Last updated on: 3/17/2008 1:58:00 PM PST
Is it Valid to Look to the Intent of the Founding Fathers in Determining Whether the Words "under God" Should Remain in the Pledge of Allegiance?
General Reference (not clearly pro or con)
Noah Feldman, JD, PhD, Cecelia Goetz Professor of Law at the New York University School of Law, stated in his 2002 article, "The Intellectual Origins of the Establishment Clause," published in the New York University Law Review:
"Judges, lawyers, academics, and politicians have not ceased laying claim to the legacy of the Framers' ideas about church and state since the modern debate over the subject started in earnest in the 1940s."
2002 - Noah Feldman, JD, PhD
Derek Davis, JD, PhD, Director of the J.M. Dawson Institute of Church-State Studies at Baylor University, wrote in his 2000 book, Religion and the Continental Congress, 1774-1789: Contributions to Original Intent:
"An understanding of the original intent of the founding fathers with respect to the role of religion in America is a 'necessary first step in reading the religion clauses of the Constitution.' The founding fathers were closer to the problem of religious despotism, having seen its effects in Europe and in the colonies. Their aspirations to provide guarantees for religious liberty in a constitutional government are instructive for a contemporary America that retains those aspirations. Thus, it is exceedingly important to consider the intentions of the framers who, so significantly, began the First Amendment with provisions concerning religion."
2000 - Derek Davis, JD, PhD
Thomas Jefferson, Third President of the United States, wrote in a June 12, 1823 letter to Judge William Johnson:
"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
June 12, 1823 - Thomas Jefferson
The U.S. House of Representatives passed, on Mar. 20, 2003, House Resolution 132 that stated:
"Whereas the phrase, 'one Nation, under God', as included in the Pledge of Allegiance to the Flag, reflects the notion that the Nation's founding was largely motivated by and inspired by the Founding Fathers' religious beliefs;...
Whereas the ninth circuit's interpretation of the first amendment in Newdow II is clearly inconsistent with the Founders' vision of the establishment clause and the free exercise clause of the first amendment, Supreme Court precedent interpreting the first amendment, and any reasonable interpretation of the first amendment;...
Resolved, That it is the sense of the House of Representatives that -
(1) the phrase 'one Nation, under God,' in the Pledge of Allegiance to the Flag reflects that religious faith was central to the Founding Fathers and thus to the founding of the Nation."
Mar. 20, 2003 - US House of Representatives
hres132 (22 KB)
Donald L. Drakeman, JD, PhD, Lecturer in the Department of Politics at Princeton University, wrote in his 1991 book, Church-State Constitutional Issues: Making Sense of the Establishment Clause:
"Had the Founding Fathers possessed the foresight to predict the multitude of interpretations we have tried to read back into their minds, they might have given us carefully crafted dissertations covering everything from the nascent public school movement to public Christmas displays... We must cure ourselves of the desire to invoke the Founding Fathers as the last word on interpretation. That august group gave us merely the first few words, and remarkably few of them at that...
Not only have we already discovered that there is no clear and convincing evidence as to what the Founding Fathers intended when they enacted the establishment clause, but we have also seen that there may well be no original intent at all. The record of congressional debates, ratification debates, commentary, and the like discloses a combination of disinterest and confusion about the meaning of the establishment clause on the part of virtually all the people we could conceivably call Founding Fathers. Their various 'intents' can hardly be synthesized into a coherent, consistent mandate. Thus, while a doctrine of original intent might have some appeal in cases in which we can be absolutely certain as to the nature of the original intentions (assuming such a case exists), without that certainty such a doctrine becomes virtually useless as an authoritative interpretive framework."
1991 - Donald Drakeman, JD, PhD
William J. Brennan, Jr., former Associate Justice of the United States Supreme Court, argued in his Oct. 12, 1985 address, "The Constitution of the United States: Contemporary Ratification," given at Georgetown University:
"There are those who find legitimacy in fidelity to what they call 'the original intentions of the Framers.' In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked in humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions"
Oct. 12, 1985 - William J. Brennan, JD