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Solving the Pledge of Allegiance Controversy
David Barton - 07/2002

The recent court ruling that saying "under God" in the Pledge of Allegiance threatens our American form of government came as a shock to millions of Americans. Even the cynical "nothing-can-surprise-us" national media raised its collective eyebrow at the decision.

Given the popularity of the Pledge, the reaction to that ruling was not surprising. For example, Members from both the House (mostly the Republicans) and Senate walked outside their chambers, faced the Supreme Court, and recited the Pledge - with a particularly loud emphasis on the "offensive" phrase. And for days following the decision, I was inundated with radio interviewers seeking the background of the case and its repercussions for the future. Even judges called, offering suggestions of how to deal with their renegade brethren. Congressmen also called, seeking help in drafting legislation to strip power from the courts as well as to begin impeachment proceedings against the offending judges.

This decision was described by White House and congressional leaders with adjectives such as "outrageous," "ridiculous," "stupid," "asinine," "twisted," etc. However, it was not, as many might believe, far and away the single worst decision rendered by courts in recent years; it was just the one we all heard about. This decision, for example, was no less egregious than when the federal judge in Texas warned students that if they used the word "Jesus" in a prayer, a federal marshal would arrest them and give them six months in jail. Nor was this decision less despicable than when a federal judge in Alabama ordered undercover monitors into the classrooms to report to him if students engaged in illegal and forbidden religious conduct - such as praying over their lunches at school. No, these unpublicized decisions were just as unsavory as the recent one by the 9th Circuit.

Nonetheless, millions of Americans, now made aware of this absurd decision, are properly asking whether it will be overturned. Yet the more important question is how this decision came to be made in the first place.

The nation received its first public glimpse into what lay behind this decision during the second presidential debate in St. Louis in 2000. Al Gore promised that if he were elected President, he would continue the practice of his predecessor and place judges on the courts who believed that the Constitution was a living document. George Bush, on the other hand, pledged that his judicial nominees would be strict constructionists.

  • A strict constructionist interprets the Constitution as it is written, not as he or she wished it had been written. Thus, the Constitution's guarantee of the "free exercise of religion" would protect the right to use "under God" in the Pledge of Allegiance.
  • A judge who believes in a "living constitution" believes that what the Supreme Court says about an issue is more important than what the Constitution says about the same issue. These judges agree with the philosophy set forth by former Supreme Court Chief Justice Charles Evan Hughes that, "We are under a Constitution, but the Constitution is what the judges say it is."

The decision of the three judges in the Pledge case revealed that only one of the three was a strict constructionist - and unfortunately he was outvoted by the two "living constitution" judges. Significantly, those two did not use the Constitution to strike down the Pledge but instead cited three recent tests erected by the Supreme Court to replace the express language of the Constitution.

The first test was established in 1971 when the Court decided that the language of the religion clauses in the Constitution would be replaced with what it called its "Lemon Test." Under this test, unless a public religious activity had a primarily secular purpose, that religious activity would be unconstitutional. In 1984, the Court established its second test, the "Endorsement Test," declaring that if it appeared that the government was permitting a public religious activity, then the activity would be unconstitutional because someone might think that the government was "endorsing" religion. Then, in 1992, the Court added its third test, the "Psychological Coercion Test." Under this test, if a single individual (such as the atheist in California who objected to the Pledge) is uncomfortable in the presence of a public religious public activity, then the Court will make that activity stop.

The two judges who ruled against the Pledge cited each of these three Tests rather than the Constitution. They struck down the Pledge because it failed the "Lemon Test," the "Endorsement Test," and the "Psychological-Coercion Test."

While most Americans are completely unaware of these two judicial philosophies, those in Washington are not. In fact, it is the Senate's clear understanding of these two philosophies that has caused one of the biggest unreported battles this session.

President Bush, true to his promise, has nominated 103 "strict constructionists" to fill federal judgeships. The Senate leadership, however, has refused to confirm his judges slated for the Court of Appeals. The Senate understands that if "strict constructionists" were placed on the courts, then the judicially-enacted national policies against school and graduation prayers, against the protection of innocent life, against traditional morality, etc. would be threatened. In fact, many of President Bush's judicial nominees have gone more than a year without Senate action while it took President Clinton an average of only 77 days for the Senate to get his "living constitution" judicial nominees confirmed. Therefore, even though the Senate voted a 99-0 condemnation of the Pledge decision, for many Senators this vote was largely disingenuous since more that half the Senate (nearly all the Democrats) is actively engaged in keeping judges off the courts who would uphold the Pledge.

Yet, despite the Senate's direct complicity in the Pledge decision, the Senate is not to blame for this travesty; Christians are. Why? Because of their widespread refusal to vote. There are 60 million evangelicals in America, and in the last election only 15 million voted (and 24 million of those 60 million evangelicals are not even registered to vote)! In that same election, five Senators lost who, if still in office, would have provided a majority of Senators that would confirm President Bush's judicial nominees. However, those five Senators lost by a collective total of 100,000 votes in those five States - and 45 million evangelicals did not even vote in that election!

If Christians had voted for God-fearing Senators last election, not only would we have a different type of judge moving into the federal judiciary but fifty-three measures now languishing in the Senate would now be law. Those measures include a ban on human cloning, a ban on partial-birth abortions, a ban on "aborting" children after they are born (called the "Infants Born-Alive Protection Act"), a reversal of the discrimination against marriage, protection for faith-based programs, and many other measures. The President wants to sign these bills; the House has already passed them; but the Senate leadership refuses even to hold hearings on them.

President James A. Garfield (an ordained minister of the Gospel) foresaw a century ago where we are today:

Now, more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption. If that body be intelligent, brave, and pure, it is because the people demand these high qualities to represent them in the national legislature. If the next centennial does not find us a great nation, it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.

Understanding the importance of Christian involvement in elections, and its impact on the entire nation, Rev. Charles Finney (a leader in the 19th century's Second and Third Great Awakenings) warned:

The Church must take right ground in regard to politics. . . . The time has come that Christians must vote for honest men and take consistent ground in politics. . . . God cannot sustain this free and blessed country which we love and pray for unless the Church will take right ground. Politics are a part of a religion in such a country as this, and Christians must do their duty to the country as a part of their duty to God. . . . God will bless or curse this nation according to the course Christians take in politics.

If we want to see less Pledge of Allegiance type rulings, then its time that Christians get out and vote. Thirty-three States have Senate elections this November, and in many of those States there are solid, evangelical, God-fearing Christians running for the Senate. In fact, many of those now running for the U. S. Senate have been in the U. S. House passing the good bills, but now want to move to the Senate where they can help break the logjam.

As the November elections draw near, heed the words of the Rev. Matthias Burnet, who in 1803 properly warned:

Ye whose high prerogative it is to . . . invest with office and authority or to withhold them and in whose power it is to save or destroy your country, consider well the important trust . . . which God . . . has put into your hands. To God and posterity you are accountable for them. . . . Let not your children have reason to curse you for giving up those rights and prostrating those institutions which your fathers delivered to you.

WallBuilders has resources that provide comprehensive information on the Founders views on the Constitution (see Original Intent), the solution the Founders provided for judicial activism (see Restraining Judicial Activism ), and a discussion of possible remedies for the courts' hostility towards religion (see A Constitutional Amendment Protecting School Prayer).

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