# First Circuit to Newdow: Pledge w/ "Under God" is Constitutional **URL:** \ **Category:** Great Debates\ **Created:** [November 15, 2010, 5:30pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755 "2010-11-15T17:30:17Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 2:59pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/101 "2010-11-16T14:59:47Z")
> [@Bricker](#): > > I was thinking a debate on the legal merits of the decision is more fruitful than yet another round of exchanging unsupported opinions. We have another forum to indulge that pursuit. And yet neither your OP nor any of your subsequent posts has any discernible content on the legal merits, although many/most of the replies to it do. So why is this thread not in that forum? Can it possibly be that there is no legal merit to this decision, that your gloating support of it is derived from your placing obeisance to the Catholic Church above sworn defense of the US Constitution? If not that, then what? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2010, 4:03pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/102 "2010-11-16T16:03:04Z")
> [@Bricker](#): > > I agree that your phrasing is generally understandable. Good. > [@Bricker](#): > > I am simply suggesting that precision of meaning favors “This should be unconstitutional…” instead of “This is…” A distinction without value. It’s clearly **not** unconstitutional at the moment because the highest court to rule on it has ruled it to be constitutional. So if we are applying rules of construction here, you have two possible meanings to my comment. One, the one we all knew I meant, indicates that I feel that under the interpretation of the First Amendment which I believe to be correct, the law is unconstitutional. The other requires you to assume I am an idiot - that I believe that a court’s decision has no impact on the practical constitutionality of a law. I know of no canon that suggests, where there are two possible meanings, one should presume the non-sensical meaning over the one which actually, you know, makes sense. > [@Bricker](#): > > It’s three extra letters, but there is no shortage of letters at hand, is there? Indeed there isn’t. But you might find “this is” is actually **five** letters not three shorter than “This should be.” But I knew what you meant on this. I still think you are missing a very significant distinction though. What I said wasn’t the equivalent of saying “an first trimester abortion ban is constitutional” or “the income tax is unconstitutional.” Both of those require the Supreme Court to overturn current precedent, and some pretty long standing precedent at that. My argument is that under current precedent, this law is unconstitutional. It fails _Lemon_, all arguments as to the utter bloody stupidity of _Lemon_ aside (for reasons I think we would actually be likely to agree on). Now, SCOTUS will, if they get this case, get it wrong. They screw up religion cases, especially those which touch on ceremonial deism, because it is a legally unsustainable concept, whatever the great legal mind of Justice **Shodan** might tell people. Were I to be requesting the precendet to be changed, I’d agree with you that “this law should be unconstitutional” is a better formulation. Just as we need to overrule _Casey_ for a first trimester abortion ban to be constitutional. But let’s say we are talking of a parental notification law, and your argument is that, despite the 9th Circuit striking it as an unconstitutional restriction on a woman’s privacy rights, under _Casey_ it actually passes muster. Then I would say that “it is constitutional” is a **more** accurate description of your position than “it should be constitutional.” ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2010, 4:06pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/103 "2010-11-16T16:06:45Z")
> [@Shodan](#): > > According to the liberal way of thinking, if the Supreme Court says it’s not a tree, it’s not a tree. > > The difficulties are the usual ones - it is extremely hard to come up with a principle one can use to argue that ceremonial deism is un-Constitutional without cutting the ground out from under lots of other Supreme Court decisions. > > If you want to argue against this on textualist grounds, have at it - but be aware that ‘whatever you say can and will be used against you’, if not in a court of law, at least the next time we debate the role of the judiciary. When come back, bring understanding of textualism. Or the law generally. All the Ceremonial Deism decisions are wrong. They all need to go. There is absolutely no constitutional justification for the concept, and people with significantly greater legal skills than you have failed to justify it. Shrugging your shoulders and saying we don’t like the results without it isn’t good enough. I despise ends oriented jurisprudence when it comes from the left as well as from the right. Well I despise it more from the right, because if you are going to bugger up the legal system, it is better to do it for a worthy end. But it is better to reach the correct result in the correct way. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 4:07pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/104 "2010-11-16T16:07:32Z")
> [@villa](#): > > A distinction without value. It’s clearly **not** unconstitutional at the moment because the highest court to rule on it has ruled it to be constitutional. So if we are applying rules of construction here, you have two possible meanings to my comment. One, the one we all knew I meant, indicates that I feel that under the interpretation of the First Amendment which I believe to be correct, the law is unconstitutional. The other requires you to assume I am an idiot - that I believe that a court’s decision has no impact on the practical constitutionality of a law. I know of no canon that suggests, where there are two possible meanings, one should presume the non-sensical meaning over the one which actually, you know, makes sense. The problem with this view it that it supposes you and I are chatting privately. But we’re not. There’s an audience reading your words, an audience that includes members that don’t know the difference between the Lemon test and lemon zest. I don’t assume you’re an idiot, but I do believe your usage has the potential to muddy the waters for readers. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2010, 4:43pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/105 "2010-11-16T16:43:20Z")
> [@jayjay](#): > > Frankly, I don’t know why a nation whose entire reason for being is allegedly freedom makes so much of a fascist-style loyalty oath in the first place… Exactly. I do believe that the phrase “under God” is an unconstitutional establishment of religion. But it’s a small violation within the larger violation – our government has no business crafting loyalty oaths in the first place. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 4:51pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/106 "2010-11-16T16:51:30Z")
> [@acsenray](#): > > Exactly. > > I do believe that the phrase “under God” is an unconstitutional establishment of religion. > > But it’s a small violation within the larger violation – our government has no business crafting loyalty oaths in the first place. Again, in your opinion. If the Pledge is considered a loyalty oath, then it’s an opinion not shared by most of your countrymen. And since we, the people, are the sovereigns of this here country, and thus get to decide what the business of the government is, I’d say no: the government DOES have a business in crafting loyalty oaths in the first place. Why do you believe it’s unwise? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 4:53pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/107 "2010-11-16T16:53:40Z")
Cite for “the opinion of most of [our] countrymen?” :dubious: And some of that there “legal debate” whose lack you purport to deplore, for a refreshing change, while you’re at it? BTW, “we the people” do not get to overrule our own Constitution by mere polling, anyway. Perhaps you missed that part in Con Law, counselor. When come back, bring argument. Not more “Suck it, non-Christians, we win!”, please. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2010, 4:57pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/108 "2010-11-16T16:57:16Z")
> [@ElvisL1ves](#): > > Cite for “the opinion of most of [our] countrymen?” :dubious: > > And some of that there “legal debate” whose lack you purport to deplore, for a refreshing change, while you’re at it? > > BTW, “we the people” do not get to overrule our own Constitution by mere polling, anyway. Perhaps you missed that part in Con Law, counselor. On what basis would a loyalty oath be unconstitutional? I think they are stupid and unnecessary, but they aren’t unconstitutional. Or, for **Bricker** ’s sake, they are neither unconstitutional given the current make up of the Court and existing precedent, nor do they contradict my personal understanding of the constitution or the way in which it should, correctly, in my personal opinion informed by my legal knowledge, be interpreted. 🙂 ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 5:05pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/109 "2010-11-16T17:05:11Z")
> [@villa](#): > > On what basis would a loyalty oath be unconstitutional? Never said it would be, although you could perhaps craft a First Amendment argument if your professor assigned it (restriction on freedom of speech, don’tcha know). It would be against the principles of democracy, though, which is the point here - if you have to coerce a statement of loyalty to the republic, it’s already undemocratic and you’re already failing to “keep a republic”. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2010, 5:08pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/110 "2010-11-16T17:08:22Z")
> [@Bricker](#): > > Again, in your opinion. If you’re going to insist that I preface every statement of opinion, with “in my opinion,” then this is going to get boring very quickly. Take it as read that an expression that looks like an opinion that doesn’t otherwise attribute it to some other authority is my opinion. Fair enough? > [@](#): > > Why do you believe it’s unwise? Because it’s offensive for a person to go around to his friends, neighbours, and countrymen demanding that they demonstrate their loyalty to the country. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2010, 5:15pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/111 "2010-11-16T17:15:25Z")
Loyalty oaths are thoughtcrime territory – the majority of the country, the government, my neighbours – have no business getting into individuals’ heads. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 16, 2010, 5:58pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/112 "2010-11-16T17:58:25Z")
> [@Bricker](#): > > How about doing a bit of digging and seeing what kinds of things HAVE been found to be excessive entanglement? What kinds of things have not? Then you’d have a useful baseline to compare this with. HINT: in this case, the plaintiffs didn’t even argue that the third prong was at issue, because there is no case law supporting that position. You don’t need case law to support a plain meaning argument (other than Lemon itself, in the instant case). That’s arguably the point of any legal test: to establish a vacuum in which an experiment can be conducted. The second and third prongs clearly _have_ no plain meaning, so I’ll grant you that. In this case, there is no doubt that “under God” has no legitimate secular purpose. Even the _original_, purportedly secular purpose - to distinguish us from the godless Commies - is no longer valid. As we agreed in the last gay-rights debate, the facts have changed. I’m agnostic on whether the other two prongs are in play, but one will do. Now, you pointed out earlier that SCOTUS can dump or modify Lemon if it wants to, and of course you’re right - but I don’t see how you can argue that “under God” has a legitimate secular purpose. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 5:59pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/113 "2010-11-16T17:59:51Z")
> [@villa](#): > > On what basis would a loyalty oath be unconstitutional? I think they are stupid and unnecessary, but they aren’t unconstitutional. Or, for **Bricker** ’s sake, they are neither unconstitutional given the current make up of the Court and existing precedent, nor do they contradict my personal understanding of the constitution or the way in which it should, correctly, in my personal opinion informed by my legal knowledge, be interpreted. 🙂 Now was that so hard? 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 6:03pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/114 "2010-11-16T18:03:30Z")
> [@acsenray](#): > > Loyalty oaths are thoughtcrime territory – the majority of the country, the government, my neighbours – have no business getting into individuals’ heads. Is this another deal where we redefine a word and then start using it? Thought crime, as far as I’ve ever seen the concept used, refers to criminalizing a thought as opposed to an action. Since nothing about this discussion involves criminal penalties, or indeed any legal sanctions at all, for failing to say the Pledge, it’s neither a thought crime or in “thought crime territory.” Of course, I have no idea how big “thought crime territory” is in your usage. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 6:07pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/115 "2010-11-16T18:07:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > You don’t need case law to support a plain meaning argument (other than Lemon itself, in the instant case). That’s arguably the point of any legal test: to establish a vacuum in which an experiment can be conducted. The second and third prongs clearly _have_ no plain meaning, so I’ll grant you that. > > In this case, there is no doubt that “under God” has no legitimate secular purpose. Even the _original_, purportedly secular purpose - to distinguish us from the godless Commies - is no longer valid. As we agreed in the last gay-rights debate, the facts have changed. > > I’m agnostic on whether the other two prongs are in play, but one will do. > > Now, you pointed out earlier that SCOTUS can dump or modify Lemon if it wants to, and of course you’re right - but I don’t see how you can argue that “under God” has a legitimate secular purpose. But that’s not really the claim at issue, although my thread title may blur this distinction. The Pledge, including the words under God, considered as a whole is constitutional, because the Pledge as a whole has a secular purpose, and the addition of those two words to it do not erase or dilute that secular purpose. In the same way, money has a secular purpose. Printing notes that say, “In God We Trust,” does not dilute that secular purpose. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 16, 2010, 6:09pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/116 "2010-11-16T18:09:33Z")
The Pledge isn’t a law. The 1954 amendment to Section 7 of the Flag Code is. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 6:16pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/117 "2010-11-16T18:16:38Z")
> [@Bricker](#): > > The Pledge, including the words under God, considered as a whole is constitutional, because the Pledge as a whole has a secular purpose, and the addition of those two words to it do not erase or dilute that secular purpose. “In your opinion”, that is. :dubious: Which is unsubstantiated by anything other than this ceremonial-deism nonsense. Now when may we expect to see some actual argument from you, not simple gainsaying? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 6:20pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/118 "2010-11-16T18:20:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The Pledge isn’t a law. The 1954 amendment to Section 7 of the Flag Code is. If the Pledge isn’t a law, that will be a surprise to 4 USC § 4. :rolleyes: ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2010, 6:23pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/119 "2010-11-16T18:23:34Z")
> [@Bricker](#): > > But that’s not really the claim at issue, although my thread title may blur this distinction. The Pledge, including the words under God, considered as a whole is constitutional, because the Pledge as a whole has a secular purpose, and the addition of those two words to it do not erase or dilute that secular purpose. But they absolutely do dilute the purpose. Given that the purpose is to instill patriotism, the pledge should be as inclusive as possible without undermining the basic principles of the country - those principles that patriots should defend. “One nation under the GOP” would make the pledge less effective, because it would exclude large numbers of people. “One nation, forever white” would make the pledge less effective, because it would exclude large numbers of people. “One nation, under God” excludes fewer, but it excludes some. It dilutes the pledge, because belief in a God is very specifically one of the values that is not included in the concept of being a patriotic American. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2010, 6:25pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/120 "2010-11-16T18:25:39Z")
> [@ElvisL1ves](#): > > Never said it would be, although you could perhaps craft a First Amendment argument if your professor assigned it (restriction on freedom of speech, don’tcha know). It would be against the principles of democracy, though, which is the point here - if you have to coerce a statement of loyalty to the republic, it’s already undemocratic and you’re already failing to “keep a republic”. **Acsenray** claimed it was unconstitutional. **Bricker** opposed this. You opposed that. [Previous page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=5) [Next page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=7)