Originally posted from 07-11-02 to 07-18-02
Bush is very, very right and Goodwin is very, very wrong
 by Morgan Freeberg

In a nation full of proselytizers and agnostics hurling invective back and forth, both groups missing the point entirely, the President was the only prominent commentator to hit the nail square in the head. When he said he wanted to appoint judges who know our rights come from God, he hit the same target everyone else kept missing. He was better than Bill Pullman in an F-15.

Before I get to that, let's examine what the religious separatists have to say about why Judge Goodwin ruled the "right" way.

1. Proselytizers have distorted history in saying the "Founding Fathers" were Christian. The Founding Fathers were, in fact, "Deists."

2. History has been further distorted by the insinuation that "Under God" is part of our nation's history. The Knights of Columbus, a Catholic establishment, had this phrase added to the Pledge of Allegiance in 1954. This should be important because it hints insidiously at the "establishment of religion."

3. The founders of this nation, in fact, intended the First Amendment to establish a "wall of separation of Church and State," according to the papers of no less a person than Thomas Jefferson himself.

4. It is impossible to enjoy "freedom of" religion without first enjoying, out of necessity, "freedom from" religion under conditions that you might choose, i.e., if you are an atheist. In other words, if atheists do not have the freedom to be atheists, none of us have the freedom to be anything else.

Does that just about cover all the arguments of the schismatics?

Now, then. One at a time:

As to the first point: There is considerable disagreement about the "Founding Fathers were deists" statement. It is said that only 3 of the 55 delegates to the Constitutional Convention in 1787 were Deists. But allow for the moment that all founders were Deists and not Christians. How would this change the situation?

The answer is, in fact, not in the slightest. From Merriam-Webster:

de·ism, A movement or system of thought advocating natural religion, emphasizing morality, and in the 18th century denying the interference of the Creator with the laws of the universe.

Did you catch that? Deism doesn't deny the existence of a Creator; it denies the interference of a Creator.

From Encyclopedia Online:

deŽists, term commonly applied to those thinkers in the 17th and 18th cent. who held that the course of nature sufficiently demonstrates the existence of God. For them formal religion was superfluous, and they scorned as spurious claims of supernatural revelation. Their tenets stemmed from the rationalism of the period, and though the term is not now generally used, the tenor of their belief persists.

Deists are not atheists. So much for the idea that "Under God" controverts the desires of Founders who were Deists. So far, there is no conflict here.

What of the second point, that a Catholic organization made this change to our Pledge, in direct violation of the prohibition against establishment?

The Knights of Columbus did indeed generate the groundswell of dissatisfaction that resulted in the two words being added to our pledge, and they are indeed Catholic.

But so what? The change was made by our Congress and by our President, both duly elected. That the Knights pressured them to make the change, doesn't make the change any less legitimate.

Quite to the contrary: If this was a meaningful litmus test for "constitutionality," the test itself would violate the First Amendment since this clearly empowers citizens - Catholics, Protestants, whatever - to petition their government for redress of grievances.

Glad to see the atheists are hitting the history books. But they have nothing to stand on here.

But to address the third point, Thomas Jefferson wrote about the "wall of separation," didn't he? Yes, he did indeed. In his first year as President, 24 years after he wrote the Declaration of Independence, he was petitioned by the Danbury Baptists to explain his reluctance to officially designate Thanksgiving as a national holiday.

By this time, the nation was split between the Federalists and the Democratic-Republicans. One of the most important pieces of mud the Federalists had to throw at figures like Jefferson, was the insinuation that the new President was in fact godless as demonstrated by the Thanksgiving issue.

His reply to the Danbury Baptists on January 1, 1802, is the "Founding Fathers' paper" that erects this "wall":

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. [emphasis mine]

The first thing you should know about this letter should be this: If you want a copy of the Danbury Letter, you need to go to a web site operated by someone who thinks the Ninth Circuit's opinion is baloney. Those who believe the opinion is all-that-and-a-bag-of-chips, don't seem to want to show it to you.

That should be a huge red flag right there.

Why don't the "God is unconstitutional" agnostics want to show you this letter? I don't know. It can't be that they're afraid to bore you to death; it does have that dry early-nineteenth century reading in it, but at 234 words it's a pretty quick read.

Perhaps it's Jefferson's closing paragraph:

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem. [emphasis mine]

Whoa! By today's standards, that could get an ACLU brief filed right then and there. What with Jefferson writing in his official capacity as POTUS, after all.

This is another red flag. This is one of the "Deist" founders. Yet here he is cordially signing off in the same manner everyone did at the time. God this, Creator that, God-God-God. Can't swing a dead cat through contemporary correspondence without hitting God in the face.

What kind of "Deist" is this?

Fact is, it doesn't matter. The Danbury Letter was a political manifesto launched toward one faction by another faction, after the Founders themselves went their separate ways and began to stake out different directions for their American Experiment. It was not intended to clarify, like the Federalist Papers, the meaning and intent of a consensus of founders when the nation was started.

Washington and Adams, Federalists, created the issue Jefferson was addressing by sanctioning Thanksgiving. Since they didn't have football in those days, most people would agree that is more of an "establishment of religion" than mentioning God in a Pledge of Allegiance. Jefferson, author of the manifesto, was declaring the position of his political party, not of the constitutional delegation as a whole.

Were Washington and Adams not founders? Apparently, they disagreed with him.

Assuming Jefferson was sanctioning the removal of God from all things governmental - which he was not - I think Washington and Adams should have just as valuable an opinion as he did.

The fourth point is actually the weakest. "Freedom FROM religion" is one of the most unabashed and unbridled contortions of our constitution in recent memory. The phrase simply doesn't exist, and nothing remotely like it exists.

Not that I'm opposed to atheists having the freedom to be atheists. Nor, to the best of my knowledge, is any reactionary with any profile on the "pro-God" side.

Newdow v. Congress, however, is not about the rights of atheists to be atheists without being thrown out of the country. It's about the right of atheists to feel at home, to feel just as cherished and welcome as any other religion.

The ugly, non-P.C. fact is - and this is what Bush nailed, while everyone else kept missing the point - they're simply not at home here.

This is a nation born of revolution. The revolution was all about our "rights." Anyone who's ever had a teenager in the home, knows that emphatic protests about "my rights" do not automatically represent a moral justification. In 1776, there was no such justification for old men sending young men to die, without defining these rights.

This was crucial to the Revolution, and therefore, to the birth of our nation.

From where did these rights come? Did Continental Congress give us these rights? Did King George III promise us these rights and then renege on the promise? Did a seagull flying overhead drop them on us? Did we wake up one morning and decide we wanted them?

The Declaration of Independence - which is emphatically the charter we must consult in answering such questions - clearly specifies we got these rights from Our Creator.

This is a problem with the "Freedom From Religion" argument. It is a big, rancid problem. It is unsolvable, and renders the entire argument baseless.

Remember: The Revolution was a violation of existing law. It was, like most revolutions, based on the premise that the cause was just even though it was treasonous, that there was a higher code of ethics that superceded the compliance with existing law.

If you're an atheist, you must believe, out of necessity, we're just simply here. We were not put here by a higher power.

This would deny us our "inalienable rights." In so doing, it would undermine the moral justification of our revolution.

Thus negating the reason for this nation in the first place. It's not an atheist nation.

Newdow v. Congress is about the rights of polytheists and atheists to live in our society, look around, and not see any mention of God.

They simply don't have this right under the Constitution.

Such phrases as "In God We Trust," or "under God" have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. [emphasis mine] --Circuit Judge Fernandez, dissenting in Newdow

The concurring and dissenting opinions in Newdow are both well-written and well-argued. Perhaps the most striking lesson from reading them, is this: Our Supreme Court has established three broadly-accepted "tests" for determining the constitutionality of any mention of God.

Writing for the majority, Judge Goodwin has determined that The Pledge fails all three of these tests.

Writing for the dissent, Judge Fernandez has determined that The Pledge does not fail these tests.

Hypothetical judge Freeberg, seeing that neither Goodwin nor Fernandez can be accused of making out-and-out false statements or illogical conclusions, has determined that these tests are as useful as velvet brake pads. All three of them. The tests have been applied, and at conclusion, the fulfillment status remains a subjective opinion.

So what's the point? From infoplease.com:

God, 1. the one Supreme Being, the creator and ruler of the universe. 2. the Supreme Being considered with reference to a particular attribute: the God of Islam. 3. (l.c.) one of several deities, esp. a male deity, presiding over some portion of worldly affairs. 4. (often l.c.) a supreme being according to some particular conception: the god of mercy. 5. Christian Science.the Supreme Being, understood as Life, Truth, Love, Mind, Soul, Spirit, Principle. 6. (l.c.) an image of a deity; an idol. 7. (l.c.) any deified person or object.

From this, we see there are several secular definitions of that offensive word, "God." Some of them can be eliminated, because they clearly don't apply here. There is one definition pertaining specifically to Christian Science, one definition that must be complemented by a statement of ideology in order to be attached to any ideology. Yet a third definition does apply, but is completely independent of ideology.

You can't determine the constitutionality of "under God," without determining which of these definitions is in use.

But if you read Newdow v. Congress, you'll see the Court didn't see fit to saddle itself with such a conundrum.

A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," because none of these professions can be neutral with respect to religion. [p. 19]

Clearly, Judge Goodwin saw fit to confine "God", with no analysis to support such a confinement, to the Christian Science definition. This had the effect of erring on the side of caution in determining the constitutionality of an existing statute.

Is that what a court should do?

Absolutely not. This contradicts existing jurisprudence established at the Supreme Court level. The power of judicial agencies to declare laws unconstitutional, contrary to popular belief, was not established with the founding of this country. This Right of Judicial Review was declared by the Supreme Court for itself, in a landmark case in 1803.

As might be expected, this sent out a lot of shock-waves. Declaring a power for yourself? Who'd have thought that?

Bushrod Washington, the eleventh justice named to the Supreme Court and nephew of our founder, placated the situation and elaborated on Judicial Review in the 1817 case of Ogden v. Saunders, 25 U.S. 213. This decision made absolutely clear, what ought to be common sense: In determining the constitutionality of existing law, benefit of doubt should be extended to the law being tested, and not to the insinuation of violation.

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this Court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.

What a travesty it would be if it worked the other way! Laws would be struck down week in and week out, as each new piece of legislation was judged "might possibly be inferred to violate the Constitution." Legislators would have to attach notes to each new statute stating "why I don't violate the Constitution." It would be a mess.

If Judge Goodwin honored this piece of common sense, he would have no choice but to declare what millions of people at the ol' water cooler declared after hearing his outrageous opinion. Show me, Goodwin would ask, exactly what religion is being established by the use of "Under God." God being the first definition of the word, "the one Supreme Being, the creator and ruler of the universe."

The first definition would be in use because 1) it's the first definition; and 2) it is the definition that favors the law being tested most generously, in compliance with Bushrod Washington's mandate. The case would grind to a halt, and have to be thrown out right then and there. Without a specific ideology being favored, there is no process of establishment taking place. Game, set, match.

I'm not one bit worried that this ludicrous decision will not be overturned. It already has been overturned, as a practical matter, in the court of public opinion.

But we should worry, and worry hard, about how this is being done. Atheists, agnostics, and Newdow-sympathizers deserve their day in court. They have achieved a victory here that, however wrong it is, ought to have some meaning. Don't forget, the issue is at least implied to be what rights the minority has when the majority looks upon them with disfavor.

The Ninth Circuit Court of Appeals says, when the Pledge is weighed against the Constitution, Newdow should win.

It's not fair to Newdow if this formal opinion is gelded, just because a majority wants it to be.

Remember, if ninety-nine senators recite the pledge in protest, that's a nice thing to do but it doesn't change the determination of whether something is constitutional or not. And it's not the job of the senators to determine such things. They manifest popular will; they do not adjudicate alleged inconsistencies with our nation's charter.

The stay on this decision should be lifted. Elk Grove should try to enforce the decision and generate an action. The Supreme Court should grant a writ of certiorari and hear the case.

And then, bearing in mind the words of Bushrod Washington, they should adhere to their jurisprudence and do what is right.

Any other kind of victory would injure the rights of Michael Newdow. And as much as he is, in my opinion, an over-celebrated media whore and less-than-desirable parent, his defeat under an assault of negative public sentiment would endanger the rights of all Americans.

For Lady Liberty's perspective on this same issue, see her commentary Free to Agree.