2008 Woodie Awards
Dershowitz, Catholic Law Dean debate pledge of allegiance
Clinton Dick
Issue date: 9/26/02 Section: News
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The battle over the pledge of allegiance finally made its way to HLS last Thursday, as Professor Alan Dershowitz took on Dean Douglas Kmiec of the Catholic University School of Law.
The debate centered around the Ninth Circuit's decision in Newdow v. U.S. Congress, in which it was held that the phrase "under God" in the pledge of allegiance was unconstitutional. For over an hour, Dershowitz and Kmiec dueled about the case, as well as the broader and more complicated issue of religion in government.
Kmiec argued that the invocation of God in the pledge is recognition of both the imperfect nature of human institutions and of a higher law that should guide human affairs in their ordering of society and government. Dershowitz contended that the pledge, as it is currently worded, unfairly excludes both atheists and those who do not feel that "under God" encompasses their understanding of a higher being. It was, in the words of 1L Hugo Torres, a "thought-provoking discussion that raised several interesting questions that we will continue to grapple with now, and in the future."
Kmiec began his defense of "under God" by saying, "I do not believe in any factual sense of the term that the pledge is a prayer." Instead, he argued, the pledge is a promise of loyalty or fidelity to the nation and thus, the phrase "under God" is a way to communicate the ideals that were present at the nation's founding. The founders, Kmiec continued, recognized that because of the imperfection of the human mind, human rights had to be grounded in a law higher than human law. Jefferson recognized this connection between rights and God when he wrote the Declaration of Independence, Kmiec said, and that is why "you cannot have the Constitution without the Declaration."
Using the example of slavery, Kmiec attempted to demonstrate how in that instance, human law had been construed to justify a wrong that the law of nature and nature's God always held to be wrong. "A reminder that there is a higher power limits the state from assuming God-like powers," Kmiec said. Otherwise, he said, "the state would be God."
The debate centered around the Ninth Circuit's decision in Newdow v. U.S. Congress, in which it was held that the phrase "under God" in the pledge of allegiance was unconstitutional. For over an hour, Dershowitz and Kmiec dueled about the case, as well as the broader and more complicated issue of religion in government.
Kmiec argued that the invocation of God in the pledge is recognition of both the imperfect nature of human institutions and of a higher law that should guide human affairs in their ordering of society and government. Dershowitz contended that the pledge, as it is currently worded, unfairly excludes both atheists and those who do not feel that "under God" encompasses their understanding of a higher being. It was, in the words of 1L Hugo Torres, a "thought-provoking discussion that raised several interesting questions that we will continue to grapple with now, and in the future."
Kmiec began his defense of "under God" by saying, "I do not believe in any factual sense of the term that the pledge is a prayer." Instead, he argued, the pledge is a promise of loyalty or fidelity to the nation and thus, the phrase "under God" is a way to communicate the ideals that were present at the nation's founding. The founders, Kmiec continued, recognized that because of the imperfection of the human mind, human rights had to be grounded in a law higher than human law. Jefferson recognized this connection between rights and God when he wrote the Declaration of Independence, Kmiec said, and that is why "you cannot have the Constitution without the Declaration."
Using the example of slavery, Kmiec attempted to demonstrate how in that instance, human law had been construed to justify a wrong that the law of nature and nature's God always held to be wrong. "A reminder that there is a higher power limits the state from assuming God-like powers," Kmiec said. Otherwise, he said, "the state would be God."