Other than Barack Obama, homosexuals, and taxes, there's nothing Republicans hate more than "activist judges;" and there's no kind of judge more revered by them than a "strict constructionist." So you'd think there'd be outrage from the right at the decision just rendered by that most "liberal" of federal appeals courts, the Ninth Circuit, seated in San Francisco. I'm waiting.
The case was about the inclusion of the words "under God" in the Pledge of Allegiance. Not a problem, they ruled, 2-1. Clearly, there's not a strictly-constructed, non-activist argument to be made. So what the judge said was this:
"The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded... [The Pledge] is a recognition of our founders' political philosophy that a power greater than the government gives the people their inalienable rights... Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect.
Now, it seems to me, no matter what one's opinion of the Pledge might be, it's impossible to see those words as any sort of Constitutional argument. It's pure opinion (and not a little purple prose.) It's an argument ex cathedra; it's an attempt to rationalize a preconceived conclusion. Activism, in other words, at its most undisguised. Wrote the dissenting judge: "Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the 'under God' version of the Pledge of Allegiance by children in public schools."
I was ten when The Pledge changed to include those two words, and my recollection is dim. I recall less about my own feelings which, I'd guess, were somewhere between neutral and puzzled, than I do about my parents' reaction. They were upset. And that was at a time when they were sending me to Sunday School.
It's a position that some people will never understand. Too subtle. Not a winnable argument (which is not to say unimportant, as they march, crosses in hand, toward my door). But anyone should be able, with only a minimum of thought, to recognize that the decision just rendered, on whatever else it might be based, had nothing to do with Constitutional law.
