I Pledge To Ignore the Supreme Court's Opinion

by Charley Hardman
by Charley Hardman

I'll bet my neighbor Joe Sobran can hardly wait to read the emanations from the US Supreme Court over this pledge fiasco. Gonna be some inky straining and groaning oozing out the door over there in the hallowed halls of robed tyranny. As usual, it will be a bunch of adult children making up rules as they go, avoiding at all cost using the Constitution as a guide. The media, and thus the sheeple, will lap up the result heart and soul.

Thomas Jefferson:

Q. What does any Supreme Court justice with an ounce of integrity say when presented with a plea to rule on the Pledge of Allegiance?

A. There's no such thing as a Supreme Court justice with an ounce of integrity.

Okay, that was a trick question. But if there were such an animal, he would say, "Not only does that have nothing to do with me, it's not a federal issue at all, and the 9th US Circuit Court of Appeals has no business weighing in either. Good-bye and have fun! Wake me when you have that rare, Constitutional matter which would confuse somebody over 8 years old."

Then he refuses to hear further cries over the subject. If one needed a modern example of the Emperor's Clothes, look no further than the Supreme Court and the ignorant tools lying prostrate at its feet.

The Pledge of Allegiance, what's in it, where it's said, how it's said, and who's hitting somebody else over the head with it, are not Constitutional issues. Period. How many times do you hear people opining on the First Amendment, and how often do you see or hear the actual law? One would think there might be some merit in referring to the document directly:

Discussing it is a shame, it's so sparkling clear. What law made by Congress is being contested in the pledge case which is now brought before the court? None! So how does it become a First Amendment case?

If somebody wants to hound the Supreme Court, saying that Congress had no business putting the Pledge of Allegiance in stone (because, First Amendment aside, there's no such authority granted it by the Constitution), that's one thing – mostly a weightless technicality. But the issue of a state decreeing that the Pledge of Allegiance must be said in class, is removed absolutely from federal oversight except under the "cruel and unusual punishment" clause of the Eight Amendment. The common argument defying that plain fact is that the "incorporation doctrine" applied the Bill of Rights (first ten Amendments) to the states. There are serious problems with that on both of the traditional sides of the fence.

Conservative gnostics will assert that the Bill of Rights was never intended to be applied to the states. That's a cute theory, but the Constitution itself defies it. (Keep in mind that I'm merely arguing about the Constitution's content, not opining on its necessity or value.) The supremacy clause of the Constitution claims that it supersedes state laws and constitutions. Since the Bill of Rights is part of the Constitution, the raw applicability-to-states debate ends there.

The neat trick of the First Amendment is that it's the supreme law of the land – applicable to the several states, but only as written. Because the First Amendment is directed expressly at Congress, that's the end of the matter. There was not, nor is there now, any Constitutional protection of religion, speech, or assembly (and so forth) from any laws outside of Congress. The subtle and beautiful part, were it to be recognized and honored anew, is that such a system would greatly enhance the freedom of religion, speech, and assembly. Try explaining that to Arianna Huffington (whose name I just threw in because Karen De Coster uses it for fuel).

In 1919, a usurper named Oliver Holmes, calling himself a Judge (whatever that means), and sitting, by some natural disaster, on the US Supreme Court, declared that the First Amendment didn't mean what it said. He did this by publishing the oft-quoted disaster, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," and then using that to ignore the Constitution.

What arrogance! The tyrannical hoodlum saw his place on the US Supreme Court as the arbiter of speech throughout the land, and he did it using the First Amendment of the Constitution, which merely prohibits Congress from doing certain things. Do you see the power-grabbing in play? Give some blowhard a robe and a title, and before you know it he's trying to turn himself into a monarch. The worst part, of course, is that people let him. He could have been shut down in short order by a resolute Congress, because a little known gem in the Constitution (Article III, Section 2, Paragraph 2) allows Congress to remove the Supreme Court's appellate jurisdiction however it sees fit – even approaching permanence. But you wouldn't expect a body which routinely begs the president "Have your way with us" to stand up to the Supreme Court, would you?

Back to the dastardly incorporation doctrine, which is supposedly based on the Fourteenth Amendment. The Supreme Court invented a theory, using (depending on who you talk to) the Fourteenth's "privileges or immunities" and "due process" clauses, that the Bill of Rights is extended to the states whenever it fits in with a Supreme Court Jester-O'-The-Day's views. Try getting a straight, historical answer out of the Supreme Court! It's set up through so many layers of stare decisis hogwash that it can basically say whatever it wants, there's that much verbiage and camouflage to pull from. On cue, everybody shivers in obeisance at the outcome.

It's time we removed the obstructions of opinion from the Constitution and realized that anybody with the ability to read and understand a car rental contract can quite easily understand the Constitution. Of course, that would require reading it, but it's not nearly as fuzzy as portrayed. We don't need help, nor do we need to fight our way through layers of distortion which take us further away from a document already holding merely the most tenuous grip for liberty.

So modern liberals (seems wrong to use that word to describe anti-liberty fiends), who would find a right in the Constitution to "not make fun" if you gave them the chance, have decreed that the First Amendment applies to the states. Fine; go ahead and let it. Since there is no US Congress in any of the states, have at it. It means and changes nothing.

Enter the Pledge of Allegiance. If a state wants to decree that everybody in that state must recite the Pledge of Allegiance at 06:00 every day, the US federal government (name your branch) legally has nothing to say about it. That's a little concept they used to call Federalism, which is, in part, merely a stodgy way of describing government with a modicum of free market principle, where a "recipe of attraction" is composed by each state. Using the somewhat reliable presumption that states would like to attract people to live there, and that people are often quite different in disposition and tolerance, Federalism provided for the several states to do as they saw fit (within the US Constitution, as written), and left the details to the people who would move in or out, depending on "market" conditions.

That was, arguably, the best prevention of tyranny the United States had. But the thing they didn't have was a Congress willing to stick it to the Supreme Court. Why? There's a question. My best guess is that state tyrants are only too happy to have the federal government be the bad guy. It allows them to throw up their hands while also clamping down on freemen like a vise. And, of course, the federal government doesn't need persuasion to be the bad guy. So here we are living in Vanilla World, as Thomas Jefferson predicted, where all decisions must be made en masse, in complete disagreement with the Constitution – against the stated intent of the framers, and against good sense.

Vanilla World is, however, in full agreement with the wishes of federal tyrants, who can best increase their power by claiming a wider piece of the interference pie. Ever watch what happens to some people when you give them a little authority? Yes, it also happened to many of the founders, who are routinely lauded beyond propriety, though understandably so. Today one can only dream of states with backbone. Fantasize about a state with the nerve to tell the federal government, "We don't give a flying handshake what your opinion on this matter is. Get stuffed, and pay your bar tab on the way out."

If states, as the Constitution requires, were left to their own on speech, religion, and assembly issues, the result would be increased freedom. Instead, federal nitwits make up ever-changing straitjacket recipes "for freedom" which only tear down freedom stitch by stitch, killing liberty in the marketplace of legislation using the same method they use to kill wealth in the conventional marketplace – all for the sake of power.

For power's sake, I wonder why some prominent (dullard) Congressman doesn't attempt to make a name by proposing a bill on the pledge issue in favor of unconstitutionally mandated pledges (or at least the freedom for states to mandate them), but prohibiting (using Article III, Section 2, Paragraph 2) the Supreme Court from ruling on the matter. Though it would be a debacle in the short term, who knows what surprising things might ultimately happen for liberty if efforts were undertaken to clamp down on the Supreme Court.

In all things Constitutional, the United States would benefit greatly from applying the reformation doctrine of Martin Luther: "Scripture alone." How much more sense could it make, when attempting to weigh Constitutional issues (or even what is such a thing), to use the Constitution alone? Say what you will about it, we could greatly use the Constitution right now.

Should we send nine copies to the Supreme Court?

October 16, 2003

Charley Hardman (send him mail) was born in Washington DC.

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