From his web site:

It's the silly season. Of course with the 9th Circuit Court of Appeals that's perennial, but it's sillier than ever now. That is: the 9th Circuit Court of Appeals has overturned a lower court and declared that the Pledge of Allegiance, as specified by Congress, is unconstitutional because it contains the phrase "Under God", mandated by Congress in 1953 during the Seventy Years War and repeated by schoolchildren ever since.



This isn't the first time someone has tried to get that changed. Mad Madeline also tried but was notably unsuccessful. She's got her replacement now, a self-proclaimed militant atheist and non-practicing physician who is also a lawyer and who moved from Florida to California for reasons not very clear but which I suspect had to do with his perception of the courts in Florida and California. He has sued on behalf of his (presumably existing: I have seen no evidence that she exists, but one supposes she does) second grade daughter who, he contends, is harmed by the sight of a classroom full of children reciting the Pledge. It was not alleged that anyone tried to force the daughter to herself say the dread words "Under God."

Of course, it doesn't matter a lot whether we have the words "under God" in our Pledge of Allegiance. We got along without that for nearly 200 years. On the other hand, it's not all that controversial to say that the US thrives by the favor of God. It's not as if admitting that we are not quite autonomously sovereign is a bad thing; that we need once in a while to understand that there are limits to our power; that there is more to consider than the might of our armed forces. That reeking tube and iron shard can carry you only so far...

The Framers would have approved of the Pledge: George Washington, nominal Episcopalian but more devoted to the Masons and Deism than to the Thirty-nine Articles, never ceased to thank Divine Providence in his public speeches. John Marshall opened the Supreme Court with the intonation they still use, "God save the United States and this honorable Court." If you want precedent on the intentions of the Framers there is plenty to hand: this was to be a tolerant Christian nation, not persecuting anyone for religious beliefs, but not ashamed to profess them. And by Christian they definitely included Unitarians and Deists. No one used the term "Judao-Christian" in those days, but I doubt the Framers would have had much problem with it. And of course the Establishment Clause applied only to the Federal Government anyway. The states were free to have established churches, and most of them did at the time the Bill of Rights were adopted. It would be another fifty years before the last state disestablished its tax-supported church.

Courts in their never ceasing usurpations of power from legislatures, have said that the 14th Amendment incorporates the Bill of Rights and applies it to the States. No one who adopted the 14th Amendment had the slightest supposition of that -- and of course the courts don't say that the Second Amendment is incorporated, nor several other provisions of the Bill of Rights. We are all taught to be obedient sheep in the face of the courts because we can't imagine what else to do.

Which is why the 9th Circuit ruling won't stand for long. For once the people are up in arms. Congress is within an ace of telling California to ignore the silly court and its ruling, which in fact is what ought to be done. The Courts will see this and act quickly before people begin to get the notion that just because you put robes on a lawyer and call the creature "Your Honor", you have not necessarily made an honorable person and you certainly have not conferred infallibility.

There was a time when Courts realized what Hamilton made clear in The Federalist: the Courts are the weakest branch of government. They have no soldiers and not much in the way of police. They can be defied or ignored, and the trick is to prop them up and get people to act as if a decree from a court is unquestionable even if it is massively silly. There was a time when courts would have protected themselves against imbecilities like this "Under God" ruling by saying that the chap who brought the suit is a gratuitous interloper, who has not himself been harmed by the pledge, and has not shown that his daughter has been harmed by being required to listen as a classroom of kids recites the pledge.

If someone were proposing to exclude her from class for not saying "Under God" or for substituting "Under The Ceiling" or "Under Herby" for the proscribed phrase there might be some standing to sue. Given the nature of the litigant I would be surprised if he hadn't tried to get the girl to do something that would actually cause her harm just to increase his chances. He told the newspapers that this is about him, not her, but he must know that he has no standing to sue, and the theory that he can sue on the grounds that his daughter is being harmed by being required to listen to others recite the Pledge is patently ludicrous.

The courts had an out, but of course in their arrogance the 9th Circuit didn't take it. Now the Supreme Court will have to rush in and save the day before the sheep look up and see there are no gods up there, just nine lawyers in robes.

It really doesn't matter whether we publicly acknowledge that this is a nation Under God or not. Either we are or we are not, and what our children say in school every morning won't change that. It does matter that we, as a people, understand that if there is no fountain of justice -- if man really is the measure of all things -- we had better act as if there is a Law beyond our making and changing. Whether we are a nation Under God is more up to us than the Almighty, Who seems to have left that sort of thing up to us.

As to the consequences of living without limits or law, I refer you to C. S. Lewis, "The Abolition of Man," or the novel "That Hideous Strength." Or even Kipling's "Recessional." Beliefs have consequences; and the Sin of Pride is ever tempting to all.

...I have this mail:

Re: Pledges



Nope, can't agree, "under God" is discriminatory. Mutter them under your breath if you will, but the Framers didn't put those words at the end, Eisenhower and Congress did in a pathetic attempt to root out communists. It's got to go!



Which is the typical answer of those infected with the modern liberal control freak disease that cannot tolerate the notion that someone, somewhere, is doing something without permission.

The Framers didn't put nothing in the Pledge, which was written toward the end of the 19th Century. The phrase "under God" was added by Congress in 1953, I think mistakenly, but that's another matter. It was done by Congress, after full debate, and those who didn't and don't like it have this problem: there's nothing compelling people to say it.

The easiest way for courts to evade having to make hard decisions is to find there's no reason to decide because this is not a "case or controversy" under the meaning of the Constitution which gives courts the authority to settle "cases and controversies." The Court long ago got smart enough to never render an "Advisory Opinion" about pending legislation. It's not the Court's job.

Now I believe that the notion of "incorporation of the Bill of Rights" as an instrument to beat the States was wrongheaded, dumb, imbecilic, and plainly contrary to the intentions of those who adopted the 14th Amendment. I think it clear, and better politics, to allow the states to establish churches if they so desire -- they won't, of course, but even if they did little harm would come from it.

An established church is not one that compels attendance or membership: no state could possibly pass such a law, which would be in conflict with most state constitutions (and in fact so would a state established church; Virginia got rid of its established church by an amendment to its state constitution sponsored by Thomas Jefferson). But by leaving Establishment decisions to the states we would be a lot closer to what the Constitution intended.

A Union of States. Some will "do things right." Some will "muck things up." A few will "trample upon the rights of the people." In nearly every case the problem will be that one state thinks that of others; few will think it of themselves.

Yes, on strict legal reasoning, the case was probably decided properly, or at least there are good arguments to that effect. And so what?

We have become control freaks, as that letter shows. The girl in this "case" doesn't live with her father who cannot get custody of her for reasons I don't know but which may be obvious. This case was brought on her behalf but without her, there is no evidence that she has been compelled to do anything she doesn't want to do, and the only reason given for this silliness is "It's got to go."

When one wants to take from the people something they want badly, particularly in cases involving beliefs and fundamental values, you need a darned good reason; one that will convince the people that you are right. If, for instance, there were stories of young girls being forced to say the terrible words "under God" under threat of being beaten or expelled, you would not have a public outcry here. (Well there would be outcry but in favor of the girl; the American people are good hearted.)

But when all you have is control freakery asserting itself, you undermine the notion of Republic and head us toward the other enemy of a Republic: plebiscitory democracy. The natural end of a Republic is democracy, which then degenerates into Empire. Sometimes Republics go to Empire as a result of military adventures and usurpation from the top. As often they fall to "friends of the people" who tell the people that they are being robbed.

The people are a great beast, better left unawakened. If we wish to take from them something they hold dear in the name of abstract principles, I think it is best to wait for something important, not a couple of pious words that likely do some good and little harm; and which can safely be left to the LEGISLATURE in any event. Courts ought to decide hard cases where there is something of importance at stake.

The Courts have now figured this out. They went too far and exposed themselves as the silly control freaks they are: The Enlightened telling The Benighted what is best for them. And the backpedaling has begun. The courts now realize that what is at stake is the credibility of the courts themselves -- and not much else.

...And a final note on control freaks: there are two kinds. One seeks to control everyone directly. The other merely minds other peoples business, and often calls himself libertarian.

The problem here is that the extreme individualism of both liberal and libertarian produces much the same result: no communities, no "little platoons", no place where people can live any kind of community life other than that of atoms. This Pledge business is a good example.

In the real world, this Pledge with the phrase "under God" may or may not do any good. The hope is that it will instill just a little national humility and a little realization that just because we as a nation can do something, it's not necessarily the case that we should. It is also supposed to foster some patriotism and national unity: but again tempered by the realization that as a nation we are responsible to a Higher Power. Whether the pledge accomplishes any of that is surely a debatable proposition -- and the proper place to debate that is in the legislature, not in the courts.

What isn't very arguable is that anyone is harmed by this. The legislature of California, not a particularly right wing organization and hardly dominated by the Christian Right or anything like it, has chosen to mandate that pledge in the public schools, but there are no penalties associated with not saying it. A student can stand up and be silent. If a case came to the court showing that someone was really harmed, there would be a case.

But there isn't. This is a gratuitous act of people who want to see to it that everyone does only things they approve of. It is the same mentality that stopped Christmas pageants, lighting the lights of the LA City Hall in a cruciform pattern on Christmas and Easter, and a whole bunch of other acts of public piety that endured for 200 years here. Then suddenly the courts, not the legislatures, find these fresh new rights, and that we lived in a repressive regime bowed under the weight of religious fanatics during most of the existence of the republic.

Oh? We didn't? The American people aren't really religious fanatics determined to impose their hideous views on the entire state of California? California is going to go impose a state religion on Arizona?

I say this again: I prefer that local communities have real power, including the power to do things I really wish they wouldn't do. That is better than anomie and alienation.

In any event, it's clear to me that this whole mess is the proper business of legislatures, not courts, and expanding the power of courts is not really a very libertarian thing to do.