Raise your hands and salute: The Pledge of Allegiance issue is back. On his Sunday-morning show, Chris Matthews raised the question of whether a “firestorm” over an upcoming Pledge case in the Supreme Court would break out during the coming election. Republicans were said to be ecstatic over the prospect of a campaign “wedge issue.” The Pledge of Allegiance has entered politics again. Last week the Supreme Court announced it will review an Appeals Court ruling that the public-school use of the phrase “under God” in the Pledge is unconstitutional on First Amendment establishment-of-religion grounds.
I’m not sure why the Pledge issue gets on my nerves. I know I’ve expressed disillusion with the Left in these pages, but I haven’t lost my allegiance to the civil-liberties cause (which I don’t think is a Left issue alone anyway). It’s true, there are more urgent civil-liberties questions at issue today. (My old friend Nat Hentoff has just published a fiery book on the subject, The War on the Bill of Rights and the Gathering Resistance .) But there are few civil-liberties questions so politically explosive and divisive as the Pledge. (Remember Michael Dukakis being demagogued by Bush the elder because he vetoed a mandatory Pledge law on civil-liberties grounds?) Many on the liberal side will say it’s just not pragmatic to take on such a losing issue. So perhaps getting concerned about it is quixotic.
I don’t care: It’s not that I lack allegiance to America. But enforcing allegiance to a flag is, to me, something that’s profoundly un-American -contrary to the principles on which America was founded. I wish some politician would have the courage to make this case. But I don’t have much hope for the brave and bold Democratic Presidential candidates. In fact, it will be fascinating to watch the way they weasel out of the issue. Watch them rush, as Chris Matthews put it, to assure us they’re not “anti-God.”
Let me remind those who have forgotten: There is a “pro-God,” pro-American argument against putting God in the Pledge, against the worship of a graven image (the flag) that the Pledge requires. If I’m going to pledge allegiance to anything-under God or Vishnu or Whomever-it would be to the Bill of Rights. The Bill of Rights is more worthy of true Americans’ allegiance than a piece of red, white and blue fabric.
Perhaps it’s the sheer historical inattention-if not ignorance-of so many of the supporters of the Pledge, and the all-important “under God” insertion, that gets on my nerves. Could they be unaware of the unsavory history of the “test oath”?
I’m sure I don’t need to explain test oaths to Observer readers, but for those who skipped that day in class, test oaths were the essential reason that religious and other dissidents fled England to found America. Test oaths were the means by which the Established Church in England enforced its repressive regime: Those who refused to mouth oaths required by the Established Church were often imprisoned, tortured and executed, leading many religious dissidents to leave for America.
Test oaths were one key reason the First Amendment to the Constitution prohibited the making of laws respecting the establishment of religion. That’s what they were talking about. An enforced Pledge of Allegiance-especially the Pledge of Allegiance with the “under God” clause-is nothing but a test oath. It is a violation of everything American democracy is about. If you want to be-was this Mencken’s phrase?-a “God botherer,” go ahead, wander the halls of the schools, the streets and sidewalks affirming that we are “one nation under God.”
Just don’t force everyone to take a test oath and worship a graven image made out of cloth. Or you can go reside in a nation founded upon test oaths and the worship of graven images. Look them up under “theocracies.” You’ll be happier there.
But don’t take my word for it. Listen to Mr. Justice Jackson, Robert Jackson, the Supreme Court Justice who wrote the decision in West Virginia State Board of Education v. Barnette , the 1943 decision in the still-definitive Pledge of Allegiance case.
Believe me, it’s worth reading (and easy to find if you have LexisNexis access). I urge everyone to read the decision again. For one thing, it remains the law of the land: The Pledge cannot be forced on the unwilling-although social coercion makes it, for all practical purposes, involuntary for school kids, who are rarely taught their rights. (The citation, for your convenience, is Board of Education v. Barnette , 319 U.S. 624.)
Aside from being a kind of re-founding document in the case for civil liberties, for the First Amendment, even in wartime (1943, remember), Justice Jackson’s opinion is one of the best-written works of juridical literature you’ll ever come upon.
For those who haven’t revisited it recently-I’ll admit I hadn’t since college-there are many highlights. There is Justice Jackson’s laconic reminder that the original “salute to the flag” required by the West Virginia Board of Education raised objections even from the Boy Scouts for “being too much like Hitler’s.” The original ” Sieg heil! ” type salute was then modified to the forearm-raised salute still in practice today, but the evocation of the Reich posture was a deep irony, since the Pledge was supposed to unify us against the Nazi enemy rather than make us look (physically) like them. (Justice Jackson was later to become the chief American prosecutor at the Nuremberg war-crimes trials.)
And while the Supreme Court decision is often known as the “Jehovah’s Witness Pledge case” because the action was first brought by members of that church, the issue in 1943 wasn’t the “under God” phrase, of course (since that was only inserted by Congress in 1954 to further-and spuriously-define “Americanism” against “godless” communism). The Witnesses’ objection was based on the Ten Commandments.
Remember them? I wonder if religious partisans who get all upset over the importance of having the Ten Commandments emblazoned on every courtroom wall have read the version in Exodus 20:4-5 (also quoted by Justice Jackson in summarizing the Witnesses’ objection to the Pledge)?
“Thou shalt not make unto thee any graven image … thou shalt not bow down thyself to them nor serve them.”
I’m not going to take a position on the exegesis of Exodus, but it makes a lot of sense to me to think that pledging allegiance to a flag is a form of worshipping a “graven image,” an obvious violation of the Commandment. And even if it weren’t, what self-respecting religious person thinks that forcing schoolchildren to take an oath is an act of reverence or respect to God? Or that God would necessarily be pleased by this enforced “allegiance”?
If we’re talking about patriotism and respect, Justice Jackson suggests, citing another Justice, the study of our “guaranties of civil liberty” are just as important as “a compulsory salute and slogan” in inspiring “patriotism and love of country.” In other words, you Pledge-loving partisans, respecting the Bill of Rights is more “American,” if that’s what you care about, than saluting a flag.
Justice Jackson calls the Pledge basically a test oath, a “short cut” to true patriotism. A substitute for inspiring respect for our democratic system through education in the history and principles of democracy, including the centrality of the Bill of Rights.
He offers a little historical education for the uninitiated. Throughout history, the state has announced “rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas, just as religious symbols come to convey theological ones … a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”
In that last phrase, he’s putting his finger on the essence of the issue: a system which requires the equivalent of the bended knee to enforce reverence subjects itself not to reverence but to “jest and scorn”-particularly a system which claims to be founded on the dignity of the individual. The Pledge is a dignity issue! Dignity for Americans, for America itself.
It’s a religious issue as well, but not in the way that most religious organizations demanding we bow down to a state-coerced worship of God frame it. As Justice Jackson pointed out in a footnote: “Early Christians were frequently persecuted for their refusal to participate in ceremonies before the statue of the [Roman] emperor …. The Quakers, William Penn included, suffered punishment rather than uncover their heads in deference to any civil authority.” Get it? Religious people left theocracies in Europe to found America on principles that prohibited state imposition of state-chosen forms of worship. How hard is that to understand?
At this point, Justice Jackson takes the argument to a deeper level-a level which invokes the very foundation of a democratic polity:
“It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear”-and here you can hear his cleansing sarcasm-”whether the regulation contemplates that pupils forgo any contrary convictions of their own, and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning ” (italics mine).
And then he goes in for the (rhetorical) kill: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind” (italics mine).
He then takes on the chief argument to the contrary, the one that appeared in a previous court decision, the one Jackson’s 1943 decision overturned. In that decision, “It was said that the flag-salute controversy confronted the Court with ‘the problem which Lincoln cast in memorable dilemma: “Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?”‘”
To which the peerlessly sarcastic Justice Jackson said: “It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by [the Court] confirming [the] power of the state to expel a handful of children from school.”
To do so would be to choose “officially disciplined uniformity for which history indicates a disappointing and disastrous end … to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
At this point, Justice Jackson addresses directly the national unity/national security argument in favor of the Pledge-an issue with the most direct relevance to civil-liberties questions today. Recall this was a decision written at the height of World War II.
“The very heart of the opinion” for an enforced Pledge, he says, is “that ‘National unity is the basis of national security’” and thus “that the authorities have ‘the right to select appropriate means for its attainment.’”
He notes that “Struggles to coerce uniformity of sentiment in support of some end thought essential … have been waged by many good as well as by evil men …. [The] ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast-failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Wow! It’s a brilliant and persuasive defense of the Bill of Rights-one I bet you won’t hear from any Democratic candidate on the Pledge issue. They’re too scared to stand up on an unpopular issue such as this one, scared of being called “anti-God.” Justice Jackson puts the final nail in the coffin of the argument for coercion by telling us, “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends [the unanimity of the graveyard, etc.] by avoiding these beginnings [enforced pledges of subservience].”
And to put to rest the spurious argument about patriotism, he points out: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds …. [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
Sorry, I just can’t stop quoting this guy. I don’t think anyone’s said these things any better: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The “under God” case involves the use of a public institution to propagate faith. The petitioner, who is suing on behalf of his daughter, claims that being forced to listen to the rest of the class take the Pledge is a kind of involuntary exposure to State-sponsored religion. (The case could be dismissed on a technicality involving custody of the daughter.) But for me it’s not the “under God” issue so much as the continued de facto enforcement of the Pledge itself that rankles. It will be interesting to see if the Court lives up to the spirit of Justice Jackson’s principles in its ruling.
And one question of the coming political season for me will be which Democratic candidate will stand up and defend the Bill of Rights on this issue, even at the cost of his or her candidacy. My guess is: none. Still, maybe there’s one credible candidate who will attempt to educate people on this issue rather than weasel out of it. State-sponsored religion is, after all, an issue that distinguishes us from the theocracies that support terrorist attackers.
So my plea to Democratic Presidential candidates, when the “firestorm” over the Pledge begins, is this: Instead of distributing your slick, self-serving campaign literature, distribute Justice Jackson’s opinion. Surprise me, someone.
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