Who “owns” the Pledge? I’m sure “own” isn’t the right word. I know Congress added “under God” in the 1950s, but what exactly were they adding it to? Congress makes the laws. What law is the Pledge a part of? My point is that I want to know who officially can add or delete words to/from the Pledge. Obviously Congress, but why?? And where, exactly, are the stone tablets where it’s written?
Who is the Pledge designed for? Obviously every American, but is it spelled out exaclty when and where it is to be said? Schools are the only place I’ve ever said it or ever given the opportunity to others (I’m a teacher). I suppose anyone can say it at any time. (I wonder if it counts if there isn’t a Republican nearby to witness it?)
What is the ETA of the SCOTUS’ (you know, if you acronym it from Supreme CouRt Of The United States you get a MUCH funnier name) decision?
Can something in the COTUS (If you acronym that with ConstItution Of The United States, you get a really hilarious word) be declared unConstitutional? Let’s pretend, just for giggles and pure hypothesis, that the SCOTUS deems the Pledge unConstitutional and within .032 seconds Congress and whatever majority of the States ratify an Amendment (You know it’s already written. Hypothetically. They keep it next to the flag burning ammendment. Right next to the fire extinguisher.) that declares “The Pledge shall contain the following phrase: Under God, and we all know which God it means, like we all knew before but now we’re spelling it out so there is no doubt, and you aren’t a real American unless you think this phrase should be in.” Can the SCOTUS declare that Amendment unConstitutional, or can it only be struck out by a new Amendment?
The answer to your third question is that the Supreme Court cannot strike down an amendment. By definition, an Amendment makes the Constitution a different document which the Supremes must accept as law.
Now, if one Amendment directly contradicts another (without express language saying that the latter supersedes the former), then the Supremes may be called upon to resolve the issue. As I am not aware of any specific case where this has already happened (as opposed to reconciling different philosophical concepts in different clauses), I do not know what the result would be.
For example, a new Amendment that declared nothing more than “The United States recognizes its obligations to the beneficent Creator, God.” would clearly violate our current understanding of the First Amendment, but it would simply give Constitutional lawyers permanent employment attempting to determine how current case law and Constitutional precedentrs should be re-decided in light of the additional Amendment.
The Flag Code has not been enforced because it is not statute. It is a resolution of Congress that sets out the “rules and customs” to display the flag. The whole code is written in the subjunctive mood. (Note that when some District Attorney with an eye to ganering publicity goes after a “flag burner,” he pretty much always relies upon a local statute. Federal prosecutors do not engge in such frivolity, having no statutory interest in those matters.) Most of the rules regarding the flag are the results of Executive Orders that bring with them their own issues regarding enforceability.
Statutes (laws) are written as orders to permit or proscribe particular actions. They must be passed by a majority of both houses of Congress and signed into law by the President. (This is the vastly over-simplified version.)
A resolution is not binding on anyone and does not require (or even accept) the signature of the President. Note that the Flag code repeats the formula “the flag should” throughout its text. Can you imagine a law prohibiting murder that was worded “a person should not cause another to die”?
There have been laws enacted that included the word “resolution” in their titles, but usually, resolutions are reserved for naming May as “National Be Kind to Flower Beds Month.”
I note on the Flag Code site that it is identified as a Joint Resolution. (I had thought that it was a Concurrent Resolution.) I don’t have the energy to track down whether that ever got a presidential signature to become law, but the persistent subjunctive phrasing still would make it pretty difficult to prosecute most of it. (Too many “shoulds” and too few “shalls”.)
By executive order, the US military and executive offices are required to obey the flag code. For everyone else it’s just a suggestion. (Freedom of speech and all that.)
To answer the question about possibly-repugnant provisions of the Const., the one I always wonder about is the one dealing with the Vice-Presidency.
The 18th(?) am. says that no person can be elected President if they have already been elected twice. And the 12th(?) says that no person who is ineligible for the office of President can be elected VP. At the time that the 12th(?) was passed, presumably the only disqualifications were not being US-born, not being 35 (or whatever), etc.
So, does the 18th add a disqualification, that is, Bill Clinton can’t be elected or appointed VP? Or not? (Since being a twice-elected Pres. was not a DQ when the 12th(?) was passed).
Just a thought.
JohnW77707, Esq.
There’ve been like a dozen threads this year so far on whether Bill Clinton can be elected VP. I’m not going to reiterate the arguments again (search GQ for “Clinton”) so I’ll only mention that it’s the 22nd Amendment which term limits the presidency.
tom is partly incorrect; the Flag Code is indeed a statute, just like everything else in the U.S. Code. He’s right that the law doesn’t require that its provisions be observed, nor does it impose any penalty for their violation (indeed, it would be in violation of the 1st Amendment were it to do so), but it most certainly is a law. Concurrent Resolutions are passed by the two Chambers of Congress but not signed by the president and do not have the force of law. Joint Resolutions do require the president’s signature* and, if they receive it, are fully valid laws.
–Cliffy
As tom alludes above, this is an oversimplification. Most laws signed by the president, but if a bill is passed by both Chambers and sits on the president’s desk for 10 days without a veto, it becomes law without his signature. Also, if the president vetoes a bill, Congress can override his veto by a 2/3 majority in both Chambers.