|Man Without Qualities|
Wednesday, March 24, 2004
Is it true, as Linda Greenhouse claimed yesterday, that before the justices [of the United States Supreme Court] can decide whether those two words render the pledge unconstitutional, they have to answer a factual question that is inextricably entwined with the legal one: what exactly does it mean to pledge allegiance to "one nation under God"?
Of course not. In fact, that is one question the Court should - and, in my view, under the Constitution, must - entirely avoid unless the Court is planning on stepping into some Article III equivalent of the Shoes of the Fisherman. To answer what exactly does it mean to pledge allegiance to "one nation under God" in any meaningful sense would require the Court - or anyone else so bold - to explicitly or implicity answer the question: "what is God?" If the Court has any lingering survival instincts, the justices will wholly decline Ms. Greenhouse's invitation to the ontological dance.
"God" means many things to many people, and Congress did not adopt any one of those meanings in inserting "under God" into the Pledge of Allegiance. "God" can, of course, refer to some powerful anthropromorphic entity or an old man in the clouds or something that would be more at home in a modern church, synagogue or mosque.
But "God" doesn't have to mean any of those things. Albert Einstein said "I believe in Spinoza's God, who reveals Himself in the harmony of all being." It is not quite clear what Einstein meant by this, but whatever else he may have intended Einstein was clearly refuting the idea of a "personal" God, in the Judeo-Christian-Islamic tradition.
But Einstein still said he believed in "God." In fact, in Spinoza's "God." But Einstein may have been more of a theist than Spinoza was himself.
It is sometimes said that to Spinoza, "God" was quite simply the integrated sum of all natural law. Of course, any such formulation must do his thinking great violence, but for present purposes one need only note it would be possible for someone asked to recite the Pledge of Allegiance to adopt this pseudo-Spinoza definition of "God," in which case this part of the Pledge is nothing more an assertion that the pledgor is affirming allegiance to a nation formed in harmony with all natural law.
The phrase also serves as a reminder that the Declaration of Independence and the Constitution both rest historically on presumptions of natural law and their ultimate integration into something called "God" or "the Creator."
Did Spinoza's views make him an "atheist?" Well, the spiritual leaders of his 17th Century jewish community thought so, and told him so, and made it hurt. So what? No doubt those leaders would have viewed most of the 18th Century deists who had a hand in the creation of this country as "atheists" because they denied the ongoing interference of the Creator with the laws of the universe - including Thomas Jefferson, he of that felicitous "endowed by their Creator" phrasing.
This is not a hard case. It is amazing that this case has had to go to the Supreme Court, and it is surprising that the Court has even held oral arguments. It is amazing that the sorry lot comprising the 9th Circuit has been allowed to continue to create such juvenile messes. But it will be even more amazing if Justice Scalia's absence makes any difference in this case's resolution. So far, only Justice Souter seems to be enough of a partisan nincompoop to consider accepting Ms. Greenhouse's silly invitation. [Minor Update: And, of course, there is always Justice Stevens, The Eternal Fruitcake of the Narcissistic Mind. I can't wait to see what Justice Bowtie has to say on this one!]
"If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "The rationale [for the pledge] is pretty clear -- it's the 'no extirpation' rationale. . . . But the question is, how do you translate that into a legal rule? And the answer is, it'll be quite a challenge for the court to do."
But Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles, couldn't be more off track. As noted above, the rationale for the Constitutionality of the Pledge phrase "under God" does not have to be the "no extirpation" rationale. The Court could observe that Congress has not adopted any meaning of "God" - and therefore has made no religious endorsement with the amended Pledge. In effect, the ambiguity of "God" makes the Pledge phrase like the "winter festival" displays in city parks that the Court has held withstand Constitutional scrutiny - with the more traditional meaning of "God" playing the role of the creche side by side with the secular "natural law" elf-displays. And there are other justifications, too. Curious. Very curious. He was way off track on intelligent design, and the 9th Cir. Davis recall case, and the Eldred copyright case, too - although nothing in those cases was hard, either. Something odd going on here? Maybe it has something to do with the differences between looking at the logic of the cases writ large, tak[ing] their logical principles and try[ing] to apply them in the abstract - which seems to be what Prof. Volokh likes to do, whatever that means - and applying the Court's existing fairly contrued case law in the light of history and good sense.
In my experience, legal academics advocating activities such as "looking at the logic of the cases writ large" are generally just expressing in a hi-falutin manner the fact that they're mostly just doing their own thing - and trying to get as far away as possible from existing fairly contrued case law, history and good sense.
Justice Stephen G. Breyer ventured that the phrase may refer to a "supreme being," not a particular god. "It's generic [and] comprehensive," he suggested, not directly affirming one religious view or one god.
Newdow would not budge. "I don't think you can say 'under God' means no God," he responded.
But, of course, Justice Breyer is quite right - and Mr. Newdow is wrong. As Spinoza demonstrated.
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