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Spring 2003
David Barton - 04/2003
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The Pledge of Allegiance Strike Two!
The full 9th Circuit Federal Court of Appeals (composed of 28 judgeships) recently upheld the wildly unpopular 2-1 ruling of its smaller three judge panel, agreeing with Sacramento atheist Michael Newdow that it was unconstitutional for students to recite the words “under God” in the Pledge of Allegiance. Judge Stephen Reinhardt, concurring in the full 9th Circuit order, explained:

We may not – we must not – allow public sentiment or outcry to guide our decisions. . . . Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.

Based on this pronouncement Judge Reinhardt apparently considers himself to be a greater constitutional authority than the Founder’s themselves. For example, George Washington, in setting forth fundamental principles from within the Constitutional republic he had helped birth, declared:

[T]he fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.

Thomas Jefferson similarly pronounced:

[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man.

Contrary to Judge Reinhardt’s ill-informed assertion, our founding documents stipulate that our general public policies must represent – and not oppose – “the consent of the governed.” The Constitution defines what establishes that consent: usually a Thomas Jefferson Independence National Historical Park Collection 3 simple majority, although on occasion it can be two-thirds or three-fourths, but never is a policy implemented by less than a majority. Does this mean that minorities are therefore to be disregarded or trodden upon? Of course not. As Jefferson explained:

[T]hough the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; the minority possess their equal rights which equal law must protect.

However, equal rights are not the same as equal power; the minority is never the equivalent of the majority and is never to exercise control over it. Nevertheless, despite a near 90 percent national approval for the use of the Pledge, the 9th Circuit has usurped “the consent of the governed.” On what basis? Civil libertarians explain that “the consent of the governed” is nothing more than what they call the “tyranny of the majority”; however, in opposing that supposed tyranny, Reinhardt has instead instituted a “tyranny of the minority.” This is especially apparent in decisions such as that on the Pledge, where individual dissident citizens (such as Newdow) provide activist judges (such as Reinhardt) an opportunity to enact policies that would be impossible to achieve through the normal legislative processes.

Judge Reinhardt (and those like him) feel compelled to usurp the rights of the people at large; they declare themselves free from the customary restraints because they claim that the judiciary must be an “independent” branch, unaffected by the will of the people. Yet Thomas Jefferson wisely cautioned:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.

As Jefferson explained:

A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism.

(According to Webster’s 1828 dictionary, a solecism is an absurdity and a gross deviation from the rules.)

Despite the self-evident truth of these rudimentary principles, many judges nevertheless push against their constitutionally erected restraints and ignore “the will of the nation.”

Judge Reinhardt (and the fourteen other 9th Circuit judges who concurred in his ruling) considers himself independent of the people and the laws passed by them; clearly he is not well versed in historical constitutional understandings. This is not surprising, however, for Reinhardt (appointed to bench by President Carter in 1980) has a lengthy history of constitutional-revisionist rulings.

For example, he has ruled that the Second Amendment’s “right of the people to keep and bear arms” does not pertain to citizens; that there is a constitutional right to die through physician-assisted suicides; that the Fourth Amendment prohibits the use of police dogs to track down drugs or criminal suspects; and that the death penalty is unconstitutional despite the Fifth Amendment’s explicit wording.

Jefferson seemed to have judges like Reinhardt in mind when he warned:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power.

Considering Reinhardt’s aberrant positions (including his outspokenness about the need for openly homosexual judges to serve on federal courts), one is not surprised to learn that Judge Reinhardt was a liberal Democratic Party activist before his appointment to the bench; he has indeed carried his “passions for party” onto the bench with him. To the people’s detriment, unrestrained activist judges such as Reinhardt too often display their “passions for party, for power” through their eagerness to enact policies just as if they were duly elected legislators from a particular political party.

While the 9th Circuit’s Pledge ruling adversely affects 9.6 million students in the nine states of California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, and Hawaii, that decision is not yet the final word. US Attorney General John Ashcroft announced that the Justice Department and White House would appeal the 9th Circuit decision to the Supreme Court. As Attorney General Ashcroft explained:

For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, “God save this honorable court.” The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag.

Dave Gordon, the superintendent of the Elk Grove Unified School District attacked by Newdow, announced that students could continue to say the Pledge until the Supreme Court renders its position on the issue. However, he indicated that if the Pledge is struck down that the district would find other ways to inculcate the values of the Pledge – that they would “substitute other patriotic exercises, such as a song, a poem or quotes from historic figures.”

Such a policy of substitution could actually result in even more frequent references to God. For example, were students to recite the Declaration of Independence instead of the Pledge, they would acknowledge God four times rather than just once; and were they to sing the full National Anthem, they would sing “and this be our motto, ‘In God is our trust’”; or were they to read the Inaugural Address of virtually any President, they would mention God more often than in the Pledge.

Most experts believe that the Supreme Court will overturn the 9th Circuit Pledge ruling. Such a reversal would not be unusual since the 9th Circuit is the Appeals Court most often reversed by the Supreme Court.

For example, even though the Supreme Court usually accepts only about 85 cases per year from the eleven different federal Circuit Courts of Appeals, in its 1997 term, 28 of its cases – almost one third – came from the 9th Circuit. The Supreme Court overturned 27 of those 28 decisions, and nearly two-thirds of those reversals were in unanimous decisions (that is, even the liberals and activists on the Supreme Court agreed with the conservatives that the 9th Circuit had gone too far).

The Pledge decision has not gone unnoticed by Congress. Rep. Todd Akin (MO) has introduced a bill that would completely remove from federal courts the ability to hear any challenge to the Pledge. Rep. Akin – apparently unlike Judge Reinhardt – has read the Constitution and knows that in Art. III, Sec. 2, the Founders gave Congress this power as one of what Alexander Hamilton called “constitutional arms” for its own “effectual powers of self-defense.” Rep. Akin therefore has filed “The Pledge Protection Act” that already has over 150 congressional cosponsors, and the list is rapidly growing.

A second and different “constitutional arm . . . of self-defense” has been introduced by Rep. Ernest Istook (OK) in HJ RES 46. Istook’s “constitutional arm” is a long-needed constitutional amendment to restore religious freedom and – according to the bill – “include protection of the Pledge of Allegiance, the display of the Ten Commandments, and school prayer.” The wording is straightforward:

To secure the people’s right to acknowledge God according to the dictates of conscience: The people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools. The United States and the States shall not establish any official religion nor require any person to join in prayer or religious activity.

This simple amendment, if passed, would completely undo the past four decades of religion- hostile decisions made by every federal court in the nation, including the US Supreme Court, and would overturn hundreds of rulings.

You can contact your Congressman to let him know your feelings about either of these bills. If you do not know the name of your Representative or Senator, go to our website (www.wallbuilders.com) and on the front page under “Resources,” click on “Helpful Links”; under “Legislative Policy Organizations,” click on “Find Your Congressman” to take you to a site that will identify your representatives in Congress. If you want to find out more about the status of Rep. Akin’s or Rep. Istook’s bills, go to the Library of Congress website (http://thomas.loc.gov) and enter the bill numbers or descriptions.

A Presidential Profile
Many of our nation’s Presidents have had remarkable but untold stories. The following story about President Eisenhower, published over a generation ago, was so inspiring that we wanted to share it with you.

A Question of Courage
by Grace Perkins Oursler
(Reprinted from a 1959 Readers Digest School Reader, condensed and adapted from a Guideposts article.)

The boy had fallen, running home after school, and skinned his left knee. It was no more than a scratch. His trousers were not even torn, but by night the knee had begun to ache. Nothing much, he thought, being 13 and the sturdy son of a frontiersman. Ignoring the pain, he knelt and said his prayers. Then he climbed into bed in the room where he and his five brothers slept.

His leg was painful the next morning, but he still did not tell anyone. Life on the farm kept everyone busy. He always had to be up at six to do his chores before school. He had to do them well or he would be sent back to do them over again, no matter what else he had to miss, including meals. In his home, discipline was fair but stern.

Two mornings later the leg ached too badly for him to drag himself to the barn. It was Sunday and he could stay home while the rest of the family drove to town. He sat in the parlor and dozed until his brothers returned from Sunday school.

Mom and Dad did not come home with them because Sunday was parents’ day off. The boys did the housework and cooked the big meal of the week, while mother and father stayed on to attend church.

The Fight Begins
But by the time dinner was ready, the boy had climbed into bed. The shoe had to be cut off his swollen and discolored leg.

“Why on earth didn’t you tell somebody?” asked his mother. “Go quick,” she called to his father, “and fetch the doctor.”

She bathed the knee, foot and thigh, and wiped the boy’s sweating forehead with a moist, cool cloth. Even as she watched the angry infection grow worse, she remained calm. Mom had nursed her boys through accidents and ailments from toothaches to scarlet fever. One son she had lost, but that only made her calmer and more determined to fight for the others.

Old Dr. Conklin examined the leg and shook his head. “It’s not likely we can save it!”

The invalid sat up stiffly.

“What’s that mean?” he asked huskily.

“It means,” explained the doctor gently, “if things get worse we’ll have to cut off your leg.”

“Not me!” stormed the boy. “I won’t have it! I’d rather die!” “The longer we wait, the more we will have to take off,” urged the doctor.

“You won’t take any off!” The boy’s voice broke with a youthful crack, as his mother turned away, shaken. But there was the look of a man in the boy’s eyes.

A Promise to be Kept
Dr. Conklin stalked out, nodding to the mother to follow him. As he stood in the hallway explaining to the parents what probably would happen, they could hear the sick boy calling for his brother: “Ed! Ed! Come up here, will you?”

The brother stamped in. Then they heard the sick lad’s voice, high pitched with pain: “If I go out of my head, Ed, don’t let them cut off my leg. Promise me, Ed – promise!”

In a moment Ed came out and ran to the kitchen. When he returned his mother said, “Ed, what’s your brother asking for?”

“Fork. To bite on; to keep from screaming.”

Then Ed stood outside the bedroom door, his arms folded. Quite clearly he was standing guard.

Ed looked straight at Dr. Conklin. “Nobody’s going to saw off that leg!” he announced.

“But, Ed – you’ll be sorry,” gasped the doctor.

“Maybe so, Doc. But I gave him my word.”

And nothing changed that. If Ed had not stood his ground, father and mother might have yielded. They were not yet sure that amputation was necessary. The stubborn attitude first of the sick boy and then of his brother was unbelievable, for defiance of authority was unknown in that home. Yet there was Ed, standing before the sickroom door.

“Guess we’ll wait and see how he looks by tonight, eh, Doc?” said the father.

The Crisis
For two days and nights Ed stood guard, sleeping at the threshold, not leaving even to eat. The fever mounted and the suffering boy became delirious, babbling with pain. The older brother did not weaken, even though the discoloration of the swollen leg was creeping toward the hip. Ed remained firm because he had given his promise. Also he shared the frontiersman’s dread of being less than physically perfect. A man needed his arms and legs to do the hard work on a farm.

The parents knew that their son would never forgive an amputation, and Ed stood firm whenever the doctor returned. Once, in helpless rage, Dr. Conklin shouted, “It’s murder! Nothing but a miracle can save the boy now.” He left, slamming the front door.

Mother, father and watchful Ed shared the same thought as their anxious eyes turned from the doorway. Had they forgotten their faith because of their fears? Why, this sick boy’s grandfather, that vigorous and inspiring old farmer-minister, had always believed in healings through faith. Now, in this desperate hour, the three went to their knees at the bedside.

They prayed, taking turns in leading one another. Father, mother – and at last Edgar - each would rise in turn, go about the farm work and rejoin the continual prayer. During the second night the other four brothers joined in the prayers.

The next morning, when the faithful old doctor stopped by again, his experienced eye saw a sign. The swelling was going down!

Dr. Conklin closed his eyes and made a rusty prayer of his own – a prayer of thanksgiving. Even after the sick boy dropped into a normal sleep, one member of the family after another kept the prayer vigil all through the night.

It was nightfall again and the lamps were lighted when the boy opened his eyes. The swelling was away down now. The discoloration had almost faded. In three weeks – pale and weak, but with eyes clear and voice strong – the boy could once again stand up.

And Ike Eisenhower was ready to face life.”

(End of reprinted article)

This early Divine intervention by God in the life of a young Dwight Eisenhower produced a later blessing to America and the world.

The Story of a Leader
Eisenhower was born in 1890 in Texas and raised as a Presbyterian in Kansas. His mother had been a Mennonite and was a strong pacifist who morally opposed war, but the young Eisenhower believed that the best way to ensure peace was through a strong military. He therefore applied and was accepted at West Point Military Academy, where he graduated as a commissioned army officer in 1915.

Prior to World War II, Eisenhower served as a young officer under General Douglas McArthur in the Philippines. When the War broke out, Eisenhower was assigned to command a military training base in Louisiana with almost half-a-million soldiers. General George Marshall was so impressed with Eisenhower’s abilities that he made him the liaison between American and British strategists in London; and Prime Minister Winston Churchill was so taken with Eisenhower’s skills that he had him appointed as the Supreme Commander of the Allied Expeditionary Forces in Europe. As a result of Eisenhower’s leadership – particularly through bold measures such as the D-Day invasion – the Nazis and their allies were crushed and a wave of freedom swept across Europe and the world.

Following his service in World War II, Eisenhower became the very first chairman of the Joint Chiefs of Staff of the military, served a brief stint as president of Columbia University, was named the Supreme Commander of NATO, and was elected US President in 1952.

Throughout Ike’s life, his early religious training – more apparent at some times than at others – never fully departed him. For example, at his first Presidential Inauguration in 1953, Ike took his oath of office upon two Bibles – the one used by George Washington in his 1789 inauguration, and the one given to Ike by his mother upon his graduation from West Point. After being sworn in, Ike personally offered the inaugural prayer rather than having a minister do so:

My friends, before I begin the expression of those thoughts that I deem appropriate to this moment, would you permit me the privilege of uttering a little private prayer of my own. And I ask that you bow your heads:

“Almighty God, as we stand here at this moment, my future associates in the executive branch of government join me in beseeching that Thou will make full and complete our dedication to the service of the people in this throng, and their fellow citizens everywhere. Give us, we pray, the power to discern clearly right from wrong, and allow all our words and actions to be governed thereby, and by the laws of this land. Especially we pray that our concern shall be for all the people regardless of station, race, or calling. May cooperation be permitted and be the mutual aim of those who, under the concepts of our Constitution, hold to differing political faiths; so that all may work for the good of our beloved country and Thy glory. Amen.”

During his first term, Eisenhower signed the federal law inserting the phrase “under God” into the Pledge of Allegiance. Why? According to Eisenhower:

In this way we are reaffirming the transcendence of religious faith in America’s heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.

For his second inauguration, Eisenhower was actually sworn in twice. Because the legally designated inaugural day fell on a Sunday, Ike refused to have a public ceremony; the official oath was administered to him on the Sabbath in private. The following day, however, he had a public ceremony and was sworn in (again) before large crowds at the Capitol, taking his oath on his West Point Bible as he had at his first inauguration.

Eisenhower literally was used of God to bless Europe, America, and the entire world, none of whom would have experienced that blessing had not God sovereignly intervened in Ike’s life during his youth.


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