A senator and a representative solemnly read a new pledge of allegiance today in a dramatic Flag Day ceremony on the Capitol steps.
As a new flag donated by the American Legion was raised high over the Capitol dome, Sen. Homer Ferguson, R-Mich., and Rep. Louis C. Rabaut, D-Mich., intoned the words of the allegiance approved by Congress last week.
In the revised pledge the words “under God” were inserted so that the pledge of allegiance concludes “… one nation, under God, indivisible, with liberty and justice for all.” (“Under God added to pledge of Allegiance,” June 14, 1954)
Judging by the UPI report of the event, when Congress added the name of God to the Pledge of Allegiance, the only controversy had to do with the competition for pride of place between the Republican senator and the Democratic Member of the House who introduced the legislation that made the change official. In the midst of America’s “Cold War” against “Godless Communism,” neither political party appeared to be preoccupied with the “separation of Church and State” now generally alleged to be a requirement of the United States Constitution.
We shouldn’t jump too quickly to the conclusion that the addition of the words was a sign of the times, however. In its 1948 decision in McCollum v. Board of Education, the United States Supreme Court addressed the alleged “separation of church and state” issue. In the case an atheist, Vashti McCollum, objected to the Champaign Board of Education decision to allow public school students to attend religious education classes, sponsored by a private association of Protestant, Catholic and Jewish people, and led by clergy and lay members of the association. The court ruled 8-1 in favor of McCollum.
Though later decisions are better-known to the general public (especially the school prayer decision), this was the case in which the SCOTUS first asserted the unconstitutional power to address the subject of religious establishment the First Amendment withholds from federal jurisdiction. As the federal government is forbidden to make law, there can be no power to dictate what the law is (which is, after all, the meaning of the term “jurisdiction.”)
In the decision he wrote for the majority, Justice Hugo Black asserted that “the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its sphere.” It’s obvious from even a cursory reading of the First Amendment that Justice Black’s assertion has no basis in fact. The Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Given that language, what the U.S. Supreme Court should have done is acknowledge that, since the case in no way involved congressional action in violation of the Amendment’s prohibition, it had no jurisdiction to address the issue. The notion that the First Amendment allows the federal government to police state and local decisions in respect of the free exercise of religion assumes that the Constitution somewhere delegates the power to do so to the federal government. In fact, the First Amendment’s language withholds from the federal government any authority to make law “respecting” (in respect to, on the subject of, regarding) an establishment of religion.
At the time the people of the United States ratified the First Amendment, 10 of the 13 original states had laws in force “respecting an establishment of religion.” The First Amendment undeniably aims to prevent the federal government from interfering with such laws. The notion that the language of the 14th Amendment somehow amends or supersedes this aim finds no support in that article’s language. For it says plainly that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor … deprive any person of life, liberty, or property without due process of law. …”
The language of the First Amendment withholds from the federal government the power to make laws concerning religious establishment. It cannot permit. It cannot forbid. It cannot address the subject. The power to do so is therefore not among those delegated to the federal government. The 10th Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
The power to address the subject of religious establishment, withheld from U.S. government by the First Amendment, is reserved by the 10th to the states, and the people of each state. In 1948, Illinois and its people therefore had the power to address the subject the First Amendment withholds from the U.S. government. It was and is constitutionally reserved to them. Therefore, it is among their belongings, a property of sovereign power left in their possession.
But the 14th Amendment forbids the states to “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The power to make law respecting an establishment of religion is “reserved to the States, respectively, or to the people.” Each state is therefore obliged to refrain from enforcing law that abridges the privilege this reservation entails.
This logic entirely forbids the federal government, in any of its branches, lawfully to deal with the issues pertaining to the subject of religious establishment. It is entirely up to the states, respectively, and the people. When people appeal to the U.S. Supreme Court concerning issues regarding an establishment of religion, its only properly constitutional course has ever been to disclaim any power to address them. Every shred of SCOTUS jurisprudence that relies on the alleged “separation of church and state” dogma is thus a travesty of the Constitution. The only possible exception concerns the enforcement of the constitutional provision (Article VI.3) against requiring a religious test “as a qualification for any office or public trust under the United States.
States and people alike, aligned with different religious perspectives, are constitutionally invited to work together in the interest of the nation. But the nation as a whole is constitutionally forbidden to prohibit, persecute or otherwise by law interfere with the corporate and personal privilege of the people to govern themselves and their worship in the way established (i.e., grounded and built) upon their conscientious understanding of the Creator, God. And what people with the sense God gave them would fail to acknowledge, the authority that made liberty our privilege, and the self-government it obliges our sovereign national right? Only a law-abiding people duped into believing that the Supreme Law of the land requires this irreverent failure. Pray God the better angels of their good nature will carry far and wide the reasoning that proves this dogmatic separation of God from their self-government is a lie, as fatal to their self-government as it is to the good character required to sustain it.