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Natural law backs the pledge

July 28, 2002 1:01 am

WHILE THE NINTH Circuit Court's decision against the Pledge of Allegiance's "one nation under God" phrase was transparent to most, Jim Lakely's June 30 column in its defense ["Put down your torches and pitchforks; pledge ruling was right"] asks where the court's decision was inconsistent, and perhaps rightly so. After all, the decision was just an extended application of the Constitution's establishment clause, right?

Although Lakely's arguments make sense at first glance, American jurisprudence is founded on the idea of a supreme guarantor of justice and rights. Hence, the court's radical application of the principle of separation of church and state is contrary to America's rich natural-law tradition. Moreover, the phrase "one nation under God" properly belongs in the pledge as a reminder of that foundation.

When Thomas Jefferson wrote the Declaration of Independence, England had egregiously infringed upon rights that were not the British Crown's to trample. Being a Deist, Jefferson maintained that these rights were endowed by a Creator, not by kings or men. Like many of his age, Jefferson invoked the natural ordering of the Creator as a justification of American rights.

Jefferson clearly understood the need for an objective interpreter of right and wrong. It was upon this foundation of natural law that American jurisprudence set its own path, and for nearly 250 years we have thrived upon this first and necessary principle.

Evidence of this natural reliance abounds in our history. The motto "In God We Trust" signifies as such, as do the Ten Commandments within the Supreme Court chambers. Thus it should reasonably follow that the 1954 addition of the phrase "under God" to the Pledge of Allegiance was nothing more than a variation on an oft-repeated theme.

That American society with its Judeo-Christian background arrived at calling that supreme guarantor "God" should confuse no one but the intellectually dishonest. Unfortunately, intellectual dishonesty is no disqualification for bringing lawsuits to court.

Suing on behalf of his young daughter, Michael Newdow claimed the government violated the separation of church and state by forcing his daughter to recite the pledge or even insinuate a reference to "one nation under God." In an amazing moment of revisionist clarity, the majority bench in San Francisco cited the pledge's theistic recognizance as a violation of the establishment clause. Simply replace God with Vishnu and the court's argument was self-evident.

Flippant reasoning such as this from the Ninth Circuit certainly leads one to wonder. If the Declaration of Independence had been challenged that day, would the majority bench in San Francisco have sanctimoniously deeded the United States back to her colonial masters in London? Surely Vishnu or Zeus would have been obliged to do the same.

While the verdict last month brought much public attention, what is significant about it is not the attack on the pledge itself, but what Newdow is hoping to achieve in the process. Rather than setting his sights on a lowly Bible study during class, Newdow targets broad national mottoes by employing an extreme application of the establishment clause that would effectively cleanse America of any religious reference.

In doing so, Newdow intentionally throws us into a debate concerning the source of law. By removing the concept of a moral guarantor from secular law, the final elimination of theistic belief from our legal system becomes in some sense complete.

Fortunately, Newdow's argument against the pledge fails on more than just the common-sense test. Such attacks on the theistic foundation of American jurisprudence reduce objective law to nothing more than subjective nonsense.

For if positivism--a belief that law is handed down from the most powerful individuals to the least--were the basis of law in society, then one could argue whether a concept of "just law" really exists, for who really determines what exactly is right from wrong, and to what ends?

Justice then becomes nothing more than the utilitarian perspective of those with the power to impose whichever justice is seen fit, giving our government no firmer a foundation than Nazism or communism.

Sadly, by experimenting with the American legal system in this fashion, we have created an environment where moral diversity is arrived at by sacrificing moral specificity. The consequences of this modernist revisionism in terms of human suffering bears witness to the fallacy of ignoring Jefferson's reliance on natural law.

For instance, where the loss of human life alone would have been intolerable in past societies, rulings such as Roe v. Wade have made the tragedy of abortion both commonplace and acceptable. One would be hard-pressed to justify a moral code that sends 40 million children to their deaths in such a fashion. That is, unless the choice of doing so were more valued than the human life in question.

Clearly, pluralism's imprecise discretion concerning the application of law has produced a tragic chapter in American history. But even though this may be the case, why should anyone choose to accept a theistic foundation of law? Wouldn't this simply become an opening for religious fanatics to impose whatever moral code becomes fashionable at any given time?

Fears such as these are completely unfounded. A grounding in natural-law does not lead to theocracy. To the contrary, America was incontestably founded upon a theistic guarantor of rights, and despite this we did not evolve into a theocratic dictatorship. Only a radical change of our natural-law tradition could make that very distant fear a reality.

Maintaining a view of lawmaking that is simultaneously just yet devoid of any specific moral value becomes untenable at some point. Dr. Raymond Marcin, law professor at The Catholic University's Columbus School of Law, makes the point rather succinctly.

Marcin illustrates that Americans, as a result of the establishment clause, expect a separation of governance from any form of morality via religion. Yet we also demand that our lawmakers enact moral laws and reject immoral ones, all while allowing our courts to interpret laws along consistent moral guidelines.

But Marcin wryly notes that while Americans demand moral and just laws, "[l]aw-making is the business of Caesar, and morality is the business of God." When it comes to government, then, it would seem that one cannot have his cake and eat it, too.

To be sure, this business of morality and law being so closely intertwined poses a problem for some. But religion indeed plays a role in helping to define what is good and what is not, thereby influencing how we as Americans enact laws and appreciate justice. Any attempt to cleave the realms of morality and law into neat halves--whether by Newdow or by revisionist courts--will remain impossible. Insisting upon defining American jurisprudence as morally neutral forces the re-examination of entire concepts of justice and law, right up to our Declaration of Independence.

So long as American jurisprudence remains founded upon the premise that all human beings "are endowed by our Creator with certain inalienable rights," the Pledge of Allegiance's "one nation under God" remains a tautologically correct statement, with no basis for its removal.