One Nation Under ?

My eighth grade teacher, the formidable Miss Faulk, refused to require (or, as I recall, even allow) students to recite the Pledge of Allegiance in her classroom. She had no problem with “under God,” but Miss Faulk was a fiercely unreconstructed Confederate, and she had a great deal of trouble with “one nation, indivisible.”

The stone Confederate monument in the town square was inscribed “Lest We Forget” over the names of the honored Confederate dead, and Miss Faulk never forgot. Right was right; wrong was wrong; and wrong did not become right by virtue of the passage of time and shifting values. I was reminded of her — actually of the two of them, Miss Faulk and the monument — by one of the primary reasons given as to why the phrase “under God” in the Pledge should not be regarded as violating the Establishment Clause.

As is often the case with Constitutional issues– and especially highly controversial issues — we must take care to distinguish the right answer from the right reasons for the right answer. In that spirit, and with the revived memory of Miss Faulk and the monument in mind, I must say that I have been troubled by one of the widely offered arguments for rejecting the Ninth Circuit’s decision barring recitation of the Pledge.

In “One Nation Under Blank,” its editorial on the issue, the Washington Post quoted with approval a comment of Justice Brennan (from Lynch v. Donnelly, 465 U.S. 664 [1984]): “I would suggest that such 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 . . . as a form a ‘ceremonial deism’ protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.”

In “One Nation Under God,” its similar editorial, the New York Times made exactly the same point (without attribution to Brennan). “After millions of repetitions over the years,” opined the NYT, “the phrase [“under God”] has become part of the backdrop of American life, just like the words ‘In God We Trust’ on our coins and ‘God bless America’ uttered by presidents at the end of important speeches.” Nevertheless, the NYT admitted that “We wish the words had not been added back in 1954.”

That’s a bit lame. It says, in effect, that the Congressional action adding “under God” to the Pledge might well have been unconstitutional when it was done in 1954, and perhaps for a year or two (or three? or four?) afterwards, but now that we’re used to it it’s O.K. Actually, it’s worse than lame. We were also used to racial segregation, after all, as critics of Brown v. Board of Education (also 1954) have long pointed out. Have the WP and the NYT developed a new appreciation for those critics?

One of the few examples in the law of two wrongs making a right is trespass. If trespass is allowed to occur long enough, the trespasser can take adverse possession of the property he invades. Reasonable people can disagree over whether a “living Constitution” (as compared to what? A dead one?) provides the best protection of our rights, but everyone should reject the principle that trampling on Constitutional rights long enough gives adverse possession of them to the trespassers.

Miss Faulk would never do that, and neither should we. Lest we forget.

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  1. […] In my last post I criticized the notion that Constitutional rights could be lost through a version of adverse possession, i.e., that the rights disappear if they’re trespassed upon long enough. Now friend and SuperBlogger Eugene Volokh has mentioned the […]

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