Wednesday, September 26, 2007
The Pledge
Here is a followup to today's class discussion. In 2002, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that including "under God" in the Pledge of Allegiance is unconstitutional. A Newsweek poll then asked a national sample if the Pledge should contain the phrase. Eighty-seven percent said yes and 9 percent said no.
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6 comments:
Huntington p. 81-82 has more on this
Why, if so many people support the pledge, has this case gone as far as it has?
Because the courts are not vehicles of public opinion, and given that there has been, at best, differing opinions from the Supreme Court, the challenge may be legally plausible if not exactly sound.
Also its worth noting that the 9th Circuit is one of the most, if not the most, overturned circuit court. When their rulings are challenged, the have been overturned in a number of high profile cases.
But how is it even legally plausible? Based upon what interpretation of the Constitution and statutory law?
I'm not saying that the case has not legal merit. The supreme court said as much in overturning the 9th circuit's ruling. I am saying that overwhelming public opinion is not a legal argument.
As to how it is legally plausibly, the appellant argued that the pledge constituted an unlawful establishment of religion, the 9th circuit agreed, SCOTUS did not. The legal question was about the definition of the establishment clause and whether requiring the pledge constituted an unconstitutional establishment of religion. I'm not disagreeing with the Supreme Court's ruling or with the polling, but Pew, Gallop, or in this case Newsweek, are a basis of legal reasoning.
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