BY CLINTON DICK
The battle over the pledge of allegiance finally made its way to HLS last Thursday, as Professor Alan Dershowitz took on Dean Douglas Kmiec of the Catholic University School of Law.
The debate centered around the Ninth Circuit’s decision in Newdow v. U.S. Congress, in which it was held that the phrase “under God” in the pledge of allegiance was unconstitutional. For over an hour, Dershowitz and Kmiec dueled about the case, as well as the broader and more complicated issue of religion in government.
Kmiec argued that the invocation of God in the pledge is recognition of both the imperfect nature of human institutions and of a higher law that should guide human affairs in their ordering of society and government. Dershowitz contended that the pledge, as it is currently worded, unfairly excludes both atheists and those who do not feel that “under God” encompasses their understanding of a higher being. It was, in the words of 1L Hugo Torres, a “thought-provoking discussion that raised several interesting questions that we will continue to grapple with now, and in the future.”
Kmiec began his defense of “under God” by saying, “I do not believe in any factual sense of the term that the pledge is a prayer.” Instead, he argued, the pledge is a promise of loyalty or fidelity to the nation and thus, the phrase “under God” is a way to communicate the ideals that were present at the nation’s founding. The founders, Kmiec continued, recognized that because of the imperfection of the human mind, human rights had to be grounded in a law higher than human law. Jefferson recognized this connection between rights and God when he wrote the Declaration of Independence, Kmiec said, and that is why “you cannot have the Constitution without the Declaration.”
Using the example of slavery, Kmiec attempted to demonstrate how in that instance, human law had been construed to justify a wrong that the law of nature and nature’s God always held to be wrong. “A reminder that there is a higher power limits the state from assuming God-like powers,” Kmiec said. Otherwise, he said, “the state would be God.”
Dershowitz responded initially to Kmiec’s arguments not with an attack, but with a concession on two points the Dean had made: The pledge was not a prayer, and Newdow would be overturned either by the Ninth Circuit or the United States Supreme Court.
But that marked the end of the two men’s agreement. “I have never said the pledge since ‘under God’ was inserted,” Dershowitz said. He reminded those gathered that not every child feels comfortable saying those two words. “I think when it comes to issues about God, elementary schools and high schools are dangerous places to have these debates,” he argued. He told of his own personal confrontation with the issue when his rabbi told him the God in the pledge was not his God.
Dershowitz distinguished the pledge from other governmental religious references, such as the “In God We Trust” inscription on coins and prayers before sessions of Congress, which he said have no real impact on people’s lives. But things are different, Dershowitz reasoned, when dealing with children.
Dershowitz concluded with a passionate attack on the justness of natural law. “Natural law is an invitation to lawlessness,” he said. He went on to argue that for too long, humans have looked to God to create a just society, with the consequence that we, as humans, have neglected to shape the world that we live in. Our own Constitution is an embodiment of this effort to shape government, and that is why, he argued, “natural law should not be something we feel comfortable resting our Constitution on.”
Notwithstanding a few light moments in the debate (including Kmiec’s comment that he would have to go to confession because he thanked Dershowitz for correcting a comment he made), many students said the debate led them to question their own views on the issue. One student in particular, who chose not to be named, said he went into the debates believing the phrase should remain in the pledge, but left agreeing with Dershowitz.
One-L Peter Leröe-Munoz focused on the argumentative style of Kmiec and Dershowitz: “It was a fanciful political and theological debate, with each side vehemently presupposing the correctness of his case,” he said.