A General Acknowledgment Of God and Modern, Liberal Sensibility.
Who is the “we” of “In God we trust”?
In God We Trust by John Patrick Michael Murphy contains in its opening paragraph an interesting mischaracterization of the state of the law when it comes to issues regarding the acknowledgement of religion in the public sphere. In this brief piece, Mr. Murphy creates the hypothetical classroom discussion between a teacher and his students regarding the appropriateness of chiseling the words “in God we trust” into the steps of a local government building. The teacher asks the class “Is such a slogan inclusive, pluralistic, non-elitist, and consistent with the American doctrine of separation of church and state? Are there citizens who have no god to trust, or citizens who have a god, but don't trust him? If so, then who is included in the pronoun 'We'?"
Looking at the issue legally, Mr. Murphy, like others who holds a similar view, place the cart before the horse when they asked a question like these. Questions like these arise primarily because we, as a people, as eloquently stated by Justice Antonin Scalia, “ignore[] the Constitution in favor of a modern, liberal sensibility.” Scalia Ridicules Court's Gay Sex Ruling, Associated Press, October 24, 2003.
You see, to ask whether the slogan is “inclusive, pluralistic, [and] non-elitist” assumes something. It assumes that in order for a thing to be constitutional it has to be “inclusive, pluralistic, [and] non-elitist.” But, in fact, that is not the test. Let’s look at each term individually.
Let’s start with the implied requirement that actions by government must be “inclusive” to be constitutional. It may be surprising to learn that the word “inclusive” is not a legal term, and therefore it cannot be found in law dictionaries. So, I will understand Mr. Murphy to be using the term “inclusive” as it is used in its general, ordinary sense, i.e., “broad in orientation or scope.” (Merriam-Webster’s Dictionary.) Now, while there are many desirable reasons to have the actions of governments be inclusive, there is no requirement of broad inclusivity in the Constitution. In fact, the Federal constitution itself contains many provisions that are not “inclusive” For example, in order to be elected as Senator or a Representative or even the President of the United States, you must meet a minimum age requirement as set forth specifically in the first two sections of the Federal Constitution. Failure to meet these age requirement will disqualify you from serving in that office. (It is somewhat ironic that there is no such age qualification if you seek to be appointed a member of the Supreme Court.) Is that inclusive? No, at least not in the traditional understanding of the word “inclusive.” It excludes all people who do not meet the age requirement. Thus, a perfectly competent twenty year old cannot serve in any of those capacities regardless of how much the people of his state may desire he do so. Yet this exclusive provision is not unconstitutional. Instead, the inclusion of this restriction shows that being “inclusive” is not a constitutional requirement.
What about pluralism? Isn’t that a constitutional requirement? Well, now Mr. Murphy is getting closer to a potential objection that makes sense in light of the Constitution. Again, as with the term “inclusive,” we should start by looking to the definition of “pluralism” and also like the term “inclusive,” “pluralism” is not a legal term which can be found in a legal dictionary. Instead, pluralism is a term in political science and is preferable that we use the general political science definition in order to understand its meaning. The Thomson Nelson Glossary of Political Science defines pluralism simply as “The open competition of political interests.” The Encyclopedia Britannica says pluralism is “the view that in liberal democracies power is (or should be) dispersed among a variety of economic and ideological pressure groups and is not (or should not be) held by a single elite or group of elites.”
So where does Mr. Murphy come up with the idea that the Constitution protects pluralism? A couple of places come to mind. Certainly the first section of the Fourteenth Amendment contains the “Equal Protection Clause” which requires states to not “deny to any person within its jurisdiction the equal protection of the laws.” Does the equal protection clause require that all laws adopt pluralism as a constitutional requirement? No, the Equal Protection Clause has long been defined to mean that laws, when enacted, have to treat people equally unless there is some reason to do otherwise. In some cases, the reasons have to be compelling because the group that is being hurt or not given equal treatment under the law is a suspect or quasi suspect classification. Race, for example, is a suspect classification. There is very little (some would argue no) reason to differentiate people merely on the basis of the color of their skin. Gender, as another example, is a quasi-suspect classification. There are sometimes reasons to differentiate between men and women in some cases (this allows for different restroom facilities for men and women), but the government’s ability to differentiate between them is somewhat limited. However, there are many more groupings or classifications of people that are not in the least bit effected by the Equal Protection Clause. Thus, it is not a violation of the Equal Protection Clause to differentiate between people making $10,000 per year and people making $100,000 per year when it comes to taxes.
But the Fourteenth Amendment is not a clause about pluralism. What the reader should note is that the Equal Protection Clause limits the ability of the government to enact laws that favor or damage various limited classes. Pluralism, on the other hand, is the structure of the government that calls for various “economic and ideological pressure groups” to compete for power so as to enact various laws. Except for the limited points in time where the competing interests enact laws which are unduly benefit of hurt suspect or quasi-suspect classifications, the Equal Protection Clause is not interested in pluralism. There is no requirement under the Equal Protection Clause for general pluralism.
Before going further, let me clarify what I am saying: not many people in the United States today (and certainly not me) would argue that the Equal Protection Clause is a bad thing. We all want to make certain that all people are adequately protected under the United States Constitution. Without the Equal Protection Clause, it is possible that people could without a compelling reason be treated differently based upon their race or ethnicity. In no way am I agreeing that such disparate treatment would be good or preferable. But the question isn’t whether the Equal Protection Clause provides that level of protection. Rather, the question is whether the equal protection clause requires as the constitutional standard that all actions taken by government must be “pluralistic” in order to be constitutional. I see nothing in the Equal Protection Clause that mandates that “pluralism” be protected.
A second place in the Constitution where pluralism may be protected can also be found in the Fourteenth Amendment, the Due Process Clause. That clause says that no state shall “deprive any person of life, liberty or property without due process of law.” The liberty interest of this clause has been widely interpreted to protect not only “incarceration” (which would appear to be the original understanding), but also such broad rights as the right to an abortion in Roe v. Wade. While I suppose that it could be interpreted to include the right to be pluralistic, I know of no court case that has so interpreted the Due Process Clause in that fashion.
Certainly, there are also the First Amendment’s Freedom of Association, and the right of every person to vote, both of which would seem to bear on the issue of pluralism, but I don’t see either of these provisions of the Constitution as permitting the court to strike down laws that are properly enacted by a properly elected Congress on the basis that they aren’t pluralistic. It would seem that while pluralism is presumed to be part of the structure of our society, and that the United States Constitution does, in fact, protect people from being disenfranchised in the voting process, there is no clause that I can find in the Constitution that would suggest that a law would be unconstitutional merely because it doesn’t meet Mr. Murphy’s fictitious teacher’s idea of what constitutes “pluralistic”.
“Non-elitist”? The idea that the Constitution protects the public from “elitist” legislation appears almost indefensible. Outside of the Equal Protection Clause, which protects suspect and quasi-suspect classes from being singled out for detriment, there is no reason to understand the Constitution as requiring “non-elitist” laws.
When Mr. Murphy’s fictitious teacher asks the question whether the proposed law would be “consistent with the doctrine of separation of church and state,” at least he is beginning to ask the right question. The real question is whether the chiseling of the phrase “In God we trust” on the steps violates the Establishment Clause of the First Amendment. That clause reads “Congress shall make no law respecting an establishment of religion.” Notice, that the clause does not say that there must be a separation of church and state. That phrase was read into the Constitution by the United States Supreme Court in Everson v. Board of Education based upon a misreading of a letter by Thomas Jefferson to the Danbury Baptist Association. Thus, it is erroneous to view the Establishment Clause as being equivalent to saying that there must be a separation of church and state.
So would such a “chiseling” of the phrase “In God we trust” on the school building steps violate the Establishment Clause. That is not an easy question to answer. Books and books have been written about this subject, and the court has thrown the whole field into such a tizzy with their inconsistent opinions that there is difficult to predict whether the court would allow such “chiseling” of the phrase into the steps. In fact, the court is so confused on this issue that they could disallow such “chiseling” simply because it is new, while accepting the same phrase on money because it is part of our tradition to have the phrase written on our coins and dollar bills. While reviewing all of the applicable precedents and trying to determine what the court would decide in this specific instance is beyond the scope of this essay, I would expect the court to find this to be a violation even under the confusion of Supreme Court precedent because of the heightened scrutiny the court gives when mixing governmental acknowledgment our national heritage that believes in a god (even if it cannot be specified the nature or identity of that god) with our obligation to provide non-sectarian education in public schools. This is a different outcome from how I believe it ought to be decided, but that is another story for another essay.
While I think that Mr. Murphy’s teacher has struck on the correct question by inquiring into the meaning of the Establishment Clause (even though he incorrectly defines it as requiring a separation of church and state), the more important thing to note about Mr. Murphy’s essay is that it does make assumptions about what should be legal. I think it clear that Mr. Murphy’s fictitious teacher’s view that laws must be “inclusive, pluralistic, [and] non-elitist” reflects a view of what the teacher would like for this country, but does not reflect the reality of the protections of the Constitution. What Mr. Murphy’s teacher suggests is a liberal view of the separation of church and state, and the teacher does so suggesting that laws that are not inclusive, pluralistic and non-elitist are not appropriate laws. The teacher has read requirements into the Constitution that are simply not there. The teacher may like them to be there (and the teacher may, in fact, be correct that such requirements ought to be part of the Constitution), but that desire does not make it so.
The paragraph ends by asking “Are there citizens who have no god to trust, or citizens who have a god, but don't trust him? If so, then who is included in the pronoun 'We'?" The answer to the first question is certainly yes, but does that mean that it is illegal or unconstitutional for the public, the vast majority of which believe in God and trust in Him, to vote to acknowledge it by public declarations? If that were the case, I find it hard to think of any pronouncements that the public could make because there is very little that the government promotes as a good that there are not at least some people who would disapprove. Since we, as a people, have agreed that non-discrimination is good, should we rule unconstitutional public pronouncements that favor non-discrimination on the basis that some people (such as the KKK) disapprove? Permitting a minority of the population who disagrees with public professions of faith in a god to prevent such public professions on the basis that they disagree would be a disastrous precedent.
Who is the “we”? The public at large. And “we” can Constitutionally make such pronouncements even if some people disagree. It is the way it used to be, and it is the way it should stay.
Who is the “we” of “In God we trust”?
In God We Trust by John Patrick Michael Murphy contains in its opening paragraph an interesting mischaracterization of the state of the law when it comes to issues regarding the acknowledgement of religion in the public sphere. In this brief piece, Mr. Murphy creates the hypothetical classroom discussion between a teacher and his students regarding the appropriateness of chiseling the words “in God we trust” into the steps of a local government building. The teacher asks the class “Is such a slogan inclusive, pluralistic, non-elitist, and consistent with the American doctrine of separation of church and state? Are there citizens who have no god to trust, or citizens who have a god, but don't trust him? If so, then who is included in the pronoun 'We'?"
Looking at the issue legally, Mr. Murphy, like others who holds a similar view, place the cart before the horse when they asked a question like these. Questions like these arise primarily because we, as a people, as eloquently stated by Justice Antonin Scalia, “ignore[] the Constitution in favor of a modern, liberal sensibility.” Scalia Ridicules Court's Gay Sex Ruling, Associated Press, October 24, 2003.
You see, to ask whether the slogan is “inclusive, pluralistic, [and] non-elitist” assumes something. It assumes that in order for a thing to be constitutional it has to be “inclusive, pluralistic, [and] non-elitist.” But, in fact, that is not the test. Let’s look at each term individually.
Let’s start with the implied requirement that actions by government must be “inclusive” to be constitutional. It may be surprising to learn that the word “inclusive” is not a legal term, and therefore it cannot be found in law dictionaries. So, I will understand Mr. Murphy to be using the term “inclusive” as it is used in its general, ordinary sense, i.e., “broad in orientation or scope.” (Merriam-Webster’s Dictionary.) Now, while there are many desirable reasons to have the actions of governments be inclusive, there is no requirement of broad inclusivity in the Constitution. In fact, the Federal constitution itself contains many provisions that are not “inclusive” For example, in order to be elected as Senator or a Representative or even the President of the United States, you must meet a minimum age requirement as set forth specifically in the first two sections of the Federal Constitution. Failure to meet these age requirement will disqualify you from serving in that office. (It is somewhat ironic that there is no such age qualification if you seek to be appointed a member of the Supreme Court.) Is that inclusive? No, at least not in the traditional understanding of the word “inclusive.” It excludes all people who do not meet the age requirement. Thus, a perfectly competent twenty year old cannot serve in any of those capacities regardless of how much the people of his state may desire he do so. Yet this exclusive provision is not unconstitutional. Instead, the inclusion of this restriction shows that being “inclusive” is not a constitutional requirement.
What about pluralism? Isn’t that a constitutional requirement? Well, now Mr. Murphy is getting closer to a potential objection that makes sense in light of the Constitution. Again, as with the term “inclusive,” we should start by looking to the definition of “pluralism” and also like the term “inclusive,” “pluralism” is not a legal term which can be found in a legal dictionary. Instead, pluralism is a term in political science and is preferable that we use the general political science definition in order to understand its meaning. The Thomson Nelson Glossary of Political Science defines pluralism simply as “The open competition of political interests.” The Encyclopedia Britannica says pluralism is “the view that in liberal democracies power is (or should be) dispersed among a variety of economic and ideological pressure groups and is not (or should not be) held by a single elite or group of elites.”
So where does Mr. Murphy come up with the idea that the Constitution protects pluralism? A couple of places come to mind. Certainly the first section of the Fourteenth Amendment contains the “Equal Protection Clause” which requires states to not “deny to any person within its jurisdiction the equal protection of the laws.” Does the equal protection clause require that all laws adopt pluralism as a constitutional requirement? No, the Equal Protection Clause has long been defined to mean that laws, when enacted, have to treat people equally unless there is some reason to do otherwise. In some cases, the reasons have to be compelling because the group that is being hurt or not given equal treatment under the law is a suspect or quasi suspect classification. Race, for example, is a suspect classification. There is very little (some would argue no) reason to differentiate people merely on the basis of the color of their skin. Gender, as another example, is a quasi-suspect classification. There are sometimes reasons to differentiate between men and women in some cases (this allows for different restroom facilities for men and women), but the government’s ability to differentiate between them is somewhat limited. However, there are many more groupings or classifications of people that are not in the least bit effected by the Equal Protection Clause. Thus, it is not a violation of the Equal Protection Clause to differentiate between people making $10,000 per year and people making $100,000 per year when it comes to taxes.
But the Fourteenth Amendment is not a clause about pluralism. What the reader should note is that the Equal Protection Clause limits the ability of the government to enact laws that favor or damage various limited classes. Pluralism, on the other hand, is the structure of the government that calls for various “economic and ideological pressure groups” to compete for power so as to enact various laws. Except for the limited points in time where the competing interests enact laws which are unduly benefit of hurt suspect or quasi-suspect classifications, the Equal Protection Clause is not interested in pluralism. There is no requirement under the Equal Protection Clause for general pluralism.
Before going further, let me clarify what I am saying: not many people in the United States today (and certainly not me) would argue that the Equal Protection Clause is a bad thing. We all want to make certain that all people are adequately protected under the United States Constitution. Without the Equal Protection Clause, it is possible that people could without a compelling reason be treated differently based upon their race or ethnicity. In no way am I agreeing that such disparate treatment would be good or preferable. But the question isn’t whether the Equal Protection Clause provides that level of protection. Rather, the question is whether the equal protection clause requires as the constitutional standard that all actions taken by government must be “pluralistic” in order to be constitutional. I see nothing in the Equal Protection Clause that mandates that “pluralism” be protected.
A second place in the Constitution where pluralism may be protected can also be found in the Fourteenth Amendment, the Due Process Clause. That clause says that no state shall “deprive any person of life, liberty or property without due process of law.” The liberty interest of this clause has been widely interpreted to protect not only “incarceration” (which would appear to be the original understanding), but also such broad rights as the right to an abortion in Roe v. Wade. While I suppose that it could be interpreted to include the right to be pluralistic, I know of no court case that has so interpreted the Due Process Clause in that fashion.
Certainly, there are also the First Amendment’s Freedom of Association, and the right of every person to vote, both of which would seem to bear on the issue of pluralism, but I don’t see either of these provisions of the Constitution as permitting the court to strike down laws that are properly enacted by a properly elected Congress on the basis that they aren’t pluralistic. It would seem that while pluralism is presumed to be part of the structure of our society, and that the United States Constitution does, in fact, protect people from being disenfranchised in the voting process, there is no clause that I can find in the Constitution that would suggest that a law would be unconstitutional merely because it doesn’t meet Mr. Murphy’s fictitious teacher’s idea of what constitutes “pluralistic”.
“Non-elitist”? The idea that the Constitution protects the public from “elitist” legislation appears almost indefensible. Outside of the Equal Protection Clause, which protects suspect and quasi-suspect classes from being singled out for detriment, there is no reason to understand the Constitution as requiring “non-elitist” laws.
When Mr. Murphy’s fictitious teacher asks the question whether the proposed law would be “consistent with the doctrine of separation of church and state,” at least he is beginning to ask the right question. The real question is whether the chiseling of the phrase “In God we trust” on the steps violates the Establishment Clause of the First Amendment. That clause reads “Congress shall make no law respecting an establishment of religion.” Notice, that the clause does not say that there must be a separation of church and state. That phrase was read into the Constitution by the United States Supreme Court in Everson v. Board of Education based upon a misreading of a letter by Thomas Jefferson to the Danbury Baptist Association. Thus, it is erroneous to view the Establishment Clause as being equivalent to saying that there must be a separation of church and state.
So would such a “chiseling” of the phrase “In God we trust” on the school building steps violate the Establishment Clause. That is not an easy question to answer. Books and books have been written about this subject, and the court has thrown the whole field into such a tizzy with their inconsistent opinions that there is difficult to predict whether the court would allow such “chiseling” of the phrase into the steps. In fact, the court is so confused on this issue that they could disallow such “chiseling” simply because it is new, while accepting the same phrase on money because it is part of our tradition to have the phrase written on our coins and dollar bills. While reviewing all of the applicable precedents and trying to determine what the court would decide in this specific instance is beyond the scope of this essay, I would expect the court to find this to be a violation even under the confusion of Supreme Court precedent because of the heightened scrutiny the court gives when mixing governmental acknowledgment our national heritage that believes in a god (even if it cannot be specified the nature or identity of that god) with our obligation to provide non-sectarian education in public schools. This is a different outcome from how I believe it ought to be decided, but that is another story for another essay.
While I think that Mr. Murphy’s teacher has struck on the correct question by inquiring into the meaning of the Establishment Clause (even though he incorrectly defines it as requiring a separation of church and state), the more important thing to note about Mr. Murphy’s essay is that it does make assumptions about what should be legal. I think it clear that Mr. Murphy’s fictitious teacher’s view that laws must be “inclusive, pluralistic, [and] non-elitist” reflects a view of what the teacher would like for this country, but does not reflect the reality of the protections of the Constitution. What Mr. Murphy’s teacher suggests is a liberal view of the separation of church and state, and the teacher does so suggesting that laws that are not inclusive, pluralistic and non-elitist are not appropriate laws. The teacher has read requirements into the Constitution that are simply not there. The teacher may like them to be there (and the teacher may, in fact, be correct that such requirements ought to be part of the Constitution), but that desire does not make it so.
The paragraph ends by asking “Are there citizens who have no god to trust, or citizens who have a god, but don't trust him? If so, then who is included in the pronoun 'We'?" The answer to the first question is certainly yes, but does that mean that it is illegal or unconstitutional for the public, the vast majority of which believe in God and trust in Him, to vote to acknowledge it by public declarations? If that were the case, I find it hard to think of any pronouncements that the public could make because there is very little that the government promotes as a good that there are not at least some people who would disapprove. Since we, as a people, have agreed that non-discrimination is good, should we rule unconstitutional public pronouncements that favor non-discrimination on the basis that some people (such as the KKK) disapprove? Permitting a minority of the population who disagrees with public professions of faith in a god to prevent such public professions on the basis that they disagree would be a disastrous precedent.
Who is the “we”? The public at large. And “we” can Constitutionally make such pronouncements even if some people disagree. It is the way it used to be, and it is the way it should stay.
Comments
You managed to avoid dealing with the question of what the free establishment clause does mean. You've said only what you think it does not mean. It means that Congress (and by extension, the government) may not establish a particular religion or set of religious beliefs as correct or state-endorsed. If that is a valid interpretation, then putting "In God we trust" on the steps of a public building would appear to be unconstitutional, as it does suggest that the state endorses a particular religious belief. You say that the Supreme Court has made an invalid interpretation of the free establishment clause. But I think I'd have to take their interpretation over yours. The whole "KKK" analogy is a big straw man of your own construction. The Constitution does not say that the government shall only take positions with which everyone agrees. It does say that the government can not establish any particular religious belief as more "official" than others.
You managed to avoid dealing with the question of what the free establishment clause does mean. You've said only what you think it does not mean.
Me: True, but I don't try to answer everything in every blog.
Anonymous: It means that Congress (and by extension, the government) may not establish a particular religion or set of religious beliefs as correct or state-endorsed.
BK: The "by extension" is a rather big extension, but be that as it may . . . .
Anonymous: If that is a valid interpretation, then putting "In God we trust" on the steps of a public building would appear to be unconstitutional, as it does suggest that the state endorses a particular religious belief.
BK: No, it suggests that the people of the State have a generalized belief in God. You are assuming that the choice to favor religion over non-religion is barred by the Constitution. I am not convinced that it is.
Anonymous: You say that the Supreme Court has made an invalid interpretation of the free establishment clause. But I think I'd have to take their interpretation over yours.
BK: You should if you want to answer a test question about what the law is. But if you want to look at the Establishment Clause and its history, you will see that there is a strong reason to doubt that the First Amendment was meant to be interpreted as the court has done so. In fact, all you have to do is look through the dissenting opinions of the court itself (many of which are 5-4 decisions) to see that the court itself is not of a single mind as to what it means.
Anonymous: The whole "KKK" analogy is a big straw man of your own construction. The Constitution does not say that the government shall only take positions with which everyone agrees. It does say that the government can not establish any particular religious belief as more "official" than others.
BK: You are reading into the language a requirement that no one can be offended. That is not the test that the founders' would seem to have supported.
ANON: I am not reading any such thing into the text of the First Amendment and went to some effort to make that clear in what I wrote. I realize it would be much easier for you to defend your position if I were saying that, but I’m not. Read the last two sentences of what I wrote again. Check what the First Amendment says. Get out a dictionary if you have to. The First Amendment says the State cannot do certain things, including abridging freedom of speech. It doesn’t say that the State can abridge the freedom of speech if a majority agree that that’s a good idea. It says the State can’t do it. Similarly, the State can’t make any particular religious belief, or lack thereof, correct or official or approved. The power to do that is specifically denied to the State by the First Amendment. Of course, it is possible to amend the Constitution.