I know many readers of

I know many readers of the Power Line (just kidding, girls!) are awaiting my further reflections on the Ninth Circuit’s pledge of allegiance decision. Although the political and journalistic commentary has beaten the decision into the ground, the commentary has articulated an extremely low level of analysis. One interesting facet of the decision is that it only modestly extends the Supreme Court’s misguided First Amendment jurisprudence on the subject of religion in the schools; I have read very little suggesting that the decision misapplies the jurisprudence. Nevertheless, all concerned express great shock that we have come to this pass: in the name of religious freedom students must be prohibited from voluntarily reciting the pledge. The public reaction of Democratic politicians and liberal pundits especially is of the “Casablanca” variety, in which the gendarme expresses surprise to discover that gambling takes place at Rick’s cabaret while at the same time he pockets his winnings.
But the commentary has also largely missed what seems to me a deeper point. The point is this. Unlike every other country in the history of the world, the United States is founded on the basis of a creed rather than on tribal or other blood lines. The creed is expressed with inspired concision in the words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happines. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” To paraphrase Abraham Lincoln, to whom I will return with further reflections on the meaning of Independence Day, God bless Thomas Jefferson for expressing these truths with a power that changed the history of the world.
But does the Declaration have any legal status such that these words can be truly deemed to state the American creed? Of course it does, although virtually no one seems to know it. In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled “The Organic Laws of the United States.” (The story behind the 1878 revision of the Code is told in the introduction to political scientist Richard Cox’s valuable book “Four Pillars of Constitutionalism: The Organic Laws of the United States.” Cox credits the idea for the book to Professor Harry Jaffa, Distinguished Fellow of the Claremont Institute.) The Code is Congress’s official compilation of federal law; the organic laws of the United States are the country’s foundational laws. First and foremost of the four organic laws of the United States is the Declaration of Independence. (Following the Delcaration among the organic laws are the Articles of Confederation, the Constitution, and the Northwest Ordinance of 1787. Why was the Northwest Ordinance included among the organic laws of the United State? That, gentle readers, is the subject for another day.)
The Declaration is therefore the first of the founding laws of the United States and those immortal words quoted earlier indeed legally constitute our country’s creed, the creed that recognizes the source (Nature and Nature’s God) of our rights. The pledge itself concisely restates the American creed, whose avowal in school the Ninth Circuit has now held to be unconstitutional.
Which of course raises somewhat more pointedly the question I asked earlier: Is the Constitution unconstitutional?

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