Saturday, September 13, 2008

Madalyn Murray O'Hair v. Michael Newdow

Michael Newdow, the atheist who got the 9th Circuit to scrap "under God" from the Pledge of Allegiance, has been compared to a modern day Madalyn Murray O'Hair; but I think the comparison is inapt. They do have similarities. Obviously their atheist activism. Plus both are (were) intelligent, capable of well arguing their case.

However, when it comes to their personalities, the two are the difference between night and day. O'Hair was unlikable, clownish and obnoxious and got off on mocking and prodding her enemies with her abrasive personality. See the following clips:





Newdow, on the other hand, has an extremely mild mannered, affable and reasonable sounding personality. Indeed, O'Hair may have been smart, but Newdow (an ER doctor AND a lawyer) is brilliant. When he argued his case before the Supreme Court, Newdow handled himself like a litigatory virtuoso. Lawyers who are that good in front of the Supreme Court make millions in the private sector as appellate advocates. Perhaps, in this sense, Michael Newdow is like Princeton ethics professor Pete Singer: His brilliance in favor of a very extreme position is itself irritating and to many folks somewhat unsettling.

Here is a clip of Newdow in action:

78 comments:

Brad Hart said...

Maybe it is because I am a centrist in most of my views, but I find the whole "One Nation under God," "In God We Trust," debate a little ridiculous. Personally, I don't really care if people choose to invoke God or not in the pledge, the dollar bill, etc. I guess I feel a lot like Jefferson when he stated:

"It does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

For Christians to insist upon using the phrase, "One Nation under God" seems harmless and well within their rights. On the other side of the coin, I don't see any reason to fault the atheist who chooses to refrain from such phrases.

The only thing that bugs me is when advocates for these phrases insist that the founding fathers would uphold them as well.

WRONG!!!

bpabbott said...

Jon,

Thanks for the post. I've never seen either in action before. Madalyn's bluntness exceeds anything I've encountered before. She sure must have got a lot of people thinking.

Brad,

Regarding the pledge, are you familiar with Alonzo Fyfe? ... and his Pledge Project?

If not check it out. Both the "under God" and "In God we Trust" were legislated with the motive to promote anti-atheist bigotry :-(

Fyfe does an excellent job of dealing with the morality of the issue. He makes no claims with regards to the legal perspective.

Tom Van Dyke said...

"...anti-atheist bigotry..."

I'm always uncomfortable when bigotry is invoked in this fashion. Seems to me that makes anyone who disagrees not only prejudiced beyond reasonableness, but not a very nice person either.

bpabbott said...

Tom: "I'm always uncomfortable when bigotry is invoked in this fashion. Seems to me that makes anyone who disagrees not only prejudiced beyond reasonableness, but not a very nice person either."

I agree. However, I'll note that the government did not appeal to the populace's rational minds or reason to battle communism. They appealed to their religious sentiments.

While the ends are desirable (imo), the resulting indoctrinated bigotry is not.

Regarding prejudice and bigotry, I use the terms in a distinct context. I'll offer an example.

I have a preference for heterosexual relations, and thus a personal prejudice for homosexual relations. If I were to extend my prejudice to the relations of others *and* act to infringe upon the life, liberty, and pursuit of happiness of others ... then I'm a bigot.

Dave2 said...

I don't know, it seems like plenty of regular and nice people fall into some kind of bigotry or another.

But you're right that words like "bigot" and "bigotry" have a tendency to turn up the temperature of a conversation really quick.

Tom Van Dyke said...

Yes, and Mr. Abbott seems to have just kicked it up a notch.

Eric Alan Isaacson said...

Jonathan,

It's by no means clear to me that Newdow advances an "extreme" position when it comes to the Pledge of Allegiance.

Could Congress pass a law mandating that God be removed from a song like "God Bless America"? Really, what if Congress mandated that "God Bless America" be revised and sung in the future as "Godless America"?

Would that be constitutional? Would it comport with the Constitution's provision that "Congress shall make no law . . ."?

I don't think so.

But if Congress cannot seize a piece of popular culture, like a song, and mandate that God removed, then why can it seize a piece of popular culture, like the Pledge of Allgiance -- which had been around since 1892 -- and order that God be inserted?

And if Congress can add God to the Pledge, then why can't it at some date in the future similarly pass laws requiring that God be removed from our songs, such as "God Bless America"?

You can call me a "cultural conservative," if you'd like, but I don't think Congress should be able to mess around with our culture and religion like that.

Eric

bpabbott said...

That was a long video. I've finally finished.

Regarding Michael Newdow's opposition, Kevin J. Hasson posits that religion be treated no differently that racial and ethnic identification, I agree.

Who would support a pledge to "[...] one white nation [...]"?

As I think such is ridiculous, I conclude that Hasson's analogy is sufficiently off base that it is easily turned against him.

Such a position has previously be put forth by Alonzo Fyfe, here.

Regarding asking objectors to opt out of the pledge, how is it proper to ask children to choose between "[pledging] allegiance to [...] one nation under God, indivisible, with liberty and justice for all" and rejecting a "[pledge of] allegiance to [...] one nation, indivisible, with liberty and justice for all"?

What of those who do genuinely wish to pledge their allegiance to their nation's values, cannot (in good conscience) pledge to the religious sentiments of others?

Tom Van Dyke said...

I'm sorry, Mr. Isaacson, I'm not following how that song is analogous to say, putting "In God We Trust" on our currency, another Newdow target that has so far not got anywhere in the courts.

If Congress took "In God We Trust" off the currency tomorrow, I wouldn't want the courts to put it back on. [Neither do I think they would, for various reasons.]

Jon is the legal scholar here, but I do believe that custom and practice are recognized by jurisprudence, especially the "prudence" part. America has long-standing cultural accomodations with religion. If I'm a "cultural conservative," it's especially in opposition to cultural radicals, who want to perfect man and his society as of close of business on this coming Monday.

I do not think that adding "under God" to the quasi-official Pledge of Allegiance would pass muster in 2008, but on the other hand, mandating its removal could be seen as an inhibition of the free exercise of religion, that part of the First Amendment that gets much less notice than other parts.

Or, according to Erwin Chermerinsky, the 9th Circuit's Newdow decision could result in this cacophony:

...schools that are especially risk-averse can avoid offending atheists, polytheists and others concerned about theocratic government by using the pre-1954 version of the pledge, which didn’t have the words “under God.”

Of course, if teachers loudly correct students who voluntarily say “under God,” or teachers otherwise campaign against nondisruptive students voluntarily expressing religious beliefs, then schools run the risk of promoting official disapproval of religion, which would be unconstitutional.


This is what happens when we allow no space between society and the law, where everything must be legally formalized. People are stupid, it's true, but the law is an ass.

Ray Soller said...

Here's another look at Michael Newdow in a panal discussion that occurred at Boston College. Click on front row, Boston College to see the video.

Michael Newdow presented his case against “under God” with Wendy Kaminer, a lawyer and social critic; and Phillip Munoz, an assistant professor of political philosophy and American Constitutional law at Tufts University. The discussion was moderated by Alan Wolfe, professor of political science and director of Boston College's Boisi Center for Religion and American Public Life.

Ray Soller said...

On December 4, 2007, Michael Newdow presented the oral arguments for his two cases in the 9th US Circuit Court of Appeals where he objects to the intrusion of "God" in the Pledge of Allegiance(05-17257) and on all U.S. currency (06-16344). A recording of the two events is available at http://www.ca9.uscourts.gov/. Put in "05-17257" for the Pledge case. Put in "06-16344"for the Motto case.

Jonathan Rowe said...

"Jon is the legal scholar here,..."

Yes, I am a legal scholar here; but, if you look at his background, Mr. Isaacson's legal scholarly bona fides are far superior to mine. He also knows something about appellate advocacy as well.

Jonathan Rowe said...

Look forward to more discussion about Munoz's work here; when it comes to the legal scholarly case put forth by the religious conservative side on the religion clause issues, he is as good as it gets.

bpabbott said...

Regarding the FrontRow medai content of Newdow and Munoz, I'm unable to play them.

RealPlayer doesn't play on my Mac :-(

Might there be another option? ... I cant' find one.

Caitlin GD Hopkins said...

Discussions about the Pledge in schools generally cast students and parents (like Mr. Newdow) as the dissenters, but I just want to put in a shout-out to all the non-pledging teachers out there.

I taught elementary school in a very religious community for two years and never once led the Pledge in my classroom. That doesn't mean my class didn't discuss American values, laws, and patriotism - we just never recited anything in unison. I never had a single parent complain, but I did have more than one Jehovah's Witness parent thank me for being the first teacher to avoid the ritual humiliation of their children.

It helped that our school was so broken down that we didn't have a working PA system.

Scott Case said...

Historian David Kennedy (winner of the Pulitzer Prize) has recently published an extremely interesting article in the Journal of American History, which focuses on the impact that McCarthyism had on religion during the 50s, particularly its role in reshaping the Pledge of Allegiance. From what I have read of article it sounds pretty convincing.

If any of you have access to the journal I would highly recommend that you take the time to read the article. It fits in very nicely with your ongoing discussion.

Phil Johnson said...

.
WOW!!
.
I really enjoyed that debate and the questions that followed.
.
Very enlightening. Some points came up I had never before imagined.
.

Tom Van Dyke said...

Is there a corollary for Godwin's Law that applies to "McCarthyism?"

We might substitute "the rise of Communism as a potential global totalitarianism" without harming the inquiry too much, and what a people would do in the face of a legitimate threat is far more probative than what they do in a panicked mob rule.

Of course some folks are more comfortable putting the insertion of "under God" into the same crucible as the Salem witch trials, and I don't blame them. It requires little argument and zero thought.

[I do not speak of David Kennedy's argument here, as I haven't read it. But raising up McCarthyism, like Nazism, is a conversation-killer, as any dissenting views are necessarily defending the indefensible. "Guilt by association" cuts both ways, and certainly does here.]



That said, I think the Pledge has outlived any possible utility. There are aesthetic problems with the coercive nature of having the kids say it.

And per the Chemerinsky quote above, per the twin horns of the First Amendment [prohibition of establishing religion yet guaranteeing the free exercise of it], we could soon have kids shouting two competing versions at each other at the same time, taking all the unum out of our pluribus, and turning our children into tools of our quite adult positions.

Charles said...

I also found Mr. Isaacson's example confusing. As stated, it doesn't make much sense; exactly how would Congress "revise" a song? If he meant that public school children would be taught to sing the song that way, it simpler to posit the pledge being revised to say "one nation, not under God" or "under Allah".

Because I so enjoy Mr. Rowe's posts and respect his opinions, I eagerly awaited Mr. Munoz's part of the panel but found it quite disappointing. After a very interesting intro re the question of what ills were intended to be avoided by the EC, IMO he then did little more than seque into the familiar "no right not to be offended" and "no right to purge religion from the public square" arguments. This would have been only tedious had he not further ascribed the opposing positions to Mr. Newdow, which I will generously describe as disingenuous. I nonetheless look forward to Mr. Rowe's future post(s) on Mr. Munoz, but with dampened anticipation.

It wasn't totally clear to me whether Mr. van Dyke was quoting Mr. Chemerinsky, but if so the latter makes the same error both in the quote and in his potentially "cacophonous" solution. Offending atheists, et al, isn't the point: it's government endorsement (if you don't see the difference, read J. O'Connor's discussion in Lynch v. Donnelly), so offering two versions doesn't necessarily help (is one is "preferred" over the other?). IMO, Mr. van Dyke's solution is preferable.

- Charles

Tom Van Dyke said...

I think Chemerinsky's [a mighty lib, BTW, and yes, I was quoting him] point is that forbidding kids from adding "under God" on their own could be seen as a suppression of the free exercise of religion. Even if the school's right to impose order were invoked, as in the "Bong hits for Jesus" case, we still might get a battle zone. Civil disobedience for Jesus, as it were. To accept the banning of "under God" would be a denial of God.

Which opens the "custom and practice" door for me, that changes from the status quo are as radical as inserting "under God" in the first place.

Explicit Atheist said...

"Godless" is a sort of denial of theism like "Under God" is a sort of denial of theism. Saying neither denies neither. If it is painful to have it removed then tough shit, it shouldn't have be added in the first place. Calling such a removal from an existing law and government ritual a "denial of God" for no other reason than it would be a change\correction to a current\past practice is unbalanced. After all, it was added in 1954, so this wouldn't be the first time it changed. I know some people who strongly share the majorities preference have difficulty with the majority preference being overruled by judges, that often results in people taking offense because it implies that majority is very wrong and no one likes to be told that they are very wrong. But lets not make false rationalizations that it really would be unfair if the judges rule against the majority for no other reason that it overturns current practice.

Charles said...

"forbidding kids from adding 'under God' on their own could be seen as a suppression of the free exercise of religion"

As phrased, it seems unquestionable that this would violate the free expression clause. But it isn't clear to me that this is what Newdow (or anyone else) is trying to do. The issue in all such cases, as I understand it, is forcing kids to participate - actively or passively - in state (ie, school district) sponsored essentially religious ceremonies.

This seems to be a distinction that is widely misunderstood (or intentionally misrepresented). Forbidding a government institution (here, a school system) from promulgating a religious doctrine is not equivalent to forbidding students who independently choose to individually express their religious beliefs from doing so. Thus, describing the ban against school-sponsored prayer as "removing God from schools" is either a misinterpretation (if the speaker is ignorant of the facts) or disingenuous (if the speaker isn't). As I understand it, students can do all the (non-disruptive) praying they want, but the school system can't force other students to participate, either actively or passively.

- Charles

bpabbott said...

Tom: "[...] forbidding kids from adding "under God" on their own could be seen as a suppression of the free exercise of religion."

No one has brought such a case. Kids are permitted to pray, say grace, and add anything they like to the pledge ... provided their actions are not disruptive.

My understanding it that the current case Newdow brings is to remove the words "under God" from the pledge.

How that effects the practice of the states is uncertain (to me). If some decide to ban the words of students who take the initiative to add them then they should be challenged in court.

Tom Van Dyke said...

Charles and Ben, I think we have no fundamental disagreement on the formal reasoning of this thing. I think I registered a queasiness about the coercive dimension of having all the kids say the Pledge, and doubts about its continued utility.

But as you've both become acquainted with me---Charles over at Positive Liberty" as I recall, my weltanschauuung gets very upset when we lose the forest for the trees. I do not think that any society-nation can survive solely based on law. Law will always be insufficient, because human reason is, as we prove every day around here.

Tom Van Dyke said...

..and I did want to note your very good point, Charles---as a Burkean conservative, and a Scalia respecter of custom and practice but also stare decisis---that the "under God" addition being only as recent as 1954 is probative. I also noted that it would likely not pass muster---get out of the box today.

I wouldn't object to the Supreme Court throwing it out, although I find the whole matter quarrelsome and not in the best interests of our nation.

Faced with the reality of 2 kids yelling "UNDER GOD!" at the class, or the classroom yelling "under God" at the 2 conscientious objectors when they tried to move onto "one nation indivisible," my first choice is dropping the whole thing quietly, my second is the conscientious objectors just remaining silent when they hit the "under God" part.

Tellya the truth, I don't like the Pledge because of the coercion element but I like those who want to litigate it even less. The latter don't have the best interests of the country at heart, only the exercise of their individual rights.

George Washington in his Farewell Address said that religion was essential for America's moral health and social cohesion. He was no Holy Roller, on this we all agree. I do not dispute Mr. Newdow's various arguments. I don't know them because I'm not interested in them. I'm sure they're very good.

But it gets clearer to me every day how unsynonymous "truth" and "wisdom" are. George Washington was a wise man who knew truth is cheap.



"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ?

[And here's Washington's note to folks like Mr. Newdow:]

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

Dr. Newdow, Esq., a doctor and lawyer, undisputedly has a "refined education" and is manifestly one of those "minds of peculiar structure," but he risks the forest that guarantees his rights for the sake of his own little tree.

Charles said...

Tom:

If you didn't watch the video cited by Ray Soller in his comment of 9/14 6:44AM, you might find Ms. Kaminer's presentation interesting. She takes a tack similar to your "forest for the trees" position, arguing that attacking "under God" in the pledge, on currency, etc, fails a cost-benefit trade (my language, not hers) and is therefore counterproductive from a strategic POV; I found her argument quite convincing - on strategic grounds. Then Newdow rebuts with an argument, somewhat analogous to "slippery slopes", which I also found quite convincing - on principled grounds.

Which either goes to show that it's a difficult call or that I am "unfoundationalized" (likely, being currently a Rorty fan, though clearly fickle in my allegiances to gurus, which apparently can have half-lives measured in minutes).

- Charles

Charles said...

"I did want to note your very good point, Charles ... that the 'under God' addition being only as recent as 1954 is probative"

For the record, that point should be credited to "explicit atheist", not me.

-c

Charles said...

"I do not think that any society-nation can survive solely based on law. Law will always be insufficient, because human reason is"

Since our (much) earlier exchange at PL, I have read "Contingency, Irony, and Solidarity", and if I understand Rorty correctly, he and Habermas (whom he discusses at some length) diverge primarily on this issue: he doesn't see what might correct that "insufficiency", whereas Habermas does. But if Rorty speculates as to what Habermas has in mind, I didn't get it. Since you are a fan of the latter, could you say a few words about your understanding of what Habermas (and/or you) thinks might fill that gap?

- Charles

Tom Van Dyke said...

Charles, I can't intelligently discuss either Habermas or Rorty. But if you're familiar with Aristotle's [and Thomas', following] conception of friendship, there's a dimension of admiration.

A genuine philosopher is measured not by his answers, but his questions. I've found the late Richard Rorty and J├╝rgen Habermas to be men who always ask the right questions. Whether I agree or disagree with their provisional answers---for philosophers, all "answers" are provisional---I admire them, and would be proud to call them friends.

From the sense I can make of your question, Habermas, in the tradition of his beloved Immanuel Kant, while respecting/acknowledging the Judeo-Christian tradition as the foundation of the modern West's liberal democracy, still envisions a "post-secularism" that might fill the bill.

I don't think it will or can, but it does make the militant secularism that's the fare around here seem so...20th century. Fighting old battles and defending an ideology that Habermas has already abandoned as "insufficient."

Charles said...

Tom:

Based on that earlier PL exchange, I (apparently mistakenly) inferred that you were a Habermas "fan" and were somewhat disdainful of Rorty's position. However, based on your response, I see that we have little to say to one another on the matter - too close to agreement to make for interesting discussion!

Thanks - Charles

Dave2 said...

I wonder. If stopping kids from adding "under God" to a de-God-ified Pledge interferes with their religious freedom, what about stopping kids from saying "One nation, under God, who doesn't really exist, indivisible, ..."? Surely it would be okay for a teacher to stop kids from expressing their religious views in this way, just to avoid classroom disruption. And if so, wouldn't it also be okay for a teacher to stop kids from adding "under God"?

Tom Van Dyke said...

Actually, Dave, your first half thoroughly illustrates the absurdity of the current situation and its ramifications. I believe I used the word "cacophony."

I believe I acknowledged the second half with "Bong hits for Jesus," i.e. Morse v. Frederick.

You've been a conscientious correspondent, Dave. Link provided as a return for your own courtesy. Often, it's been proved to not have been worth the effort, but you've shown yourself as a man who likes to be up to speed.

But I don't think it's farfetched to picture little 10-yr-old Janie Bob Hatfield of Fayetteville becoming a national symbol for refusing to stop saying "under God," expelled, her education threatened, a martyr of conscience.

And so, I do not think that Citizen Newdow has the best interest of his country at heart, only the sterile exercise of his "rights."

Ray Soller said...

Tom - You don't have the slightest idea regarding what motivates Citizen Newdow, or if he is only interested in "the sterile exercise of his 'rights.'"

You could say the same thing about Citizen Rosa Parks, who didn't want to give up her seat on the bus. (In days gone by, when I was a Bronx-kid, the back-of-the-bus seats worked just fine for me.)

Every Janie Bob will still have the same "right", as does, say, the Jehovah Wiitness, to leave the classroom and accomodate her religious conscience outside of the classroom.

Janie Bob, bless her soul, might even choose to follow the reasonable example of Emma Martens of Boulder, CO, to promote her belief. Emma even wrote her own version of the pledge: ""I pledge allegiance to the flag and my constitutional rights with which it comes. And to the diversity, in which our nation stands, one nation, part of one planet, with liberty, freedom, choice and justice for all."

bpabbott said...

Ray,

I was unfamiliar with Emma Martens. Thanks for the mentioning her.

Phil Johnson said...

.
I'm watching this thread as it unfolds.
.
"You don't have the slightest idea regarding what motivates Citizen Newdow, or if he is only interested in 'the sterile exercise of his 'rights.'"
.
The exercise of one's liberty is, at once, rare in history and common in our American society. In fact, so common that unless an American has been restrained from the exercise they cannot understand what it means to have it taken away. Newdow apparently understands it.
.
Liberty is not an academic issue!
.

Ray Soller said...

Here's another site dealing with the Boulder, CO, pledge protest that was posted by Colorado Media Matters. This site has a video and reports on FoxNews Bill O' Reilly's take on the pledge protest.

Phil Johnson said...

.
Bill O'Reilly is an elitist champion on behalf of the neo-con intellectuals in American society.
.
I'd like to see him try to pull that kind of bull roar off in a debate with Newdow.
.

Tom Van Dyke said...

Yes, well there's the cacophony. Ms. Martens' alternate pledge---working in "one planet" and an oblique reference to abortion---"choice"---shows quite an agenda.

Michael Newdow and Rosa Parks? No. Not everything is facilely analogized to the Civil Rights Movement, the real one.

And Phil, the exercise of liberty on petty issues can certainly be academic, and sterile.

Phil Johnson said...

.
TVD, generally, when there is a pettiness involved in any issue over someone's liberty, it usually is the other person's liberty.
.
When it is your liberty, the academic and sterile aspects suddenly disappear. Has your liberty ever been restrained?

Ray Soller said...

Tom, forget Rosa Parks and Emma Martens. Please respond to what I wrote. You said, "I do not think that Citizen Newdow has the best interest of his country at heart, only the sterile exercise of his "rights." That's quite a claim. I've met the MAN, Michael A. Newdow, and I don't share your opinion. Do you have any genuine knowledge to support your opinion? From my POV you're implying that a "stand up" atheist is not being patriotic, because he is, supposedly, only concerned with his self-interest. Is that correct?

bpabbott said...

Tom: "Ms. Martens' alternate pledge---working in "one planet" and an oblique reference to abortion---"choice"---shows quite an agenda."

Com'on ... are those who embrace liberty to be dismissed as blood thirsty abortionists, or something?

The point Ray made was in oppostion to your far-fetched remark; "I don't think it's farfetched to picture little 10-yr-old Janie Bob Hatfield of Fayetteville becoming a national symbol for refusing to stop saying "under God," expelled, her education threatened, a martyr of conscience."

Point to Ray :-) ... ad hominem to Tom :-(

Tom Van Dyke said...

Yes.

Either that or he has an agenda that he believes is best for the country that's simply the other side of the coin of what we fondly call around here, the "Christian Nation crowd." I'm not crazy about either one.

Now, I'm not unsympathetic to the coercion angle in the Pledge, even if space has been left for conscientious objection to the "under God" part.

Jefferson said,

No man shall be compelled to frequent or support any religious worship or ministry or shall otherwise suffer on account of his religious opinions or belief..."

But he continues,

"...but all men shall be free to profess and by argument to maintain, their opinions in matters of religion."

I believe I've even-handedly acknowledged both horns of this dilemma in the above.

But my argument is more foundational, and I think the essential question is not of the exercise of liberty, but what grounds it and maintains it, or as Jefferson also said,

"Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"

I must wonder if high-school senior Emma Martens public school education has presented her with that question. Her solipsistic pledge of allegiance to her own rights makes me doubt it, and both she and Citizen Newdow are patently doing everything they can to remove that conviction that these liberties are the gift of God."

And so, Ray, that's the basis of my objection. My argument isn't strictly a legal one, but the same one Habermas and Rorty assay. I'm not a huge fan of legalism as a political philosophy.

bpabbott said...

Tom: "[...] the exercise of liberty on petty issues can certainly be academic, and sterile."

I'll point out those who find them academic and sterile are not the ones who so passionately desire to continue the violation ... and if they do, they are lying (obviously).

Those who think such is sterile and academic would be apathetic on the issue.

Regarding pettiness, if the government is so insistent upon maintaining violations of an inconsequential nature, then how fervent might we expect them to be regarding violations of liberty where there is something to bed gained?

The coin has two sides ;-)

bpabbott said...

Tom: "[...] both [Martens] and Citizen Newdow are patently doing everything they can to remove that conviction that these liberties are the gift of God."

Ridiculous :-(

Those who are removing the conviction "that these liberties are the gift of God" are those who infringe upon them.

Ray Soller said...

Here are two more sites that deserve to be taken into account. The first is an NPR site that contains a Sept. 2, 2007 audio recording of an interview with Ellery Schempp, and Stephen Solomon, author of "Ellery's Protest." The second site is a news article, "Mormon and Catholic Families' Football Prayer Challenge Heard," by Ron Hutcheson that is posted at Mormon News, with the date of March 30, 2000. What I'd like to know is how it can it be said that Citizen Newdow has been conducting himself with any less concern for his country than that of the parents of Ellery Schempp and the parents of the Mormon and Catholic students who attended the Santa Fe School District high school near Galveston, Texas?

Charles said...

"Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"

I hope Mr. Rowe will chime in here, but I vaguely recall this very quote being addressed on PL recently. Ignoring the issue of whether every out-of-context quote from a framer is to be considered dispositive, note that the quote doesn't contend that "these liberties are the gift of God", it poses a question about our (the people's?) "conviction". The two ideas are distinguishable, and one (eg, me) can accept the possibility of the latter while doubting the former.

- Charles

Tom Van Dyke said...

Absolutely, Charles. I skipped over that dimension for clarity. The "conviction" is not a truth claim. The D of I carries a similar clever wording, that we hold these truths to be self-evident, not that they necessarily are.

Mr. Soller, I cannot guess at the motivations of the "Catholic and Mormon" parents, as they are Jane Does.

In the case you mention, Justice Rehnquist dissented:

"But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause..."

I for one do not take SC decisions as final proof of truth, see Plessy v. Ferguson. Dissents are valuable, too, and have often become the majority position down the line. I do think lawsuits like the Santa Fe case show a hostility to "all things religious in public life," these parents and Mr. Newdow included. I think they are unnecessary contentions.

That said, per the Santa Fe case, I previously allowed that the coercision factor is one unique facet of the Pledge, and would not be troubled if we just dumped the whole thing.

But I believe strongly that it's in the best interest of the nation to preserve its ethos and allow for the "conviction" that rights come from God, as Locke and the D of I expressly state. Further, the Burkean in me gives a preference to standing custom and practice when I think the arguments on both sides are valid, as I believe they are here.

[As for the audio recording, like videos, I don't do them, for various reasons. Should you wish to summarize, I certainly trust your accuracy.]

Jonathan Rowe said...

Based on what I've read I believe Jefferson did believe that our unalienable rights to things like liberty, equality and property were God granted or "gifts from God." However, it's worth pointing out that Jefferson rejected every single tenet of orthodox Christianity. So Jefferson's rights granting God was not necessarily the authentic biblical God. Jefferson also believed certain orthodox conceptions of God (i.e., John Calvin's) did not represent the "right" kind of God to support human rights. Ultimately what we are left with is:

1) Unorthodox theology (that which rejects every tenet of orthodox Christianity) can support the notion of "unalienable rights." I would say given Jefferson, J. Adams and Franklin wrote the Declaration, their "theistic rationalism" that was theologically unitarian and universalist provides the perfect place to rest our notion of human rights.

2) Certain forms of traditional orthodoxy do NOT provide a good place to rest notions of unalienable rights. Mainly the kind of orthodoxy theology that was "unenlightened." that is it didn't believe in tolerance and the free exercise of conscience. When Calvin and the Roman Catholic Church persecuted heretics, this represents the orthodox theology that is antithesis to the Founding conception of an "enlightened God."

Yet 3) it IS possible for orthodox theology to be so "enlightened." Jefferson was friends with some orthodox theologians and had kind words to say for them. I would start looking in that direction to see what I mean. Figures like Samuel Miller and Bishop James Madison (cousin of the other James Madison) come to mind.

bpabbott said...

Tom: "I cannot guess at the motivations of the "Catholic and Mormon" parents, as they are Jane Does."

Their motives are to defend their liberty. No?

Regarding the "conviction" that rights come from God. You are welcome to it, and the government is proper to point out that several (all?) the founders held such a conviction.

However, the founders held another conviction.

"We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries."
-- Thomas Jefferson

Jefferson's words are clear in the implication that it is improper that the government violate the religious convictions of its citizens.

Charles said...

OK, I'm willing to accept the "theistic rationalist" concept of a God who bestows His blessings on the world by providing men with reason and leaving it to them to work out the details of human rights. But then I don't see the essential difference between that and rights being defined by the "legalism" that Tom disdains. I see that "legalism" (anti-foundationalism?) as boiling down to "it's up to us to reason it out as best we can", which strikes me as essentially the same thing only without a concept of God, useful primarily as a marketing aid. Ie, if we have to reason it out anyway, what benefit other than certification accrues from attributing our reason to God? Does our reason then somehow become infallible? And if so, then why isn't that functionally equivalent to revelation?

- Charles

Ray Soller said...

Ray>Do you [Tom] have any genuine knowledge to support your opinion [I do not think that Citizen Newdow has the best interest of his country at heart, only the sterile exercise of his "rights."]?

Tom>Yes - Either that or he has an agenda that he believes is best for the country that's simply the other side of the coin of what we fondly call around here, the "Christian Nation crowd."

Ray>Your either/or reply indicates to me that you don't have a clue regarding what is inside Citizen Newdow's heart. It appears as if Newdow's heart is as opaque to you as the hearts belonging to the anonymous parents of the Mormon and Catholic high school Jane Does.

Tom>As for the [Schempp] audio recording, like videos, I don't do them.

Ray>That explains a lot.

Dave2 said...

Charles,

I'm not sure but I think you've misunderstood Tom on "legalism". I doubt he meant "reasoning about right and wrong and good law and bad law as best as we can, without appeal to revelation or theism". I think he meant something like "narrowly focusing on the laws of one's nation while avoiding the question of whether those laws are legitimate or good". But I'm just making a guess myself.

Charles said...

dave:

I only infer that Tom thinks there should be some "foundation" to our rights other than human reason (in its legal avatar, and presumably others as well), not that such foundation is necessarily "revelation or theism" (see my question to Tom at 9/15 10:48PM).

My query that mentioned "revelation" was re "theistic rationalism" and directed to anyone that might care to answer, not to Tom specifically.

- Charles

Tom Van Dyke said...

Jon, I don't believe I invoked the TRinity. In fact, I avoid it at all costs around here.

____________

Ben, even the Founding thinkers realized that "liberty" is not an absolute value. See below.

______________

Ray, I think it's presumptuous to expect others to listen at any length to some other guy's speech. I would not do so to you. If you have an argument, make it yourself, or put his into text. And no, I don't think my not being able to listen to your audio footnotes explains anything.

As for Mr. Newdow, I understand your personal loyalty to him, as it appears you have done more than just "meet" him, as you wrote.

_______________________
Dave and Charles, thanks for noodling over what I no doubt wrote imprecisely. I [and Rorty and Habermas, and in my view, Locke and Jefferson] cannot find a foundation for human rights and dignity outside the central assumption of being given by God, more specifically, that being created in His image ivests the human being with a fundamental essence and worth that we're all obliged to respect in each other.

No truth claim, here, and I'm satisfied with Jefferson's use of the "conviction" that it is so.

As for "legalism," I'm disputing that a nation is only the sum of its laws. Habermas, and Washington in his Farewell address, see more than laws or the demanding of "rights" in the big picture of what makes a society [or a nation] cohere.

On my attack on Mr. Newdow, et al., you remember Shylock in "Merchant of Venice" demanding his "pound of flesh."

Shylock is technically correct, of course, that's how the law reads. I see a lot of these religion squabbles in the same light. As I increasingly feel obliged say lately, truth and wisdom are not synonymous.

bpabbott said...

Ray: "Ben, even the Founding thinkers realized that "liberty" is not an absolute value."

Strawman :-(

I made no claim that liberty was absolute. Nor are absolutes required to defend my position.

Regarding the pledge, any and all are within their liberty to pledge as they see fit. The question is whether or not the government should be involved in dividing it citizens along religious lines that also manifests a coercive perception that non-theists are non-patriots.

The pledge propagates the perception that those who recognize ours is one nation under no God are lesser citizens, and that each adult, or child, must choose between their convictions ... am I an atheist, or am I a patriot?

I find the idea that it is acceptable to ask children to choose between such a false dichotomy insulting to the principles our Nation as founded on.

bpabbott said...

Crap ... sorry Ray ... I meant "Tom" ... sigh, long day, time for some sleep ;-)

Tom Van Dyke said...

No prob about the confusion, Ben. Your meaning was clear. [I.e., your target, yrs truly.] Such corrections are unnecessary between friends, which I hope we all are here.


Regarding the pledge, any and all are within their liberty to pledge as they see fit.


Hm. I thought that had already been allowed for in present custom and practice.



The question is whether or not the government should be involved in dividing it citizens along religious lines that also manifests a coercive perception that non-theists are non-patriots.

I've conceded the problem of coercion.

"Ben, even the Founding thinkers realized that "liberty" is not an absolute value."

Strawman :-(

Ben, as you're a litigant in this matter, I'd prefer you stay out of the judge's chair. Charging sophistry is something I myself have no time for, and would have time for little else around here.

Plus it really pisses me off when somebody charges me with intellectual dishonesty. Assault my arguments all you want. Play clean.

Liberty vs. other competing values is the issue, if you've been monitoring the other discussions around here.

You wrote:

Their motives are to defend their liberty. No?

Even if we allow that it is---I don't, still waiting for Ray Soller's apologia for whatever good Mr. Newdow is pursuing as it escapes me---liberty is not the greatest value, or if it is, let's admit that that's a value judgment.

An argument I could respect, in that pluralistic way. We all have our personally-held values.

Charles said...

Tom -

I've reread all of your comments and think I see two different concerns, one you seem to be addressing and another that Newdow seems to be addressing. It isn't clear to me that they are necessarily in irreconcilable conflict.

I take it that your concern is the promotion of the conviction that the fundamental principles of the country (rights to life, liberty, etc) are grounded in western cultural history - in particular in applicable religious doctrines. It's clear that anyone should be free to have that conviction, and when acting as an individual, to applaud it, encourage others to share it, disparage those who don't, etc. The problem, of course, is what people acting as spokespersons for the government, or the government itself, should be free to do.

Examples of possibly acceptable actions would be acknowledging the conviction and its popularity, discussing the historical bases for the conviction, presenting objective arguments for and against the value of people having the conviction - ie, actions with a large amount of objective content.

Examples of possibly unacceptable actions would be applauding the conviction as one that citizens should hold, coercing people to adopt it, criticizing those who don't hold it, etc. I.e., individuals representing the government, or the government itself, shouldn't engage in activities that suggest that those who don't hold some religious conviction are somehow deficient as citizens - the essence of O'Connor's "endorsement test". I think Newdow describes his concern in more-or-less those words in the video clip of the panel discussion with Kaminer and Munoz.

Some of your comments seem to suggest that you interpret Newdow as wanting to suppress even the activities that I suggest would possibly be acceptable, thereby detracting from the conviction's arguably beneficial effects; ie, that he wants to shake the foundations of our value system. I didn't get that sense at all from his presentations on that panel.

- Charles

bpabbott said...

Tom: "Ben, even the Founding thinkers realized that "liberty" is not an absolute value."

Ben: "Strawman [...] I made no claim that liberty was absolute. Nor are absolutes required to defend my position."

Tom: "[...] it really pisses me off when somebody charges me with intellectual dishonesty. Assault my arguments all you want. Play clean."

Ok, I'll reword.

I find it ethically improper when somebody assigns a position to me which I have not taken. Critique the substance of my arguments all you want, but don't assign (to me) ridiculous positions which are much easily refuted. As you request, please "play clean."

Regarding your opinion; "liberty is not the greatest value". The Constitution places a high value on liberty. If you wish to set aside someone's liberty it is your burden to justify that.

So I ask you. What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence, and overwhelms infringement of liberty suffered by patriots who lack a theology?

Phil Johnson said...

Regarding the Pledge.
.
I have posted, elsewhere at this site, that the argument regarding the pledge and our national motto, In God We Trust, make up a subterfuge that detracts from the real issue.
.
And, the real issue is our allegience, respect, and love of our Constitutional society. We are led, by both of these examples, to believe that our national society is less important than that which we are under and in whom we place our trust.
.
And, we are presently--as a people--suffering as a result.
.
IMO

Tom Van Dyke said...

So I ask you. What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence...

Ben, you turn around the question to ignore custom and practice, shifting the burden of proof.

The burden is on proving "and overwhelms infringement of liberty suffered by patriots who lack a theology."

Although I've acknowledged a possible coercion factor, there is an escape hatch for the conscientious objector through silence. Liberty is preserved.

Charles gets it right in that "under God" is shorthand for the clumsy "under the conviction that rights are endowed by God."

I disagree with Mr. Johnson's assertion that "the people are suffering." I don't subscribe to the notion that a nation can survive on the observation or "love" of its social contracts. Was it Madison or Kant who observed that if men were devils but reasonable devils, we wouldn't need laws in the first place?

This lies at the heart of my argument, which as previously conceded, is not entirely a legal one, in fact, it's anything but.

Phil Johnson said...

You can call me Pinky or you can call me Phil; but, you doesn't has to call me Johnson. (from a tv add of the '70s.)
.
If you read my comment, which is: "I have posted, elsewhere at this site, that the argument regarding the pledge and our national motto, In God We Trust, make up a subterfuge that detracts from the real issue.
.
"And, the real issue is our allegience, respect, and love of our Constitutional society. We are led, by [under God and In God We Trust], to believe that our national society is less important than that which we are under and in whom we place our trust.
.
"And, we are presently--as a people--suffering as a result.
"
.
You might figure out that I mean that if America is "under God", then, we can discount our need to be informed about our responsibility to be in charge of our own destiny. To me, that has to do with suffrage--suffering, if you will.
.
:<)

Tom Van Dyke said...

Oh, and for the record, my criticism of Mr. Newdow extends completely to Indiana House Speaker Brian Bosma of Hinrichs v. Bosma (2006), where he fought for the right to conduct sectarian prayer [invoking "Jesus Christ"]. He lost.

That's just the type of sectarian nonsense that---in my view---conclusively tilts the scales in favor of eradicating all religious expression from the public square if the choice is one or the other.

Friggin' cementhead.

bpabbott said...

Ben: "So I ask you. What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence..."

Tom: "Ben, you turn around the question to ignore custom and practice, shifting the burden of proof"

sigh ... The action of removing the coercive/religiously-indoctrinating words from the Pledge of Allegiance is not an affront to any individual's liberty, but inserting them *and* leading children in such a pledge is. The words were not added to promote/extend liberty, but to promote a particularly religious world view. Specifically, a theistic world view.

Dwight Eisenhower: "From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty."

The government is taking a position on a matter of religious establishment and then asking each child in public school to be accompli in that act, or to leave the room and distance themselves from the their nation and its principles of liberty and justice.

Further, if you are going to argue in opposition, you certainly do have a burden to carry. It is not sufficient to wave off an argument, without offering a counter. Any argument, even a lame one, is preferable none.

If you cannot meet, or do not desire to meet, that burden, then I'll suggest you have yielded.

So I ask you again. What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence?

Tom: Charles gets it right in that "under God" is shorthand for the clumsy "under the conviction that rights are endowed by God."

I challenge you to find *one* example where Eisenhower, the Knights of Columbus, or the Congress of 1954 stated that "under God" was shorthand for "under [the conviction that rights are endowed by] God."

Tom Van Dyke said...

I'm sorry, Ben. I saw you get into this kind of standoff with dave2. The battle of immovable objects. You restate your legalistic question while eliding my entire point.

There is a valid argument against coercion, and I give some value to "under God" going back only to 1954. That's the legal part. I wouldn't be terribly upset if they pitched it. But the act of throwing it out also makes a statement of irreligion.

Custom and practice, which I give consideration to. My Burkean argument is against putting our entire society on trial every morning in the name of oughts while ignoring the is, which leads to madness. [The Jacobins figure in here somewhere.]

I have engaged your point, but until the courtesy is returned, our work is finished here.

Phil Johnson said...

With respect to anyone that thinks under God works no hardship on anyone worth the bother of getting it taken off the pledge, what it amounts to by being in there is up to the individual to judge one way or the other:
.
Once our position gets to be decided on the thought that someone's personal position is not worth the bother, we have marginalized that person.
.
I see the point as being that of a foot in the door. What's next?

The Pledge is to the Nation and it is not, by extension or any other mechanism, a pledge to a higher authority.
.
As my dear old grandmother used to say in a friendly way, "Put that in your pipe and smoke it."
.
I think Tom is correct, our work IS finished here.
.

Charles said...

"Tom: Charles gets it right in that 'under God' is shorthand for the clumsy 'under the conviction that rights are endowed by God.'"

I was going to let it go, but since Ben quotes Tom "taking my name in vain", I should perhaps note that I did not intend what Tom attributed to me. The referent throughout my comment was the "conviction" defined in the second paragraph. I did not mention "God" or the pledge.

I was afraid that I was reading into Tom's position what I wanted it to be, and it appears that fear was warranted; perhaps he is doing the same with respect to mine.

- Charles

Tom Van Dyke said...

Yes Charles, brevity made me co-opt your point. I should have merely written that you put your thumb on the nub, the "conviction."

I accept most of your argument except:


Examples of possibly unacceptable actions would be applauding the conviction as one that citizens should hold

I can hang with the should hold part, I guess, but when Jefferson writes we hold in the D of I, the government and the people should feel quite free to applaud it as salutary. Further, it's an is: we hold such things. [Or at least did.] Quite objective.

Messrs. Abbott and Johnson allege harm, but this must be proven.

No harm, no foul, at least where common sense rules.

Phil Johnson said...

Is any harm done when the government legislates an abridgment of any person's desire to worship?
.
I don't know for sure and it's not my position to be a judge; but, harm is not the question, Tom.
.
The question is the U.S. Constitution. Will we stick to it or not?
.
All I've done is give my opinion. I might be wrong. I have been wrong in the past and I'm sure I will again be wrong in the future. It goes with the territory of being a Johnson.
.

bpabbott said...

Tom: I can hang with the should hold part, I guess, but when Jefferson writes we hold in the D of I, the government and the people should feel quite free to applaud it as salutary. Further, it's an is: we hold such things. [Or at least did.] Quite objective.

"Jefferson's words" were agreed upon in committee and (more importantly) by those individuals who signed the DoI.

The "we" it referred to were those who signed the DoI. They were not you or I.

Tom: Messrs. Abbott and Johnson allege harm, but this must be proven.

sigh ...

No.

It is already entered into evidence by those who have testified to its harm to their liberty. Your refusal to accept the obvious does not refute the point.

By the way, you still have not responded to my inquiry.

Can you find *one* example where Eisenhower, the Knights of Columbus, or the Congress of 1954 stated that "under God" was shorthand for "under [the conviction that rights are endowed by] God" ?

oh any my earlier question

What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence?

Tom Van Dyke said...


The "we" it referred to were those who signed the DoI. They were not you or I.


True, Ben. I didn't sign or ratify the Constitution either. Where does that leave me, and our nation?


Tom: Messrs. Abbott and Johnson allege harm, but this must be proven.

sigh ...

No.


"Harm" is a legal dynamic, Ben, I'm sure. Especially in the real world. You're still back on "ought."

You restate your challenges yet again, avoiding all burden of making an affirmative case. After years on the internet in equally fruitless discussions, I call it the "king of the hill" position, after the kids' game. You're atop the hill, and all other positions carry the burden of proof.

Nuh-uh, Ben. You're the one who wants to change things, so you carry the burden of proof. That's the is vs. "ought," per Edmund Burke. The status quo occupies the top of the hill. And so, I decline to answer the last of your last two "inquiries," as it's been asked, addressed and answered. You want to play king of the hill.

As to the one about Eisenhower, I'd be quite happy with the language of the D of I, substituting "under the laws of nature and nature's God."

In fact, I like it better.

You write:

It is already entered into evidence by those who have testified to its harm to their liberty. Your refusal to accept the obvious does not refute the point.

Yes, everybody in the world thinks their own position is "obvious." The defense rests.

bpabbott said...

Tom: "You restate your challenges yet again."

No. I continue to inquire at to your position/points.

sigh

Can you find *one* example where Eisenhower, the Knights of Columbus, or the Congress of 1954 stated that "under God" was shorthand for "under [the conviction that rights are endowed by] God" ?

What greater value is derived from the inclusion of the words "under God" that cannot be had in their absence?

Tom are you really so one dimensional?

Tom Van Dyke said...

a) Sophistic, legalistic and quarrelsome, the same as you attempted with dave2, who had the good sense to disengage. But I'll indulge you for old times' sake. The Burden of proof is on you to show that God in 1954 had a different meaning than at the Founding. The "American" understanding of God is quite clear in

b)"Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"

Written in stone, on the Jefferson Memorial. If you disagree, take it up with him.

bpabbott said...

Tom,

That is a rather poor response. Your response has nothing to do with my position.

No one is claiming individuals should not (or are not) able to express their religious sentiments. The question is whether or not the government should be doing so, and then asking our children to pledge their allegiance those religious sentiments.

Regarding Jefferson, are you seriously trying to use his words to defend the pledge with the words "under God" included?

Regarding the description of "Sophistic, legalistic and quarrelsome" ...

(1) Sophism [...] In the modern definition, a sophism is a confusing or illogical argument used for deceiving someone."

Where am I confusing or illogical? ... not the same thing as you being confused, imo. If you are confused, you have some burden to ask for a clarification, no?

(2) regarding legalism, this is a discussion of the law no?

(3) Quarrelsome? Yes. Just as you are. There is a difference. I took a position and you've engaged in a "quarrel" over it, but have not offered any justification for me to abandon my position, much less taken a position of your own.

Tom Van Dyke said...

Ben, you seem to be working on a counterthesis [antithesis?] here.

Why not put it into declarative sentences and play by the same rules you hold everybody else to?

You seem to think people "owe" you replies. Not so, and it's rude to insist. You ignore my best points with such regularity that to insist on your reply would be a never-ending story.

I believe you're taking advantage of my courtesy and affection, Ben, which so far---and especially of late---has been unrequited.

I never expect "justification for [you] to abandon [your] position." I do not think it's possible. This is a colloquy, and we write for our readers.

In other words, Ben, present your argument or counterargument, and leave me out of it. Take it up with Thomas Jefferson.

bpabbott said...

Tom: "You ignore my best points with such regularity that to insist on your reply would be a never-ending story"

It is not my intent, or desire, to ignore your points. I've not recognized any respecting the subject I've raised. What are they?

Are your "points" manifest as personal attacks upon me?

If so, then I admit, I do (try to) ignore them.

Tom: "Ben, present your argument or counterargument, and leave me out of it."

I've done so. It is yourself that inserts your participation into the discussion.

Tom: "Take it up with Thomas Jefferson."

As far as I can tell, I have no disagreement with Jefferson.

By the way, why should I accept that you are sanctioned to speak for Jefferson? ... and by whose authority?

Tom Van Dyke said...

Dude, the Jefferson Memorial speaks for itself, far above our poor power to add or detract.

bpabbott said...

Tom: "the Jefferson Memorial speaks for itself, far above our poor power to add or detract."

What does the inscription have to do with the present discussion?

No one is being asked to recite and pledge to it.