Let`s Just Rule That Everything Is Unconstitutional
And Call It A Day...
[Bill Morrow] 9/16/05

On Wednesday, September 14th, 2005, U.S. District Judge Lawrence Karlton in California's 9th Circuit ruled that the Pledge of Allegiance in schools is unconstitutional, so long as it contains the phrase, "Under God."

Now, this coming Saturday will be the 218th anniversary of the United States Constitution’s approval on September 17, 1787. The last line of the Constitution reads:

...done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the year of our LORD one thousand seven hundred and eighty-seven."

Perhaps Judge Karlton would rule the Constitution itself to be unconstitutional due to that one reference to God?

Perhaps that was the only direct reference, but the Founders placed the fingerprints of the Judeo-Christian God all over the Constitution.

A study by Professors Donald Lutz and Charles Hyneman* examined nearly 15,000 writings of the fifty-five men who actually wrote the Constitution, including newspaper articles, pamphlets, books and monographs. The study determined that 34% of all direct quotations in the Constitution (drawn from preexisting authoritative documents) were derived from the Bible, particularly the book of Deuteronomy. The study also found that wherever indirect citations were included, 94% of all quotations referenced by the Founders were derived from the Bible.

Why the particular reliance on the Book of Deuteronomy, the last of the Bible’s first five books. Ascribed to Moses’ authorship, those books comprise the "Books of the Law."

Deuteronomy literally means "Second Law." The book contains a repetition and detailed explanation of the law God gave to Moses and his people on Mount Sinai. The purpose of Deuteronomy was to declare the law again to a new generation of God’s people.

In the U.S. Constitution, America’s Founders declared a biblically-leavened law once again to a new people. No wonder they leaned on Deuteronomy.

Judge Karlton, appointed by former President Jimmy Carter in 1979, held that the "under God" portion of the Pledge violated the separation of church and state, and that schoolchildren should be "free from a coercive requirement to affirm God." Judge Karlton also stated that he was bound by a prior decision of the Ninth Circuit Court of Appeals, which had held that recitation of the Pledge was unconstitutional.

Judge Karlton said that the "Ninth Circuit has held that the school policy mandating the pledge is unconstitutional." The U.S. Supreme Court dismissed the Ninth Circuit's ruling last year for reasons unrelated to the core constitutional issues, although all of the justices who expressed a position on the core issue (3), held the reference to be constitutional.

The late Chief Justice William Rehnquist has opined: "On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words 'under God,' does not violate the Establishment Clause of the First Amendment ... The phrase 'under God' in the pledge seems, as a historical matter, to sum up the attitude of the nation's leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion's role in our nation's history abound."

In 1992, the Seventh Circuit addressed essentially the same question addressed by the Ninth Circuit and by Judge Karlton in the Newdow cases, but reached a different conclusion, ruling that ceremonial invocations of God do not constitute an establishment of religion. In that case, Sherman v. Community Consolidated School District 21 of Wheeling Township, the Seventh Circuit cited decisions of the U.S. Supreme Court, including opinions by Justice William Brennan, a liberal, in upholding the Constitutionality of the Pledge.

As we all know, this is yet another in a series of attacks against the well-documented values and traditions upon which our nation was founded. For far too long, liberals have used unaccountable judges to create laws that cannot be achieved legitimately through representative legislatures accountable to the people.

If anything at all should be ruled unconstitutional, it should be this kind of judicial activism that kicks around our nation’s traditional values and circumvents the right of the people to hold their government accountable.

No, the bigger problem does not concern "Separation of Church and State." It concerns "Separation of Powers." The courts refuse to honor the constitutionally mandated Separation of Powers that protects citizens from too-centralized, too-powerful government.

I believe that Judge John Roberts said it best in his opening statement to the Senate Judiciary Committee during his confirmation process earlier this week. When asked what role he thought judges play, Judge Roberts said, "Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire ...And I will remember that it's my job to call balls and strikes, and not to pitch or bat."

Unfortunately, on September 14th, Judge Karlton was pitching, catching, batting ...AND calling the balls and strikes. He was even seen in the stands selling peanuts. CRO

* Donald S. Lutz, is a professor of political science at the University of Houston. He is the author of The Origins of American Constitutionalism (Louisiana State University Press, 1988) and editor, with Charles S. Hyneman of American Political Writing During the Founding Era, 1760-1805 (Liberty Press, 1982). Charles Hyneman (1900-1985) was Distinguished Professor of political science at Indiana University.

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