June 16, 2004

I have been writing, or rather brainstorming, a lot these last few days and not blogging much at all. I have been wrestling with the nature of American Civil Religion and with the relationship between Christianity and the common law.

The more I dig into the antebellum understanding of the common law and religion, and of the relationships between the states and the union, the more I realized that the 1954 Pledge of Allegiance is just plain wrong.


Religion is a state matter, not a national matter. That is the one thing that the founders and the folks who ratified the Constitution all agreed on. It appears that Justice Thomas agrees, which confuses Eric Muller.

And, drawing on the notion of natural law and the law of nations, Jefferson, Madison, Jackson and Lincoln all agreed that the United States has its own existence prior to the Constitution, generally dating from the Continental Congress in 1775 (If we dated it from the Declaration of Independence, then Virginia would be separate because it declared independence in June, 1776) The nation has been proven to be indivisible; states have divided themselves again and again - the entire midwest was once Virginia.

What does that mean? I would argue that the FEDERAL goverment can approve a Pledge of Allegiance that reads "one nation, indivisible, with liberty and justice for all" while the STATE governments can approve pledges that read "our commonwealth, under God, with liberty and justice for all."

Thus while Justice Thomas suggests that the pledge policy is constitutional because it does not infringe on free exercise rights, I would suggest that it would only be constitutional if the state were to modify the pledge to apply to the state "under god" and the federal government "indivisible."

Of course, that then opens the can of worms about how does the notion that the 14th Amendment applies the Bill of Rights to the states affect the Establishment Clause and the 10th Amendment which were designed to protect the states from encroachment by the Federal Government. Eugene Volokh likes to think of the establishment clause and the free exercise clause as countervailing clauses, the first protecting government from religion, the second protecting religion from the government. It is not a bad way to read it; I do not know what John Jay, John Marshal, Joseph Story, or even the lamented Robert Taney would say about it.

Posted by Red Ted at June 16, 2004 01:06 AM | TrackBack

I thought Thomas' piece was an elaborate handwave, yet another in a long line of conservative attempts to drag society back to the 19th century by invoking states' rights.

I was not surprised that the court ruled against Newdow, though I was slightly surprised that they chose to dodge the bullet. As an atheist I'm not happy about the pledge, of course, but the fact remains that 95% of this country's population is theistic and expecting them to cater to atheists in every small detail is just silly.

Posted by: DFH at June 18, 2004 01:54 AM
Post a comment

Remember personal info?