June 27, 2002

· Obiter Dicta

Reading the newspapers this morning, I’m struck by the fascinating reaction to the 9th Circuit Court of Appeals’ decision that the phrase ‘under God’ in the Pledge of Allegiance is unconstitutional. The response from legal commentators is that the decision will be overturned quickly, and rightly so. The reasoning is that the Supreme Court has ruled before that references to God of this kind are constitutional because rote repetition has made them meaningless. Our schoolchildren are not really sewaring loyalty to a nation under god, the argument goes, it’s just an empty phrase. So we can keep it in without any danger of a threat to the separation of church and state.

This isn’t an unreasonable argument. Even the constitution itself uses the phrase “In the year of our Lord…”, and we don’t want to declare it unconstitutional. The only difficulty is that Americans have completely freaked out about the decision. The Senate immediately passed a 99-0 vote condemning it. A bunch of Congressmen assembled outside the Capitol and recited the Pledge. It’s front page news everywhere. CNN is running its lead story about this issue under a photo of little children holding their cute little hands to their darling little hearts as they say the pledge. And of course the more conservative Christian groups are apoplectic about the whole thing.

Corrected for the empirical data, then, the legal doctrine that will soon be used to overturn this ruling should read something like “These little references to God here and there are of course de minimis and meaningless, but don’t you dare touch them you Godless bastard”.

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I am Associate Professor of Sociology at Duke University. I’m affiliated with the Kenan Institute for Ethics, the Markets and Management Studies program, and the Duke Network Analysis Center.



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