December 23, 2003
by Matthew Woessner
The case to be argued before the Supreme Court involves the daughter of Michael Newdow. Concerned that references to God constituted a violation of the First Amendment’s “Establishment Clause,” Newdow asked a federal district court to order the President of the United States to “alter, modify, or repeal” the existing language to exclude the words “under God.” Recognizing that Newdow’s proposed remedy was flagrantly unconstitutional, the court refused to order the president or Congress to alter the existing language. However, siding in part with his interpretation of the First Amendment, the Ninth Circuit Court of Appeals overturned the 1954 act of Congress which inserted the phrase “under God” into the wording of the original Pledge of Allegiance.
The question now before the Supreme Court is not whether the “controversial” reference is desirable. Rather the justices must determine whether the wording of the First Amendment unequivocally precludes any reference to God in any official public proclamation. The relevant portion of the First Amendment, as referenced by Newdow, reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” Newdow claims that by including the term “under God” in the pledge, Congress acknowledges the existence of a god, and as such unlawfully establishes a national religion. In public interviews concerning his lawsuit, Newdown argues that the United States is in fact a theocracy. Accordingly, such references constitute the persecution of persons, like himself, who do not believe in God.
Admittedly, the meaning of the First Amendment is often far from clear. In determining the scope of its projections, there can be honest disagreements as to how specific passages must be applied. The problem with constitutional interpretation is further compounded when courts are asked to determine how First Amendment protections apply to unusual circumstances and novel situations which arise as a result of sweeping political crisis or technological innovation. In such cases it is difficult to know for certain what legislators were thinking when an amendment was written and subsequently ratified. However, the present circumstances raise no such questions, as public references to God were even more commonplace when the First Amendment was written than they are in modern times. On September 25, 1789, the first Congress, acting in its official capacity as the people’s representatives, proclaimed a “day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God.” It seems highly unlikely that these same legislators would ratify a constitutional prohibition on governmental invocations of God.
In order to bolster Newdow’s claim that the invocation of God violates the core of the “Establishment Clause,” jurists must rely on a wholly undemocratic theory of legal interpretation which suggests that the meaning of the Constitution changes with the times. That which is perfectly permissible in one instance can become unconstitutional in the next. Rather than repealing the offending law or amend the Constitution by popular consent, judges must “discover” these miraculous constitutional prohibitions and impose them on an unwilling people. It is this reliance on judges in defiance of public will which makes these types of legal crusades so dangerous.
It is important to acknowledge that there is nothing about changing the existing pledge which is subversive to the democratic process. Indeed, many advocates of secular government lobby Congress to amend existing laws to preclude the invocation of God in a public setting. Whatever a person’s personal feelings about such changes, it must be acknowledged that this kind of grassroots advocacy (within the sphere of the political branches) is perfectly honorable, and consistent with America’s longstanding commitment to the principles of democracy. However, when advocates (whether on the Left or the Right), frustrated by their inability to alter the opinions of the political majority, attempt to use the judiciary to impose their agenda upon the country, persons of varied political persuasion should voice their concerns and demand the courts take no part in this democratic subversion.
The preservation of the democratic process requires that, under certain conditions, the “deliberate sense of the community” must be restrained, lest unpopular points of view are silenced merely because they threaten the status quo. Whenever “fundamental liberties” are at stake, courts legitimately constrain the legislature to preserve rights necessary for free government. As such, when judges strike down laws which arguably limit political debate or threaten a citizen’s right to due process, the majority ought to respect the spirit in which the decision was made. However, there is nothing in the present case which potentially threatens a free republic, or jeopardizes each citizen’s right to life, liberty, or property. As such, the courts ought to afford extreme deference to the elected representatives in Congress by reversing the Ninth Circuit decisions, thus reaffirming the right of the people to publicly acknowledge their belief that government is not the highest authority under the heavens.
Dr. Matthew Woessner is assistant professor of Public Policy at Penn State Harrisburg.
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