The Smart Guys discuss the Pledge

The Smart Guys, Erwin Chemerinsky and John Eastman, discussed the Pledge case before the Supream Court today. Typically my sympathies are with Eastman, but today I found Chemerinsky's arguments persuasive and well argued. Eastman made three errors which undermined his argument.

1) Original Meaning: Lawyers tend to make bad historians, and this is certainly the case here. Eastman posed the idea that the solution to the current problem was to return to the original meaning of the Constitution. Under the original meaning, "Congress shall make no law" restricted only Congress, not the states. Jefferson's famous Danbury Letter involved the fact that Congregationalism was an established church in Connecticut and Baptists were looking for assistance from Jefferson. Despite the fact that Congregationalists were usually Federalists, and Baptists were much more likely to be supporters of Jefferson politically, Jefferson refused to help them gain religious freedom, because the 1st Amendment created a wall between Church and State. Last week, Eastman complained about Blain amendments in state constitutions like Washington's, which were upheld in Locke v Davey. Original meaning allows Blain Amendments. Original meaning allows sectarian discrimination as long as the states do it, and not the federal government.

2) Eastman correctly identified the purpose of the 1st Amendment as a principle to prevent sectarian conflict in America. What he fails to see is that athiests are just one more kind of sectarian. Chemerinsky correctly analogized that where "one nation under Jesus" is obviously inappropriate, so is "one nation under God". (See below for me to anticipate a disagreement with Chemerinsky, since I don't think this is sufficient alone to strike the two words.) Atheists, like other Americans, have deeply held views about cosmological questions. Their views are entitled to the same protections as every other variety of philosophical, cosmological set of beliefs. This is, I think the heart of Chemerinsky's example. My own would involve a state mandated Hail Mary. Catholics would find it unobjectionable if applied appropriately, but Protestants would find it a troubling affirmation, since they reject the special nature of Mary held by Catholics. As a result, it is wrong for the state to impose such an affirmation. Likewise it is wrong for the state to impose such an affirmation, especially of children in a school setting.

3) Eastman argues that the line "they are endowed by their Creator with certain unalienable Rights " means that God resides above the state as arbiter of a higher law and that our rights ultimatly come from God. President Bush has argued the same case. I had not heard this argument until moving to the Bible Belt. My understanding of this line is entirely different. I am troubled by this understanding, because of the kinds of things it allows, such as Roy Moore's antics. I also don't believe the author of this line intended this reading, since this kind of expression is at odds with Jefferson's other ideas. Instead, this line should be understood in terms of Locke. Locke, author of the Reasonableness of Christianity is hardly anti-Christian. His role here is several. First, we should look to his notions of toleration. Second, the notion of inalienable rights is one he worked with himself in the Second Treatise. For example, Jefferson's list of inalienable rights, the words follwoing the above phrase, are Locke's in meaning. Jefferson said Life, Liberty, and the Pursuit of Happiness; Locke said Life, Liberty, and Property. I have seen it argued and agree that both men would have understood Property and the Pursuit of Happiness to mean the same thing. Consider Jefferson's view of the ideal America of yoeman farmers, individual property holders. He did not believe that we could pursue happiness as wage-earners in a Hamiltonian America. Why did Jefferson write Creator, rather than God? As an Enlightenment figure, and one with a certain hostility to religion, Jefferson prefered a rational creator diety which is often associated with Aristotle's First Cause. In fact the notion of inalienable rights is probabaly articulated first in a mature form by the Stoics, so this connection bears deeper resonance. The Stoics believed that all people had inalienable rights because all men posses reason. This argument would be far more satisfactory to Jefferson than the notion that a personal God interested in his salvation had crafted a specific social order for that purpose. A term like "Creator" should not be seen as an affirmation of the religiousity of the Founders, but rather of their desire to step as far away from a religious based politics in favor of a reason based politics as possible. Of course in there era, those making a religous based politics were monarchists and supported absolutist kings. Certainly its possible to assert that God created us and did not intend for men to have dominion over men. This is not what Jefferson was getting at, at least not the emphasis on God's intention. Chemerinsky argued that 10% of Americans would reject this possition (my guess is he is lumping all non-theists together here, because athiests are a smaller number) on the basis of no belief in God. BTW, Locke argued that athiests could not be trusted to hold office because they would not fear for their immortal souls. He also held that Catholics were not to be trusted because they followed a foriegn prince (the Pope). We have long held that one's American-ness, citizenship, or fitness for office is not basded on one's religious beliefs. While we have had no avowed athiests in high office, its is hardly prohibited. This notion of our rights comming from God is ultimatly not relevant, is not what Jefferson intended, and cannot be the basis of our collective political notions.

So, if we reject Eastman's possition do we adopt Chemerinsky's? No. Chemerinsky came very close the strict seperationist possition. Since the court had agreed with him and he could just defend the court against Eastman, he didn't have to articulate his ideas as completely as Eastman did. Nevertheless, I take Chemerinsky to be a strict seperationist on Establishment issues. For example, we can recall last week's discussion of Locke v Davey. I have no problem with citizens using a general government benefit for religious purposes. I have no problem with free religious expression. My only limitation is for the state. The state has great coercive power, and so it is the state that must be restrained where it can impinge on the happiness of citizens. I understand why people want the government to agree with them on matters of import. But the purpose of the state is limited. There are things it should not do. I don't want a state that looks out for my whole person. I want a state that provides a common defence and looks after the general prosperity. It need make no religious statements in order to achieve these goals.

Hugh Hewitt mentioned at least twice that he would like to see some prayer in schools, when taking callers. I have no problem with prayer in school in principle. But in practice, the state can't get involved, so the ideal solution is the abolution of the public school system in favor of public funding of children's education according to parent's wishes. See my recent post on school choice with a long discussion of the court's establishment cases. What I did not mention in that post was the competing views of what it means to be neutral.

One side says that neutrality means even-handedness. So that a neutral policy with regard to sectarian issues gives equal benefits and restrictions regardless of sect. So that neutrality means athiests, Buddhists, Lutherans, and Greek Orthodox belivers or organizations are treated the same. No favoritism, so special harm. Even for unpopular religious practicing animal sacrifice. I am refering here to Lukumi Babalu Aye Inc v. City of Hialeah, where the court held that this Santaria church could not have its animal sacrifice rituals banned just because people didn't like it.

The other side says that neutrality is impossible. The state will either err too much in one direction or another, so it should just be totally uninvolved in any religious thing. No funding, no cerimonial prayers, nothing. The unintended consequence is that this favors athiests, secular sentiments, and the non-religious in general. This possition strikes me as not being neutral, although I understand the impluse. I will provide an example. In WWI, Sec of State William Jennings Bryan took this notion of neutrality and believed that we could not trade with Britain and Germany because one side would, for whatever reason, trade more with us and we would be inclined to protect our recievables by making sure they won, and that's not neutral. He resigned when Wilson continued to support trade with the Allies. Byran wanted neutrality in thought, word, and deed. He wanted strict non-involvement with any beligerent. And that is the kind of neutrality that strict seperationists want in regards religion.

Since I prefer the even-handedness definition of neutrality, I tend to be an accomodationist, but I am a moderate accomodationist, since I do favor as much non-action by the state as the state can manage without becoming hostile to religion. So in the case of the Pledge, I look to its intentions. Eastman made three suggestions as to the purpose of the phrase "under God". It might be a religious statement, a historical statement, or a cerimonial statement. First off, I must say that anyone who favors religion has a hard time arguing this is not a religious statement. That is so convienient that its fails to pass muster. While Hugh Hewitt may derive social pleasure from fellowship at church, that not the main reason he attends Sunday services. Likewise, you don't see this kind of contraversy in matters only historical or cerimonial. Historical and cerimonial matters only become contraversial when they have implications for contraversial issues like race or religion. So the contraversy itself speaks to a religious meaning. If we look at the addition of these words, and they were added in 1954, we find that their addition was not to redress a historical lapse, it was part of our Red Scare responce to the Godless Communists. To deferentiate ourselves from the Athiest Marxists we established some religion. We added a specific reference to God to a patriotic pledge for no other purpose than to advertise our religiousity. Therefore, those words should be stricken from the pledge required of school children.