Dagger in hand

A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.

Stab back: cmnewman99-at-yahoo.com


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Saturday, June 29, 2002

You know, as in "and to the republic..." (Don't tell me you used to recite it straight.) Some people seem to be sure that the Ninth Circuit's decision on the pledge is going to provide some sort of godsend political rallying point for the Republicans. God, I hope not. Make that under God. It's already hard enough for the world to keep a straight face when W. lectures Arafat on democratic legitimacy, even if he's right, and it had to be said, and he deserves some credit for being willing to go there despite his own obvious vulnerability. So now what else can we do to enhance our credibility in seeking to rally the world to a fight against theocratic thug rule? Let's see…hmmm…I've got it! Let's take a big stand on how essential to the fabric of our nation it is to start off each child's school day with a quick dose of ceremonial deism.

I actually find the whole pledge, not just the "under God" part, to smack of creepy religionism. Don’t get me wrong—this isn't because I'm against patriotism. I'm all for patriotism. At least, I'm all for it when we're talking about spontaneous, heartfelt expressions of joy and pride about who we are and where we live and what principles we aspire to stand for. I'm all for it when it's a voluntary expression of solidarity and moral support in the face of some threat to all of the above. I'm for it when it's the kind of thing that so floored Oriana Fallaci after 9/11:

I don’t know whether in Italy you saw and understood what happened in New York when Bush went to thank the rescue men (and women) who are digging in the ruins of the two towers trying to save some survivor but only coming up with the occasional nose or finger. In spite of this, they do it without giving up. Without resigning themselves, so that if you ask them how they do it they say: "I can allow myself to be exhausted, but not to be defeated." All of them. The young, the very young, the old, the middle aged. White, black, yellow, brown, purple... You saw them, didn’t you? While Bush was thanking them all they did was wave their little American flags, raise their clenched fists, and roar: "USA! USA!" In a totalitarian country I’d have thought: "Look how nicely organized this was by the Powers That Be!" Not in America. In America you don’t organize these things. You don’t manage them, you don’t command them. Especially in a disenchanted metropolis like New York and with workers like New York workers. New York workers are real pieces of work. Freer than the wind. They don’t even obey their unions. But if you touch their flag, or their Patria… In English the word Patria doesn’t exist. To say Patria you have to put two words together. Father Land. Mother Land. Native Land. Or you can simply say My Country. But they have the noun "patriotism." They have the adjective "patriotic." And apart from France, I can’t imagine a country more patriotic than America. God! I was so moved to see those workers clenching their fists and waving their flags and roaring USA-USA-USA, without anyone ordering them to. And I felt a kind of humiliation.

Would Fallaci have felt that kind of admiration and humiliation at the sight of a roomful of somnolent schoolchildren standing in robotic unison and reciting with hand over heart a litany penned by a socialist utopian and originally intended to be recited with arms outstretched in fascist-style salute? Non credo, caro. Non credo proprio. Talk about organized. Talk about managed. Talk about commanded. Even if technically no one is required to join in, this uninspiring little display has Powers-That-Be written all over it.

Speaking of Powers-That-Be, the one experience of my childhood that closely resembled reciting the pledge was reciting the Profession of Faith at church. Apostate though I am, I was raised Catholic. And though I stopped attending Mass regularly over eighteen years ago, I still remember the words of that credo, drilled into my head by weekly repetition during the formative years of my mind. "God from God. Light from light. True God from True God. Begotten not made. One in being with the Father. Through Him all things were made." Occult epigrams encapsulating the winning side of long-dead theological disputes. Repeated in numbing cadence. Injected like defunct viral cells to inoculate us against the off chance we might run into some second millenium strain of Arianism and our souls thus be imperilled. Had any latter-day son of Valens tried to put the ol' homoiousion story over on me, the words of the broken record would have risen up unbidden to counter him. "One in being with the Father." Anything so automatized has to be true. Just as I will carry to my grave the unalterable conviction that Pete Ellis Dodge may be found at Long Beach Freeway, Firestone Exit, Southgate. (If you grew up in So. Cal., you'll understand.) I remember once coming out of church and overhearing a conversation between a girl who had just attended Mass for the first time and the friend whose family had brought her there. Her comment was, “All those people speaking in unison. It’s really scary.” At the time this surprised me, used to it as I was. “Scary?” How? But upon thinking about it from her perspective I realized that it was. Which brings us back to the pledge.

Put aside for now the part about God, added in 1954 at the urging of the Knights of Colombus to show we ain't godless commies. (If communists believed in God, would their views have any more to recommend them?) What about the rest of it? What about the bizarre inversion in primacy of the flag and the republic for which it stands, the latter mentioned as though it were a mere afterthought? As though anyone holding that flag or invoking it would thereby obtain a moral claim on the speaker’s allegiance though the sheer talismanic force conferred by the pledge. And what about the most insidious incantation of all: "One nation, indivisible." In tone and purpose, this is really the equivalent of "One in being with the Father. Through Him all things were made." Which is pretty much how Bellamy & comrades wanted us to feel about the national government. You see, there had been another soul-imperilling heresy in the dark times of the past. This one was called State Sovereignty. Its adherents had been pretty well put to the sword by St. Athanasius Lincoln, and future efforts at conversion were likely to be hobbled by the infamous crimes in whose service the creed had been invoked. (How tragic that such evil should embrace and besmirch an otherwise righteous doctrine! But then I am a heretic.) All the same, best to inoculate young souls against the heresy that Power and Purpose should ever be predicated of any entity less than the Nationhead. Best not to risk that youthful minds should think it within the pale to find separate meaning in each word of the deity’s title and question what contingencies, what qualifications, might underlie the word “United.” And thus the good Reverend Bellamy bequeathed us a new catechism: In the beginning was the Nation. E uno unum.

Yes, I know it didn’t work, in the long run. I know the heresy has sprung up again, and that its priests now hold sway in the high temple, albeit by the slimmest of margins. How ironic that they are now expected to come to the aid of a credo wrought in opposition to all their works. And that they probably will, if needed. How doubly ironic that the phrase they’ll be called upon to save, the phrase on whose preservation hangs the Moral Compass of the Nation (or so it will be argued) is one that can be saved only by being declared to be meaningless. Not really a prostration before the Divine, just a quaint archaism, a traditional flourish. What, one wonders, would Thomas More have made of such a dilemma? But there are no Mores in this temple. Like his betrayer, they’ve already lost their souls, and for their trouble they gained not even all of Wales. Just the initial.

So you see, I am among those unable to work up much spittle and froth over the unlikely prospect that the pledge will go the way of the cane as an aid to improving the minds and characters of our schoolchildren. Indeed, I would regard the cane as far more likely to be salutary. But my lack of concern at the result need not restrain me from having a stab at the logic being used to achieve it. Or rather, at the conveniently selective employment of that logic.

Let’s begin by reading the language in question: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Not merely “Congress shall make no law establishing a religion.” Congress is forbidden to make any law even respecting an establishment of a religion, whether to set it up, tear it down, call it funny names, or regulate the manner in which it functions. This was a clause that prohibited Congress from creating a National Church yes, but that equally prohibited it from telling the states they could not establish religions. The Establishment Clause is not a Disestablishment Clause. It is one that enjoins absolute hands-off neutrality from the national government with regard to whatever church-state relationship the individual states should choose to adopt.

Now fast forward to the aftermath of the holy war, when the nation ratified the Fourteenth Amendment. Some regions did so at gunpoint, but we’ll let that pass. For the Fourteenth Amendment is a wonderful thing. Really. Be not misled by my heretical tendencies: I believe in State Sovereignty not because I fetishize either states or sovereignty, but because I want Power to be kept in check by division and competition. Giving it all to a federal leviathan strikes me as fulfilling Caligula’s wish that all the Romans should have one neck--so he could cut it. If I say states should be sovereign, it is to increase the number of those who may yet flee the knife. But sovereigns, even smaller ones, are never to be trusted. Never to be given free rein. Don’t even get me started about the insane notion of giving them “immunity.” (Even if in truth that was just a back-door way to erect new barriers in the path of a leviathan that had trampled its parchment ones.) So by all means, let us bind them with chains if we can. Let us preserve against their encroachments at least the same dwindling sphere of immunity we have against the leviathan.

The framers of the Fourteenth Amendment did just this. And they did it with what any lay observer might have supposed to be admirable straightforwardness. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Got that? If you’re a U.S. citizen, and the federal government couldn’t do that to you, then a state can’t do it to you either. Clear enough? Too clear, apparently. There was a reason the church used to keep the Bible in Latin, you know. The priesthood decided that whatever “privileges or immunities of citizens of the United States” meant, it didn’t mean the obvious things, the rights that Madison had enumerated for us when we declined to accept his assurances that we were safe because leviathan had been given no power to violate them in the first place. (Imagine that !)

So why, then, cannot the states abridge our freedom of speech, subject us to unreasonable searches, take our property for public use without compensation, if these things are not privileges or immunities? Ah, here's where the real theological heavy lifting comes in. To do such things would be to deprive us of liberty, or of property, and while the states can most assuredly deprive us of those things (not to mention life itself), they cannot do so without Due Process of Law. Say it with me: Due Process of Law. Words to conjure by, indeed. This is not the place to explore the scholastic subtleties that go into deciding which processes are or are not duly lawful (or is it lawfully due?). Let’s just note for the record that whatever umbrage certain parties take at certain penumbrae of recent emanation, the field of Constitutional Metaphysics was born not then but the moment it became necessary to cram all of our rights, traditional, enumerated, or otherwise, into a vessel not designed to bear them.

But we were talking about the Establishment Clause. What does it mean, exactly, to say that a citizen has the same privilege or immunity against the state in this regard that he would have against the federal government? As we’ve seen, the federal government was prohibited from weighing in on a state's establishment of religion one way or another. Does it even make sense to think about this structural device as protecting an individual right? It’s not as though individuals could go around “establishing” religions, anyway. Not in the sense they meant it. Only states could do that. So what forbearance vis a vis the individual is enjoined by the Establishment Clause? After all, the Free Exercise clause already tells us that the government can’t interfere with our choice of what or whom to worship, or how. Even without an Establishment Clause, the Free Exercise Clause would prevent the state from requiring us to attend a church, a synagogue, an auditing for engrams. The Free Exercise Clause would prevent the state from making the profession of some faith a prerequisite for public office or public employment, from forcing our children to recite prayers in school that went against their own beliefs. Remember, it was the Free Speech Clause that made it illegal to force children to recite the pledge in the first place, even before that pesky God nod was included. Remember Justice Jackson's stirring astrological pronouncement?
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Alas, even Polaris proved to be a moving target. The definitions of prescription and force have expanded, while the realm within which they are to be applied has shrunk. This happened I think because of a basic contradiction. No, not between the Establishment Clause and the Free Exercise Clause. I refer to the untenable proposition that you can have absolute Separation of Church and State without absolute Separation of School and State. Education is nothing if not the inculcation of values, the taking of official positions on matters of right and wrong, the prescription of what shall be orthodox. Suppose Mr. Newdow's daughter were to go to school next year and hear the teacher say the following: "We're not going to recite the pledge anymore, because not everyone believes in God, and we don't want to make them feel bad by engaging in a ceremony that makes them feel left out. Of course, that doesn't change the fact that the only firm basis for morality is belief in God, and while we have to respect atheists' right to believe what they do, I still intend to demonstrate to you children this year as a matter of historical fact that evil and destruction are the necessary results of godlessness."

Would Mr. Newdow have a new claim? Would the school have "sen[t] a message to nonadherents that they are outsiders, not full members of the political community"? If so, how do we distinguish the experiences of all the children whose families' dearly-held religious beliefs are contradicted matter-of-factly by public school teachers every day? If the Establishment Clause forbids the one, it ought to forbid the other. If my atheist child has a right to a public education that doesn't send any message that atheism is contrary to the values of the political community, why doesn't the fundamentalist child down the street have a right to one that doesn't make him feel an outsider for believing that wives should obey their husbands and that homosexuality is sinful? (Or, for that matter, why don't we prohibit the indoctrination of our children in the secular religion of deep ecology? If the term "property" is capacious enough to include welfare rights, why should not "religion" also include evangelistic moral systems that don't mention God? But deconstruction has always been a tool of very selective application. Words have only relational value, except that no always means no.)

This is why if you take seriously the claim of harm at stake in the pledge decision, I think you have to accept the desirability of the voucher decision. If we are committed to providing all children with a publicly funded education (leave aside for now whether we should be), and we are honest about not wanting that education to denigrate anyone's religious (or irreligious) beliefs, then the only solution is to give people a choice of which educational experience the public will fund for them. If you think it violates your rights to have any of your tax dollars fund someone else's religious views, your only recourse is to call for the abolition of all publicly funded education. Because as long as the government is funding education, tax dollars are being used to cultivate orthodoxy on matters that, to someone, are matters of religious belief. If education must be provided publicly, it should be on the same terms as food. If you can't afford food, we don't set up a government-run restaurant with a government-endorsed menu and send you there to eat. We give you food stamps and you go off to the grocery store of your choosing. Why should education take place in government-run schools with government-endorsed curricula? Indeed, shouldn't liberals be at least as concerned with the government's teaching of civics as with its teaching of religion? Isn't letting the government teach our children the rights and duties of their citizenship rather like letting the fox guard the henhouse? The foxes have certainly always thought so.

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