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Notes

(1.) Howard Fineman, "One Nation, Under ... Who?," Newsweek, 8 July 2002, 20 ("[T]here was an overwhelming (87-9) percent for including 'under God' in the [P]ledge.").

(2.) Brian Burrell, The Words We Live By; The Creeds, Mottoes, and Pledges that have Shaped America (New York: Free Press, 1997), 3.

(3.) See, e.g., Sherman v. Community Consolidated School District No. 21, 980 F.2d (7th Cir. 1992): 447, cert. denied, 508 U.S. 950 (1993).

(4.) Lynch v. Donnelly, 465 U.S. (1984) at 668 (Brennan, J., dissenting) (citation omitted).

(5.) This essay assumes that the Court will reach the merits in Newdow and not decide the ease on standing issues.

(6.) See Richard B. Morris, "The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds," 74 Columbia Law Review (1974): 1083.

(7.) Ibid., 1085 (citing Writings of George Washington, ed. J. Fitzpatrick (1931-44), 7: 61-62).

(8.) Ibid., 1085-86 (citing Journal of the Continental Congress, 1774-1789 (9 March 1776), eds. W.C. Ford et al. (1904-37), 4: 195.

(9.) Ibid., 1086 (citing JCC (27 February 1777), 7: 166).

(10.) Ibid.

(11.) This debate, older than the Republic itself perhaps, continues. Compare, e.g., Samuel H. Beer, To Make A Nation: The Rediscovery of American Federalism (1993); 321 (locating the emergence of a national "We the People" no later than the revolutionary era), with Akhil R. Amar, "Philadelphia Revisited: Constitutional Amendment Outside Article V," University of Chicago Law Review 55 (1988): 1062 (arguing that prior to ratification, the peoples of the various states stood as foreign nations to one another), cited in Henry Paul Monaghan, "We the Peoples, Original Understanding, and Constitutional Amendment," Columbia Law Review 96 (1996): 135.

(12.) See, e.g., Richard H. Schneider, Stars & Stripes Forever: The History, Stories, and Memories of Our American Flag (New York, N.Y.: William Morrow 2003), 86.

(13.) Barnette at 633.

(14.) Ibid. at 633 n.13.

(15.) Torcaso v. Watkins, 367 U.S. (1961) at 490.

(16.) See, e.g., Burrell, The Words We Live By, 51.

(17.) The popular success of A Man for All Seasons is "not hard to find... Just ten years before its premier, Senator Joseph McCarthy had set off a national witch bunt for communists and their sympathizers, a mania which resulted in the institution of many loyalty and test oaths." Ibid., 53.

(18.) Ibid., 51.

(19.) Ibid.

(20.) Ibid., 51-52. "An oath, writes Bolt in his introduction to the play, anchors a man to his most fundamental beliefs, to what he considers right and wrong, and to how he defines himself relative to those beliefs." Ibid., 52.

(21.) See, e.g., James E. Pfander, "So Help Me God: Religion and Presidential Oath Taking," Constitutional Commentary 16 (1999): 549.

(22.) Penn. Gazette, 21 September 1785. See also Richard Price, Observations on the Importance of the American Revolution (Boston, Mass.: Powers and Willis 1784), 30-41.

(23.) Burrell, Words We Live By, 61.

(24.) Noah Webster, "On Test Oaths, Oaths of Allegiance, & Partial Exclusions from Office," in The Founders' Constitution, eds. P. Kurland & R. Lerner (Chicago, Ill.: University of Chicago Press 1987), 4: 636.

(25.) Oliver Ellsworth, "A Landholder, No. 7," Conn. Courant, 17 December 1787, in Kurland and Lerner, The Founders' Constitution, 4: 640.

(26.) Massachusetts Constitution of 1780, pt. II, chap. VI, art. 1.

(27.) Pfander, "So Help Me God," 549.

(28.) Ibid., 550.

(29.) Ibid. But see U.S. Constitution, art. VII, cl. 2 (concluding with "the Year of our Lord one thousand seven hundred and Eighty seven").

(30.) See ibid., art. II, [section] 1, cl. 8 ("Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation:--'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'").

(31.) See Pfander, "So Help Me God," 550. See also Pet. for Cert. of the Rev. Dr. Michael A. Newdow, United States v. Newdow, 328 F.3d 466 (9th Cir. 2002) (No. 02-1624), 9 n.6 & 10 n.9.

(32.) See U.S. Constitution, art. II, [section] 1, cl. 8 (emphasis added); see also ibid., art. VI, cl. 3 (federal and state officials); ibid., art. I, [section] 3 (impeachment); ibid., amend. IV (warrants). But see ibid., amend. XIV, [section] 3 (barring from federal office those who supported the Confederacy after having taken "an oath ... to support the Constitution"; no mention of affirmation).

(33.) Pfander, "So Help Me God," 549 n.2 (citing Michael W. McConnell, "The Origins and Historical Understanding of Free Exercise and Religion," Harvard Law Review 103 (1990): 1475); cf. City of Boerne v. Flores, 521 U.S. (1997) at 663 (O'Connor, J., joined by Breyer, J., dissenting) (As an alternative to the oath requirement, "the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter Pledges in a book."). But see H. Wayne House, "A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?," Brigham Young University Journal of Public Law 13 (1999): 238 ("Oaths in the eighteenth century carried religious import, a solemn statement before the Supreme Being and affirmation carried the same idea.").

(34.) See U.S. Constitution, art. VI, cl. 3 ("The Senators and representatives before mentioned, and the Members of the Several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.").

(35.) See "An act to regulate the Time and Manner of administering certain Oaths," 1 Statutes at Large 23 (1 June 1789).

(36.) Pfander, "So Help Me God," 551, citing J. Kane, Facts About the Presidents, ed. H.W. Wilson (1993), 85 (linking Pierce's scruples about swearing an oath to the passages in Matthew 5:34-37--e.g., "Swear not at all").

(37.) George Washington, "Farewell Address" (19 September 1796), in Writings of George Washington, 35: 214.

(38.) Gerald V. Bradley, "The No Religious Test Clause and the Constitution of Religious Liberty: A Machine that has Gone of Itself," Case Western Reserve Law Review 37 (1987): 720.

(39.) Ibid., 698. But see Daniel L. Dreisbach, "The Constitution's Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban," Journal of Church and State 38 (1996): 292-93 (describing at least three possible interpretations of the South Carolina proposal).

(40.) Bradley, "The No Religious Test Clause," 679.

(41.) Ibid., 681-83.

(42.) See Girouard v. United States, 328 U.S. (1946) at 69 ("The test oath is abhorrent to our tradition."); Everson v. Board of Education, 330 U.S. (1947) at 11 ("These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence.").

(43.) Bradley, "The No Religious Test Clause," 679.

(44.) Ibid., 683-84,

(45.) Compare, e.g., Isaac Kramnick and R. Laurence Moore, "Our Godless Constitution," Liberty 12 (May/June 1996), with Daniel L. Dreisbach, "A Godless Constitution," Liberty 11 (November/December 1996).

(46.) Professor Gerald V. Bradley has described the debates between Federalists and Antifederalists over the No Religious Test Clause and how, during the state ratifying conventions, inflated concerns of Catholic takeover led to fears that "one Protestant sect might gain national ascendancy and oblige [another Protestant sect] to conform to its ways." Bradley, "The No Religious Test Clause," 701 (emphasis added). Although equality among Protestant sects was the norm throughout the nation, that had only been the case in most states since 1776. The disestablishment of Anglicanism had stemmed from the colonials" resentment of the Episcopal Church, with its hierarchical ties to England. Ibid. Now, the newly-achieved sect-equality guaranteed by state constitutions and bills of rights, argued the Antifederalists, was in jeopardy of being nullified by a Congress that might re-impose Anglicanism by its power vested in the Supremacy Clause. Ibid., 701-12.

(47.) "The Federalist, No. 10" (Madison) in The Federalist Papers, ed. Clinton Rossiter (New York, N.Y., Mentor Books 1961), 84. See also ibid., No. 51 (Madison), 324 ("In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.").

(48.) Joseph Story, Commentaries on the Constitution (1833), [section] 1841 (citations omitted).

(49.) See Arlin M. Adams and Charles J. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses (Philadelphia, Pa., University of Pennsylvania Press 1990), 16.

(50.) See Chester James Antieau, Phillip Mark Carroll and Thomas Carroll Burke, Religion Under the State Constitutions (Brooklyn, N.Y.: Central Book Co., 1965), 102-04.

(51.) Ibid. But see Dreisbach, "The Constitution's Forgotten Religion Clause," 273 ("It should be noted that some states that dropped religions tests or qualifications for public office in the wake of Article VI, clause 3 readopted such requirements in subsequent constitutions.").

(52.) See, e.g., Curtiss v. Strong, 4 Day 51 (Conn. 1809) (requiring witnesses to affirm a belief in God and a future state of rewards and punishments after death).

(53.) See, e.g., Brock v. Milligan, 10 Ohio (1840) at 125-26 ("We think ... that whoever believes in the moral influence and control of an overruling Providence in this life, and that an oath is binding on his conscience, is competent to testify... And it is worthy of consideration, whether the great ends of justice, the object of all law, would not be promoted, even if this requisition were swept away, and no inquiry permitted as to what concerns the duties of the creature to his Creator only, in order to determine the competency of witnesses.").

(54.) See, e.g., Perry v. Commonwealth, 44 Va. 632 (1846); People v. Jenness, 5 Mich. 305 (1858); Stanbro v. Hopkins, 28 Barb. 265 (N.Y. 1858); Commonwealth v. Burke, 82 Mass. 33 (1860); Fuller v. Fuller, 17 Cal. 605 (1861); Shreveport v. Levy, 26 La. An. 671 (1874); Bush v. Commonwealth, 80 Ky. 244 (1882); Londener v. Lichtenheim, 11 Mo. App. 385 (1882); Randolph v. Landwerlen, 92 Ind. 34 (1883); Hroneck v. People, 24 N.E. 861 (Ill. 1890),

(55.) State v. Elliot, 45 Iowa 486 (1877) at 489.

(56.) Torcaso, 367 U.S. at 495.

(57.) Ibid. at 491 (internal quotations omitted).

(58.) Ibid. at 495 (internal quotations omitted).

(59.) E. Gregory Wallace argues however that "it is plainly false to suggest that the various forms of official religious expression were non-disputed and caused no conflict at either the state or federal level, or were the product of unreflective bigotry." E. Gregory Wallace, "When Government Speaks Religiously," Florida State University Law Review 21 (1994): 1239 (internal quotations and citations omitted).

(60.) "An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio," art. 3, 1 Statutes at Large 51, 53 n.a (13 July 1787, re-enacted 7 August 1789).

(61.) See Lynch, 465 U.S. at 676 n.2 (citing 1 J. Richardson, A Compilation of the Messages and Papers of the Presidents 1789-1897 64 (1899)); see also County of Allegheny v. A.C.L.U., 492 U.S. (1989) at 671 (Kennedy, J., joined by Rhenquist, C.J., and White & Scalia, JJ., concurring in part and dissenting in part); and see Wallace v. Jaffree, 472 U.S. (1985) at 100-07. But see Marsh v. Chambers, 463 U.S. (1983) at 807 (Brennan, J., joined by Marshall, J., dissenting) ("Thomas Jefferson and Andrew Jackson, during their respective terms as President, both refused on Establishment Clause grounds to declare national days of thanksgiving.").

(62.) See, e.g., ibid. at 783 ("The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country."). But see Wallace, "When Government Speaks Religiously," 1237 ("Objections to opening prayers were raised at the 1787 Pennsylvania convention debating the ratification of the Federal Constitution ... on the grounds that [the practice] was unnecessary, that it 'might be inconsistent with the religious sentiments of some of the members, as it was impossible to fix upon a clergyman to suit every man's tenets,' and that there was no precedent for it in prior proceedings of the state's General Assembly or constitutional convention.") (citing "General Assembly," Penn. Herald, 24 November 1787, 2).

(63.) See, e.g., Engel v. Vitale, 370 U.S. (1962) at 446 (citing Warren, The Supreme Court in United States History, 1: 469).

(64.) In the Gettysburg Address, Lincoln declared "that this Nation, under God, shall have a new birth of freedom--and that Government of the people, by the people, for the people, shall not perish from the each." Abraham Lincoln, "Address at Gettysburg, Pennsylvania" (19 November 1863), in Abraham Lincoln Speeches and Writings (Libr. of Am. Ed. 1989), 2: 536.

For a useful history of the phrase "under God," see James Pierson, "Under God; The history of a phrase," Weekly Standard, 27 October 2003, 19 (observing that two days before the signing of the Declaration of Independence, on 2 July 1776, George Washington rallied his troops for battle by declaring: "The time is now near at hand which must probably determine whether Americans are to be freemen or slaves... The fate of unborn millions will now depend, under God, on the courage and conduct of this army.").

(65.) John W. Baer, The Pledge of Allegiance: A Centennial History, 1892-1992, available at http://history.vineyard.net/pdgech4.htm (last visited 23 May 2003).

(66.) See "An Act to Prescribe an Oath of Office, and for Other Purposes," 37th Cong., 2d sess., chap. 128.

(67.) See Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866).

(68.) Burrell, Words We Live By, 333 n.56 (quoting letter of 5 February 1864 from Lincoln to Secretary of War Edwin M. Stanton) (citation omitted). For Lincoln's role as a civil theologian, see Robert N. Bellah, "Religion and the Legitimation of the American Republic," Society 15 (1978): 17, cited in Timothy L. Hall, "Sacred Solemnity: Civic Prayer, Civil Communion, and the Establishment Clause," Iowa Law Review 79 (1993): 50, n.86.

(69.) See Cummings, 71 U.S. at 320 ("The oath could not ... have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling.")

(70.) See 5 U.S.C. [section] 3331; see also 28 U.S.C. [section] 453 (setting out the oath of office for federal judges).

(71.) See, e.g., Alan Bullock & Steve Reilly, "Nationalism," in The Fontana Dictionary of Modern Thought, eds. Man Bullock, Oliver Stallybrass, and Stephen Trombley (London: Fontana Press 1988), 559-60 ("In the latter nineteenth century ... nationalism assumed aggressive, intolerant forms ... identified with military and trade rivalries, national expansion at the expense of other peoples, and imperialism.").

(72.) Henry Adams, The Education of Henry Adams, An Autobiography (Libr. of Am. Ed. 1983), 287-88. See also Thomas Schlereth, "Columbia, Columbus, and Columbianism," Journal of American History 79 (1992): 961.

(73.) Schneider, Stars and Stripes Forever, 86.

(74.) Ibid.

(75.) Baer, The Pledge of Allegiance, note 65.

(76.) Ibid. See also James Gilbert, Perfect Cities: Chicago's Utopias of 1893 (Chicago, Ill.: University of Chicago Press, 1991), 36-44.

(77.) Ibid. The term "nationalist" was not used in the political sense of national supremacy (see note 71), but rather in the economic sense of "nationalization," or public ownership and management of the economy. Ibid. Clarence Darrow headed the Chicago Nationalist Club at one time. Ibid.

(78.) Ibid.

(79.) Ibid.

(80.) Ibid.

(81.) Ibid.

(82.) Ibid. A previous salute had been written in 1889 by Colonel George Balch, a New York City school principal and Civil War veteran, who, on Flag Day, 14 June 1889, began having his pupils recite, "We give our heads and our hearts to God and our country; one country, one language, one Flag." Ibid.

(83.) Ibid.

(84.) Ibid.

(85.) Among the countless inspirations from the 1892 World's Fair Columbian Exposition was "America the Beautiful," composed by Katharine Lee Bates, a professor at Wellesley College who, upon traveling west, stopped off in Chicago where Daniel Burnham's "white city" moved her to write: "Thine alabaster cities gleam, undimmed by human tears." See Martin F. Nolan, "Two Outsiders Penned Two Great American Songs," Boston Globe, 28 September 2001, A101 (noting also that "God Bless America" was written by Russian emigre Israel Berlin while serving in the U.S. Army in 1918).

(86.) See Burrell, Words We Live By, 66.

(87.) In 1923, the chairman of the new National Flag Code Committee, which was organized to establish uniform procedures for how citizens should fly the flag, remarked, "I didn't like a pledge that any Hottentot could subscribe to." Schneider, Stars and Stripes Forever, 93-94.

(88). Ibid., 95.

(89.) Pub. L. No. 623, ch. 435, [section] 7, 56 Stat. 380 (1942).

(90.) Barnette at 624.

(91.) Ibid. at 629.

(92.) See Exodus 20:4, 5: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them."

(93.) Minersville School District v. Gobitis, 310 U.S. (1940) at 586. An even earlier challenge had been brought three years before Gobitis, which the Court summarily dismissed. See Leoles v. Landers, 302 U.S. 656 (1937).

(94.) Gobitis, 310 U.S. at 597.

(95.) See Leo Pfeffer, Church, State, and Freedom (Boston, Mass.: Beacon Press 1967), 638 (noting that between 12-20 June 1942, "hundreds of physical attacks upon the Jehovah's Witnesses were reported to the United States Department of Justice").

(96.) See Arthur Schlesinger, Jr., "What Ever Happened to Protest? Speak Up: A democratic nation has a sacred and historic duty to debate any choice for war," Newsweek International, available at www.msnbc.com/news/843843.asp?cp1=1 (last visited 8 July 2003).

(97.) Barnette at 642.

(98.) Ibid. at 640-41; see also note 48 and accompanying text.

(99.) Pub. L. No. 396, ch. 297, 68 Star. 249 (1954) (now codified at 4 U.S.C. [section] 4). For an examination of the influence of religion on politics during this period, see generally Paul Blanshard, God and Man in Washington (Boston, Mass.: Beacon Press 1960).

(100.) "Under God Under Attack," Columbia, September 2002, 8-9. See also "Amendment of K. of C. for Pledge of Allegiance Adopted by Senate," New Haven Register, 13 May 1954.

(101.) Burrell, The Words We Live By, 67.

(102.) U.S. President, Public Papers of the Presidents of the United States (Washington, D.C.: U.S. Government Printing Office, 1958), Dwight D. Eisenhower, 1954, 563.

(103.) Lee Canipe, "Under God and Anti-Communist: How the Pledge of Allegiance Got Religion in the Cold War in America," Journal of Church and State 45 (Spring 2003): 319. See also Steven G. Gey, "'Under God,' the Pledge of Allegiance, and Other Constitutional Trivia," North Carolina Law Review 81 (2003): 1879.

(104.) Act of July 31, 1956, ch. 795, 70 Stat. 732 (codified at 31 U.S.C. [section] 5112).

(105.) See The Comprehensive Catalogue and Encyclopedia of United States Coins, eds. J. Rose & H. Hazelcorn (1976), 53:201 (cited in William Van Alstyne, "Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall--A Comment on Lynch v. Donnelly," Duke Law Journal 1984 (1984): 774 n.14.

During the Civil War, Secretary of the Treasury Salmon P. Chase instructed the United States Mint in Philadelphia to prepare a new inscription for coins. Chase wrote, "no nation can be strong except in the strength of God, or safe except in His defense. The trust of our people in Cod should be declared on our national coins." See letter of Salmon P. Chase to James Pollock (9 December 1863), in R. Patterson and R. Dougal, The Eagle and the Shield: A History of the Great Seal of the United States (Washington, D.C.: Department of State, 1976), 515; see also Act of 3 March 1865, 13 Star. 517, 518 (authorizing the phrase "In God We Trust" to be placed on selected coins). After President Theodore Roosevelt ordered the motto removed in 1907--believing that stamping the motto on coins was sacrilegious and without legal warrant--the first mandatory requirement for the use of "In God We Trust" on some coins (e.g. pennies) was passed in 1908. See Act of May 18, 1908, 35 Stat. 164.

(106.) Act of July 31, 1956, Pub. L. No. 84-851 (codified at 36 U.S.C. [section] 186). E Pluribus Unum appears on one side of the Great Seal of the United States; "Novus Ordo Seclorum" (A New Order of the Ages) appears on the other. The seal was designed under the supervision of Benjamin Franklin, John Adams and Thomas Jefferson. Jefferson came up with E Pluribus Unum, which was adopted as the motto in 1782. See, e.g., G. Hunt, The History of the Seal of the United States (1909), 7:41 (cited in Van Alstyne, "Mr. Jefferson's Crumbling Wall," 774 n.13.

(107.) See Pfeffer, Church, State, and Freedom, 634.

(108.) Gobitis, 310 U.S at 592. The District Court in Gobitis noted flint the effect of the school board's policy was "to make the flag--a symbol of religious liberty--a means of imposing a religious test as a condition of receiving the benefits of public education." Pfeffer, Church, State, and Freedom, 635.

(109.) Gobitis, 310 U.S. at 594.

(110.) Ibid. at 595. See Marci A. Hamilton, "The Belief/Conduct Paradigm in the Supreme Court's Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious Conduct," Ohio State Law Journal 54 (1993): 743 (describing the distinction between viewing the Pledge as regulation of conduct versus regulation of belief as essential to the opposite holdings in Gobitis and Barnette).

(111.) Ibid. (Quoting Gobitis, 310 U.S. at 595.) Cf. American Communications Association, C.I.O. v. Douds, 339 U.S. (1950) at 407 (upholding oath requiring union members to swear that they were not affiliated with the Communist Party because "Congress had as its objective the protection of interstate commerce from [unlawful conduct disruptive to the national interest, i.e. labor strikes], not any intent to disturb or prescribe beliefs as such").

(112.) Gobitis, 310 u.s. at 602 (Stone, J., dissenting).

(113.) Ibid. at 604, 605 (Stone, J., dissenting).

(114.) Barnette at 633.

(115.) Ibid. at 644 (Black & Douglas, JJ., concurring).

(116.) Ibid. (Black & Douglas, JJ., concurring).

(117.) Ibid. at 648, 662 (Frankfurter, J., dissenting).

(118.) Ibid. at 663 (Frankfurter, J., dissenting).

(119.) Compare, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. (1993) at 533 ("[A] law targeting religious beliefs as such is never permissible...."), with Employment Division v. Smith, 494 U.S. (1990) at 885 ("We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.").

(120.) The distinction is not without significance. See, e.g., Cole v. Richardson, 405 U.S. (1972) at 600 (observing that oaths "addressed to the future, promising constitutional support in broad terms" stand out among the oaths the Court has upheld as constitutional). See also notes 67-70 herein and accompanying text.

(121.) See note 116 herein and accompanying text.

(122.) Barnette at 634 and n.14 ("Use of 'Republic,' if rendered to distinguish our government from a 'democracy,' or the words 'one Nation,' if intended to distinguish it from a 'federation,' open up old and bitter controversies in our political history; 'liberty and justice for all,' if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement.").

(123.) H.R. Rep. No. 83-1693, at 1-2 (1954); see also S. Rep. No. 83-1287, at 1-2 (1954).

(124.) Cf. State v. Floyd, 353 S.C. 55 (2003) (decision of the Supreme Court of South Carolina holding that state trial court judge erred in refusing to permit jury candidate from taking affirmation as alternative to religious oath requirement containing the phrase "So help me God.")

(125.) H.R. Rep. No. 83-1693, at 1-2

(126.) Ibid., 3.

(127.) U.S. President, Public Papers ..., 563.

(128.) See, e.g., Stone v. Graham, 449 U.S. (1980) at 42 (striking down state statute requiring the posting of the Ten Commandments in public school classrooms); Wallace, 472 U.S. at 60 (striking down amended state statute endorsing "voluntary prayers for one minute at the beginning of each school day); Edwards v. Aguillard, 482 U.S. (1987) at 583-84 (striking down state statute forbidding teaching of evolutionary theory in public elementary and secondary schools).

(129.) Engel, 370 U.S. 421 (1962).

(130.) School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

(131.) Engel, 370 U.S. at 603-04.

(132.) Schempp, 374 U.S. at 850.

(133.) Lee, 505 U.S. at 577.

(134.) Santa Fe Independent School District w Doe, 530 U.S. 290 (2000).

(135.) See Gey, "'Under God,' the Pledge ...," 1902-03.

(136.) Lee, 505 U.S. at 592.

(137.) See Pet. for Cert. of Elk Grove Unified School District, Elk Grove Unified School Dist. v. Newdow, 328 F.3d 466 (9th Cir. 2002) (No. 02-16243), 7 (alteration in original).

(138.) A related issue, though not addressed here, is that such a policy also assumes that not all teachers will object to reciting the Pledge. See Laurie Allen Gallancy, "Teachers and the Pledge of Allegiance," University of Chicago Law Review 57 (1990): 929 (arguing that forcing a public school teacher to recite the Pledge is unconstitutional).

(139.) Barnette at 631.

(140.) Lee, 505 U.S. at 592.

(141.) See, e.g., Allegheny, 492 U.S. at 672-73 (Kennedy, J., joined by Rhenquist, C.J., and white & Scalia, JJ., concurring in part and dissenting in part) ("[I]t borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.").

(142.) See Lee, 505 U.S. at 591.

(143.) Ibid. at 592.

(144.) Engel, 370 U.S. at 422.

(145.) See Lynch, 465 U.S. at 718 (1984) (Brennan, J., dissenting).

(146.) Schempp, 374 U.S. at 216

(147.) Good News Club v, Milford Central School District, 533 U.S. (2002) at 126 (Scalia, J., concurring).

(148.) Ibid. (quoting Widmar v. Vincent, 454 U.S. (1981) at 269 n. 6) (emphasis in quoted material).

(149.) Marsh, 463 U.S. at 792. Indeed, in Engel, Justice William O. Douglas also made no distinction between prayer and the Court's opening cry. See Engel, 370 U.S. at 439 (Douglas, J., concurring).

(150.) Marsh, 463 U.S. at 791.

(151.) Lee, 505 U.S. at 592.

(152.) Shelton v. Tucker, 364 U.S. (1960) at 487.

(153.) Keyishian v. Board of Regents, 385 U.S. (1967) at 603.

(154.) Lynch, 465 U.S. at 675.

(155.) See U.S. Constitution, amend. I ("Congress shall make no law respecting an establishment of religion....").

(156.) Bradley, "The No Religious Test Clause," 709. See also Torcaso, 367 U.S. at 491-92 ("Not satisfied ... with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment.").

(157.) Story, Commentaries on the Constitution, [section] 1841.

(158.) Canipe, "Under God and Anti-Communist," 316.

(159.) Ibid., 313 (emphasis in original).

(160.) Ibid., 318 (emphasis in original).

(161.) Ibid., 305. See also Deborah K. Helper, "The Constitutional Challenge to American Civil Religion," Kansas Journal of Law and Public Policy, 5 (1996): 95 (In a 1967 essay ["Civic Religion in America," Daedalus 96], Bellah "launched the current debate about the existence, nature, function, and meaning of American civil religion."); and see Michael M. Maddigan, "The Establishment Clause, Civil Religion, and the Public Church," California Law Review 81 (1.993): 318 (tracing the historical development of civil religion to Emile Durkheim's The Elementary Forms of Religious Life (1912)).

(162.) Canipe, "Under God and Anti-Communist," 306 (citation omitted).

(163.) Ibid., 321. Writing in 1960, Paul Blanshard observed in God and Man in Washington that the Washington Post asserted in a 1958 editorial on then-Secretary of State John Foster Dulles and "atheistic Communism" that it was "time to end this offensive business of self-righteously invoking the Deity as a crutch in American diplomacy... [W]hat a refreshing change it would be if American policy were strong enough to stand on its merits without leaning either on supplications to God or condemnation of Godlessness to prove the point!" The response of the Brooklyn Tablet, official organ of the Catholic diocese of Brooklyn, was the following sectarian headline: 'Oppose Asking God's Aid for United States: Washington Post ... Would Go Along With Communist Strategy." Blanshard, God and Man in Washington, 46. For a contemporary view, see Christopher Hitchens, "God and Man in the White House: The Supreme Court will soon consider the 1954 addition to the Pledge of Allegiance of two short words: 'under God.' The Bush Administration has sworn to keep them there. What is happening to the wall separating church and state--the key distinction between America and the fundamentalists it's fighting?," Vanity Fair, August 2003, 76.

(164.) Bradley, "The No Religious Test Clause," 745.

(165.) Ibid.

(166.) Ibid., 746.

(167.) Ibid.

(168.) Ibid., 745.

(169.) Ibid. See also Michael W. McConnell, "Religious souls and the body politic," Pub. Interest 155 (Spring 2004): 139 (arguing that the pluralist model best addresses the problem of "citizenship ambiguity," that is, allegiance to both civil and religious sources of authority, because "it affirms the equality of all citizens by allowing all to participate in public affairs without privileging any particular ideology or mode of persuasion").

(170.) Lee, 505 U.S. at 589, 590.

(171.) Ibid. at 590 (citing Memorial and Remonstrance Against Religious Assessments (1785), in Papers of James Madison, eds. W. Rachal, R. Rutland, B. Ripel, & F. Teute (1973), 8: 301.

(172.) Ibid. at 607 (Blackmun, J., joined by Stevens & O'Connor, JJ., concurring) (citing Nuechterlein, Note, "The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause," Yale Law Journal 99 (1990): 1131.

(173.) Congress, House, Congressman Rabault of Michigan speaking for the Joint Resolution on the Pledge of Allegiance, H.J. Res. 243, 83rd Cong., 2d sess. Congressional Record 100, pt. 2 (12 February 1954): 1700.

(174.) Gey, "'Under God,' the Pledge ...," 1914-15.

(175.) Alexandra D. Furth, "Secular Idolatry and Sacred Traditions: A Critique of the Supreme Court's Secularization Analysis," University of Pennsylvania Law Review 146 (1988): 600.

(176.) Ibid., 604.

(177.) See Blanshard, God and Man in Washington, 212.

(178.) Kenneth L. Karst, "The First Amendment, the Politics of Religion, and the Symbols of Government," Harvard Civil Rights-Civil Liberties Law Review 27 (1992): 504. Controversy over religious symbols extended into the presidential campaign of 1988 when then-Governor of Massachusetts Michael A. Dukakis was "portray[ed] as an enemy of the [Pledge of Allegiance] and all who cherish it." Ibid. (citing Sidney Blumenthal, Pledging Allegiance: The Last Campaign of the Cold War (1990), 262-64. Last year, Chief Justice Roy Moore was removed from the bench of the Alabama Supreme Court for defying a federal court order instructing him to remove a 5,280 pound, four-foot-tall granite monument to the Ten Commandments, which he had surreptitiously installed during the middle of the night in the rotunda of the state judicial courthouse. He said he was fulfilling a campaign promise to "restore the moral foundation of law." See, e.g., Dahleen Glanton, "Judge unveils Bible-based monument; 10 Commandments display challenged," Chicago Tribune, 16 August 2001, N1; see also Roy Hoffman, "Two Tons of Morality," N.Y. Times, 27 August 2003, A23 ("Those engaged in the controversy seem to have lost sight of the Ten Commandments' real meaning, turning them instead into a political symbol to be shoved this way and that.").

(179.) Karst, "The First Amendment, the Politics of Religion ...," 523.

(180.) Contra Lynch, 465 U.S. at 693 (O'Connor, J., concurring).

(181.) Contra ibid. at 687-88 (O'Connor, J., concurring).

(182.) See, e.g., Duncan v. Kahanamoku, 327 U.S. (1946) at 330 (Murphy, J., concurring) (The excuse to abrogate fundamental rights is "no less unworthy of our traditions when used in this day of atomic warfare or at a future time when some other type of warfare may be devised.").

(183.) Cf. Girouard, 328 U.S. at 66 ("It is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state.").

(184.) Gobitts, 301 U.S. at 604.

* MATTHEW W. CLOUD (B.A., Lehigh University) is a J.D. candidate at The Catholic University of America, Columbus School of Law. Special interests include history, political science, international relations, and architecture. Portions of this article were incorporated into an amicus brief filed in the United States Supreme Court on 13 February 2004 by a group of historians and legal scholars in Elk Grave Unified School District v. Newdow (No. 02-1624). The author thanks his family, friends, and supporters for their love and encourangement in making this article possible, but implicates no one but himself in any result. It is, however, dedicated to his seven-year-old son, Barnaby Matthew.
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