# 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:** 7
**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, 6:26pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/121 "2010-11-16T18:26:48Z")
You overlook the lack of reasoning behind the “Is too!” side. And no wonder, because in order to do so they have to claim the very words whose inclusion they defend are fundamentally meaningless. ---
**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, 6:27pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/122 "2010-11-16T18:27:33Z")
> [@Bricker](#): > > Is this another deal where we redefine a word and then start using it? It’s called a metaphor. > [@](#): > > 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.” I think it’s pretty obvious that I’m not referring to a literal crime, as in an act that can result in imposition of criminal penalties. I’m referring to the conceptual similarity between a literal thought crime and another instance in which the government seeks to insert into or extract from a person’s mind a particular political attitude. I think you knew exactly what I meant and for some reason chose to adopt this literalist pose. I can’t think why, because being forced to explain things like a statement that is on its face is an opinion is actually an opinion or that there is such thing as a metaphorical or conceptual likeness between two things feels like farce. The government or my neighbours have no business seeking confirmation regarding my loyalty, especially since I am free to define loyalty in a manner that might differ from theirs. ---
**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, 6:29pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/123 "2010-11-16T18:29:21Z")
> [@Bricker](#): > > If the Pledge isn’t a law, that will be a surprise to 4 USC § 4. > > :rolleyes: Section 4, I mean. You get the point. ---
**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, 6:48pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/124 "2010-11-16T18:48:27Z")
> [@villa](#): > > 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. Suppose I were to argue that the very concept of pledging allegiance to a flag and a republic is not one of the values of being a patriotic American. Indeed, others in this thread have offered up almost exactly that thought. What would your response be? ---
**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, 6:50pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/125 "2010-11-16T18:50:30Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Section 4, I mean. You get the point. The point is: the words of the pledge, in their entirety, are a law, contrary to “The Pledge isn’t a law.” You may assert that the amendment in 1954 was unconstitutional, but who has standing to complain about that? ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/126 "2010-11-16T18:51:45Z")
All of us Americans have such standing. :rolleyes: ---
**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, 6:53pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/127 "2010-11-16T18:53:30Z")
Any American, presumably. Anyway, I repeat that the Pledge is not a law. There _is_ a law which specifies what the Pledge is and the manner in which it should be performed, but the Pledge isn’t a law. ---
**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, 6:54pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/128 "2010-11-16T18:54:35Z")
> [@acsenray](#): > > I think you knew exactly what I meant and for some reason chose to adopt this literalist pose. I can’t think why, because being forced to explain things like a statement that is on its face is an opinion is actually an opinion or that there is such thing as a metaphorical or conceptual likeness between two things feels like farce. It was intended to highlight the absurdity of the comparison you were making. > [@](#): > > The government or my neighbours have no business seeking confirmation regarding my loyalty, especially since I am free to define loyalty in a manner that might differ from theirs. You keep saying that they have “no business.” But why not? The government certainly has the power to seek confirmation of your loyalty, as long as it doesn’t compel it. Why would you think otherwise? ---
**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, 6:57pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/129 "2010-11-16T18:57:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Any American, presumably. > > Anyway, I repeat that the Pledge is not a law. There _is_ a law which specifies what the Pledge is and the manner in which it should be performed, but the Pledge isn’t a law. Then I don’t know what “The Pledge is not a law,” means. There is no law requiring you to say the Pledge, of course. But there is a law saying that a New Hampshire school district shall authorize a period of time during the school day for the recitation of the pledge of allegiance. There is a law saying what words constitute “the Pledge.” What kind of distinction can you possibly draw that allows you to say the the modification adding “under God” to the Pledge _is_ a law, but the Pledge itself is not? ---
**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, 7:01pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/130 "2010-11-16T19:01:18Z")
> [@Bricker](#): > > Suppose I were to argue that the very concept of pledging allegiance to a flag and a republic is not one of the values of being a patriotic American. Indeed, others in this thread have offered up almost exactly that thought. > > What would your response be? I’d agree with you. But there is pretty strong support in the text of the constitution, as well as in multiple comments from multiple law makers, for the suggestion that belief in a deity isn’t a required value for being a patritotic American. There’s less such support for the concept that pledging allegiance to a flag and the republic isn’t one of those values. I think the pledge is itself counterproductive. But if there is to be a pledge, would you not agree that it’s purpose, as stated in this case, is better served by it being as inclusive as possible on religious grounds? Would the current pledge not be more inclusive, given the make up of the United States, than one including “one nation, under Baal”? You made an absolute statement - that the addition of the words doesn’t dilute the secular purpose. I think you are pretty obviously wrong on that. ---
**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, 7:04pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/131 "2010-11-16T19:04:19Z")
> [@Bricker](#): > > What kind of distinction can you possibly draw that allows you to say the the modification adding “under God” to the Pledge _is_ a law, but the Pledge itself is not? Is the flag a law? Its function and etiquette are prescribed by Federal law. Anyway, this is a semantic debate. The point is that the specific act of Congress which inserted the words “under God” into the Pledge may be challenged on its own, without having to challenge the text of Section 4 in its entirety. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [November 16, 2010, 8:06pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/132 "2010-11-16T20:06:01Z")
Doing my little part, I am glad that when I administer “oaths” I am able to ask witnesses to “swear or affirm under penalty of perjury…” Always bugs me when I am asked to “… swear … so help me God.” I guess I could view it as license to lie my ass off… 😛 ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [November 16, 2010, 8:24pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/133 "2010-11-16T20:24:00Z")
> [@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. > > In the same way, money has a secular purpose. Printing notes that say, “In God We Trust,” does not dilute that secular purpose. I am not a lawyer (thank Og!) and so I’m not up on the Lemon test, and couldn’t work my way through the original decision, but to my uneducated eye it seems that Bricker’s point here is key, and that the people who brought the suit did it in the wrong way. The purpose of the suit was to overturn the schools law against the recitation of the pledge. The decision states that the purpose of the pledge (with or without under god) is primarily secular, and so there is nothing wrong with having it recited. The words of the pledge were previously set by congress in 1954 with no input from the school district and so as far as they are concerned they have no choice in what words to include. It doesn’t matter if the pledge with the words “under god” excluded would do just as well because it wasn’t they who put them there. As I see it the better approach would be to attack the 1954 law as unconstitutional as this was really the point at which an otherwise totally secular oath had god added to it for no good 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, 9:03pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/134 "2010-11-16T21:03:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The point is that the specific act of Congress which inserted the words “under God” into the Pledge may be challenged on its own, without having to challenge the text of Section 4 in its entirety. OK. And who would have standing to do that? ---
**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, 9:06pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/135 "2010-11-16T21:06:45Z")
> [@villa](#): > > I’d agree with you. > > But there is pretty strong support in the text of the constitution, as well as in multiple comments from multiple law makers, for the suggestion that belief in a deity isn’t a required value for being a patritotic American. There’s less such support for the concept that pledging allegiance to a flag and the republic isn’t one of those values. > > I think the pledge is itself counterproductive. But if there is to be a pledge, would you not agree that it’s purpose, as stated in this case, is better served by it being as inclusive as possible on religious grounds? Would the current pledge not be more inclusive, given the make up of the United States, than one including “one nation, under Baal”? > > You made an absolute statement - that the addition of the words doesn’t dilute the secular purpose. I think you are pretty obviously wrong on that. You’re right. I agree that the inclusion of those words does dilute the secular purpose. I should not have made that sweeping a statement. I should have said, and do say now, that to the extent there is dilution, it’s minimal – in fact, it’s _de minimis_, as in de minimis non curat lex. ---
**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, 9:14pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/136 "2010-11-16T21:14:10Z")
That claim, even if it’s a claim to be only your opinion, is contrary to your triumphalism in the OP, and the fact that you even thought the OP worth writing. In the opinion of those Americans who do not share your devout Christian beliefs, it’s not quite so minimal, ya know? ---
**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, 9:19pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/137 "2010-11-16T21:19:47Z")
> [@Bricker](#): > > OK. > > And who would have standing to do that? Which explains why: (a) standing jurisprudence in constitutional law sucks … and … (b) for all the many reasons Scalia is going to burn in hell, _Lujan_ is at the top of the list. ---
**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, 9:29pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/138 "2010-11-16T21:29:44Z")
> [@Bricker](#): > > I should have said, and do say now, that to the extent there is dilution, it’s minimal – in fact, it’s _de minimis_, as in de minimis non curat lex. > [@](#): > > Congress shall make no law respecting an establishment of religion… I don’t see a de minimis exception in there. Leaving aside the fact that we aren’t going to agree on the seriousness of the dilution, don’t you find it even a little disturbing that something as clear cut as Establishment should be fudged over by courts in this fashion? I’d almost rather they had the balls to come out and say “this means the government cannot impose Catholicism, but doesn’t stop them preferring Christianity.” At least that would be honest. ---
**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, 9:58pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/139 "2010-11-16T21:58:26Z")
> [@Bricker](#): > > OK. > > And who would have standing to do that? You’ll have to educate me here. Why _wouldn’t_ anyone have standing? ---
**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, 10:02pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/140 "2010-11-16T22:02:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > You’ll have to educate me here. Why _wouldn’t_ anyone have standing? No one has a specific injury from it. Taxpayer standing is usually enough for Establishment Clause claims, but there is no tax impact on this - it isn’t a funded program. It’s the constitution’s version of a victimless crime - which is bs, because it ain’t. A parent can challenge the state law requiring their child to say it, or requiring them to be in the room when others say it, or requiring them to have time out of their day wasted when others say it. But the law itself establishing the Pledge, and the offending words in it doesn’t directly harm anyone sufficiently enough for them to have a claim. [Previous page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=6) [Next page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=8)