SUNDAY SPIN
Flag of Convenience
by Jonathan Cohn
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Only at TNR Online | Post date 07.01.02
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Although this week's Supreme Court decision on school vouchers could be
one of the most important developments for public education in a generation,
discussion of the ruling was almost completely absent from the networks'
Sunday talk shows. This might not seem so surprising given the other stories
vying for attention this week, except that the Sunday shows did find time to
debate another court ruling: the declaration by a federal court that the Pledge
of Allegiance is unconstitutional because it includes the phrase "one nation
under God."
Perhaps this has something to do with the groups each decision outraged.
The voucher decision angered two core liberal groups: Civil libertarians who
think vouchers blur the line between church and state, and teacher unions
who fear they will siphon money away from public schools. But these are
pretty isolated pockets of opposition. Many Americans may oppose school
vouchers as policy, but their feelings are complicated and, in many casers,
not strongly held. By contrast, the pledge of the allegiance ruling seems to
have angered the vast majority of Americans, from all ideological
backgrounds. And conservatives, who see the decision as indicative of a
deep moral flaw at the core of modern liberalism, are positively apoplectic
about it.
So on those two shows where avowed conservatives have a
platform--ABC's "This Week," home to George Will, and "Fox News
Sunday," home to Brit Hume and Tony Snow (among others)--it was time
to tee off. Will did his own harrumphing, calling it "lunacy." On FOX, the
hosts decided to invite a guest: Lynne Cheney, wife of the vice president and
author of a recently published children's book about patriotism, who
described the decision as "completely out of step."
Personally, I'd rather discuss just about anything than the constitutional
permissibility of the pledge of allegiance. We have a major budget problem,
an economic slump, and--oh, by the way--an ongoing war against terrorists
who may be about to unleash new attacks this week. But, of course, it's not
the job of our judicial branch to be convenient. Quite the contrary, it's the
courts' job to interpret the law of the land whenever disputes arise, no
matter how it fits into the broader political environment.
And whatever the timing, the Ninth Circuit's decision certainly seems
plausible on its face. The Constitution is pretty clear on church-state issues:
Congress "shall make no law respecting an establishment of religion." Having
schoolchildren recite a pledge that America is "one nation under God,"
certainly sounds like an establishment of religion. As Judge Alfred T.
Goodwin wrote in his ruling, "The Pledge is an impermissible government
endorsement of religion because it sends a message to unbelievers that they
are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders."
Critics of the decision may think otherwise, and perhaps they're right. But it's
incumbent on them to make a reasoned, legally persuasive case as to why.
And on the Sunday shows, the critics didn't do that.
Consider George Will's disquisition on the ruling: "The Ninth Circuit thinks
that [the pledge] is an unconstitutional establishment of religion, even though
the first Congress, which included some of the constitution's authors, itself
hired a Congressional chaplain," Will explained mockingly. "Unless the Ninth
Circuit is reversed, today's house and senate chaplains will have to go." It's
an interesting point, but not necessarily correct and not all that relevant.
Whether members of Congress choose, on their own, to employ spiritual
advisers and to profess their own faith is a far cry over whether school
children across the country should be made to recite a pledge recognizing
that America is a nation under God. More important, the founders'
determination to keep a rigid separation of church and state has been
well-chronicled. Indeed, as David Greenberg noted in Slate last week,
"When Benjamin Franklin proposed during the Constitutional Convention
that the founders begin each day of their labors with a prayer to God for
guidance, his suggestion was defeated."
Cheney's effort at criticism was even lamer. Besides mischaracterizing the
Framer's intent just as Will did, Cheney suggested the ruling was wrong
because it was unpopular: "This is such a minority opinion." But it's not the
job of the courts to heed popular will. The whole reason we have a strong
judiciary in this country is to protect the rights of minorities--even tiny ones,
or minorities of one--from the excesses of majority rule. In other words, the
fact that a judicial ruling is unpopular hardly means that it's wrong. As a
matter of fact, in a case like this it may well mean that it's correct.
Intellectually persuasive or not, these sorts of arguments will likely serve
conservatives well. Not only does this discussion suck up more oxygen that
might otherwise feed a debate on domestic issues favorable to Democrats;
Republicans are also linking the pledge issue to the war on terrorism. On
FOX, Cheney specifically invoked September 11, arguing that the renewed
sense of patriotism and faith in the wake of the attacks fueled the indignation
at the Ninth Circuit's ruling. "I think that before September 11," she
explained, "there would have been more people saying, yes, that's right, we
don't want to coerce anybody in the schools into professing religious belief if
they happen to be unbelievers." Never mind the chilling implication. (After
September 11, coercion of schoolchildren is supposed to be OK?) The
broader message seems to be this: If you think mention of "God" in the
pledge of allegiance is unconstitutional, then you're not only a godless
heathen. You're an unpatriotic godless heathen. Slap that on a bumper
sticker and before long you may just have Republicans running the Senate as
well as the House.
Still, there's always the possibility that conservatives will overplay their hand.
There are basically three ways you can view this decision. (a) It was the
wrong decision because the United States really is one nation "under God,"
and the pledge of allegiance should reflect that faith. (b) It is wrong for the
pledge to acknowledge an establishment of religion. However, this statement
is so meaningless that it doesn't really offend the constitution. (c) Including
the word "God" inherently respects an establishment of religion, in a
meaningful way, and thus the Ninth Circuit was right to declare it
unconstitutional.
Most people seem to think either (a) or (b). But (a) and (b) are mutually
exclusive. Either the pledge means something, or it doesn't. Cheney herself
seemed to bristle when Hume asked her whether she agreed that references
to "God" in the pledge were constitutional because they were
inconsequential. "I'm a little concerned that you can't have even a mention of
God in the schools unless it's di minimus," she said.
Plenty of Americans would disagree with that statement, and plenty more
would start to get angry if references to God indeed became more prevalent
in school, as Cheney and others seem to prefer. Eventually, all those people
who believe (b) might start to see the wisdom of (c)--hopefully, before any
real damage was done.
JONATHAN COHN is a senior editor at TNR. |
