November 18, 2003

The decision by the Ninth Circuit Court of Appeals that the “under God” provision of the Pledge of Allegiance is unconstitutional has triggered a legal debate that will be resolved by the United States Supreme Court. The justices on the Ninth Circuit apparently lost sight of the fact that the word “God” is simply another term for a creator or Supreme Being. It does not refer to any particular religion or make one religion superior another. In fact, the concept of a creator can be found outside the realm of organized religion. Even those individuals who assert that Mother Nature is responsible for the flowers and bunny rabbits are acknowledging the existence of a creator.

In the author’s opinion, the “under God” provision, which the Court ruled unconstitutional, is the only part of the Pledge that is factually and historically accurate. This was discussed in a companion article entitled: “What’s Wrong with the Pledge of Allegiance?”

The Ninth Circuit’s decision was rooted in the judicial fiction that the First Amendment mandates a separation of “church and state.” These words do not appear anywhere in the Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Thus, any reference to a creator or Supreme Being in a manner that is disconnected from any particular religion is insufficient to trigger the constitutional prohibitions of the First Amendment.

In its decision, the Ninth Circuit stated: “the statement that the United States is a nation ‘under God’ is an endorsement of religion.” What religion? Was the Court asserting that “God” and “religion” are inseparable? According to the Court’s logic, an individual who expressed his or her belief in a creator or Supreme Being would be promoting religion irrespective of whether that individual was a member of a religious institution or even believed in such institutions.

The Court also stated: “[t]o recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and—since 1954—monotheism.” This interpretation, even if the “under God” provision was removed, is silliness. How does one pledge allegiance to so-called values and what would be the purpose of such a pledge? When someone recites the Pledge, they are declaring their allegiance to a symbol and a form of government. That is where the allegiance provision begins and ends. They are not pledging allegiance to values, God or any religious institution. Thus, they could not be pledging allegiance to “monotheism” as asserted by the Court

In another part of the decision, the Court wrote: “[t]he text of the Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God.” Since when is the “existence and identity of God” a purely religious question? For centuries, people outside of religion have pondered this question. In addition, where in the Pledge does it attempt to seek the “identity of God?”

Since the word “God” is just another term for a creator and does not reference any specific religion or advance a particular religious ideology, the “under God” controversy turns on a single question. Irrespective of when the phrase was added to the Pledge, is this reference a historically accurate reflection of the intent of the Founders? Did the Founders believe they were establishing a government “under God?” If they did, then this controversy is simply a question of fact or fiction and, in the author’s opinion, has nothing to do with an Amendment to the Constitution.

A review of the founding documents reveals they are filled with acknowledgements of a creator or Supreme Being without referencing a particular religion. The most eloquent of these is a little known document from July 6, 1775, entitled The Declaration of the Causes and Necessity of Taking Up Arms. This document, which outlined the reasons for taking up arms against Great Britain, used the terms “our Creator” and “the divine Author of our existence” in the text. It also acknowledged Divine favor in the upcoming conflict:

We gratefully acknowledge, as signal instances of the Divine favour towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength… With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.

The document concluded by stating:

With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict…

A year later, the Founders again made reference to a creator in The Declaration of Independence:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. [Emphasis added]

Bouvier’s Law Dictionary, the definitive legal dictionary of the nineteenth century, defined the Laws of Nature as:

That law which God, the sovereign of the universe has prescribed to all men, not by any formal promulgation, but by the internal dictate of reason alone. It … comprehends all the duties which we owe either to the Supreme Being, to ourselves, or to our neighbours: as, reverence to God, self-defence, temperance, honour to our parents, benevolence to all, a strict adherence to our engagements, gratitude and the like.

The tenet of this body of law is that people have God-given (endowed by their creator) rights that exist independent of government or any written constitution. These rights, by virtue of the fact that they exist independent of government, and were not created by government, cannot be taken away by government. This principle was articulated in The Declaration of Independence and is the foundation for some of the Amendments contained in the Bill of Rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Founders concluded the Declaration by “appealing to the Supreme Judge of the world for the rectitude of our intentions… And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

On March 1, 1781, the several States entered into a compact or union with their fellow States entitled the Articles of Confederation. When a date was cited, it was referenced as “the Year of Our Lord.” This practice was followed in subsequent documents. When the several States prepared credentials for their delegates to the Federal [Constitutional] Convention of 1787, they used similar language. Every State except Rhode Island prepared credentials and was represented in the Convention. Of the 12 States that prepared credentials, 7 cited the date of the document as “the Year of Our Lord,” 3 used the phrase “anno domini” [In the year of the Lord], while 2, New York and Maryland, just referenced the date.

During the debates in the Convention, there was a controversy that almost resulted in dissolution of the proceedings. In an effort prevent this from happening; Doctor Benjamin Franklin rose to his feet and delivered the following speech:

The small progress we have made after 4 or five weeks…is melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it.

In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for divine protection. Our prayers, Sir, were heard, & they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, for a long time, and the longer I live, the more convincing proofs I see of this truth―that God Governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that ‘except the Lord build the House they labour in vain that build it.’ I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political buildings no better, than the Builders of Babel…

I therefore beg leave to move―that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more Clergy of this City be requested to officiate in that Service.

The motion was seconded. Alexander Hamilton and several others expressed apprehensions that instituting prayer at this late date could cause “animadversions” and lead the public to believe that there was dissension in the Convention.

Mr. Franklin responded: “that the omission of a past duty could not justify a further omission…” He also stated that rejection of his proposal would subject the Convention to “more unpleasant animadversions than the adoption of it…”

It was observed by Mr. Williamson that “the true cause of the omission could not be mistaken. The Convention had no funds.”

In response to Franklin’s motion, Mr. Randolph proposed:

[I]n order to give a favorable aspect to the measure, that a sermon be preached at the request of the convention on the 4^th of July, the anniversary of Independence; & thenceforward prayers be used in the Convention every morning.

There were several unsuccessful attempts to silently postpone the motion by adjournment, but, since the Convention had concluded its work for the day, no vote was taken on the motion. Thus, if it hadn’t been for an absence of funds, a clergyman would have been present in the Convention every day to offer prayer.

When the Constitution was signed on September 17, the Framers continued the practice of making reference to a Supreme Being. The last article of the Constitution states that it was:

“done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven...”

Following the close of the Convention, the Constitution was submitted to the States for consideration. During this process, several States made specific reference to a supreme power in their ratification documents. Massachusetts and New Hampshire acknowledged “with grateful hearts, the goodness of the Supreme Ruler of the Universe” for his “providence” in affording their State with the opportunity to deliberate on the proposed Constitution. In addition, 10 of the 13 States used the term “in the Year of Our Lord” or the phrase “anno domini” in their ratification documents.

In the author’s opinion, if the Founders were asked to rule on this controversy they would reject the assertion that the “under God” reference is an endorsement of religion. We should not lose sight of the fact that the Founders were students of history. Throughout history, rulers have attempted to elevate themselves, and government, to the position of a god or Supreme Being. In these governments, the ruler is the creator of any rights. By acknowledging that there is a Supreme Being who is above government, and adopting the principle that the rights come from a higher source than government, the Founders rejected the notion that government is the creator of the rights of man.

The author believes the Founders would remind us that the word “under” is interchangeable with the word “below.” If people derive their unalienable rights from a creator, then any form of government established by that same people would be “under” or “below” the god who created them. Thus, a government “under God” would not be an endorsement of religion; it would be an acknowledgement that government is under the dominion of God because man is under the dominion of a creator.

In conclusion, it is indisputable that a belief in a creator or Supreme Being was an important component in the founding of the nation and the adoption of the Constitution. It is equally indisputable that the Founders believed they were establishing a nation “below God.” Thus, the “under God” reference in the Pledge is actually consistent with the intent of the Founders.

The Ninth Circuit Court of Appeals would have us believe that the Founders, after requesting heavenly intervention in various official government documents and acknowledging divine providence in others, would subsequently adopt an amendment that banned any future reference to the very entity they claimed was responsible for their freedom, independence and good fortune. If the United States Supreme Court agrees with this logic and sustains the ruling by the Ninth Circuit, we will be witnessing a return to the principle that government is the Supreme Being.

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