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The Pledge of Allegiance Decisions
Lester S. Garrett

(continued from previous page)

In 1803 St. George Tucker (1752-1828), a Revolutionary War veteran, a Professor of Law at William and Mary School of Law, a Justice of the Supreme Court of Virginia, and no friend to atheism wrote:

"Civil establishments of formularies of faith and worship, are inconsistent with the rights of private judgment.  They engender strife. . . they turn religion into a trade. . . they shore up error. . . they produce hypocrisy and prevarication. . . they lay an undue bias on the human mind in its inquiries, and obstruct the progress of truth. . . [ellipsis in the original] genuine religion is a concern that lies entirely between God and our own souls.  It is incapable of receiving any aid from human laws.  It is contaminated as soon as worldly motives and sanctions mix their influence with it.  Statesmen should countenance it only by exhibiting, in their own example, a conscientious regard to it in those forms which are most agreeable to their own judgments, and by encouraging their fellow citizens in doing the same.

"They cannot, as public men [my emphasis], give it any other assistance.  All, besides, that has been called a public leading in religion, has done it an essential injury, and produced some of the worst consequences."  [St. George Tucker, Blackstone's Commentaries, 1App. 296-97, 2App. 3-11 (Paragraph break added)]

Seventy-five years later US Supreme Court Chief Justice Morrison Waite cited and endorsed Jefferson's "wall of separation" in Reynolds v. US [98 U.S. 148 et seq. (1878)].  Commenting on the standing of the letter in which Jefferson first used his "wall of separation" phrase, Mr. Chief Justice Waite noted that,

"Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.  Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." [op. cit. emphasis added]

In the Reynolds decision, the Waite Court also referred to James Madison's "Memorial and Remonstrance" of 1785.  The Chief Justice noted that Madison

"demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government."  [ibid. emphasis added]

In 1954 conservatives injected an explicit religious affirmation into what, for more than half a century, had been solely a political statement.  Then, supported by the authority of civil government, they improperly imposed the recast version of the Pledge on public school students across the nation.  They did so in violation of the Constitution's Establishment clause and in violation of the founders’ expressed intent to place a wall of separation between church and state.

The characterization of federal judges who "for decades" have "warped, shredded and outright ignored the Constitution of the United States" was a tad short-sighted.  It should have included Chief Justice Morrison Waite and his federal associates.  Indeed, Mr. Snyder's list of Constitutional Shredders should also have allowed for a Virginia State Supreme Court justice -- who, as it happens, was also a veteran of the American Revolution.

Messrs. Snyder, Bartlett et. al. would have us believe that "[e]very one of our founders is turning over in their [sic] grave."  Well, no.  Jefferson, Madison, and St. George Tucker number themselves among those founders who sleep soundly some two-plus centuries later.

(Revised and expanded from the original.)

Lester S. Garrett

 rev 19 May 2006
 minor rev 4 September 2006

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 copyright © 2006 Lester S. Garrett