The Persistent Appetite For Orthodoxy

Seventy-three years ago, the United States Supreme Court ruled that Americans could be forced to recite a loyalty oath to the nation.

In Minersville School District v. Gobitis, a majority led by Justice Frankfurter held that a school could compel Jehovah's Witness — who believed that they owed loyalty to God, and could not pledge it to another — to say the Pledge of Allegiance. Words, like any weapons, can be turned to good ends or bad ones, and Justice Frankfurter anticipated Bến Tre by suggesting that it was necessary to destroy religious liberty in order to save it:

But the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow-men. When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good? To state the problem is to recall the truth that no single principle can answer all of life's complexities. The right to freedom of religious belief, however dissident and however obnoxious to the cherished beliefs of others-even of a majority-is itself the denial of an absolute. But to affirm that the freedom to follow conscience has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration.

The decision led, at least according to some sources, to a surge in persecution and violence against Witnesses in America.

To its credit, the Supreme Court took only three years to correct itself in West Virginia State Bd. of Educ. v. Barnette. There the Court upheld the right of students to refuse to recite the Pledge. Justice Jackson reviewed the sort of abuse that students and their families experienced:

Failure to conform is "insubordination," dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is "unlawfully absent," and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and, if convicted, are subject to fine not exceeding $50 and Jail term not exceeding thirty days.

Jackson swiftly eviscerated Frankfurter's vapid "religious pluralism and the respect for the rights of others requires compliance" rhetoric:

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

As the present CHIEF JUSTICE said in dissent in the Gobitis case, the State may

"require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country."

310 U.S. at 310 U. S. 604. Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.

The entire decision is a legal and rhetorical masterpiece, a high-water mark in the Court's recognition of the right to individual conscience over conformity. The most justifiably famous part is this:

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.

Perhaps you think that if the United States Supreme Court recognized a First Amendment right not to say the Pledge seventy years ago, and did so with some of the most stirring and fundamental language about freedom that the Court has ever uttered, the matter stands resolved. You would be wrong. Harassment of children over refusal to participate in the Pledge is routine.1

But the appetite for orthodoxy — the feeling that Americans who will note recite a loyalty oath are not to be valued or trusted, and perhaps should be compelled — is not limited to schools, and not limited to the thugs who once beat and abused Witnesses. Consider the state of affairs in Maryland, at the Frederick County Human Relations Commission, where the question of whether County boards should open with the Pledge sparked controversy. Annette Breiling, a Quaker, will not say the pledge; she says she owes her allegiance to the Almighty. She and other commissioners voted against requiring county meetings to open with the Pledge. Chris Huckenpoehler, a Marine, resigned when some members disagreed with him and did not vote to start meetings with the Pledge:

“I cannot with good conscience serve on a group with any members that deny or vote against an allowance to Pledge Allegiance to our American Flag,” he wrote in an email.

Now Huckenpoehler is free to exercise his freedom of association and decline to be on commissions with Quakers, or Jews, or gays, or Latinos, or anyone who holds any view he doesn't like, or anyone who won't utter any oath he demands. Some would say his service to our country entitles him to some respect; we're told he fought to preserve our freedom. But he has no right to force anyone else to say the Pledge. The news coverage is a little fuzzy on whether anyone is purporting to require individuals to say the Pledge, or simply requiring that it be on all county meeting agendas. It does, however, reveal the sort of rhetorical legerdemain Justice Frankfurter used in 1940 in telling Jehova's Witnesses that they must say the Pledge:

Delauter said he thinks Breiling is overlooking the fact that she’s able to follow her religious convictions because of the liberties that America offers.

Freedom of conscience is like the good couch in the living room; it's there to be had, not to be used.

Commissioner Kirby Delauter says he’s torn about whether to force the pledge onto boards and commissions.

“The military and patriotic side of me says yes, but the anti-dictator side says no,” Delauter said. “It’s a shame we’re even having this conversation, to be honest with you.”

No kidding.

When I hear the pledge at my son's Boy Scouts meeting or at my daughters' schools I have mixed emotions. I think about what what people have sacrificed for America and about what goals we have set for ourselves, even as we fall short of them. But I also think about how, despite the Pledge nominally celebrating liberty and justice for all, people have been denied liberty and justice for refusing to say it by people more devoted to conformity than liberty. I think about whether the Pledge is supposed to be to a nation and a government, or to ideals. The nation comes first before the ideals in the Pledge, I note. I think about the Red-scare-era addition of "under God" as a gesture of superiority over the Soviets, and about what a nun taught me about the meaning of "thou shalt not take the name of the Lord thy God in vain" thirty-five years ago.2 I wonder if I have a sufficiently developed or underdeveloped sense of irony to pledge unison and rote allegiance to liberty.

I also think about this: freedom speech, freedom of religion, and freedom of conscience are never completely safe. There will always be an appetite for orthodoxy and suppression, and people who care about freedom must cultivate a competing appetite for vigilance and for the fight to defend freedom. Some people would have us believe that the greatest threats to our freedom are armed and fanatical foreigners. I think that, as Pogo suggested, the greatest threat to our freedom will always be from our next-door neighbors.

Hat Tip To Walter Olson.

  1. If you think this is a Left-versus-Right issue, consider the scorn heaped upon a student who didn't want to recite a Mexican pledge in an American school.  
  2. I, a intractable sinner, am not suggesting that I should throw the first stone about taking the Lord's name in vain.  

Last 5 posts by Ken White

Comments

  1. eddie says

    This is slightly off-topic, but the pledge is despicable. Patriotic Americans, were they to give it due consideration, would realize its horrid nature and refuse to make it.

    If you swear an oath of loyalty to a piece of cloth, you enslave yourself to anyone with a stick to wave it upon.

    This is not the American way.

  2. Chris Rhodes says

    Why in the world do I read the comments to news articles? It's seriously disturbing that "GO BACK TO PUERTO RICO!" seems to be the number one response to a girl not saying the pledge.

  3. cpast says

    Speaking as someone who just graduated from that school district, it'd also be wrong to call this a Left-Right issue because Montgomery County, Maryland is not exactly a notably conservative area.

    Also, what's interesting here is that not only does MCPS have a policy against it, they actually teach you in school that the First Amendment means you don't have to say the Pledge. That's one of their main examples of the First Amendment.

    Sadly, this doesn't mean that teachers don't try to make you "show respect" – no teachers I had ever made us say it, but from kindergarten it was sort of implied you should say it, and in high school, a number of teachers make you stand when they play it over the announcements. This teacher isn't the only one who thinks you should have to stand.

  4. says

    The most ironic part about ultra-conservatives demanding recitation of the pledge is that it was written by a true socialist, Francis Bellamy.

  5. jb says

    One of my favorite quotes applies here. From "The Worm Ouruboros," by E.R. Eddison.

    "An oath binds not an ill man. Were I minded to do you ill, then lightestly would I swear any oath you might desire, and lightestly in the next moment be forsworn."

    –Lord Gro

    The pledge is just words, and, being rote, easy to say words. There is zero reason to believe that there is any difference in actual loyalty to this country between a person who refused to say them, and a person who said them.

    Plus, anyone who's been in elementary school knows that no one ever actually says the real words.

  6. mud man says

    if the United States Supreme Court recognized a First Amendment right to say the Pledge

    … a right NOT to say the Pledge … ??

    (hoping I got the blockquote thing orthodox)

  7. mcinsand says

    A pledge recited under duress is just empty words, and forcing people to do so is insulting to citizens that actually do say the words with meaning. Furthermore, it makes our nation look (even more) weak and wimpy when we have to pressure people into saying the pledge.

  8. TobinL says

    Happily the Seattle Public Schools have just done away with it.
    It is nice and all but as pointed out there are issues with it and at least for me and the friends I had at the time saying it every day in class we got to being very snarky/sarcastic about it in our heads so I am not sure what it does other than make kids stand up and groan every morning.
    Or yeah what mcinsand said

  9. SarahW says

    The Jehovah witnesses case, FWIW, was the impetus for adding "under God" to the flag pledge (lest the point of God coming before an inanimate object continue to gain traction, and "normal" people begin to feel qualms).

    It's bad manners to make unnecessary scenes and to disturb others being led in (and quite proud to say) the pledge, so I never have.

    My beef is that oaths do not wear off and, to act as if they do makes an oath a cheap and worthless act. And if people knew where this little secular prayer to social justice comes from, a portion of its most devoted fans would be horrified. It's author was my idea of a proto-commie, who believed most fervently in the collective vs. the individual, and was indeed a socialist in every important sense of the word. This, even as he began his flag-pushing as a magazine selling scheme.

  10. Tarrou says

    I have some personal misgivings about the Pledge ("one nation under god" to an atheist, for instance). At the same time, it's not a big deal. I say grace for dinner when visiting my parents, because to refuse and go on a rant about how their religion is stupid and I don't buy it would be rude and counterproductive. I say the pledge twice a month, at my VFW and MOPH meetings. It's not worth a fight with some very solid and well-intentioned people. I do, however completely oppose forcing people to say it. Even the military doesn't do that (though I did have a drill sergeant who used to make us sing the national anthem before bed).

    And eddie, a pledge of allegiance to a flag is not a promise to obey anyone who has one. It's a fairly meaningless shibboleth for the more nationalistic. Don't oversell it.

  11. cpast says

    Actually, how would this apply in the military? To my completely unknowledgable mind, it seems enforcing orthodoxy is allowed to a much greater degree (if I want to say that the President is a treasonous lying moronic imposter, that's my constitutional right; I'm under the impression that a member of the military cannot say that, or else they can face charges)

  12. Jim Salter says

    "Look, just click the checkbox on the bottom of the EULA so your software will install, already."

  13. Michael K. says

    I can't stand the Pledge. It makes me uneasy in the extreme. My wife and mother-in-law are shocked at my support for the kids in my kids' school who don't say it, and my wish that my kids would opt out as well.

  14. says

    cpast — This is taking place in Frederick County, Maryland, where I live, not adjoining Montgomery County. Montgomery County is known for political liberalism, but Frederick County, I think it's fair to say, is not.

  15. says

    The pledge of allegiance is not compatible with a free country. Written by a socialist who sought to indoctrinate children with the idea that they should be servants of the state, it opposes the very principles underlying the Declaration of Independence. It is the duty of every patriotic American, whose loyalties are to those principles rather than some flag or body of men, to oppose it. Let the enemies of freedom distinguish themselves by compelling people to take oaths against their will. Let us once again embrace freedom and expel the rotten pledge of allegiance from our schools.

    The conclusion of one of my proudest essays.

  16. Brad Hutchings (@BradHutchings) says

    I had a Scoutmaster who told us that the Pledge didn't used to have "under God" f-ing up it's pentameter. I know, he's already going to Hell for that. But anyway, for the longest time, when reciting it or leading a recital, I'd just say it without that. Either nobody ever noticed or didn't want a confrontation. Now I don't even participate.

  17. Xenocles says

    On principle, I don't support religious exemptions from laws. Not because I don't advocate freedom of religion but because I don't believe anything should be the law that isn't important enough to require compliance from everyone. (I am aware that this principle by itself would allow for some monstrous laws. It is not my only principle.)

  18. ChicagoTom says

    Why in the world do I read the comments to news articles?

    Same reason people slow down to see a car accident?

    What I'm still trying to decide though is, whats worse: youtube comments or news article comments (especially my local newspaper comments)?

    They both make me want to shower after reading them.

    On topic : It's pretty sad that in this day and age people are still trying to force others to take loyalty oaths. As if schools can't teach children or city councils can't due their duties without everyone pledging allegiance to the state.

  19. Jim Salter says

    Actually, how would this apply in the military? I'm under the impression that a member of the military cannot [diss the President] or else they can face charges)

    You give up several Constitutional rights while serving on active duty. And, no, you can't publicly badmouth the President while you're an active duty military member, because he's actually a part of your chain of command – the very top link. So badmouthing the President falls under exactly the same category as badmouthing a less exalted superior officer – it's a discipline violation, and, yes, you can get charged for it.

    In practice, unless you're unusually stupid and public about it, grumbling is tolerated pretty well. If you ARE unusually stupid and public about it – or, more importantly, somebody above you on the chain is pissed off at you for something entirely different – you will probably face NJP, Non Judicial Punishment, which is arbitrary but limited in the scope of its consequences.

    If you're REALLY AMAZINGLY stupid and public about it, you can be court-martialled – but boy oh boy you REALLY have to push the line on stupidity for that, like getting front page on national news levels of stupid, and even then they're probably going to try to avoid it.

    (source: served 6 years as an enlisted man, paid the hell attention to the rules when I did)

  20. says

    @jb

    One of my favorite quotes applies here. From "The Worm Ouruboros," by E.R. Eddison.

    Tried to read it 20 years ago. Couldn't make headway.

    John C. Wright was praising it the other day in his blog and I thought I should give it another try.

  21. mcinsand says

    Tarrou, As a religious person that is loyal to the US, I do feel sad over the pressure that you feel to recite the pledge and pray. With patriotism and religion, you should be free to not say what you do not feel, and such freedom is supposed to be one of our national cornerstones. We need to do better, as a nation and as members of our religious (or non-religious) groups.

  22. Jim Salter says

    for the longest time, when reciting it or leading a recital, I'd just say it without that.

    @BradHutchings – when I was in the service, I recited the pledge willingly but non-confrontationally omitted the "Under God" bit myself. It was pretty rare for anybody to notice, and even more rare for anyone to say anything about it.

    It's the flip side of the coin completely from the Quakers' objections to me, of course. I'm not worried about anybody else coming after me if I swear an oath to God instead of them, I just am annoyed at the default assumption of Judeo-Christian religion in general.

  23. Peter H says

    When I was in high school, I wrote my own pledge, in tempo with the original, and recited it contemporaneously with the official pledge. It produced some interesting results.

    It read (approximately) as follows:

    I pledge allegiance to the republic of the United States of America
    And to the Constitution, by which it's governed
    One nation
    Under law
    With liberty and justice for all.

  24. TRX says

    The Pledge was mandatory when I was in elementary school. However, I was probably in the fifth or sixth grade before I ever knew the words. I started in the first grade; most of the other children in that class had gone to kindergarten (not required back then) and had learned it there. So, in the mass chanting, all I got was

    "apejallehatudafah
    dynotesta-amrca…"

  25. eddie says

    And eddie, a pledge of allegiance to a flag is not a promise to obey anyone who has one. It's a fairly meaningless shibboleth for the more nationalistic. Don't oversell it.

    I may have flourished my rhetoric a bit much, but the principle is sound. Even if you are only swearing loyalty to the Republic for which it stands, the Republic does not does not command the loyalties of free men. The Republic creates institutions, men, and laws whose dictates offend the very idea of freedom; they are not worthy recipients of your allegiance.

    And regarding it being a meaningless shibboleth: That is perhaps even more pernicious. If you see the pledge as meaningless, then how can you see any such promise as meaningful? If you encourage others to see it as meaningless, you are encouraging others to see all such promises as meaningless. I think that's a terrible idea.

    One's words should mean something to oneself, such that others can rely upon one's words.

  26. eddie says

    FWIW – Out of politeness to the company and respect for the symbols of my nation, when the pledge is recited on various occasions I doff my cap and place my hand on my heart.

    But I don't say the pledge.

    That's also essentially what I do when I go to others' church services.

  27. says

    @eddie

    the Republic does not does not command the loyalties of free men

    So how do you explain treason (betraying the country (or as you prefer the "Republic")) and the fact it was so well-recognized as being a heinous crime that it was referred to in the Constitution? I'm sure Ken would love to represent someone accused of treason and be able to defend them by merely saying "the Rebublic does not command the loyalties of free men!!!!!!!"

  28. princessartemis says

    When I became old enough to realize what the pledge meant, instead of just words to recite, I stopped saying it. It has only gotten worse from there as I've learned more about it. Frankly, it's hard not to swear an oath and say the Pledge all at once, isn't it? I still stood though, and still do, when other people are doing it.

  29. eddie says

    Just because the Republic demands loyalty does not mean that it commands (holds, obtains, has received, was given) loyalty.

  30. jb says

    Clark,
    Skip the first few chapters with the English guy, and start when the narration gets to Demonland. The framing chapters serve no purpose.

    It's actually an amazing story, there are numerous other fabulous quotes. My other favorite, which applies more to political strategy, is "Hard it is to lift a full cup without spilling." I trot that out whenever a part has to reelect all the freshmen legislators that it gained in the last wave election.

  31. Xenocles says

    "So how do you explain treason (betraying the country (or as you prefer the "Republic")) and the fact it was so well-recognized as being a heinous crime that it was referred to in the Constitution?"

    It was arguably defined in the Constitution to prevent it from becoming an abusively enforced catch-all offense against the government. Notice as well that it has exacting standards of proof built in to the definition and firm limits on possible punishments.

  32. Craig says

    "The Worm Ouroboros" is a masterpiece, but admittedly the language is unlike anything else written in English in the last three centuries and does take some getting used to. It's worth it, though. I want to read Eddison's other books, but I haven't yet.

  33. Mark says

    To push the arguement, does freedom of religion and freedom of conscience give one the right to refuse service to those people that are banned by your beliefs?

    In the 60s, 'no service' was based on the religious arguement that negroes were "sub-human." Today, religious freedom is used as the arguement for not providing Wedding planning or Cakes to same-sex unions. This may be a better question for another day, but I still wonder where our freedoms end when another group's freedoms of religion and conscience are diminished.

    IANAL, but I really enjoy the discussions.

  34. jb says

    Craig,
    If you can read Lord of the Rings or Atlas Shrugged, you can read The Worm Ouruboros. Now, the Zimziamvian trilogy, that's another matter (although a better set of in-world maps would do wonders).

  35. says

    @Xenocles-Yes it does, but that is not the point I was making. I was simply making the point that if one were to take the arguments made here seriously (in the sense of having significant weight and merit, not in the sense of lack of frivolity) it would necessarily mean treason is not possible and trying to create such a crime as "treason" is immoral and wrong. I don't know where I come down on that, but it is interesting.

  36. NI says

    Is there a principled difference between refusing to recite the pledge and refusing to stand when a judge enters the courtroom? I completely object to standing for judges because the history of standing for judges is that they were representatives of the Crown; in this country, it's the people who are sovereign. I know there is caselaw upholding contempt citations against people who refuse to stand for judges. But as a matter of principle, I don't see a difference, and it seems to me the First Amendment should protect a refusal to stand for judges for the same set of reasons it protects a refusal to recite the pledge. P.S. The Lakeland, Florida City Council was in the news recently for ordering spectators who refused to stand for the pledge of allegiance removed from the council chamber, so this isn't a problem confined to the schools.

  37. says

    I share the abovementioned reservations about the Pledge. I didn't once, but I took some time to think 'er over.

    I find "under God" objectionable on two points: First, nonbelievers shouldn't be required to say that. Second, as a believer myself, I look around at the mess and I think, "Why tar the Almighty with this brush?"

    Frankly, though, I have a bigger problem with "indivisible."

  38. says

    Didn't the Civil War clarify the whole "indivisible" thing, if not as a matter of "what should be" at least as a matter of "what is"?

  39. says

    Update: Today the board of county commissioners voted to direct that all board and commission meetings be opened with "an opportunity" for recitation of the pledge. "Board members and meeting attendees should be free to join in the pledge or refrain from reciting it and face no consequences for either choice, said Commissioner Kirby Delauter." http://www.fredericknewspost.com/locations/local/frederick_county/article_5f6ff19c-2c4b-11e3-a263-0019bb30f31a.html

  40. James says

    Just to be certain I understand:
    It's right, noble, and proper to allow members of a particular religious sect, who believe that only their God is worthy of allegiance, to abstain from reciting an oath. Got it.

    It is not acceptable to allow members of a different religious sect, who believe that homosexuality is depravity against the God they follow, to decline to perform certain services for homosexuals. Got it.

    So the difference must be … that the Witnesses … don't earn money by reciting or not reciting oaths? Is it that homosexuality is more acceptable to the majority than allegiance to a nation?

    I'm so confused. I don't know what to believe any more.

  41. Chris F says

    @James

    So the difference must be … that the Witnesses … don't earn money by reciting or not reciting oaths? Is it that homosexuality is more acceptable to the majority than allegiance to a nation?

    I honestly think that's part of the public perception of it but there's a much larger difference which is what makes the legal difference. When you're declining to perform services for homosexuals you're creating a real harm. If it's just one business that's doing that and there are competitors in the area it's not a large harm but if everyone in an area decides to do that the harm is larger.

    What tangible harm is caused by not saying the Pledge of Allegiance?

  42. Steven H. says

    @Darryl:

    Didn't the Civil War clarify the whole "indivisible" thing, if not as a matter of "what should be" at least as a matter of "what is"?

    No, the Civil War just clarified the method. Just saying you're out doesn't work. On the other hand, 38 States could call a Constitutional Convention, and amend the Constitution to allow secession under any terms they can agree on.

    Do remember that the Federal Government is NOT required to approve a Constitutional Convention. And IS required to abide by its results.

  43. En Passant says

    I also think about this: freedom speech, freedom of religion, and freedom of conscience are never completely safe. There will always be an appetite for orthodoxy and suppression, and people who care about freedom must cultivate a competing appetite for vigilance and for the fight to defend freedom.

    I think the appetite to require pledge recitations to flags, religious icons or other objects arises from a common error in human thought processes that the philosopher Alfred Korzybski and mathematician Eric Temple Bell pointed out almost a decade before Gobitis. A metaphor for the surprisingly simple error is the human tendency to conflate a map with the territory it represents. The map is not the territory.

  44. ChelseaNH says

    Justice Frankfurter's argument wasn't wrong — you can't murder people because your religion advocates human sacrifice — but it was wrongly applied.

    Reciting an oath has nothing to do with being a member of a cooperative society. Providing services to others does; that's kind of the point of a cooperative society.

  45. stillnotking says

    I didn't know the Gobitis decision was 8-1. Sheesh, and we think we have bad Courts now

    All else aside, the idea of compelling an oath to defend freedom is fundamentally absurd. I don't understand how an even marginally intelligent person could endorse that.

  46. Xenocles says

    "No, the Civil War just clarified the method."

    I wouldn't even go that far. The Civil War just proved that a parent country that has both the power to stop a secession and the will to use it can stop a secession. If a future secession attempt includes more relative military power than the CSA had (whether native to the rebellion or achieved through diplomacy), or if the remaining government chooses not to pursue the rebels, it could succeed.

    I admit this isn't a very interesting result, but I think it's the only rule you can honestly infer from the history.

  47. Jo says

    James:

    So the difference must be … that the Witnesses … don't earn money by reciting or not reciting oaths? Is it that homosexuality is more acceptable to the majority than allegiance to a nation?

    Jackson's opinion covers the difference:

    The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so.

    A public accomodation's refusing service to people in a protected class is an assertion of a freedom that brings "them into collision with rights asserted by" another individual. I'm not arguing here that the business should be forced to serve homosexuals, although I believe that they should be, only that there is a clear distinction between the cases.

  48. ChicagoTom says

    So the difference must be … that the Witnesses … don't earn money by reciting or not reciting oaths? Is it that homosexuality is more acceptable to the majority than allegiance to a nation?

    The commerce clause might have something to do with the difference between regulating personal behavior vs regulating commercial behavior — and at this point the SCOTUS has basically made the Commerce Clause's reach pretty infinite.

  49. Josh C says

    Roughly, if you're in the military, the president is your ultimate commanding officer. You may disagree with him, but not be disrespectful.

    Separately, the services are not political. They might advocate for a position, where it affects them, but never for a party. Officers carry a commission directly from the government, so any position they advocate for implies that the service or the government generally is advocating for that position. As such, there are strict rules about what forms of support they can give to political causes.

    In either case, it's analogous to an NDA: if you don't want that responsibility, don't sign up for it.

  50. Dion starfire says

    Great article and good timing. Just when I was starting to think the Federal government was hopelessly lost I come across little bits like this.

    There may be quite a few religious fanatics in government (both in congress, and some state governments) but we've already got a solid defense against attempts to impose religious policies on the general public (to the public's detriment)

  51. Malc. says

    Xenocles: aye, the "exemption in law or regulation because of personal faith" thing is inherently contrary to the First Amendment (no established religion => everyone or no none should be subject to a law/regulation).

    This was never so well illustrated as when the Catholic Church's abhorrent (and criminal) behavior broke with regards to sheltering and protecting vile pedophiles and abusers within their ranks: merely because something was disclosed under the "sanctity of confession" should be utterly irrelevant, as many other types of people have equally sound reasons why they choose to become accessories to a crime, and the consequences of the concealment should be criminal prosecution.

    The situation with medical and legal confidentiality is entirely different, in that they enjoy limited immunity as a consequence of their job, and there are situations where they are required to breach confidentiality, and mechanisms where potentially confidential matters can be reviewed to asses whether they are, in fact, cover or not.

  52. Tarrou says

    @ mcinsand

    Tarrou, As a religious person that is loyal to the US, I do feel sad over the pressure that you feel to recite the pledge and pray.

    I don't feel pressure. I'm one of those contrary souls who loves conflict and debate. If I don't want to say the pledge, I don't. But a man has to have priorities, and getting butthurt over essentially a secular prayer is less important to me than maintaining smooth relationships with people I can't get rid of. If it keeps my mom from staying awake nights interceding for my eternal soul, or my beloved cranky oldsters from misunderstanding, it's worth it. It costs me almost nothing.

    @ eddie

    Even if you are only swearing loyalty to the Republic for which it stands, the Republic does not does not command the loyalties of free men.

    I disagree most heartily. And it's not the Pledge that commands my loyalty to the Republic, it's a different oath, goes something like:

    "I, _____, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

    After that one, the Pledge doesn't really commit me to anything beyond it.

  53. JWH says

    Keating: I want you to find your own walk right now, your own way of striding, pacing: any direction, anything you want. Whether it's proud or silly. Anything. Gentlemen, the courtyard is yours. You don't have to perform. Just make it for yourself. Mr. Dalton, will you be joining us?

    Charles: Exercising the right not to walk.

    Keating: Thank you, Mr. Dalton. You just illustrated the point. Swim against the stream.

    — Dead Poet's Society.

  54. C. S. P. Schofield says

    I offer two thoughts about the Pledge;

    1) As originally written, it did not include the phrase "Under God", which was popularized by assorted long-range mouth fighters in the 1950's, and formally added in 1954.

    2) I consider its inclusion in the Public School day of vital importance, as it teaches children early that petty authority, given a captive audience, will require them to do all kinds of silly things, and thus should be avoided at any opportunity.

  55. says

    It's a fairly meaningless shibboleth for the more nationalistic. Don't oversell it.

    A Shibboleth, by definition, contains meaning. It is also unrecognizeable/incomprehensible to outsiders. The pledge is no shibboleth. Ironically, there are probably people who treat it as such.

    According to future me, who visited me with a time machine some years ago, I created the pledge of allegiance to weed out all the pod people. According to the last status report, it's doing a fantastic job.

  56. KRS says

    As a Jewish singer, I've sung Handel's Messiah, great music about a religion I'm not a member of. As the famous choral conductor Robert Fountain said, to make the music, you must sing it as if you believed it.

    I long ago reconciled myself to pretending to recite the Pledge or the Lord's Prayer. It doesn't hurt me to pretend to say it, any more than it hurts me to enjoy Garrison Keillor's stories about the Lake Woebegone pastor. Of course, I support anyone else's right to believe and act diffently.

    I require the right to refuse an oath I do not believe in, but with meaningless repetitions, personally, I save my outrage for other things, like troglodytes shutting down the government.

  57. says

    Utterly unrelated to the main post, but, if you want to plow through a dense book that is still worth it, I recommend the Gormenghast books by Mervyn Peake. (I admit to having only read the first two. Note to self: Add the third to Kindle. Read it.) Some of the best character names to come out between Dickens and Rowling. (Dr. Prunesquallor, for example. Or Lord Sepulchrave.)

  58. says

    I'm so confused. I don't know what to believe any more.

    I have the right to not visit a tattoo parlor.
    I don't have the right to burn down my local tattoo parlor so that no one else can go there.

    I have the right to burn a copy of the Bible I own.
    I don't have the right to steal a copy of the Bible from you, and burn it.

    I have the right to buy food according to arbitrary dietary restrictions I might choose to follow.
    I do not have the right to go through your groceries and toss away anything that violates my dietary codes.

    If these seem "confusing" or "contradictory" to you, you might wish to move to a nation where the private and the public are basically identical, such as North Korea. If you remain here, you will face far more confusion.

  59. Myk says

    I'd love to know what percentage of those demanding the pledge be recited by everyone (ideally all day, every day) are the same 'Muricans who decry Islamic countries' call to prayer as "brainwashing" and "indoctrination" that must be stamped out wherever it exists. For the children, of course. And for freedom.

  60. says

    I feel you, as the kids say.

    If you'll forgive me for dragging up a dead, rotting horse: Doesn't this tie into to the other speech debates that have been had on this site? Is our "shaming" of certain speech also a desire for orthodoxy, made only slightly less powerful by its not having governmental backing?

  61. says

    If you'll forgive me for dragging up a dead, rotting horse: Doesn't this tie into to the other speech debates that have been had on this site? Is our "shaming" of certain speech also a desire for orthodoxy, made only slightly less powerful by its not having governmental backing?

    If private pressure were government pressure wouldn't it be government pressure?

    Yes. And?

    Social pressure is inextricably intertwined with freedom of expression. Government compulsion is not.

  62. says

    "If you swear an oath of loyalty to a piece of cloth, you enslave yourself to anyone with a stick to wave it upon.

    This is not the American way."

    I love you so much right now, eddie.

  63. Allen says

    My sister-in-law is a Witness, and she and a group of others do a pilgrimage to some of the former concentration camps in Germany and Poland every so often.

    No, It's not a Godwin's Law thing.

    It's something I was not aware of. Witnesses were sent to the camps because they wouldn't take oaths. No matter the cost.

  64. C. S. P. Schofield says

    One could, of course, solve the whole "Can the pledge be required in Public Schools" issue by instituting school vouchers. This would allow all parents who actually care to choose those values with which their children will be brainwashed while in school.

    As an added bonus, such a program would mean tacitly admitting that all primary education has some serious overtones of indoctrination, the issue being WHICH KIND will you subject your child to. This would cause hysteria, apoplexy, and aneurisms among the Politically Correct which , if nothing else, would be entertaining.

  65. Docrailgun says

    Leaving aside the problems with swearing an oath of loyalty and/or a religious oath as an adult… why do we force children to swear an oath? Minors are not legally allowed to make contracts on their own, they are not allowed to drink, smoke, or do anything else that requires what is felt to be an adult understanding of the repercussions of their actions. There is even a separate legal system for juveniles. Special pains have to be taken to try then as adults.
    So, how can children be forced to swear a binding oath of allegiance every school day? Boy Scouts? Still children.
    This point is one that I think gets lost during debates about the Pledge of Allegiance.

  66. cpast says

    @docrailgun:

    I'll second that. When I was first taught the Pledge, I understood around half the words in it, and had no idea how it worked grammatically (when it's recited like a chant, the grammar becomes somewhat confusing; we broke it into phrases in a way that obscured what it said). This is even worse than "can't make a contract, so why an oath" – At the age they start this nonsense, kids might well literally not know what they're saying. Oaths are completely meaningless if you literally don't know what the words you're saying mean; at that point, it's pure indoctrination (not that it isn't pure indoctrination at other times, but it at least has some conceivable meaning if you know what it says).

  67. jb says

    C.S.P. Schofield,
    Not to get into a school vouchers debate, but don't you think it is likely that the "people should have the liberty not to say things they don't believe" position has fallen so far behind the "loyalty to symbols" position that there is no guarantee of the existence of a reasonable charter school that would be (a) good, (b) sustainable, and (c) reasonable on this issue?

    Libertarians are often prone to push the "exit" choice in Voice, Exit, Loyalty dilemmas. This is reasonable, as most statists want to eliminate the "exit" choice in the first place. But sometimes Voice is the only reasonable option, due to network effects.

  68. Ken says

    One could, of course, solve the whole "Can the pledge be required in Public Schools" issue by instituting school vouchers.

    Or we could simply keep it the way it is right now – any student who doesn't wish to say it doesn't have to, and any student who doesn't wish to stand during the recitation doesn't have to, either.

    Because absent a Constitutional amendment, there is no current "issue" around the question of "Can the pledge be required in Public Schools?"

  69. says

    Between Gobitis (1940) and Barnette (1943), the US got into active rivalry with a couple of regimes that were fond of big displays of loyalty. Perhaps the Barnette decision was driven in part by a desire to accentuate differences from the other brand?

    As a child (in my unreliable memory) I was uncomfortable with the proposition that the conditions prevailing under that flag amount to a definition of liberty and justice for all. I'd be much happier with the Pledge if it celebrated the ideals rather than the institution.

    And I'm still vague on what "allegiance" means anyway.

    To those who point out that the Pledge was written by a collectivist: does it make you happier to know that it was a marketing gimmick to sell flags?

  70. AlphaCentauri says

    Sending your child to a private school might seem to protect you from such mandatory brainwashing, but as soon as there are vouchers involved, the state can attach any restrictions it wants. I've heard that Catholic schools in New Zealand are required to help minor students obtain abortions without their parents' knowledge, because they receive government funding.

    Then there's Pennsylvania, which attempted to force private schools to hold daily recitations of the Pledge of Allegiance, even if it violated the teacher's religious beliefs, as long as the school itself wasn't associated with a faith that prohibited such oaths. (The law didn't hold up in PA, but other states still have such laws.)
    http://www.leagle.com/decision/2003886270FSupp2d616_1821

  71. WhangoTango says

    "Or we could simply keep it the way it is right now – any student who doesn't wish to say it doesn't have to, and any student who doesn't wish to stand during the recitation doesn't have to, either. "

    Which is fine, but different from inventing your own version and making a big production out of saying it, really loud, and then loudly explaining, for the thousandth time, about how you don't PLEDGE allegiance to any ONE NATION because you REALLY work for GOD (smirk)

  72. says

    I've always been of the mindset that people should rise for the pledge but are not, in any way, compelled to say it. It doesn't matter if it's your country of allegiance or that you believe in the pledge, it's just a matter of respect to the people around you. Kind of like part of the social contract, ya know? Show respect to what's going on even if you don't care and then move on with your life. I've done it at both Canadian and Mexican events because I simply respect the people around me.

    Ironically enough in elementary school we had to learn the Swedish national anthem, in Swedish, because our school was named after Raoul Wallenberg. I actually had a hell of a lot of fun with that when I was a kid, more than the boring US National Anthem in English. Pfft. That only stopped when one of the families noted for being the loud atheist types (ya know the ones, if you don't believe in what I do then you're wrong) complained about the regular pledge. I thought that was a shame.

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