HOW 'BOUT WE CHANGE IT TO "ONE NATION (AND SOME OF CALIFORNIA)..."

Just when we least needed it, the 9th Circuit has decided to stoke the glowing embers of the pointless Culture Wars by declaring the Pledge of Allegiance unconstitutional for containing the phrase "under God". A couple of quick thoughts on the decision.

1) The decision is NOT going to hold up: First, there is very little government activity involved here, which makes it an inapt fit for the anti-coercion line of case that run from Engel (school prayer) to Lee v. Weisman (school convocations). Second, while the anti-endorsement principle clearly comes into play, its been applied half-heartedly so far. If reindeer and a candy-cane can neutralize a creche, why can't "in liberty and justice for all" neutralize the far less divisive "under God." Third, even if First Amendment doctrine was clearly in favor of the phrase being unconstitutional, the Court can always fall back on the "historical practice" exception it carved out in Marsh v. Chambers , when it held that a state could open legislative sessions with prayers from state-funded chaplains.

2) If I have to read the phrase "Judeo-Christian" one more time in coverage of this issue, I'm going to scream. Islam believes in one God. Bahaii believe in one God. And while Hindu and Buddhist theology is different that the monotheistic faiths, they can easily intepret the phrase to correspond with their faith's conception of the Divine. So lets be honest with who is put out here - atheists. And while its understandable that they would worry about a slippery slope to second-class status if the establishment clause is watered down, its not even a question that their status as full citizens is more secure today than when Ike added the phrase to the Pledge.

3) The political scientist in me is curious to see what would happen if the Supreme Court actually upheld the Ninth Circuit's ruling. Would the popular sentiment against such a decision be sufficient and sustained enough to produce a countering amendment? I don't believe that even this most counter-majoritarian of courts, however, will challenge public opinion on this issue. The question of how counter-majoritarian the court has to be to provoke an effective popular response will continue to be an academic one.