God Is Not in the Constitution


We receive our rights from God. —George W. Bush, denouncing the Ninth Circuit Court of Appeals decision that the Pledge of Allegiance is unconstitutional because it includes “one nation under God,” CNN, June 27

This decision is nuts, just nuts. —Democratic Senate leader Tom Daschle, CNN, June 26

If this decision is not overturned, we will amend the Constitution. —Democratic senator Joseph Lieberman, Fox News, June 26

In 1943, during our war against Hitler, the United States Supreme Court handed down a decision concerning the Pledge of Allegiance that created fierce controversy around the country—just like last week’s Ninth Circuit Court of Appeals ruling.

The West Virginia Board of Education had expelled children of Jehovah’s Witnesses for refusing to salute the flag and stand for the Pledge of Allegiance. These deviants were to be sent to reformatories for criminally minded juveniles, and their parents were threatened with prosecutions for causing juvenile delinquency.

The majority of the Court, in a decision written by Robert Jackson—later chief American prosecutor at the Nuremberg trials—defined the very essence of Americanism as they rebuked the West Virginia Board of Education and sent those kids back to school:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion, or any other matters of opinion, or force citizens to confess by word or act their faith therein.” (Emphasis added.)

Since then, there has been a long line of federal court decisions affirming the right of students to refuse to stand for the pledge or salute the flag—for a wide spectrum of reasons of conscience.

As I described in Living the Bill of Rights (University of California Press, paper), a number of principals and school boards have nonetheless punished students for following the 1943 Supreme Court decision, and these “educators” have been overruled by the courts.

Now we have nearly the entire House and Senate, along with an array of fashionable law professors and such dubiously anointed “legal analysts” as Jeffrey Toobin of The New Yorker and CNN, scorning the Ninth Circuit Court of Appeals’ ruling that the phrase “one nation under God” puts the Pledge of Allegiance in violation of the separation of church and state.

First, contrary to such instant experts as Connie Chung of CNN, the pledge has not been banned across the nation. The decision affects only the nine states within the Ninth Circuit’s purview, if it is not overruled. Second, even within those nine states, a public school student can still recite the pledge, omitting God. Or he or she can recite the pledge, including God—but not as part of an officially mandated public school exercise.

What Judge Alfred Goodwin, a Nixon appointee, did in his Ninth Circuit decision was to follow the rule set by Justice Robert Jackson in 1943:

The fact that “boards of education are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount principles of our government as mere platitudes.” (Emphasis added.)

In his decision in Newdow v. U.S. Congress, Judge Goodwin—like Jackson in West Virginia Board of Education v. Barnette—was affirming the fundamental constitutional command that the government cannot endorse any particular religion or all religions. Otherwise, like China, we would have certain preferred religious beliefs especially protected by the state.

From Judge Goodwin’s decision about why including “one nation under God” is a violation of the establishment clause of the First Amendment:

“Particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of [government] endorsement to some, and disapproval to others, of their beliefs regarding the existence of a monotheistic God.”

As he pointed out, the phrase “one nation under God” was added to the pledge by Congress in 1954 to advance religion for the sole purpose of differentiating the United States from atheist Communist nations. And, Judge Goodwin emphasized, “such a purpose” is forbidden by the establishment clause, which prohibits the government from advancing religion “at the expense of atheism.”

Goodwin also pointed to the “age and impressionability” of the children at the Morse School in Elk Grove, California, the site of the lawsuit. But on Friday morning, there on television were the elementary school students of that very school, with their hands on their hearts, reciting the pledge, including “one nation under God”—and to hell with the establishment clause of the First Amendment.

“Impressionable,” however, is not the word for the members of the House and Senate who thronged to excoriate the Ninth Circuit. And on the Capitol steps, in a proud bipartisan display of ignorance of the Constitution’s separation of church and state, the House members, hands on hearts, recited the pledge and broke into a righteous “God Bless America.”

The cause of all this belligerently conformist patriotism is Dr. Michael Newdow, an atheist and emergency room doctor who also has a law degree and acted as his own lawyer. He sued to preserve the constitutional rights of his eight-year-old daughter, a second-grade student in the Elk Grove Unified School District.

For exercising his constitutional right to confront his government in court, Dr. Newdow says, he is receiving “personal and scary” threats: “I could be dead tomorrow. . . . A lot of God-loving people think that killing other people who don’t agree with them is OK.”

Dr. Newdow may not receive a warm, protective response from Attorney General John Ashcroft, who insists that “this decision is directly contrary to two centuries of American tradition.”

An even longer American tradition is that there is no mention of God in the Constitution. The Declaration of Independence, heralded by opponents of the Ninth Circuit decision for its references to God, does not have the force of law. And the Constitution says plainly, “No religious test shall ever be required as a Qualification to any Office or public trust under the United States.” We all have the right to freedom of belief, or nonbelief, in God.