Sunday, March 02, 2003

Closet Lefty?
This post from Professor Balkin (Yale Law) with regards to the Pledge has me wondering if I am really some sort of closeted Lefty. Balkin makes the point that the phrase "under God" is mere ceremonial Deism and not a pernicious violation of 1st Amendment separation of church and state. He accepts that the motivation for the addition of the phrase may have been to adopt a religious viewpoint, but that "the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it."

I think there is a serious flaw in this line of reasoning. Balkin states that if "Congress changed the motto from the archaic "In God We Trust" to the more straightforward "We Believe in God" it might be unconstitutional, because the new motto would no longer be hallowed by long usage and it would appear to be a more direct endorsement of a religious viewpoint." Yet by his own reasoning if this issue was not litigated until such time that it had lost its religious meaning, it would no longer be unconstitutional and could be left intact. Are we to believe that the freedoms enumerated in the Bill of Rights are not entirely proscriptive of such abuses? That if for some reason they are not immmediately subject to judicial scrutiny that they somehow mature into constitutionality. By that logic the government would be free to circumscribe any of our freedoms so long as the people do not challenge their legitimacy until after some point at which these violations have come to be accepted.


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