Orin Kerr notices the dissent's shot at Sarah Palin, but for me, it was the first link to the 9th Circuit's opinion upholding "under God" in the pledge. Judge Reinhardt, author of the original 9th Circuit panel decision striking the words down as unconstitutional, wrote an epic, 133 page dissent that essentially calls the majority lawless cowards bowing to pervasive political pressure.
To which I say: duh. It's cases like this that disabused me of the notion that legal formalism has any bite when push comes to shove, because under any straightforward reading of the doctrine this isn't a hard case. It's hard because there is massive political pressure in its favor, not because it represents some sort of tough, borderline issue.
I was going to say that I'm no longer even cynical about this sort of thing anymore -- I've just accepted that its part of law, and we have to go and do it anyway. But on reflection, that's just cynicism taken to the most extreme degree possible, right?
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You know, it's a perfectly justifiable decision under sort of originalist framework. And I note this because of the pervasive influence of originalism, but it gives me no pause since I never drank that Kool-Aid, not one little bit.
Mamas don't let your babies grow up to be originalists.
I'll blog about it the dissent later, but I got a particular kick out of this footnote:
50 In football, a Hail Mary is a last-minute desperation pass, the most famous being Doug Flutie’s, then a quarterback for Boston College, in a game against Miami in 1984. Sports analogies describing judging appear to be all the rage these days. Some have merit. Others, especially some involving baseball, clearly do not.
You know, it's a perfectly justifiable decision under sort of originalist framework.
Which originalist framework would that be? Presumably not one that depends on how the Pledge of Allegiance itself was originally written, nor the form in which it was enacted by Congress as the official national pledge on June 22, 1942. And I doubt that the folks who originated the First Amendment would have approved of the president's pushing a national policy based on what his pastor told him to do (which is what happened with Ike and the Pledge).
And then there's the grammatical problems with taking "under God" as used in the Gettysburg Address (with its contextual meaning of "God willing" or "with God's help") and sticking it in the Pledge between "one nation" and "indivisible." Indeed, considering that Lincoln's Address was a salute to those who'd lost their lives to keep us "one nation, indivisible," it'd be pretty disrespectful for the Pledge to imply that this indivisibility was aspirational rather an current fact.
I'm tired and not trying to be snippy, but this isn't just about the Pledge, and don't assume I have Sarah Palin's understanding the history of that either.
It's obvious that in addition to other failings (like classism, racism to the point of slave-owning, sexism, to name a few) the framers did not have a postmodern understanding of secularism. That's why we get a lot of the old references to God or the Creator, case in point being the Declaration of Independence. And no, the fact that they might mean Deistic Natural Law Civic Religion God instead of Christian God is not relevant; either way implies the state is divinely sanctioned if we take a hard line on this. And we should do that -- even to the point of striking out anything as benign as "God willing" -- and go one further by not setting these long dead members of the political ruling class as demigods. (And it should go without saying that inquiries into the metaphysical underpinnings of Eisenhower's decision to sign a given piece of legislation are no way of deciding questions of law.)
But here's a more concise way of thinking about this: Pray tell where do the current prophets of originalism come down on this question? Shall I ask Justice Thomas the next time he visits my law school?
Now you can argue Thomas is an extreme example and/or doesn't represent some true Enlightenment spirit of originalism, but given that 18th Century parade of horribles I mentioned earlier, I somehow doubt society has regressed so far that the Marbury Court would draw a harder line against "under God" than the present-day Ninth Circuit.
That's why we get a lot of the old references to God or the Creator, case in point being the Declaration of Independence.
Except the Constitution that forms our system of government makes no reference to God or the Creator whatsoever. And Jefferson had to refer to God in the Declaration for strategic reasons: he was justifying treason against his king. In order to argue that it's acceptable to overthrow a sovereign, you must be able to cite some higher authority whose commands the sovereign has violated. Traditionally, the only authority higher than a sovereign is God Himself, and at least in Catholic doctrine (may not be true among Protestants) the hand of God is supposed to be at work in determining who will be the sovereign.
Hence Jefferson's logic of why it was totally OK to engage in treason:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Jefferson is arguing that the Creator supersedes any particular sovereign, and that it is morally right for the colonists "to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them."
As for Thomas, I can't say I think much of the originalist philosophy of someone who works out what the First Amendment means based on practices in postbellum public schools.
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