June 14, 2004


by PG

The Supreme Court managed to swerve around deciding the constitutionality of 'under God' in the Pledge of Allegiance by unanimously (Scalia not participating) declaring that Michael Newdow, due to insufficient custody of his daughter, did not have legal standing to sue on her behalf.

Justice Stevens primly opined, 'When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.'

Three of his more conservative brethren and sistern (Rehnquist, O'Connor and Thomas) showed their hands and wrote separately to say that 'under God' was constitutional.

UPDATE: Thanks to Greg for the factual correction on the unanimity, or lack thereof, of the decision. Due to being abroad, my U.S. news is coming in very short bursts. However, I disagree on the issue of whether the constitutionality of 'under God' was at issue in Newdow; my understanding is that if that phrase had not been added to the Pledge, there would be no case.

June 14, 2004 12:17 PM | TrackBack

Yikes, not what I expected.

Posted by: Nick Morgan at June 14, 2004 01:31 PM

It's not? What did you expect?

I'm still wondering what provision of the US Constitution authorizes congress to establish what amounts to a loyalty oath, regardless of whether it contains the "under god" language."

Posted by: raj at June 14, 2004 02:10 PM

The standing issue was not unanimous. Rehnquist dissented on this in Part I of his opinion, which was joined by O'Connor and Thomas.

Posted by: Greg at June 14, 2004 03:53 PM


The pledge obviously promotes interstate commerce by increasing the sale of flags, thus bringing it within Congress's control.

Posted by: Matto Ichiban at June 14, 2004 09:04 PM

I think Raj's comment is a bit off. Remember, the question in the cross-hairs was not necessarily the Pledge (though it was, sort of) but rather a school district's policy of requiring the reciting of the pledge as part of "appropiate patriotic exercises" to be conducted each day.

After all, what allows Congress to legislate the appropiate way to display and maintain the flag? Nothing, really, but it has passed legislation to that extent. And what authority is in the constitution to declare a national anthem and what its words should be? Nada.

So now we reach the crux of the issue: Congress can say "The pledge of allegience shall consist of the following words," but it has no power to require anyone to say it.

It was the school district (implementing state law) that chose the Pledge as its form of patriotic recitation.

Hope that clears up some things.

Posted by: Sean at June 15, 2004 12:27 AM

Um, sorry, Sean, but the fact is that, by embodying the "pledge of allegiance" in statute ("I pledge allegance to the flag of the United States of American, and to the republic for which it stands...) the congress has established what is nothing more than a loyalty oath.

You presumably have a copy of the Constitution. What provision of, say Article I, section 8, gives Congress the power to establish a loyalty oath?

The US government is supposedly a government constrained by the constitution. If you are unable to identify a power that grants Congress the authority to establish a loyalty oath, then query whether such power exists.

BTW, your analogies to the statutes suggesting the proper handling of the flag are inapposite. As I recall, those statutes prescribe desired methods for handling the flag. But, if my boy scout experience is any indication, more than a few people don't follow the suggested handling. It is, for example verboten for flags to be left out in the rain, but more than a few people don't observe that commandment. I have yet to hear of anyone being arrested for failure to conform.

Posted by: raj at June 16, 2004 08:37 AM

Oh, and Sean, if you really believe that government schools, when they do the "pledge of allegiance" ceremony, don't try to impose conformity, well, I have a bridge that you might be interested in buying.

Posted by: raj at June 16, 2004 08:40 AM

But the legal problem at issue wasn't the language of the Pledge, in the end, but the blurry line between voluntary & coerced recitation of it in a public school, right? The language of the Pledge created the issue, but a ruling wouldn't have 'invalidated' the Pledge literally, just practically. I mean, in effect, the result would be the same -- the Pledge wouldn't be said in the schools -- but the argument as presented wasn't w/ regard to the 'Constitutionality' of the Pledge. Sean's not disagreeing w/ you in essence, he's simply clarifying the actual issue at hand.

Your write, raj:

"I have yet to hear of anyone being arrested for failure to conform..."

...to flag handling rules. Which is exactly Sean's point. They can make the rules but not enforce them. They can write the Pledge, but that doesn't mean it can be said in the schools.

Posted by: Spencer at June 16, 2004 09:17 AM

I think Spencer hit on it, but let me add something:

From the Opinion,

"Under California law 'every public elementry school' must begin the day with 'appropriate patriotic exercises.'" and "'the giving of the Pledge of Allegiance to the Flag of the United States of America' shall satisfy the requirement." (Slip Op. at 3)

The Pledge is codified at 4 U.S.C. 4, yes, but Congress can't kick anyone's door down or prosecute someone for not rendering it. It is simply a reccomended saying, not required of anyone.

Thus, Elk Grove could have started the day by signing "Yankee Doodle Dandy" but they chose not to, instead choosing the words codified at 4 U.S.C. 4. I think our technical analysis of the Pledge case would not be changed if the Pledge was simply something created by Elk Grove to have students by local policy rather than something codified in U.S. law. The question is whether a government action is coercive, not whether Congress has any power to pass a statute saying "these words constitute the Pledge to the Flag."

That's why, after all, the case was captioned as Elk Grove v. Newdow, not U.S. v Newdow or Ashcroft v. Newdow.

Posted by: Sean at June 16, 2004 10:49 PM

The "legal problem at issue" was the right of a non-custodial parent to assert next-friend standing. The Supreme Court did not D.I.G. this case, after all; it clarified an important procedural point. Certainly this is less sexy, particularly for the general non-lawyer public, but it is nonetheless potentially of significant import to practicing lawyers.

Posted by: Tom T. at June 16, 2004 11:05 PM

The custodial issue is interesting for even those who aren't practicing attorneys. Most of us are aware that the Court didn't weigh in on the coercion part of Newdow's complaint. We were talking about it hypothetically -- what was, in fact, at issue in the second part of the case that the Court agreed to consider if it was proven that Newdow had standing.

Don't rain on our parade here....we're playing in that hypothetical land where SCOTUS is fearless.


Posted by: Spencer at June 17, 2004 10:59 AM

here's what i blogged at ballots.blogspot.com
Monday, June 14, 2004
elk v newdow, majority ducks, in an abuse of prudential standing.
i would have ducked by saying mom was erroneously denied intervention. oconnor would overrule the warren court's ban on school prayer, upholding flag sacration. thomas' was the most interesting - he says the 9th got it right, in terms of precedent, but he would hold the establishment clause is not incorporated. yikes.
of course, when it comes to ducks, we should defer to heidi bond.

Posted by: arbitraryaardvark at June 17, 2004 05:13 PM
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