Law in Contemporary Society

"Liberty and Justice For All?"

-- By GraceKrasnerman - 18 April 2016

Law as Secondary to Sociopolitical Influences

Lawrence Joseph's Lawyerland provides a third dimension to the standard two-dimensional view taught at the overwhelming majority of American law schools. Someone in the grips of a purely academic view of the law – a judge, for example – has a predilection towards a systematic perception of the law. The judge, or the stereotypical law professor, academic, or bright-eyed 1L, espouses the view that the law functions logically and justly. In contrast, the disillusioned lawyer, whom Robinson epitomizes, sees the law as only secondary to sociopolitical influences. The twenty-year-old son of immigrants that the Manhattan D.A. indicts for crimes he most likely did not commit, such as attempted murder in the second degree, does not go to jail because he broke the law. He went to jail because the D.A. sought revenge, and because his father would not pay his bail. Law does not govern the outcome of this case, even though we are indoctrinated from birth that it does. Robinson knows that it does not, so he maneuvers within the convoluted legal matrix as he has to, not as he might once have hoped to. Law schools teach an overly idealistic, academic perspective of the law. We learn “facts” in law school, but we do not learn “truths”. This distorted education is not unique to law school, but rather permeates American schools and social culture.

The Pledge of Allegiance: One Nation "Under God"

One of the most prevalent norms that the majority of Americans adhere to is the affirmation of the existence of a monotheistic God, regardless of their personal religious backgrounds or beliefs. Every morning, millions of children across the nation pledge themselves to the United States, “one Nation under God . . . with liberty and justice for all.” Saying the phrase “Under God” every morning does not appear to be particularly dangerous to the individual, but it exhibits an indirect coercive effect on the students and the teachers that recite it, therefore enforcing religious ideology. Although the Pledge is principally a patriotic exercise, it is undeniably tinged with religious implications that send a message of government approval of monotheism. The First Amendment prohibits the government from passing legislation that supports the establishment of religion, and that favors one religion over another. The purpose of the Establishment Clause is to separate church and state, which allows individuals to decide their own religion, if any. However, the Pledge of Allegiance proselytizes children into a monotheistic conception of God, specifically the Judeo-Christian tradition predominant in the United States.

"Under God" as a Violation of the Establishment Clause

Not only are children told that there does exist a higher power, but also that there is just one higher power. How are children born into Buddhist or atheist traditions, for example, supposed to react to this? How can those raised in families that believe in monotheism form their individual religious beliefs, if the government and school systems also endorse the existence of a God? The Constitution declares that church and state are separated in this country, as it also stipulates that everyone is entitled to due process of law and fair trials. However, as Joseph demonstrates, these ideals do not translate into reality. The problem lies in trusting that they do. To not believe that America prizes individual liberty and justice can be deemed unpatriotic. It is not safe to be unpatriotic in the 21st century. Even protesting the inclusion of the phrase “Under God”, and not the Pledge itself, is unpatriotic. In the case Elk Grove Unified School District v. Newdow, 524 U.S. 1 (2004), when Michael Newdow brought suit against the school district his children attended, claiming the requirement for schoolchildren to recite the Pledge of Allegiance daily violates the Establishment Clause of the United States, most liberal advocacy groups whose purpose is to protect individual liberties, such as the ACLU and Americans United for Separation of Church and State (AU), did not help him because of the issue’s highly political and divisive nature. Right after the 9/11 attacks, patriotism – and the duty of fostering it – reached a zenith. Supreme Court Justice Stevens classified the Pledge as a patriotic exercise, which was especially important in the years following the attacks.

The Excuse of Patriotism Justifies Infringing Individual Liberties

Politics and personal feelings sent the twenty-year-old immigrant boy to jail. The reason the phrase “Under God” is included in the Pledge of Allegiance is, unsurprisingly, also politics. President Dwight D. Eisenhower inserted those words in an act in 1954 to rally patriotism during the Cold War. More specifically, Eisenhower enacted the law as an effort to unite Americans against the evil atheist threat of Communism: upon signing the bill, he issued a statement asserting that the addition of this phrase “reaffirm[s] the transcendence of religious faith in America’s heritage and future; in this way we constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource."1 Now, the Pledge and other patriotic declarations are meant to unite Americans against the threat of terrorism. Fear is a wonderful political tool. The Supreme Court used the issue of the Newdow’s legal standing to avoid making an explicit decision of the constitutionality of the phrase “Under God” in the Pledge. Three justices, however, wrote concurrences in which they argued the phrase was part of the nation’s history, resting their opinions on the notion of ceremonial deism. They argued that the insertion of the phrase “Under God” is not religious, but rather ceremonial, and that this drill is so prevalent and commonplace that it has lost its religious connotation. However, this issue illustrates how individual liberties and constitutional protections are not objective guarantees, and are instead subject to the judges’ and other governmental interests’ political stances, and even to their personal feelings.

1 Dwight D. Eisenhower: "Statement by the President Upon Signing Bill To Include the Words "Under God" in the Pledge to the Flag.," June 14, 1954. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

Why isn't this a link above? Writing for the web means making things easy for readers.

The draft as rewritten has now three subjects, conflated: something drawn from Larry Joseph, as metaphor, an argument about the presence of God in the "pledge of allegiance," and a theme about a supposed failure of the rule of law where judges have political stances and personal feelings. The last is the real subject, I think, despite the space given to the others; the route to improvement is focus.

Judges are human. One possibility is that rules could be administered by machine if they were designed right. Another is that justice is a human activity, for which frail human beings doing their best are required, in which the judge's own effort to attain justice, ripened by long experience, is our best hope for the achievement of what otherwise would elude us, no matter how mechanically we succeeded to rendering it.


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r5 - 04 Jun 2016 - 19:23:38 - EbenMoglen
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