Again, I’ll be happy to have the discussion with you once you know the first thing about it. At the moment, I am wasting my time as much as I would be discussing textualism with my 10 year old son. At least then I would enjoy the company.
Then please help me understand. I may be coming off a bit snarky in my posts, but I don’t mean to. I realize that I am quite a bit over my head here, but I was hoping to fight my own ignorance and learn where the flaws are in my thought process. It seemed to my untrained mind that there should be a way to challenge the wording of the pledge without getting rid of the pledge requirement. i.e. throwing the baby out with the bath water. Apparently that is not the case. I was trying to understand why and sometimes find it easier to highlight my questions by presenting a more stark example.
As a patriotic American I try to keep myself informed about political issues, but perhaps, in the future I should keep my questions to myself and let the lawyers argue it out, confining myself to the math/science threads in which I am in my own element.
Sure. You said:
As I read that line, it occurred to me that the draft compelled a person into military service, where not only his speech but his very actions are forced to be executed in “adherence to [an] idea” and the potential jeopardy is quite a bit more concrete than the speculative danger of social pariahdom for refusing to say the Pledge.
So I thought that one way of showing you the problem with your thinking was to point out that if saying the Pledge voluntarily isn’t constitutional, how could the draft be?
OK. Well, as plain as those words are, they do not compel a particular result, because “an establishment of religion” is not a precise phrase. I don’t agree that merely inserting the words “under God” in the Pledge constitute an establishment of religion.
The same Congress, the same group of men that approved the First Amendment, three days after they authorized the appointment of paid chaplains to open Congressional sessions with prayer, completed the language of the First Amendment. They saw no conflict between the words “establishment of religion” and daily recitations of prayer at the heart of the federal government.
So – has “establishment of religion” changed meanings over the years?
No, no - not at all, and I apologize if my own comment came across as dismissive or snarky.
The main area I felt your analogy failed is because the inclusion of a Koran is quite a bit more substantial a step towards favoring a particular religion than the use of two words in the Pledge. (Of course, your example would suffer the same illness if you had specified a Bible.)
The courts have generally held that small gestures like this are more a nod to and recognition of our country’s history and traditions than they are a genuine religious endorsement. At the very court that heard this appeal, for example, I guarantee you that their session that morning began with the clerk intoning, “God save the United States and this Honorable Court.” This does not establish religion; it is merely a tradition. The First Amendment does not command that government be hostile to religion.
And this is, by the way, the answer to, “If this stuff is so unimportant, and so non-religious, why are the Christians so interested in seeing it continue?” The answer is that for the government to decide that these minor nods to history and tradition are forbidden would indicate more than neutrality to religion – it would be outright hostility to even the faintest religious hint. That’s not good, and not what’s meant by the First Amendment.
Yes, it probably has. The meaning of words has never been frozen in time. I don’t think that the framers accidently used the language they did in the constitution and bill of rights. It is distinctly possible, and I’d argue likely that the Bill of Rights was written in a broad manner deliberately to prevent it being frozen in time.
Did the same group of men who approved it authorize the appointment of paid chaplains? Yes they did. But, apart from the amusing thing that this should be irrelevant to a textualist approach, if the text is clear, the text is clear, and it doesn’t matter if 15 seconds later or 15 seconds before the people who wrote it or passed it violated it. One of the major purposes of the Bill of Rights was the idea that without such restrictions, the legislature could not be trusted not to violated certain basic rights. Therefore the violation of an amendment by the people who wrote it can also be viewed simply as a sign of how needed the Bill of Rights was.
I don’t think it does - it’s the inclusion of nod to a Judeo-Christian deity in something which the passers thought was staggeringly important. The idea is that all children, if they don’t say this, at least hear it. Certainly much greater exposure than a closed book provided with lunch.
It’s more than a little circular to say that “the courts have generally held that de minimis violations of the First Amendment don’t matter” therefore “de minimis violations of the First Amendment don’t matter.”
Why don’t they?
X isn’t really religious, but removing X would be anti-religious? Would it make people feel better if we framed it as getting rid of “under God” to lower the printing costs of the Pledge?
Outright hostility to religion isn’t meant by the First Amendment, in fact it is specifically forbidden by it. But inclusion of the phrase “under God” referencing a Judeo-Christian God is in and of itself outright hostility to other religions. It’s the government stating they are incorrect. And we don’t allow that.
Yes, but you still haven’t made the basic case: why does a brief nod to history, tradition, and a generic reference in two words to “God,” constitute an “establishment” of religion? The word “establishment,” doesn’t evoke brief, incidental involvement, does it? It suggests a more involved endorsement, a bigger role. To “establish” means to institute permanently, or to bring into existence. You establish a foundation, a scholarship, or even a republic.
That was what the men that voted the rule into existence thought it meant, and that’s what I think it means today. You’re the one trying to shoehorn a new meaning onto it, and then trying to buttress your action by pointing to the text. The text doesn’t help you here. To paraphrase Mandy Patinkin’s Inigo Montoya, “I do not think it means what you think it means.”
But the degree of specificity is … er … “staggeringly” different. “Under God,” is two words, about as non-specific a reference to a generic deity as you can get with two words and remain poetic. The Bible (or the Koran) is closed, but not locked, and contains thousands of words endorsing a particular flavor of religious belief.
For the same reason that de minimis violations across the board generally don’t matter. It’s not a principle confined to First Amendment law. “De minimis non curat lex” – the law does not concern itself with trifles.
What a good example of a de minimus impact. Really? The printing costs of two words?
Yes, we do. We have consistently allowed it, over the entire history of the country, and we’re continuing to do so.
Establishment as regards religion doesn’t refer to founding a religion. It refers to the provision of government backing, support, endorsement. And stating in the words which it is intended express the support of each American for their country that it is a nation under God is most definitely the provision of backing, support or endorsement.
No it isn’t. The provision of a book as opposed to a statement that the Judeo-Christian God is above the country?
The problem is anything can be considered to be a trifle, and constitutional law is different. I’d disagree this is a trifling matter, but that isn’t what is important here. Every possible violation of the Establishment Clause can be considered a trifle because “trifle” isn’t a legal term of art, as far as I have yet seen.
Well then it wouldn’t offend your religious sensibilities, would it?
So it is your opinion the First Amendment allows outright hostility to non-Judeo-Christian religions on the part of the Government. I think our interpretations of the First Amendment differ pretty significantly, then.
When Rev. Martin Luther King, Jr., lead protest marches in the South against segregation, he was breaking the law of the land. He said that he was doing so because he was following God’s law, which was above American law. Do you think that he was justified in doing so?
Whether the draft is constitutional in general is a much broader and separate question, I think. In general, assuming that the draft is constitutional, a draft constitutes an exceptional and temporary abridgement of a series of constitutional rights. Thus, the strictures that the government might impose on a draftee do not read generally into day-to-day governmental authority over private citizens.
But think about the purposes of a draft – they are not concerned with ascertaining or regulating the state of mind of individual citizens. The draft would violate a lot more than just the First Amendment, but those violations of fundamental rights are actually incidental to the purpose of the draft. Even then, the draft does not seek to make you reveal your state of mind, but is primarily concerned with a draftee’s actions – military service in a time of war – which constitutes a bundle of public acts, not private thoughts. Furthermore, whatever justification exists for a draft depends on the existence of a temporary emergency, not a general interest by the government in obtaining affirmations of all citizens’ state of mind regarding complex and abstract ideas.
And my larger point is that whether or not current jurisprudence allows for the creation of a loyalty oath by the government, it is something that violates the spirit of a democratic society.
You’re missing the point here. MLK was justified in breaking the law. It has nothing whatsoever to do with him saying he was following God’s law. If you go out and kill hookers this weekend, and say you were doing it becayse you were following God’s law, which is above American law, it’s kind of irrelevant. You shouldn’t have been killing hookers. MLK should have been leading protest marches, regardless of the status of the law.
Please read this as “anyone’s religious sensibilities.” Re-reading it, I realized it comes across as snide and personal, and that wasn’t my intention at all.
Since a bible/koran is a particularly blatant alteration that would never occur, let me change it to something more likely (but which hopefully you would agree as unconstitutional) such as a napkin containing a suggested grace prayer thanking Jesus for this food.
So getting back to my question, would the best way to fight this practice to be to attack the general recommendations that put the prayer into the lunch, or the school which started putting out the lunches according to these recommendations.
If its the former then presumably the student who received such a lunch would have standing to attack the recommendation as unconstitutional. If it’s the latter, couldn’t the school board claim that since purpose of the program was to provide nutritious lunches according to government recommendations, and the napkin in no way interfered with that purpose.
No. You are evidently unwilling to admit that the Court is making biased decisions, because they just happen to conform with your desires.
No, you’re utterly wrong. Period.
That’s certainly what the line of cases under the Establishment Clause have come to conclude, in large measure. But that’s not what “establishment” means. Certainly that’s not what the guys who passed the law meant, and it’s not what a plain reading of the words means right now.
But the “spirit of a democratic society” isn’t violated by the majority of citizens voting for legislators that approve something like this and then asking a court to take it away?
Not to be rude, but it sure seems like you like the idea of a democratic society only when the voters in it agree with you.