It's Saturday night at 11:30, and I'm doing what all good law students should do: Writing in my Slashdot Journal!!! Well, actually a good law student would be blitzed out of his mind right now at Cooter Brown's on McEwan's Scotch Ale, but I didn't feel like going out tonight. So there. Instead, I decided to rant. Considering it's what I do best, it only seems fitting. Tonight's subject: The Pledge of Allegiance and the First Amendment.

A little background for our European readers, or those Americans who completely slept through the summer. The United States Congress, in its infinite wisdom, amended the Pledge of Allegiance in the 1940's (or 50's, I don't remember off the top of my head) to say that the United States is "[O]ne Nation, under God, indivisible..." Previously, that line said: "[O]ne Nation, indivisible..." A U.S. Federal Court, the Ninth Circuit Court of Appeals to be accurate, ruled this summer that adding those words to the Pledge is a violation of the church/state separation principles embodied in the First Amendment to the US Constitution. Chaos then ensued as just about every single elected official attempted to wet themselves to decry the judgment as horribly wrong. News agencies covered the dispute, and most Americans were appalled that the Court would take such a drastic step and get the law so completely wrong.

First of all, let's start with a simple fact: the Court was 100% correct in its ruling. Whether you agree or not that the government should not be calling us a nation "under God", the ruling was totally in keeping with the principles of the First Amendment. There's a reason that the President declared his joy in signing the act that every student in America would now be forced to declare his allegiance to the Supreme Creator. It's the one and only reason the amendment was passed: swear Christianity as the "correct" religion, and remind atheists and people who worshipped other religions that they are outsiders. If there is anything that violates the First Amendment, this is it.

I can't say that I'm terribly surprised at the general reaction from the public and elected officials. America is, without a doubt, made up of people who are largely Christian. They fail to understand why the phrase "under God" might be upsetting to some, and even if they do understand they are of the mindset that this is a Christian nation. Since they have to answer to that very populace, elected officials become terrified that they might be counted as one of the evil dissidents if they did not condemn the ruling immediately.

So, with that in mind, we turn to the point of my retort. Tonight's subject goes by the handle of IceWedge here in Slashdot Land. In commenting on the Pledge ruling, I think IceWedge pretty well summed up the argument against the ruling and in favor of the Pledge. Kudos go out to IceWedge for attempting to logically lay out his (or maybe her, can't really tell) argument and not heading down the flamebait route like many others have. If you'd like to read the comment itself, go here and check it out.

Despite my repect for IceWedge, I must ultimately disagree with just about everything he said. We therefore get to my retort. I'll paste in statements from IceWedge's post in italics, with my comments immediately below them.

1. Many will dispute it, try to quote founding Father's out of historical context, not to mention tell out and out lies to attempt to discredit the notion; but this country was founded by people who believed in God...

An accurate statement, but this doesn't actually get to the heart of the matter. I don't mean to pick on IceWedge here, but this is a completely irrelevant statement that I have seen repeated over and over in the news. The actual religion of the Founding Fathers has no bearing whatsoever on the meaning of the First Amendment. People try to claim that because the Founding Fathers were Christian they couldn't have written an amendment that prevents the government from endorsing their religion. In fact, they did just that.

It's a common misperception that First Amendment, as interpretted by the Ninth Circuit, means that the government must show hatred towards religion. The First Amendment is much more complex than that. It has two prongs. First, it prevents the government from meddling with religion. Second, it prevents religion from meddling with government. The bottom line is that the government can no more pass a law condemning Christianity than it can pass a law endorsing it.

This is why the personal religious beliefs of the Founders are irrelevant. No one is saying that they made an amendment that works against Christianity. We're saying that they made an amendment that keeps religion in the Church and the state out of the private religious affairs of the people. Is it really so hard to believe that a group largely comprised of Christians decided to treat all people, including atheists and religions that had no concept of God, in the same way?

2. ...and this Nation's laws and documents of governance readily proclaim it. The Constitution makes reference to a fundamental belief in God (4 times I believe).

I'll address this in two parts. First, we turn to this Nation's document of governance, the Constitution. There are precisely zero references to God in the Constitution. Not one anywhere. Don't believe me? Look yourself. Do a search for "God". Or just read the text. You won't find anything. The Declaration of Independence does reference a "Creator", but the Declaration is not a "document of governance." It is merely a group of people stating their own personal beliefs as to why they should no longer be ruled by England. The Constitution, on the other hand, is a document that supplies the framework under which the government will operate. They are two completely different documents: one states beliefs, one rules a government. The contents of one are irrelevant to the interpretation of the other.

As to our nation's laws, we have another different situation. To the extent that those laws merely reflect that certain people have a belief in God, they are not problematic. To the extent they endorse a belief in God as the only correct belief, or in this case state that the view of the government is that people should believe in God, they go against the fundamental principles of the Constitution and should be thrown out with the Pledge.

3. Congress & the Supreme Court makes reference to it in every session. Our money refers to it and our Pledge of Allegiance pays homage to it.

See above discussion, under laws.

4. The whole point of that provision was that no "Church" would or should have dominion to dictate to the Government.

That's only half right. True, the provision does protect the government against interference by the Church. However, the amendment also keeps the state from interfering with the church. That's why some groups are threatening to sue if President Bush continues his campaign to get the government to fund religious groups.

Furthermore, even if the 1st Amendment only protected the government against the Church, the Pledge would still be problematic. The amendment to the Pledge brings the Church into the government by informing the people that at least one part of religious belief, a belief in God, is the correct way to think.

5. That doesn't mean that as a nation we can't subscribe to a belief in a higher power.. that being God.

As individuals, yes. As the government of a nation, no.

6. Nor does it mean that we shouldn't promote our belief in God in our Government Processes and laws.

See above, #2, under laws.

God, at the end of the day, is an entirely religious concept. There is nothing secular about God, or gods, however you wish to put it. When the government promotes belief in God, they promote religion. As James Madison so eloquently stated, "Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?"

Plus, the government speaks for the people. Not just the majority, but ALL of the people. All of the people don't believe in God. Those people are protected by the First Amendment against a government that would force its own beliefs upon them, just a the Christian majority is protected against a government that would force atheism, Islam, or Hinduism upon them.

7. Does the pledge say anything at all about a "Christian God"? It simply says "God", a higher power, someone who rules above us all, and someone whose existence is indisputable.

It doesn't need to. The legislative history very accurately reflects the intent of the legislature and the President in wanting to single out the Judeo-Christian God as the "God" in question.

As to God's existence being "indisputable," I believe there are several billion Buddhists, Confucians, Wiccans, and atheists who would disagree with you on that point. Not all religions have a belief in God the same way Christians do, and some people feel no need to ascribe to any religious beliefs whatsoever. While most of America may share your opinion, it doesn't make it correct. Nor does it change the fact that it is grounded in religious belief, an area the state has no business taking sides in.

8. The 2nd grade student (who probably didn't care one way or the other and only became distressed after being bantered on the subject by her father who is taking this issue to court to further his own personal beliefs, and to further the liberal agenda, rather than let his daughter learn and make an informed decision for herself.) was never forced to stand and recite the pledge.

As the Supreme Court has noted countless times, just because she isn't forced by the state to recite it doesn't mean she isn't forced by her classmates. Kids have a way of being merciless in the face of "strange" or "weird" people, namely those who don't ascribe to the same beliefs they are taught. Speaking from personal experience, I had someone in my grade school who was a Jehovah's Witness. They don't say the Pledge for religious reasons. He was never forced by our school to recite the pledge or stand. However, when other kids found out that he didn't say it, he was mercilessly mocked and turned into an outsider. So much so that his parents yanked him out of school and home schooled him.

As far as this promoting a "liberal agenda", I believe the Democratic Party would disagree with you. Every elected Democrat in Congress decried the ruling and immediately assembled on the steps of the Capitol with the Republicans to defiantly say the Pledge. Doesn't sound to me like the liberal party is too much in favor of this idea. Furthermore, the Ninth Circuit judge who wrote the opinion is a conservative judge appointed by Nixon.

9. Random concluding thoughts

The rest of the comment isn't really specific stuff, just generally stuff about individual rights and liberties. As noted several times above, this case and the Pledge have precisely zero to do with individual liberties. If one individual person believes in God and believes this nation to be founded by God, that person is wholly entitled to do so. If that person chooses to take the further step of deciding to pledge their allegiance to both God and country in the same phrase, that person is still entitled to do just that.

The problem comes when the state is mandating belief in God as the only true way to pledge your allegiance to the country. This country is not today, nor has it ever been, a Christian nation. I think IceWedge did a nice job of illustrating how important it is to protect individual liberties and beliefs. What he failed to realize is that the Pledge is nothing more than the product of a group of elected officials who chose to deny their constitutional responsibilities and ignore those very individual beliefs IceWedge argues in favor of. They chose to enshrine belief in God as a prerequisite to being a good citizen. The Pledge was fine as it stood before the amendment; there was no secular reason at all for bringing a religious belief into the equation.

In closing, I would like to respond to all those who have concluded their arguments in this manner: "If you don't like God, then you can go live in some other country!" Or something to that effect. The Constitution, Amendment 1, says I don't have to. It keeps the state from requiring or endorsing a belief in a deity of any name, and it prevents the government from interfering in my choice not to believe. So, if you don't like that, then you can go live in some other country.

As I sit here at 3:30 in the morning, I begin to reflect on the overwhelming power of insomnia. I shouldn't be awake right now. Hell, I shouldn't be functional at all. Last night, I fell asleep at...well, let me start over, because that sentence isn't going to be accurate. I fell asleep at 9:00am yesterday morning, woke up at 1:00pm. Four whole hours of sleep. Yet, here I sit wide awake, hammering away at the keyboard, listening to Counting Crows and waxing philosophic on Slashdot.

I've also noticed that I tend to become more productive when I can't sleep. Maybe I'm looking for something to keep my mind off of whatever it is that's keeping me up. But today I've been very productive in getting to things that I keep putting off forever. Like designing that web site for my school that I've been telling them since September that I'd do.

Since I don't have anything particularly enlightening to offer further, I think I'm just gonna throw out some random thoughts/frustrations/whatever to close out the journal.

1. Law School
Five semesters into law school and I've come to the realization that studying and knowledge are completely irrelevant to passing your classes. Don't get me wrong, I get by, but my grades just aren't reflective of what I actually know. For someone (like myself) who doesn't normally give a shit what his grades are, this shouldn't bother me, even though it really grates the hell out of me. That, of course, annoys me even more.

When I was an undergrad, I got my share of C's. Even a couple of D's, and one class that I should have failed outright but managed to squeak by with a D-. They never really bothered me because, for the most part, they were in classes that I didn't care about anyway. I'm not really interested in Calculus, Accounting, or any of the other pointless classes I refused to care about. So when that report card came back with a substandard (by my standards) grade, it didn't bug me. At least then I got the low grade because I didn't care enough to try to learn it.

It's just not the same anymore. I love the law. Like Mozart loved his piano and the morons in my fraternity loved racking up rape charges, I absolutely love the law. I read random court opinions in my spare time, keep abreast of legal issues that have nothing to do with my classes, and other wholly nerdly things that force my wife to constantly roll her eyes at me. So when I take a class that interests me, I find it slightly annoying to get my grades and discover a low B or a C on the chart.

It would be one thing if I struggled in the classes. I don't. I usually walk out of the class knowing twice what anyone else in there ever could dream of (yes, I am that arrogant. :) ). I can still recall arcane and obscure doctrines from Contracts and Constitutional law from my first year, but I didn't get the high grades in those classes. Don't get me started on the C I was handed in First Amendment. Not "earned", but "was handed." This for the person who served the school at the Vanderbilt First Amendment Advocacy competition last year, coached three 3L's through competitons involving the First Amendment, and donated my time to help other competition teams craft First Amendment arguments.

I don't just get low grades, though. I'll walk into other classes and ace them with minimal effort. Usually, I take the finals and think I did poorly. Then the grades come back and I'll have an A. Grades are so utterly subjective here (and, I suspect, in every other law school) that it baffles me why firms and judges put so much stock in them. No, I'm not bitter that I can't find a job, why do you ask?

2. Iraq
Okay, George, let me break it down real simple like. I'll try to avoid multi-syllabic words because I don't want to induce another pretzel incident when I put you to sleep.

We have precisely zero reasons for going into Iraq with the war machine. Well, let's be fair, you think you have one very good reason, but personally I don't count oil as a good reason to send other people's children to die. You don't have a single bit of intelligence that says Iraq has bio/chem weapons. I know this for one simple reason: You, Don Juan Rumsfeld and John Boy won't show anybody what you supposedly have.

How many times since 9/11 have we heard that the U.S. has "irrefutable" evidence of banned weapons in Iraq? How many times has the U.S. then failed to produce any of this evidence, either to the public or to the rest of the world at large? Is this how you're going to prove the case against all those "enemy combatants" your administration is holding (or isn't holding, we can't really be sure since you won't tell us anything about them or even if they're being held)? "Well, your Honor, we have tons of evidence that he did it. But we're not going to show it to you. Just trust us. Can we have our guilty verdict now?"

All of this "evidence" is meaningless if nobody else can see it. It's time to put up or shut up. If you've actually got something, let's see it. A few satellite photos showing that the Iraqi's are building a few buildings doesn't cut it. I want something solid. Something concrete. Something we can't deny. You know, something like the UN weapons inspectors might be able to turn up if they're actually allowed to do their job. Until you've got that, please return to your award winning domestic policies that have successfully squandered the massive surplus that Clinton gave you and returned our economy to the vast shithole your Daddy and Reagan were kind enough to give us twelve years of.