Month: June 2002

The “law” that’s involved here is US Code Title 4, Section 4 (a/k/a 4 U.S.C. §4):

Sec. 4. – Pledge of allegiance to the flag; manner of delivery
The Pledge of Allegiance to the Flag, ”I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”, should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.

Actually, all of 4 U.S.C. is kind of interesting, and noteworthy in both its unenforceability and its frequent breaches (most particularly the use of the flag in advertising).

Sometimes secondary arguments obscure primary arguments.

Take the whole school voucher thing, once again in the news because the Supremes ruled that a Cleveland program was okay.

I’m convinced that a major reason this is such a bone of contention is because of hidden agendas. To wit, social conservatives and those who pander to them hate our public school system (both because they’ve been ideologically more or less kicked out of it, and because educational unions are a major opponent of theirs), and want to do something, anything, to break its back. Opponents of vouchers have the intellectual defense of church/state separation, but are really into it because, damn, anything those social conservatives want is likely evil of the deepest hue.

And that’s a fine set of arguments, if you want to talk about education reform. But that’s a public policy argument, and not a constitutional one. And, as a public policy stance, I’m against vouchers and for our public schools; indeed, it amazes me that social conservatives are so willing to cripple one of the great unifying elements of our nation, one of the great “Americanizing” elements of our nation, the public school experience. Not to mention the tremendous public oversight of the public educational system, vs. private or for-profit schools. But I digress, because we’re talking here not about whether voucher systems are beneficial or detrimental to our society (or how we think our society should be), but whether they are constitutional.

Vouchers, on the surface, seem to fail the constitutional test, since they in effect represent giving government money to religious institutions. That’s a bad thing, in principle (both for the government and for religious institutions). I’m a big believer in that wall between church and state, and, “ceremonial deism” notwithstanding, I think we are a better society for the strengthening of that wall over the past century. Where that wall has been weakened, we’ve tended to get not “Freedom of Religion” but “Freedom of Our Religion,” where “our” has usually meant mainstream Protestantism.

What gives vouchers the apparent consitutional out, though, is that it’s not the government actually giving the money, but individuals. And the model that can be used here in comparisoin is charitable contributions.

The tax deduction for charitible contributions can be thought of (and, indeed, is directly designed) as government funding of those receiving institutions. I have no doubt that people would still give to charity if the deduction were eliminated. I have no doubt, either, that the rate would greatly drop, and the governmental social net would have to be strengthened, probably further and more expensively than the cost to the government of that deduction.

I give money to my church. I can deduct that from my income tax. It is effectively no different than the government simply giving me that money and letting me give it to the church.

Is that a violation of church and state? The courts would seem to say no, because I, the giver, have the choice of to whom to give it. I can give it to a chuch. I can give it to a secular charity. I can give it to the local museum or zoo. There is elaborate regulatory oversight as to what qualifies as a donation to a qualifying institution, but the end result is the same, in that the government is funding my donation.

In theory, a school voucher system should work much the same. The government isn’t saying that you have to spend this on the Catholic school down the block. You can spend it at any qualifying educational institution.

Again, you can use the analogy of government workers. Not even the strictest church/state separatist would argue that just because Joe-Bob works for the State Dept. he should not be able to make contributions to his local church. That’s because we figure, hey, even if he’s being paid with tax dollars, once the money is in his possession, it’s his to do with as he pleases. That he may blow it on gambling or booze or cigarettes, or give it to a church or the KKK or the Republican Party is of no (official) concern of ours.

Now, in practice, most private schools have been religious-based, for a variety of reasons (the long tradition of religious community service and education, the desire by some folks to opt-out from the “godless secular humanism” of modern public education), but not all have been. There are plenty of non-church private schools around. And if a voucher system becomes more wide-spread, I would expect to see more of these, either run as non-profits or as for-profits.

I also expect that some voucher money will go to schools that promulgate world-views through their curriculum with which I disagree. Again, that’s a public policy issue, and no more constitutional a complaint than the complaints about “Look at the liberal/conservative/humanist/religious bullshit they’re teaching our kids today!” have been with our public schools.

In theory, of course, this could have been handled even more subtly, as a tax deduction as well. That might have made the constitutionality even more clear, but would have muddied the public policy issue, since it would have been a more direct benefit to wealthier families. The voucher system is still likely to benefit the wealthy more than the poor (since most private schools cost more than vouchers are likely to give), but, again, that’s a public policy issue rather than a constitutional one.

I’m still unhappy with the decision. I understand the reasoning of it. I would feel better if I agreed with the aims and goals of the folks who support school vouchers. But those are all secondary arguments, not the primary one. And, fortunately for everyone, the Constitution isn’t just about what aims and goals that I approve of.

More interesting history of the Pledge of Allegience in the pages of Reason. Among other tidbits are indications that the Pledge may have been used to sell more flag, and that the author considered including “equality” and “fraternity” in the Pledge, but decided that might be deemed too radical (not to mention, in these latter days, sexist).

However, as the Reason article notes,

We often pretend otherwise, but cultural meaning trumps everything else, from taste to law. In the case of the Pledge, the meaning lies less in the words – which may well lose their resonance in rote repetition – than in their performance. The fact that the Pledge had a substantially different meaning to its author than it does to its admirers is insignificant; the fact that a godless Pledge was good enough for, say, the generation that fought World War II is beside the point. Americans are almost unique in pledging allegiance to a flag, but they have come to impute significant meaning to their rite, and to associate it with their national identity.

(Via InstaPundit)

Just to show that the Pledge is hardly on a scale with the Ten Commandments when it comes to age and inviolability …

1892: I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all. The pledge is printed in “The Youth’s Companion” in Boston. Likely written by Baptist minister and socialist Francis Bellamy, it was to commemorate the quadricentannial of Columbus Day in the public schools nationwide.

1924: I pledge allegiance to the Flag of the United States of America and the Republic for which it stands, one nation, indivisible, with liberty and justice for all. A flag conference (!) by the American Legion and the Daughters of the American Revolution changes (over Bellamy’s objections) the description of the flag.

1954: I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. The Knights of Columbus convinces Congress to fight godless Communism by demonstrating that we’re a “Nation under God.”

So a poem by a socialist Baptist minister to celebrate Columbus Day, further modified by the DAR and the American Legion, and then by a Catholic service organization, has suddenly become an inviolate totem, a profound (but secular) prayer, an eternal tradition, a touchstone of our descent into godlessness?

Feh.