- The Washington Times - Monday, July 1, 2002

The Ninth Circuit strikes again. In the rush to out-patriot the next guy, however, we have to get straight what's really wrong with this decision.
On June 27, the U.S. Court of Appeals for the Ninth Circuit ruled that the Pledge of Allegiance is an unconstitutional "establishment of religion" because it contains the phrase "under God." Michael Newdow, a minister of atheism ordained by the Universal Life Church (which has also ordained dogs, cats and plants), sends his daughter to public elementary school in California. Under state law and school district policy, teachers begin each school day leading the Pledge of Allegiance.
Mr. Newdow does not object to his daughter being compelled to say "one nation under God" because she does not have to say the words. The Supreme Court struck down compulsory pledge recitation 60 years ago. No, as the Ninth Circuit put it, he objects that his daughter must "watch and listen" to the words being said by her classmates. Her freedom not to participate is not enough; Mr. Newdow seeks to deny the freedom of others to participate.
The court agreed with Mr. Newdow that the 1954 statute inserting the words "under God" is itself unconstitutional, ruling that the "mere enactment of the 1954 Act … constitutes a religious recitation policy that interferes with Newdow's right to direct the religious education of his daughter." The court further held that the statute "violate the Establishment Clause." Let's be clear about this. The court ruled that the existence of "under God" in the pledge is itself an "establishment of religion."
Mr. Newdow is hardly alone in wanting to rub out any kind of religious reference from every public venue, forum, document, setting, activity or speech of any kind. It's just that he gets a little nuts about it. He has sued President Bush to secularize presidential inaugurations and sued Congress to expunge religious references from official resolutions.
By the Ninth Circuit's so-called logic, "America the Beautiful" cannot be sung in an official setting because each stanza includes "God shed His grace on thee." The daily invocations in Congress and the Supreme Court and the National Day of Prayer are certainly gone. The National Anthem is history, since the fourth stanza closes with "And this be our motto 'In God is our trust!'" Speaking of trusting God, Mr. Newdow says that wiping out that motto completely is indeed his next goal.
As radical and bizarre as this all sounds, neither Mr. Newdow's arguments nor the Ninth Circuit's decision is surprising. They are the natural and predictable results of ceding complete power to judges. This case pushes buttons and boils the blood, but it is only a symptom. The problem is a judiciary believing, and a society and culture accepting, that our laws mean whatever judges say they mean.
America's founders thought writing the Constitution down would make it more concrete, unchanging and stable. It is a Constitution, law that governs government, after all. That real Constitution, the one we all can read, bars Congress from enacting laws having anything to do with religious establishment. Judges turned this statement into a "high wall of separation between church and state." Judges said "Congress" actually means state and local governments. Judges said "establishment" actually means "endorsement." The Constitution does not say any of those things.
Either judges have the power to make law, amend the Constitution, and rewrite statutes, or they don't. It's time to decide. America's founders believed that our freedom depends on the answer. If judges have that power, then "we the people" don't, and judges run the country and define the culture. If we the people have that power, then judges don't, and we run the country and define the culture.
Liberal criticism of this decision is mystifying. They say the Constitution is a morphing, shape-shifting, flowing-with-the-times document. They believe judges should find unwritten things in a written Constitution, use "evolving standards of decency" to regulate the culture, and to impose policies and values democracy rejects. They believe the Constitution is simply a book of blank checks in the hands of judges, who can write them to anyone in whatever amount they choose. It's a pad of prescription slips judges can use to cure any social, cultural or political defect.
Liberals are the ones who believe judges can do anything. Since they have ceded all the power to judges, embracing the idea that the Constitution is whatever judges say it is, their only criticism of the Ninth Circuit today dwindles to a mere difference of opinion. Hey, the despot is not always benevolent. If the judiciary giveth, it can taketh away. Liberals simply can't have it both ways.
This Ninth Circuit abomination is wrong not because its result is disagreeable but because of how these judges produced that result. As (I hope) parents still teach their children, it's not who wins or loses, but how the game is played that counts. These judges made law, they re-wrote the Constitution, they imposed their own values and opinions on the people. In doing so, they acted without lawful authority and undermined our freedom.
Now you know why the far left opposes Mr. Bush's judicial nominees. He has promised to appoint judges who will interpret but not make law. Those two activities are not the same, and the far left knows it. They huff and puff and strut and fret condemning this decision, but they'll need that same unrestrained judicial power on a different day to deliver other results and impose other values the people reject.
The Ninth Circuit in this case did nothing different than many other judges elsewhere in America do every day of the week. This one just got our attention. It's time to decide.

Thomas L. Jipping is a senior fellow in legal studies at Concerned Women for America, the nation's largest public policy women's organization.


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