The Natural Right of Freedom is Under Attack

A 9/14/05 report by David Kravets in the Associated Press tells of a judgment in a Sacramento located U.S. District Court in which the judge rules that the recitation of the pledge of allegiance violates a 2002 precedent set by the 9th U.S. Circuit Court of Appeals. The same judge, U.S. District Judge Lawrence Karlton, contradicting himself by dismissing the claim that the federal Congress’s action of including the words “under God” was unconstitutional. This brings forth both a violation of the rule of law and the hierocracy of the federal judicial system.

If you look at Article 1 Section 1 which reads as follows you will find that only Congress is granted the power to make laws, rules, and the like.

Article 1 Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

If you look at what a precedent is, you will find it is a law set forth by the courts and a series of such laws is called case law or common law. So case law is illegal at the federal level since only congress has the right to make laws. In fact the federal courts are limited by the Constitution to Judicial powers.

Article 3 Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

So a federal judge is limited to determining what action is and is not legal according to the law and the appropriate reaction to remedy the situation. They can not legislate in their decision which limit’s the remedies they can use as to legislate would be to violate the limits on their powers set forth in Article 1 and Article 3 of the Constitution.
Now assuming that the federal judiciary were actually concerned with upholding the Constitution and they either affirmed or gave oath then Judge Karlton would have looked at the first Amendment of the Constitution and the preamble. The first Amendment because it deals with the limits of government in relation to religious freedom and the preamble because it states the purpose of the establishment of the U.S. Constitution.

Preamble
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Because the preamble summarizes the purpose of the United Constitution if it is violated by the an interpretation of any other part of the Constitution then that interpretation is wrong since it violates the purpose of the establishment of the Constitution. The exception is if an amendment is made aimed at changing or altering the purpose of the establishment U.S. Constitution which I hope never happens.

If you study history you will find that the writers of the U.S. Constitution were concerned by one specific denomination forcing their will upon others much like the Church of England did. It is not about a generic religious belief system forcing their will upon others such as Atheist establishing Atheism as a state religion such as happened in Russia under Communism. It can also be established that if a specific practice of a religion significantly violate any of the purpose for which the Constitution was established then it can be outlawed. Knowing this a judge reluctant to say that the Pledge of Allegiance violates the 1st Amendment of the Constitution. A judge should rather address the Ninth Amendment and use it to bring in the Declaration of Independence which states that it is the duty of the United States government including the judicial branch to secure the right of liberty. With this evidence before him Judge Karlton would conclude that by adding the phrase “under God” to the Pledge of Allegiance Congress violates the Constitution and the ideals upon what America is based by displaying a bias which violates the ideal of a justice as enumerated in the preamble and the sixth Amendment while also violating the general though not the specific intent of the religious establishment clause of the Constitution. In addition such a clause violates the Constitution in that it alienates those whose religious beliefs are atheistic or polytheistic in nature and thus acts against a more perfect union.

On the other hand I actually find that holding the Elk Grove Unified, Rio Linda and Elverta Joint Elementary school districts in Sacramento County accountable for the pledge of allegiance is nonsense. The school is acting to encourage patriotism which is definitely according to the Constitution as it is related to the oath or affirmation to uphold the Constitution that is required by all federal elected and judicial officers. Since free practice of religion is singled out in the Constitution as a right to liberty and the practice of it is related to personal ethical behavior it follows that encouraging patriotism is not a significant reason to violate the right to liberty in this case. Thus the schools must make it optional to recite the pledge of allegiance while the phrase “under God” is in it.

This lawsuit should have included the federal government as a party. In that case the Judge should rule the action of Congress to add the phrase “under God” to the Constitution was unconstitutional and therefore order them to alter the pledge in such a way as to not violate the Constitution. If Congress does not comply within a reasonable length of time then the judge should slam them with a contempt of court charge and order them jailed. Congress can then order the lesser courts dissolved or comply with the orders. For the Supreme Court they can move to impeach the members. It then becomes up to media to keep the citizenry informed and the People of the United States to hold their legislatives accountable.

But since the federal government is not a party the judge should move to order the school to make taking the pledge optional and order the schools to pay appropriate restitution for the damages caused. The judge should also mention that the 1954 actions of Congress were unconstitutional and ask the present Congress to correct it, but can take no other action since the later is not a party in lawsuit.