The Republican Pledge and Constitutional Literacy

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The Republican Pledge and Constitutional Literacy

[First, in an August 28 e-mail, Mike Seebeck replies to Ari Armstrong's criticism of Seebeck's Republican name-calling concerning (among other things) the new law impacting the Pledge of Allegiance in government-run schools. Then Armstrong replies anew. Finally, John Andrews' essay from August 27 is reproduced with his permission.]

Mike Seebeck

Because the Supreme Court ruled so in West Virginia v. Barnette in 1943. 60 years ago! Read the attached ruling [available online], it's worth it. And next time, do your own research. When you claim there's not a convincing argument you just point out your own lack of understanding of the legal and historical issues surrounding the issues.

Your greater scrutiny argument still does not follow because it does not differentiate the words of a person with the words of the office they may hold, and they most definitely two different things. I do not represent the LP when I discuss a service problem at a restaurant or discuss religion with my minister. Those are me the person, not me the LPEP officer. Yet your argument would absurdly make those the same as speaking for the LP. I'm only a LP officer when dealing with party business, just as much as I'm a software engineer only when dealing with my job.

Sorry, but to use the adjective to describe a set of actions associated with that adjective is not name-calling. Far too often people get that confused. It is simply an accepted common language shorthand. Andrews acts arrogant so I call him arrogant. If is looks and acts and quacks like a duck, call it a duck. Am I arrogant? Heck, yes, but I can and have backed it up.

And illiterate doesn't always mean, "can't read." It also means "showing or marked by a lack of familiarity with language and literature," and "showing or marked by a lack of acquaintance with the fundamentals of a particular field of knowledge." (Webster's Deluxe Dictionary, definitions 2-a and 3, respectively, page 911 [ironically], ISBN # 0-7621-0300-0 for those that care). So calling Andrews a constitutional illiterate means he lacks the fundamentals of the language and of the field of knowledge that is the Constitution. He's shown that time and time again. The shoe fits.

If people can't stand it being told like it is, then maybe they should get out of politics. We've given the R's a pass for too long, and it's gotten us nowhere.

And you still haven't disproved any of my arguments at all. My other detractors don't seem to be doing much in the party either, so they ought to walk the walk first.

Ari Armstrong

I again point out that Seebeck did not originally call Andrews a "constitutional illiterate." In a July 17 letter to Westword, Seebeck wrote, "John Andrews is no more a libertarian than he is a Democrat. He is a disgrace to Colorado in the same manner as Tom Tancredo and Mike Rosen. None of them understands the law; they only understand political hacktivism and shilling." Then, on August 15, Seebeck wrote, "Andrews is just an arrogant illiterate idiot, and his stupidity and misdeeds are being exposed daily (illegally altering the Senate, passing an illegal pledge bill, and many other things)." It is not until August 23 that Seebeck started calling Andrews a "constitutional illiterate."

So is John Andrews a "constitutional illiterate?" Seebeck has not made the case. Far from giving the Republicans "a pass," as Seebeck mistakenly couches the issue, I have often criticized the Republicans. To take but one example of many, I responded to Andrews in an article titled, Ten Ways the Republicans Failed. There, I write about the pledge law, "Apparently, the Republicans are convinced they're better socialist planners than the Democrats are. Whether or not they are is rather beside the point (though I think it's obvious forcing little kids to say the Pledge isn't going help them develop better values)." The difference between my criticism and Seebeck's is that I actually make a case against the Republicans, rather than just hurl meaningless names at them. In effect, it is Seebeck who is giving the Republicans "a pass," because his vacuous and shrill name-calling will not be taken seriously by anyone, whereas my substantive critiques address the issues.

I'll take the opportunity to better outline precisely the problems with the pledge law. First, the Republican effort cost taxpayers more money. They could have ended the legislative session early and saved legal expenses (as well as additional legislative time next year) by dropping the issue. Put bluntly, Colorado Republicans forced people to pay for their effort to get kids to say the pledge -- and that's wrong. Second, getting more kids to say the pledge is completely useless in terms of instilling values or knowledge. Third, in pushing the pledge, Republicans are refusing to address the real problem with education -- it is mostly run by politicians.

Contrary to Seebeck's claim, I did NOT claim "there's not a convincing argument" against the pledge law grounded in the Constitution. Instead, I wrote, "[I]t's not at all clear to me that it [the pledge law] violates the Constitution." Indeed, I think a fairly good constitutional argument can be made against the pledge law -- not that Seebeck has offered one. I just don't think the argument is obviously correct.

As I reviewed recently, some libertarians dislike the Fourteenth Amendment because it undermines federalism. As we're discussing Constitutional literacy, perhaps it would do us well to review the First Amendment: "Congress shall make no law respecting an establishment of religion... or abridging the freedom of speech..." It so happens that John Andrews is not a member of Congress -- he is a member of the Colorado legislature. The matter of how the Fourteenth Amendment might (or might not) apply the First Amendment to state governments is not at all an easy one. But Seebeck seems content to completely ignore the matter.

Seebeck's missive, "And next time, do your own research," along with his claim that I have a "lack of understanding" concerning the matter, is precisely the sort of empty insult I'm arguing against. He points to a 1942 court decision -- without bothering to cite the relevant text or explain how that case is substantially similar to Colorado's law.

Offhand, the cases seem to be significantly different. The Colorado law does not require kids to say the pledge -- they may opt out with a note from their parents. By contrast, the 1942 case involved a harsh penalty: "a refusal to salute the Flag [shall] be regarded as an Act of insubordination." Students had to "keep the right hand raised with palm turned up while the following is repeated: 'I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all'." (Note the lack of the phrase, "under God.") In addition, "Failure to conform is 'insubordination' dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is 'unlawfully absent' and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days." As lame as the Colorado law is, it doesn't provide criminal penalties for refusal to say the pledge.

I'll help Seebeck get started with his case. The Colorado Constitution contains several potentially relevant provisions. Article II, Section 10 states, "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject..." Section 4 states, "The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations... No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship." Especially the second provision strikes me as incompatible with the Colorado pledge law, given the phrase "under God" was added to the pledge.

At the same time, numerous other states have pledge laws that have passed judicial review, and Colorado Republicans seem determined to (waste yet more tax money to) redraw Colorado's law along the lines of what other states have passed.

Regarding the question of whether LP members should scrutinize what LP leaders say and write, Seebeck notably declines to answer my previous point. If an LP leader said, "I'm not speaking as an LP official, but I believe the means of production should be socialized," should the disclaimer render the official immune from criticism by other LP members? I think it's obvious the answer is no. LP members would be irresponsible to keep such an officer in a leadership role. Seebeck notes the examples of restaurant service and religion -- yet those matters do not (generally) intersect the political matters with which the LP is concerned. Thus, obviously, whether one is an LP officer is irrelevant. It's clear, though, that Seebeck's pronouncements about John Andrews and the pledge law have direct relevance to the LP.

Let's change the example. Let's say a Baptist minister said, "I believe the Baptist variant of Christianity is fundamentally flawed -- but I'm not saying that in my role as a Baptist minister." Should the minister's fellow Baptists have a problem with that comment? Of course. Religious comments are relevant to evaluating religious leaders; they are usually not relevant to evaluating LP leaders.

Seebeck closes, "And you still haven't disproved any of my arguments at all." I think any objective reader will conclude the opposite. He also writes, "My other detractors don't seem to be doing much in the party either, so they ought to walk the walk first." But whether a person is a member of the LP, and whether a person is "doing much in the party," is irrelevant to the validity of the person's arguments.

John Andrews

"Whose bread I eat, his song I sing." That proverb pretty well describes how the world works. You give me something and expect something in return. I receive benefits from you and am inclined to reciprocate.

It's a sensible if hardly invariable truism: obedience tends to follow obligation. But those who object to a daily ceremony honoring our country and its flag in public classrooms ignore this.

They want government-provided schooling with no reciprocity from its beneficiaries -- the students who are being educated and the teachers who are being paid. They seek to exalt ingratitude into a civic principle. We shouldn't let them.

Colorado this year joined 33 other states in legislating for all our public schools to do uniformly what many were doing already -- start each day with recitation of the Pledge of Allegiance. The new law made exceptions for religious objectors and non-citizens, carefully following Supreme Court interpretation of constitutional free-speech provisions.

But the ACLU sued to block it anyway, and US District Judge Lewis Babcock agreed with them. The law is now suspended, pending possible revisions when the legislature meets next year. The papers headlined this in one-inch type: "No forced Pledge. State backs down, for now, on making students vow allegiance."

What nonsense. There was never going to be any forced Pledge. Students and teachers alike were free to opt out. In addition, students are always free to attend a nonpublic school (though not to quit school, if under 16). Teachers likewise are always free to work somewhere else.

For those who chose to be there, however, and who then chose to participate, our law would have instituted a regular observance of that patriotic custom which most Americans not only accept but cherish--saying "thanks, I'm with you," to this republic that makes possible our liberties and privileges. What is so harmful, so threatening, so tyrannical about that, ACLU?

One of the ways in which our nation extends "justice for all" is by offering universal free education, and this brings us back to the truism: eat my bread, sing my song. Though education is not indoctrination, it does impose obligations on the learner--not only study and exploration, but also socialization into certain customs. Why shouldn't one of those be a ceremony honoring the flag, Judge Babcock?

The learner is at school to master a body of knowledge, skills, and attitudes. Citizenship has to be part of that. Standing and saying together the Pledge of Allegiance is a logical place to begin, not as a substitute for studying civics, but as an experiential complement to it. In court, the judge opined that any such experience is devoid of instructional value.

That claim is wrong on the merits, as well as being far outside Babcock's judicial purview. When you and I said the Pledge in school, it helped us gain the knowledge that freedom is not free; the skill of subordinating ourselves in cooperating with legitimate authority; plus an attitude of respect and gratitude for the country in which we were so fortunate to be growing up. That's a lot.

Here in Colorado, the left talks mostly about broadening the opt-out provisions for a daily Pledge ceremony in schools, but their ultimate goal is to ban it from schools entirely. That's clear from the California decision imposing such a ban, now headed for US Supreme Court review. The left seeks to impose by raw judicial power what they could never accomplish with votes -- the absolute divorce of rights from responsibilities and of children from parental authority.

Even their libertarian rhetoric toward this end is selective and hypocritical, as I found in a radio interview with Alan Colmes, one of the house liberals at Fox News. When a caller suggested that a Pledge ceremony with an opt-out is no less unreasonable than sex education with an opt-out, Colmes pounced. "Is that a deal?" he asked. "We get sex education and you get the Pledge?"

I tried to point out that the deal was done long ago, forcibly, with liberals getting condom lessons, multicultural anti-American curriculum, and so much more, while conservatives got nothing -- but Colmes would not engage on that point.

Nor would he hear of my suggestion that we go down the free-market road together and establish education vouchers, perhaps even abolish compulsory school-attendance laws. He dismissed this as absurd -- predictably, since the status-quo approach of forcing kids into classrooms while forcing traditional values out has worked so well for their side.

We in the Colorado General Assembly will persist in fighting to change that status quo. We want to see students grow up in the 21st century as most of us did in the 20th, honoring the Republic and Old Glory each day. And we believe that if the citizen who chooses to be a legislator must swear an oath, one who chooses to be a tax-paid teacher can reasonably be asked to lead the Pledge. Eat America's bread, sing her song.

The Colorado Freedom Report--www.freecolorado.com