Recently, in a 5 to 4 ruling, the Supreme Court ruled that prisoners at Guantanamo Bay have a right to challenge their imprisonment in federal courts.
This dispute in the court was not fully on whether prisoners in Guantanamo Bay have a right to habeas corpus – a right to demand that those who imprison then provide justification for doing so (or release them). Another part of the dispute was over who gets to answer this question, the judiciary or the legislature?
The four justices who dissented in this case (Roberts, Scalia, Thomas, Alito) argued that the judiciary should defer to the greater wisdom of the legislature and the people who are actually fighting the war on terror. They said that the judiciary should not interfere.
This raises a couple of issues with respect to the Pledge of Allegiance.
Issue 1: Moral Judgments
Those who oppose 'judicial activism' say that judges should merely enforce the law as written and not appeal to their own moral judgments in deciding any case.
The problem with this view is that the statement,"Judges should merely enforce the law as written and not appeal to their own moral judgments" is, itself, a moral judgment. The justice that says this is expressing an opinion on the moral limits of judicial authority, and in doing so is saying that a judge should not express moral opinions.
Even if the legislature were to pass a law demanding that judges enforce the law as written, the judge would first have to decide that he has a moral obligation to yield to the will of the legislature to accept that law. There is no non-question-begging way for the judge to decide that he should yield to the will of a legislature than to make a moral judgment and use that moral judgment to guide his actions.
This means that the call that judges not use moral judgments is simply impossible to obey. Instead, the call must be for judges to apply the right moral judgments to how she does her job. This, in turn, raises the question, "Which moral judgments (if any) are the right ones, and how do we know?"
For the sake of argument, let us assume that the claim that judges have a moral obligation to enforce the law as written. At least in the United States, this does not imply that judges must yield to the legislature. Judges are still free to rule that the Constitution makes illegal certain government actions. The "law as written" includes the Constitution and any violation of that law should be stopped.
The argument for saying that the judiciary should yield to the will of the legislature is because the legislature is answerable to the people. Pledge Implications. Ultimately, the people get to decide whether prisoners in Guantanamo Bay are to have a right to habeas corpus by electing legislatures that support such a right (or not, as the case may be).
This leads to a second question, and this second question has implications for the Pledge of Allegiance and the national motto “In God We Trust.”
Issue 2: Answerable to the People
What if the legislature is not answerable to the people? What I the legislature uses its power to establish a system that effectively blocks a group of citizens from public office or from getting people elected who would represent their interests. The legislature then is only answerable to a subsection of the population who actively pursue policies against the interests of those not represented. What implications would this have for the alleged obligation of the judiciary to yield to the legislature?
Inserting 'under God' into the Pledge of Allegiance and changing the national motto to 'In God We Trust' fit this description.
The Pledge of Allegiance, with the words 'under God', communicates to the American people that citizens who do not support ‘one nation under God’ are to be regarded the same way as citizens who do not support ‘liberty and justice for all’. It says that patriots support 'one nation under God' and that those who do not support 'one nation under God' are not to be considered patriots.
Furthermore, it focuses this message on very young children who are incapable of recognizing this type of propaganda for what it is. Most children learn to accept the messages they are given without question. In this case, what they learn to accept without question is that atheists (or any who do not support ‘one nation under God’) are not to be thought of as real Americans.
The national motto, 'In God We Trust', communicates this same message. Through this motto, the government tells the people, "You are not to think of any person who lacks a trust in God as being one of us. Its message of "We Are Not Atheists" exists for the same reason that people of another day or time might have posted a sign that says, "We Are A White Community" or "We Are Not Jewish."
The effect of these laws has not only been to impose a nearly insurmountable barrier between atheists and public office, it has created a barrier between atheists and those who would consider the claims of atheists. In short, they have helped to create a situation where legislatures are not answerable to atheists. Instead, these measure have given power to those who believe in ‘one nation under God’ and who 'trust in God', while denying power or representation to those who do not share these views.
What does this say about the moral claim that the judiciary should yield to the legislature, because the legislature is answerable to the people?
Let us assume that an anti-Jewish political faction has some political success. Among their first acts when they gain political power is to fill government buildings with anti-Jewish slogans and to teach anti-Jewish chants and rituals in civic ceremonies – particularly focusing these messages on young children who tend to accept what they are told without question. Over time they generate enough anti-Jewish sentiment that those who attack the Jews are the only ones capable of getting enough votes to get elected into government.
As I wrote above, 'one nation under God’ in the Pledge of Allegiance gives Americans who do not support 'one nation under God' the same status in terms of patriotism and government respect as those who reject 'liberty and justice for all'. "In God We Trust" means, "Do not think of those Americans who lack trust in God as being one of us." These are certainly anti-atheist messages in the same way that "one Christian nation," and "In Jesus we trust" would imply that Jews are anti-American.
Would this have an effect on the thesis that the Judiciary should yield to the legislature because the legislature is answerable to the people? Or would this argue that the Judiciary should step in – that it should block the legislature from launching a campaign to promote hostility against a subgroup so that some fraction of ‘the people’ can establish a lock on political power for themselves – answerable only to their fraction of the people?
This is not a legal argument. This is not an argument about what the law prohibits and requires. This is what morality prohibits and requires. If the moral obligation that judges should yield to the legislature is grounded on the fact that the legislature is answerable to the people, then whatever makes the premise (the legislature is answerable to the people) false, makes the inference (to ‘the judiciary should yield to the legislature’) unsound.
Is there, then, some other moral argument or saying that judges should yield to the legislature in these circumstances?
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