founded on Judeo-Christian beliefs or even “higher powers” why didn’t they just say so? Why avoid any mention at all?

The point is your statement is wrong and there is no claim of anything in the constitution deriving from God, and that is not just a quibble.

The Declaration is not part of constitutional law and you can’t just conveniently lump them together as “founding documents.”

Oh sorry. I suppose I should trust your opinion rather than Paul Mirengoff of Powerline:

In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled "The Organic Laws of the United States." The story behind the 1878 revision of the Code is told in the introduction to political scientist Richard Cox's valuable book Four Pillars of Constitutionalism: The Organic Laws of the United States. (Cox credits the idea for the book to Professor Harry Jaffa, Distinguished Fellow of the Claremont Institute.).

The Code is Congress's official compilation of federal law; the organic laws of the United States are the country's foundational laws. First and foremost of the four organic laws of the United States is the Declaration of Independence. Following the Declaration among the organic laws are the Articles of Confederation, the Constitution, and the Northwest Ordinance of 1787.

Oops, I should have credited Scott W. Johnson of Powerline.

Are you saying that it’s simply my opinion that the sole legal authority, with which ALL other laws must comply (at least in theory) for our Federal system is the constitution?
Anything in the U.S.C. is clearly subordinate to the constitution and no U.S.C. provision can change that, so that is entirely beside my point.

The main point is that the founders had the chance to either cite the Declaration or include some kind of religious (or “higher power”) language in the constitution if they wanted and the fact that it is completely absent from the constitution is very telling. Look at the irony of it, you tried to say that it was important that they mentioned rights coming from God – they didn’t in the most important document creating our whole system of government! That omission is important. They may have believed personally in rights coming from a higher power, as per the Declaration, but they saw no reason to include any religion in the constitution itself. Those things are entirely consistent. You can believe rights are God given but refrain from making that carry any legal weight – which is exactly what they did.

Are you saying that it’s simply my opinion that the sole legal authority, with which ALL other laws must comply (at least in theory) for our Federal system is the constitution?

That does appear to be your opinion. Define "simply". I did not claim you were the one and only person in existence with that opinion so I don't know what you're getting at.

My claim:

It is not a minor detail that the founding documents claim rights come from our creator and not from the state.

So you can twist and shout and jump about but that's my story and I'm sticking to it.

The point is the supreme law of the land (i.e. the constitution) does not mention God - and that is what is important.

the supreme law of the land (i.e. the constitution)

When the interpretation of the constitution is anybody's guess, it's supremecy is questionable.

Interpretations now proclaimed by many are clearly different than what the writers had in mind. In the debate between original intent, modern legalism, and plain English, I least favor legalism. Sad that it has come to this.

If you want to read the Declaration out of our legal tradtion, you'd best take that up with President Lincoln first.

With all due respect, the caricature painted of Social Cons is just that - a cartoon which resembles real life to some extent, but is in reality a distortion.

It's easy to win a debate if you script the argumetns for both sides; likewise, it's easy to win a debate if you quote only the "reasonable" spokesmen for your point of view and the "flamers" for the opposition.

Just one poster's opinion, but here it is - far more often than not, the libertarians I read taking shots at the social cons do so with the same sort of arrogant faith in their own moral superiority that the libs direct at Republicans in general.

If you want to win an argument, you'd better take the other side seriously and engage their opinions and positions honestly. Otherwise, you're preaching to the choir (to use a cliche that fits).

I give up.

"Against ignorance, the gods themselves contend in vain."

BD "If you want to read the Declaration out of our legal tradtion, you'd best take that up with President Lincoln first."

I emailed him for his opinion on the matter but I haven’t heard back.

But who said anything about reading it out of our legal tradition? Certainly it is part of that tradition. The point is, once again, not that the founders hadn’t been brought up in a Christian tradition or didn’t respect that – but that when they created the framework for our entire system of government they didn’t mention God or religion at all. Did they just forget? Or might they have thought that whatever one’s faith, or lack thereof, it is better left a personal issue that the government needn’t concern itself with? In the end, what they thought isn’t as important as the fact that religion simply isn’t invoked in any way in the constitution.

I’m not sure who you claimed was painting a caricature of the social conservatives – I assume it wasn’t me. But I didn’t see anyone scripting the argument for both sides. Seems pretty openly debated by many points of view on here.

they didn’t mention God or religion at all. Did they just forget?

Clearly it was deliberate (except 1st amendment). It also seems obvious they were not against the mere mention of God, religion or "our creator" in other official contexts.

When you conflate mentioning a higher authority with establishing state religion it must be easy to produce all manner of conundrums and dilemmas.

My point is simply this - if something is bad policy, it can be defeated by logical argument, not by the claim that "you're trying to impose your morality on me!!", which is the typical attack made on social cons.

Social cons are playing the political game just like everyone else. They have as much right to participate as anyone else, and they're no more imposing their morality on others than any other interest group advocating for its position.

EVERYONE advocates for policy consistent with their own moral world view; there is no way to separate policy from some set of norms which the proponents believe "ought" to be embraced by the law.

Funny thing, though - I can't recall a libertarian explaining why it'd be O.K. to impose his views on drug legalization on everyone else through the political proces when, as a general rule, 'imposing one's morality on others' is supposed to be a bad thing.

Technically, removing legal penalties for possesion of some drugs is not "imposing" anything on anyone.

A SoCon could claim that the resulting social decay is an imposition of sorts, but even so the imposers would be the addicts not the libertarians.

Boris,

The whole idea of "addiction" may be a social construct.

It may in fact be self medication for PTSD. Which current medical practice does not deem a valid use.

Addiction or Self Medication?

================

In any system where coalitions are required for governance the coalitioin is ruled by its weakest members.

This is good. It prevents excess radicalism.

Ack!,

Congress passes a law (what else is new?), then Congress passes another law in contradiction to the first (what else is new?).

What exactly is the court to do?

If a heirarchy of laws is assumed (as opposed to last one passed) then the striking down of duly passed laws due to incompatibility with the system of laws is valid. It is in fact defending the Constitution which all Federal Officers are sworn to do.

Without the courts upholding of individual rights this would cease to be a Republic and become a mere democracy. The courts can uphold individual rights because we have a hierarchy of laws. We are not governed (as are some countries) by the most recently passed rule.

The pledge is a socialist endeavor.

Making the Pledge

It is amusing to see "social conservatives" arguing in its favor. And why if we are pledging don't we pledge to uphold the Constitution rather than just following a flag?

Personally whenever the pledge is made in public I pledge to the Constitution. And the Republic it creates.