Reaction to the federal court ruling that the words "under God" in the Pledge of Allegiance are unconstitutional has revealed not only a national consensus that the decision is wrong, but a national disposition simply to defy it.
The controversy presents two strong challenges to America. First, at a time when the war on terror makes principled national unity crucial, the Pledge symbolizes our common commitment to one another, to the country and the ground on which we stand together as Americans.
So, the apparent determination of Americans to keep the Pledge, whatever the courts say, means that the judges' decision may actually galvanize and intensify our national resolve against the forces of tyrannical terror – at least in the short term.
However, there is a competing challenge before us. The more insidious danger is, ironically, suggested by the otherwise laudable popular rejection of the Ninth Circuit Court's ruling. There is widespread determination to keep the Pledge no matter what the courts say. And in this reaction we may finally be seeing the dangerous fruit of decades of judicial irresponsibility and tyranny, bringing us at length to the point where law abiding American citizens view the formal opinions of the federal judiciary with active contempt. Particularly in First Amendment cases, the federal judiciary has richly deserved the ridicule and rejection being showered on last week's decision.
But it is difficult to overstate in principle the danger to our republican form of government of such contempt. Judges are independent in America because they need to make unpopular decisions – decisions which the majority might not agree with, but that are required by the law, by the Constitution, by the principled tradition of constitutional interpretation that the Supreme Court has fashioned. The spirit of active and vigilant citizenship that denounces corrupt, arbitrary and incompetent judicial reasoning is essential to liberty. But when that denunciation reaches the point of open and active contempt for the very office and authority of the courts, making principled but unpopular judicial decisions impossible, an equally crucial bulwark to our liberty is in danger.
America is in the midst of a permanent war against terror that will require a very difficult and dangerous balancing act between our security and our liberty. It will be the judges who decide crucial questions regarding how power is used in meeting this challenge to our safety and national security.
But can we have confidence in a judiciary which seems to be going out of its way to discredit itself? For example, how will such a judiciary sustain the confidence it requires from the American people should the court decide that the president lacks the authority to do something that the president says is essential to our national security?
After decades in which – from the law schools to the Supreme Court – the judicial culture has indoctrinated itself and the nation in the theory that the law is whatever the judge says it is, the whole country is in danger of waking up to the reality that judges who claim the right to be arbitrary are abdicating their claim to respect and obedience from the citizens of a constitutional republic. When the people decide that their judges are whimsically tyrannical, this republic will no longer have a judiciary – or the liberty that comes from living under a regime of law.
In the case of the Pledge decision, the rot goes deep – because it was required by Supreme Court First Amendment rulings going back 50 years. The First Amendment says that "Congress shall make no law respecting an establishment of religion," a phrase that for decades has been perversely and willfully misinterpreted by the courts. Those words mean, quite clearly, that Congress shall make no law on the subject of an establishment of religion.
Instead, the Supreme Court has, in effect, required lower courts to ignore the plain meaning of the words of the First Amendment, and fabricated an irrational understanding of those words that does exactly what the establishment clause forbids – allow the federal courts to interfere with religious self-determination in the states. The rejection of prayer in schools, and the exclusion of God from public places – both grounded on a mindless abuse of the establishment clause of the First Amendment – come to a natural conclusion in the Pledge decision.
This history, not merely the Pledge decision by a lower court, is the most outrageous – certainly the most overt – overturning of the Constitution that our nation has witnessed. The courts need to be very wary of the spirit of defiance that such judgments arouse in the people by the judiciary's contempt for common sense and our basic rights.
For liberty, we need a respected judiciary. For the sake of preserving our liberty, we need to insist that the courts begin again to deserve the respect from a free people that makes their work possible. Bringing such discipline to the judiciary is, at bottom, a political task. It is one more essential job that only a principled and vigilant citizenry can accomplish. We may hope that the absurdity of last week's decision will awaken many of our fellow citizens to the importance of the task before it is too late.