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Blogging for Glenn Reynolds this week is blogger and UCLA law professor Eugene Volokh.

September 24, 2004 | 4:03 PM ET

Undermining 'Under God'

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The House of Representatives just passed a bill that says: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance . . . or its recitation."

The theory, as I understand it, is to keep the federal courts from striking down the words "under God" in the Pledge. The Ninth Circuit federal court of appeals, of course, held in 2002 that the teacher-led recitation of those words in government-run schools violated the Establishment Clause, even when pupils were legally allowed to remain quiet if they preferred.  Earlier this year, the Supreme Court set aside that decision, but on procedural grounds, without confronting the legal question.

The trouble is that the proposed law might have the perverse effect of jeopardizing the "under God" rather than preserving it. It's true that Congress probably has the constitutional power to limit the jurisdiction of federal courts this way. Article III, section 2, clause 2 of the Constitution lets Congress limit the Supreme Court's power to hear appeals: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
"And Congress may also strip lower federal courts of jurisdiction because their jurisdiction and even their existence (see Article III, section 2, clause 1, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish") are defined by Congress in most cases. There's some controversy about this -- see this from my brother Sasha -- but my sense is that Congress may indeed strip federal courts of jurisdiction over certain cases.

But does it make sense for Congress to use its power this way?  The Constitution is binding on all courts, state as well as federal (see Article VI, section 2).  If people are worried that federal courts may hold that "under God" is unconstitutional, they should be equally worried about some state supreme courts doing the same.  And even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

What's more, if a state supreme court does hold the "under God" unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge same-sex marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because this proposed law would have stripped the Court of jurisdiction to hear the case.

True, the jurisdiction-stripping would at least confine the "under God" invalidations to those states where the supreme courts rendered such decisions.  But my sense is that supporters of "under God" won't be wild about this result, where "under God" is allowed in some states but not in others -- especially since the alternative might be the Supreme Court's upholding "under God" on a nationwide basis. In fact, most commentators assume, based on the opinions and oral arguments in the earlier Pledge case, that if the Supreme Court faced the issue again (without the procedural problem that caused the Justices to dismiss the earlier case), they would uphold the words, rather than striking them down.

Now of course it's hard to predict what the Supreme Court would do, especially if John Kerry is elected and appoints more liberal Justices.  (Liberal Justices are indeed more likely than conservative Justices to hold unconstitutional government references to religion.)  But still, it seems to me more likely that the Court would uphold the "under God" rather than holding it unconstitutional. And the proposed law would thus end up protecting state court decisions that strike down the "under God" (which would now no longer be reversible by the U.S. Supreme Court) more than the proposed law would protect the "under God" itself.

Of course, it may well be that the bill's purpose is more to make a political statement, by highlighting the way liberal judges have interpreted the Establishment Clause to prohibit many kinds of religious references by the government.  But voters who support such religious references should realize that, as a purely legal matter, the Bill may undermine "under God" instead of safeguarding it.

September 22, 2004 | 3:03 PM ET

Tongue Tied on reports --presumably with disapproval, as an example of politically correct excess-- that

A Pennsylvania man is on a quest to rid a local Catholic high school of the "crusader" nickname because he says it represents an evil, violent chapter in the history of the Christian church, reports the Patriot News.

Carl Silverman is mounting a one-man campaign to force Bishop McDevitt High School to change its mascot.  He also wants the school to change wording on its Web site that refers to the school seal as "the shield of a Crusader, which serves to protect us from the secularism of the world."

Silverman thinks the Pennsylvania Interscholastic Athletic Association should ban the nickname altogether.

Crusaders, he said, refers to medieval military expeditions by Christians who "killed thousands and thousands of people with the encouragement of the Catholic Church."

"The pope apologized for the Crusades, yet these schools continue to use that term," he said. "It is time they realize what they represent."

Now I certainly think that the government shouldn’t be banning private entities from using certain team names.  There has unfortunately been some talk of that (see the examples in this article of mine, and the text near footnote reference 14 on this page):  The remarkably broad and vague "hostile environment harassment" doctrine threatens restricting a wide range of constitutionally protected speech, and it needs to be resisted.  I also don't think the Pennsylvania Interscholastic Athletic Association should be banning names.  These matters should be up to public opinion, and up to each school, though if the PIAA is a nongovernmental entity it does have the legal right to impose such a ban.

But it seems to me that Catholic schools should hold themselves to a higher standard.  Mascots, when they aren’t tied to the geography of the team’s current or past home (e.g., the New York Yankees or the former Minneapolis Lakers) or the team’s history or dress (e.g., the Chicago White Sox), are generally symbols representing something that fans and players should admire: the courage of a Lion or a Patriot, for example.  At best, the Crusades were a brutal event in a brutal age, not much different from the other blood-drenched attempts at conquest (whether by Christians of Muslims or vice versa), but certainly nothing to praise.  Crusaders didn’t use their "shield[s]" against "secularism" -- they were intended to use their swords to fight a holy war against a rival religion.

The Crusaders, even those who were personally well-intentioned, did not represent the Christian values that the Church today rightly cherishes.  Why should the Church use them as a symbol that deserves admiration?  It’s true that this is just a battle about symbols, but symbols are important, as religions have long recognized.  A Church that wants to teach its children the right values (as the Catholic Church does) should use symbols that fit those values, not those that undermine them.

I’m not wild about professional sports teams naming themselves after brutes, either: Pirates, Raiders, Buccaneers, even Vikings, who weren’t just Norsemen but those specific Norsemen who were chiefly famous for looting and pillage.  I don’t oppose American Indian team names -- and neither do most American Indians, according to the recent Sports Illustrated survey described here, which I looked at closely and which seems to me to be quite scientifically valid -- precisely because calling a team Indians or Seminoles is a sign of respect and praise, not condemnation.  (There’ll inevitably be some cartoonishness to the depiction of the mascot, but that’s the nature of mascots, whether Indians or Padres.  And while I’m more bothered by Redskins, that term isn’t a pejorative in the particular context of a sports team name, which may be why most American Indians apparently don’t mind that team name, either.)  But calling a team Pirates strikes me as no better than calling it the Murderers, Rapists, or Thieves, which pirates generally were.

Still, I can see why professional teams don’t change their mascots, since such a change may cost them millions of dollars in revenue (not a noble reason, but an understandable one).  What’s more, pro teams aren’t institutions for moral education.  But Catholic schools are such institutions, and they should take that special role seriously.

These calls for changing symbols and names have in recent years come mostly from the multiculturalist Left, and have been rejected, often rightly, as excesses of political correctness.  (See here for an example.)  But sometimes these arguments, wherever they come from, are correct -- even a stopped clock is right twice a day.  It’s not a loony Left-wing notion that schools should honor the honorable, not the brutal.  If anything, it’s something of a conservative notion, but it ought to appeal, if presented the right way, to people all over the political spectrum.

Likewise, there should be nothing particularly radical, liberal, or multiculturalist in arguing that our holidays should focus on the morally praiseworthy (such as President Washington, the Declaration of Independence, veterans, or Martin Luther King, Jr.) and not on those who were at best morally ambiguous.  Christopher Columbus was certainly an important historical figure, and was doubtless brave and visionary; but the discovery and conquest of America is at best a morally neutral event -- being a brutal and deadly part of a brutal and deadly age.

Our civic institutions should reserve their high honors, and a separate holiday is one of the highest of honors, for those who are morally deserving.  And this shouldn’t be simply thought of as a way of avoiding offense to this ethnic group or that -- though incidentally Columbus Day got big in large part due to ethnic identity politics, because it was embraced by the Italian-American community -- but as a way to better morally educate our children, whatever their ethnicity.

Blogging for Glenn Reynolds this week is blogger and UCLA law professor Eugene Volokh.

September 20, 2004 | 10:55 AM ET

[Hello -- it’s Eugene Volokh of The Volokh Conspiracy and the UCLA School of Law guest-blogging for Glenn.  I blog about lots of things; here today I’ll be blogging about a pretty conceptual matter, but I sometimes also blog about recent polls, First Amendment law, law and Rathergate, gun control and gun rights, and more.]

I disagree with many liberals on lots of things.  (I’m mostly a libertarian, with some conservative sympathies.)  But one common criticism of liberals -- that they, unlike conservatives, practice “moral relativism” -- is unsound.  It tends to hide the real argument, usually a substantive disagreement about a particular moral question, behind a supposedly neutral methodological criticism.  It’s a distraction, and an unfair one.

Moral distinctions:  To begin with, we need to acknowledge that everyone, liberal, conservative, libertarian, or whatever else, draws moral distinctions, including ones that look like exceptions from general rules.  Liberals may distinguish some race discrimination against whites, which they call affirmative action, from race discrimination against nonwhites.  I think this is the wrong distinction, but it’s not “moral relativism”:  Moral rules are sometimes more complex than simple three-word phrases such as “race discrimination bad.”

Conservatives, for instance, generally believe that killing humans is wrong -- except when done in self-defense, or when executing a just death penalty, or in war, or in some other situations.  There’s nothing “morally relativist” about that.  It’s just an acknowledgment that moral questions are complex, and require distinctions within the category of killing.  In fact, some of the people who would have the most absolutist anti-killing rule are generally on the left: pacifists who oppose all capital punishment, all war, and even all individual self-defense.  This failure to recognize moral exceptions to moral rules makes the pacifists wrong, not right.

Likewise, liberals aren’t inherently wrongheaded moral relativists simply because they distinguish some race discrimination from other race discrimination, or some lies under oath (e.g., about sex) from other lies.  I may disagree with them about the particular moral rules they apply.  But there’s nothing inherently mistaken about their underlying moral method, which is what the charge of “moral relativism” suggests.

End justifying the means:  Some people I’ve talked to suggest that liberals are “morally relativist” because they’re more likely to say that the end justifies the means -- that some otherwise bad things are worth doing because they’ll lead to a brighter tomorrow or help the downtrodden or what have you.

But is this view really more common among liberals than conservatives?  Most conservatives, for instance, tend to support the use of military force (in many situations) more than most liberals.  Yet in war, we necessarily do many things that would be wrong if there weren’t such an important practical reason: knowingly kill innocent civilians, as an inevitable side effect of attacks on military targets, knowingly destroy property owned by innocent civilians, raise taxes to fund the war, lie to the public generally about some plans in order to better deceive the enemy, and so on.

Likewise, to effectively enforce the laws (something conservatives are usually quite firm on), we make exceptions from what would otherwise be moral principles:  I have the right to keep strangers off my property, but not when the police arrive with a valid search warrant (even if I’m innocent, and the police are looking for evidence of others’ crimes).  I have the right not to go where I don’t want to go, or not say what I don’t want to say, except when I get a subpoena ordering me to testify.

Some ends do justify some means, in the sense that some of our moral principles (don’t kill, don’t let people trespass on others’ property) operate differently depending on whether there’s a pressing social need to do something (fight a war, enforce the law).  We can surely criticize others for their moral errors in deciding which ends justify which means.  But I don’t think we can criticize liberals on the grounds that they are more likely to say the ends justify the means, or on the grounds that “the ends justify the means” is inherently an immoral position.

"Who are we to judge?”  Some of my readers complain that liberals are moral relativists because liberals often say “Who are we to judge?,” for instance “I think abortion is wrong, but who am I to judge a woman’s decision?”  And liberals do seem to use that rhetorical device somewhat more often than conservatives.  (Liberals also often say things like “Don’t impose your morality on others.”)

But most of us, liberal or conservative, divide issues into several categories.  In one category we put actions that are so wrong that we think they should be coercively outlawed -- murder, rape, and the like.  Liberals surely recognize this category; in fact, some liberals would populate it with actions such as “paying an unfairly low wage” or “firing an employee without very good cause” or “raising a tenant’s rent too much” that conservatives would exclude from the category.  So when liberals say “Don’t impose your morality on others,” they are being imprecise -- they just mean don’t impose some sorts of morality on others.

In a second category we put things that we think are wrong but shouldn’t be legally judged and punished.  It’s wrong to refuse to socialize with people of a certain race, but there shouldn’t be a law prohibiting such social discrimination.  It’s wrong to break up with your fiancee in a callous way, but we shouldn’t have the government stopping people from doing that.  It’s wrong to waste your life in idleness or to squander your potential, but the law shouldn’t impose forced labor.

In a third category we put things that we think are usually wrong, but that shouldn’t be illegal and that also turn on particular details that are very hard for outsiders to evaluate.  It’s generally wrong to be inattentive to a sick relative.  But if we see that a friend seems to be neglecting his sick father, we might be reluctant to judge him, because we might not know all the circumstances -- how much of a strain the illness is putting on him, whether there are good reasons why he and his father aren’t close, and so on.  Likewise, some conservatives may think it’s wrong for a person to kill an attacker, even in self-defense, unless the killing is absolutely necessary.  But if their friend shoots a robber, they might hesitate to judge how the friend acted, even if they suspect that maybe the friend might have been able to avoid the shooting.

When liberals say “who are we to judge?” about abortion, they aren’t really saying that no moral questions are matters for judgment.  They’re happy enough to judge killers, rapists, and many others.  Rather, this “who are we to judge?” is a somewhat imprecise way of implicitly saying -- whether rightly or wrongly -- that abortion is a question that falls in the second or third category (or the fourth category of things that aren’t wrong at all) rather than in the first.

Sources of morality:  Some charges of “moral relativism” are really charges against the nonreligious, not against liberals.  Some conservatives (though surely not all) think that any nonreligious morality is inherently weaker because it denies the existence of any external metric, such as God’s will or the Bible.

But in fact, there are both religious and nonreligious people both on the Left and the Right.  What’s more, many nonreligious people do operate using what they see as moral absolutes, such as the need to maximize human happiness, or the need to promote human flourishing, or respect for individual freedom, or what have you.

Now naturally these foundational moral principles are pretty general and abstract, and thus ambiguous in application.  But the same is true of the principles that most religious people use.  With very few exceptions, even the most devout Christians don’t literally follow all the commands of the Bible.  Leviticus condemns male homosexuality as an abomination, but it also condemns eating shellfish as an abomination (11:10).  Most Christians don’t follow the dietary rules in Leviticus -- and they may have good reason to do so, reasons based on interpretations of other parts of the Bible, or on tradition, or on their reasoning about what God must care about.  But this just means that they, like those who follow a secular moral code, must make hard moral judgments that may often lack clear textual authority.

Postmodernism and multiculturalism:  Finally, there are two strands sometimes seen in modern liberalism that do seem to be “morally relativist.”  Some on the academic Left do deny (or at least sound like they deny) the possibility of any moral judgment, while others say (at least sometimes) that it’s wrong for one culture to judge what is done within other cultures.

But these are pretty small, though occasionally vocal, parts of liberal thought.  Certainly many liberals have been among the most absolutist in their assertion of moral truth, and among the most willing to export it throughout the world.  Throughout the 1970s and 1980s, it was often liberals more than conservatives who were interested in exporting Western individual rights principles to other cultures.  (Some, though thankfully not all, liberals turned a blind eye to the human rights failings of Communist countries, but some conservatives weren’t willing to much criticize the human rights failings of some anti-Communist countries.)  Unless my memory fails me, until recently liberals were somewhat more likely than conservatives to try to export Western standards of women’s equality to more patriarchal cultures.  And both liberals and conservatives are sometimes skeptical of the practicality of trying to impose Western principles (democracy, sex equality, freedom of religion) on other nations, even if they agree that in principle those rules are morally superior.

* * *

I’ll say it again:  I disagree with most liberals on many things.  I think their moral and empirical judgments are often mistaken.  I think they undervalue certain human rights, such as the right to have the tools needed to defend yourself against criminals, and invent human rights that really shouldn’t be seen as human rights, such as the right to be paid some wage.  I think they also undervalue certain social interests and overvalue others.

But that’s what the debate among conservatives, libertarians, and liberals should be about:  Which moral claims are right or wrong, not whether one side is supposedly “morally relativist” or not.

Nearly all of us believe that some actions in some circumstances are immoral (killing, rape, theft), and that all of us are entitled -- either personally or through the legal system -- to impose this morality on others.  Nearly all of us believe that other actions in other circumstances should be matters for private choice.  Nearly all of us recognize that moral rules often require controversial moral distinctions and exceptions.  Let’s not pretend that the other side is in the grip of some methodological fallacy, when they’re really doing the same sort of thing that we are.

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