# 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:** 9
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 1:58pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/161 "2010-11-17T13:58:45Z")
> [@kanicbird](#): > > It is very possible that the phrase ‘under God’ was placed there by God, and therefore is above the courts ability to remove it. > [@Lightnin](#): > > There are no words. Sure would have made briefing the issue easier. ---
**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 17, 2010, 2:00pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/162 "2010-11-17T14:00:19Z")
> [@](#): > > There are no words. God took them away. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 17, 2010, 2:27pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/163 "2010-11-17T14:27:56Z")
> [@Bricker](#): > > No, you’re utterly wrong. Period. Not very convincing there. Got an actual counterargument, or mere gainsaying? You might, for one thing, acknowledge that a court ruling can be wrong. Whenever caught out, you’ve resorted to simply saying “Well, the courts have ruled the way I prefer, therefore I’m right”. You know better; all the rest of us do. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 17, 2010, 2:49pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/164 "2010-11-17T14:49:03Z")
I’m probably going to regret asking this, but here goes anyway. How is “ceremonial deism” not “ceremonial religion” and thus “religion”? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [November 17, 2010, 3:07pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/165 "2010-11-17T15:07:53Z")
> [@ElvisL1ves](#): > > Not very convincing there. Got an actual counterargument, or mere gainsaying? Whoooosh! ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 3:08pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/166 "2010-11-17T15:08:17Z")
> [@Bricker](#): > > Scalia hypnotized White, Rehnquist, Thomas, Kennedy, and Souter? > > Man, that guy’s good. > > So basically your argument at every stage of this is, “The existing law sucks,” if it doesn’t support your peculiar view of how things should be? > > Tell me, **villa** – is there any decision that you don’t agree with but are willing to call reasonable? Just so I can compare… Come on - hypnotising Rehnquist wasn’t a challenge - it was a matter of waving a Hostess Cupcake in front of him. And you know the actual verdict isn’t everything - how the decision is written is also of fundamental importance. Therefore I can hold a greater degree of vitriol for the writer than the people who merely sign on to it. And no, that’s not my argument. As I have already said - this law fails the current law IMHO. And as a total aside, the First Circuit didn’t say to Newdown that “Pledge w/‘Under God’ is Constitutional.” They said this NH law was constitutional. I think standing law on constitutional matters is pretty flawed after _Lujan_. It’s a way of preventing challenges, and I think we should be welcoming constitutional challenges. Kind of a job creation program. Here’s a couple that I work with regularly that I think are incorrect, but which I think are reasonable. Incorrect, but reasonable. _Twombly_ and _Matsushita_. Decisions going to the core of the constitution are much more likely to be seen as unreasonable. We have a fundamental difference on how to view the constitution. I would describe myself as a Dworkian Original Intent kind of guy. You’ve said in the past you don’t think people who view the constitution as a living evolving document should be on the Court (paraphrase, and I am open to correction on it). I don’t go that far about textualists, as I think it is useful to have one or two there, but I think textualism is a fundamentally flawed doctrine that is as, if not more results-oriented than other forms of constitutional interpretation. When a result is based on a textualist reading of the constitution (as opposed to a reading of the plain text of the constitution), that is then likely to be what I think you are describing as unreasonable in my opinion. ---
**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 17, 2010, 3:09pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/167 "2010-11-17T15:09:16Z")
> [@](#): > > I’m probably going to regret asking this, but here goes anyway. How is “ceremonial deism” not “ceremonial religion” and thus “religion”? [QUOTE=Justice Brennan] [s]uch practices as the designation of “In God We Trust” as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form a “ceremonial deism,” protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. [/QUOTE] It’s a polite legal fiction designed to keep SCOTUS from having to make an unpopular decision. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 3:14pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/168 "2010-11-17T15:14:14Z")
> [@Bricker](#): > > No, it’s not disturbing, because there’s no religion “established” by the mere inclusion of the two words “under God” in the Pledge. I grant you that “established” has been twisted over the years to encompass much more than it should mean, but I don’t lose a moment’s sleep over “establish” being interpreted this way. I just don’t understand this. This is an area we should all agree on - the text of the Constitution is clear. “Congress shall make no law respecting an establishment of religion.” It’s not “Congress shall make no law establishing religion” or “Congress shall make no law establishing a religion” or “Congress shall make no law establishing a Church” or “there shall be no established Church in the United States.” It is written to be broad. It is written to prevent any law that comes close to establishment. The twisting comes from claiming that, somehow, it doesn’t mean “well we can give tax breaks to religion.” ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 17, 2010, 3:14pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/169 "2010-11-17T15:14:26Z")
Y’know, you’d think the Very Devout Christians who always fight for the retention of all the trappings of Ceremonial Deism would be insulted and appalled that it’s considered an empty gesture, devoid of actual religious meaning, wouldn’t you? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 3:15pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/170 "2010-11-17T15:15:57Z")
> [@Shodan](#): > > Your problem is not that I don’t understand textualism; it is that I do understand its opposite. For those who believe that the Constitution says whatever the Supreme Court says it says, the above is a meaningless statement. > > The Supreme Court is the sole interpreter of the Constitution. They have interpreted ceremonial deism as not being an establishment of religion. Ergo, it is not. Full stop. > > If you would like to use some other principle, like textualism, to argue that the Supreme Court is wrong, well and good. But unless that principle applies to all other Supreme Court decisions, then you are engaging in exactly the sort of ends-oriented reasoning that you claim to abhor. > > Regards, > Shodan Wow. You really, really, really don’t understand the first thing you are talking about, do you? You honestly think that there is textualism, and then everything else is “whatever the Supreme Court says is right and cannot be challenged.” ---
**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 17, 2010, 3:27pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/171 "2010-11-17T15:27:49Z")
> [@Bricker](#): > > Yes, the instant plaintiffs have standing to complain about the Pledge, as it exists today. > > They don’t have standing to complain about the 1954 act adding “under God” to the Pledge. They have to complain about the Pledge as a whole, because it’s the pledge as a whole that (supposedly) injures them. Just so I’m clear, if a federal commission says that we recommend that a proper school lunch should also include a copy of the koran, as well as carefully worked out set of nutritional guidelines. And then the state of California mandates that schools should provide lunches according to the federal guidelines, then the choice is to accept the koran or do away with lunch entirely, since the inclusion of the koran doesn’t in any way interfere with the nutritional value of the lunch. Not to impinge on our legal system, but this seems screwed up to me. and reminds me of chocolates with just a touch of lark’s vomit. ---
**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 17, 2010, 3:36pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/172 "2010-11-17T15:36:47Z")
> [@Bricker](#): > > 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? For the same reason the constitution embodies – implicitly if not explicitly – freedom of expression, freedom of thought, and freedom of conscience. In a democracy, each individual is free to think, believe, and speak according to his or own impulses, compunction, compulsion, etc. It violates the autonomy of the individual for neighbours or government to seek to compel disclosure of the inner workings of a person’s mind or to compel speech that expresses adherence to any idea, especially an abstract one like loyalty, and especially in a situation in which the choice between accession to such a demand and rejecting such a demand puts you in a potential position of jeopardy. Society has no moral authority to police your mind, and that’s what a loyalty oath amounts to. And it’s offensive for society to put a person minding his own business in a position to either accede to engaging in speech he or she doesn’t want to or to publicly refuse in a manner that may attract enmity. Further, “loyalty” as a concept itself should be out of bounds for the government. So far as the government is concerned, a private member of society going about his or her private business is nothing more than his or her public acts. The only concern of the government should be whether your acts have violated any law. Your feelings and thoughts and beliefs and and attitudes regarding concepts like loyalty should be out of bounds. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 17, 2010, 3:46pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/173 "2010-11-17T15:46:43Z")
> [@tomndebb](#): > > Whoooosh! Your own contributions to this discussion have been integral as well. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 17, 2010, 3:49pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/174 "2010-11-17T15:49:41Z")
Well, I guess an oath to an overarching authority keeps the individual states from seceding, or something. They keep _hinting_ they will, what with this “state’s rights” stuff that translates to a desire to shake off Federal restraints on how oppressive a state can get, but as long as you can get citizens from sea to sea getting all teary-eyed at a red, white and blue piece of cloth, there’s a safeguard. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 4:17pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/175 "2010-11-17T16:17:29Z")
> [@villa](#): > > I just don’t understand this. This is an area we should all agree on - the text of the Constitution is clear. “Congress shall make no law respecting an establishment of religion.” It’s not “Congress shall make no law establishing religion” or “Congress shall make no law establishing a religion” or “Congress shall make no law establishing a Church” or “there shall be no established Church in the United States.” > > It is written to be broad. It is written to prevent any law that comes close to establishment. The twisting comes from claiming that, somehow, it doesn’t mean “well we can give tax breaks to religion.” Except that: “…I think textualism is a fundamentally flawed doctrine that is as, if not more results-oriented than other forms of constitutional interpretation.” Why, in this case, do you find textualism to be the appropriate method of interpretation? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 4:18pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/176 "2010-11-17T16:18:52Z")
> [@acsenray](#): > > For the same reason the constitution embodies – implicitly if not explicitly – freedom of expression, freedom of thought, and freedom of conscience. In a democracy, each individual is free to think, believe, and speak according to his or own impulses, compunction, compulsion, etc. It violates the autonomy of the individual for neighbours or government to seek to compel disclosure of the inner workings of a person’s mind or to compel speech that expresses adherence to any idea, especially an abstract one like loyalty, and especially in a situation in which the choice between accession to such a demand and rejecting such a demand puts you in a potential position of jeopardy. Society has no moral authority to police your mind, and that’s what a loyalty oath amounts to. And it’s offensive for society to put a person minding his own business in a position to either accede to engaging in speech he or she doesn’t want to or to publicly refuse in a manner that may attract enmity. > > Further, “loyalty” as a concept itself should be out of bounds for the government. So far as the government is concerned, a private member of society going about his or her private business is nothing more than his or her public acts. The only concern of the government should be whether your acts have violated any law. Your feelings and thoughts and beliefs and and attitudes regarding concepts like loyalty should be out of bounds. I see. Was the draft constitutional? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 4:23pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/177 "2010-11-17T16:23:55Z")
> [@Bricker](#): > > Except that: “…I think textualism is a fundamentally flawed doctrine that is as, if not more results-oriented than other forms of constitutional interpretation.” > > Why, in this case, do you find textualism to be the appropriate method of interpretation? I don’t. Notice I said I find “a reading of the plain text of the constitution.” That’s always the first step. Everyone agrees on that. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 4:26pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/178 "2010-11-17T16:26:25Z")
> [@Buck\_Godot](#): > > Just so I’m clear, if a federal commission says that we recommend that a proper school lunch should also include a copy of the koran, as well as carefully worked out set of nutritional guidelines. And then the state of California mandates that schools should provide lunches according to the federal guidelines, then the choice is to accept the koran or do away with lunch entirely, since the inclusion of the koran doesn’t in any way interfere with the nutritional value of the lunch. > > Not to impinge on our legal system, but this seems screwed up to me. and reminds me of chocolates with just a touch of lark’s vomit. No, I think it’s safe to say you misunderstand. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 17, 2010, 4:29pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/179 "2010-11-17T16:29:11Z")
> [@villa](#): > > You honestly think that there is textualism, and then everything else is “whatever the Supreme Court says is right and cannot be challenged.” No, textualism is this kind of argument - > [@](#): > > This is an area we should all agree on - the text of the Constitution is clear. And it is a perfectly valid position - the Supreme Court should decide cases based only on the clear text of the Constitution. Decisions that are not so based - Kelo v. City of New London, Roe v. Wade, the decision in this thread - are wrongly decided and should be overturned. I am glad we have found common ground - textualism is not fatally flawed. In fact, it is the correct basis for Constitutional interpretation. Regards, Shodan ---
**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 17, 2010, 4:33pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/180 "2010-11-17T16:33:15Z")
> [@Bricker](#): > > I see. > > Was the draft constitutional? Show your cards. Tell me how this question relates to what I said. [Previous page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=8) [Next page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=10)