Is Including Under God in The Pledge of Allegiance Lawful?: An Impeccably Correct Ruling

On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as part of teacher-led daily recitals of the Pledge. Eight months later, the still divided Ninth Circuit panel issued an amended opinion reaffirming its ruling that the school district’s policy coerces students to perform a “religious act” in contravention of the Establishment Clause. However, holding that it had exceeded the legal analysis necessary to review the lawfulness of the policy, the Newdow Court vacated its determination that the words “under God” in the Pledge are per se unconstitutional. This article urges that the original Newdow decision rightly understood that adding the words “under God” to the Pledge violates the Constitution’s anti-establishment principles. Accordingly, government policy encouraging public school students to avow via the Pledge that ours is a nation dependent on or ruled by God, likewise contravenes the First Amendment

Brief Response to Attorney Albright\u27s Article

This article is a brief response to another article arguing that the words “under God” do not render the Pledge of Allegiance unconstitutional. Attorney D. Chris Allbright’s provocative plea that the phrase “under God” in the Pledge of Allegiance is insufficiently religious to offend contemporary Establishment Clause principles rests on three wobbly premises: (1) a limited perspective of some of the Framers, one which the Supreme Court rightly has eschewed; (2) Supreme Court dicta reflecting at best certain justices’ cursory suppositions about the religiosity of the words “under God;” and, (3) the wholly irrelevant, and possibly inaccurate argument that the words “under God” have had scant influence on schoolchildren

The Due Process Bona Fides of Executive Self-Pardons and Blanket Pardons

Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and blanket -or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution\u27s Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive\u27s political advantages, unless such clemency is arbitrary, capricious, or otherwise contrary to justice and liberty, and thus unconstitutionally unfair. Specifically, this article proceeds as follows: Part II presents the meaning of due process of law, accenting that, pursuant to the Due Process Clauses, all actions of whatever kind taken by any office or agent of government must be moral; meaning that official conduct may not be arbitrary, capricious or otherwise violate recognized tenets of fundamental fairness. Although not so acknowledging, the Supreme Court\u27s definition of fundamental fairness is based on concepts of human dignity espoused by the Enlightenment moral philosopher Immanuel Kant. This article\u27s understanding of constitutional law is controversial but based on the author\u27s long-standing research that confirms due process of law\u27s inextricable link to principles of immutable, a political morality discerned through impartial reason and applicable regardless of what outcomes may occur. Part III briefly sets forth relevant constitutional aspects of executive clemency, including the legal requirement that acts of clemency comport with the strictures of due process of law. Part IV then explains why governmental chief executives including the President may self-pardon, issue blanket pardons, or do both so long as those actions and similar grants of clemency comply with applicable due process standards. As is traditional, this writing ends with a brief conclusion, herein Part V

Deontological Originalism: Moral Truth, Liberty, and, Constitutional Due Process: Part II - Deontological Constitutionalism and the Ascendency of Kantian Due Process

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral. Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local. Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage

Rationality - and the Irrational Underinclusiveness of the Civil Rights Laws

Congress has enacted a series of civil rights laws designed to protect individuals from public an private forms of irrational discrimination. To be lawful, such civil rights statutes must conform with the definition of rationality required by the Fifth and Fourteenth Amendments. Yet, in one fashion, these statutes are as irrational as the behavior they seek to control. The statutes protect only certain classes of individuals in limited instances. This article argues that the existing civil rights laws, although integral to a free society, are but a first step. The statute will never be fully rational, never completely fair, until all persons are protected from arbitrary discrimination. For instances, a statute which protects individuals from racial discrimination in contractual transactions serves a valued social function. Yet, the same statute reformed to protect all persons from the imposition of irrational discrimination in the realm of contracts would be better. This article shows that limiting the coverage of civil rights statutes to a handful of selected classes unduly limits the protections which should be accorded to every person. After establishing analytical tools under equal protection analysis, the article then reviews selected federal civil rights enactments to discern their purposes and assess their rationality. We find that these laws, joining the equal protection precedents, form a national project of equality and dignity designed to allow each individual the opportunity to achieve ends and pursue chosen goals free from certain forms of irrational discrimination. Thus, the very project of devising both civil rights statutes and constitutional standards of rationality to proscribe certain forms of irrational discrimination plants the seeds for a more pervasive and important social endeavor, specifically the vindication of the individual dignity of all persons engaged in social interactions and projects such as employment, housing, and contractual negotiations. Legislatures, therefore, must sculpt the civil rights law to protect all individuals who engage in the particular type of activities encompassed by the statute. The thesis holds that any coverage less complete or coverage that fails to protect individuals from arbitrary infringement of their civil rights renders the statute itself partially arbitrary and irrational

Patterson and Civil Rights: What Rough Beast Slouches Towards Bethlehem to be Born?

Contrary to its assertions, the U.S. Supreme Court’s decision in Patterson decision marks a stark departure from the federal courts\u27 former practice of according Congressional civil rights enactments a broad reading to effectuate their remedial purposes. Indeed, Patterson offers an exceedingly narrow interpretation of this nation\u27s oldest civil rights law, the Civil Rights Act of 1866. In addition to its effect on the scope and application of § 1981, Patterson must be read in conjunction with several other decisions issued during the same term that limit—indeed retreat from—the application of civil rights laws designed to restore both lost opportunities and stolen dignity of victims of irrational discrimination. The new standard treats civil rights statutes as ordinary tort laws subject to cramped and limited interpretation. The Patterson Court, however, does not forthrightly admit either that it has changed the applicable standards or that it may be executing some new but unspoken agenda regarding civil rights enforcement. This article criticizes the Patterson decision for improperly narrowing § 1981, which had been enacted to guaranty fair treatment by proscribing racial discrimination in contractual transactions. Similarly, this Article disagrees with the radical shift in analysis ordered by Patterson and other decisions of the October 1988 Supreme Court term, which sounds a serious retreat from vigorous enforcement of those laws that reflect this nation\u27s dedication to ensure humane and decent treatment for all persons regardless of such untenable factors as race. This article critiques not only the Patterson decision, but also many of the Court\u27s recent civil rights rulings

Not Interaction but Melding - The Russian Dressing Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers

Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and justice. The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in decision making. Additionally, we must shun the heuristic and faulty premise that an individual\u27s ascription of meaning regarding a particular situation involves the weighing or parsing of emotions and rational contemplation as though one was analyzing a financial statement by simultaneously contrasting two columns of data. Rather, the human capacity to discern meaning arises not simply from the consideration of emotions with reason nor even from their intertwining like vines of ivy around a pole. Emotions and rationality do not simply work together; they meld into a new, unique entity that we designate as “meaning.” It is the systemic fusing of emotions and reason that comprises “meaning,” thus underscoring the indispensability of emotions in projects such as law making and legal analysis. This Article first briefly recounts the psychology and philosophy of emotions within a framework of modern systems theory to explain the dynamic of how people and groups must use emotions to ascribe meaning and significance to their lives. Second, and more importantly, this Article explains that the most progressive theorists still heuristically separate emotions and rationality. That is, even some of the best minds writing on emotions have trouble conceptualizing a systemic thought process of coalescing emotion and reason yielding modes of behavior, a matrix of moral values and other indices of meaning. The primary purpose, then, is to explicate that the process through which individuals interpret--ascribe significance to objects and events--actually melds emotions and reason to the point where, within the interpretive schema, the two cannot be separated but, rather, emerge as meaning upon which action is taken. This Article offers a construct, somewhat humorously denoted the “Russian Dressing” metaphor, to help enable judges and other social actors to envision the decision making process not as the layering of emotions and rationality, but as a systemic flow of emotions and reason that unite into a singular amalgam--something unique and new--of which neither the former nor the latter masters the other

Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, and Similar Judicial Myths: The Convergence of Title VII Literalism, Congressional Intent, and Kantian Dignity Theory

Title VII prohibits employers from imposing their racial, sex-based, ethnic, or religiously inspired grooming and appearance standards, even if, in light of widely accepted social conventions, the vast majority would feel exceptionally uncomfortable in the presence of employees who refuse to comport with their employers\u27 discriminatory rules. Indeed, nearly four decades ago, with correct simplicity and directness the Supreme Court recognized Title VII\u27s first principle: Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin. Therefore, contrary to the harsh dismay expressed by Judge Richard Posner, Title VII\u27s enlightened prohibition against discrimination indeed and quite rightly recognizes a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, [and] for female ditchdiggers to strip to the waist in hot weather, if such prohibitions are predicated on unnecessary sex-based bias, as almost certainly they would be

A Plea for Rationality and Decency: The Disparate Treatment of Legal Writing Faculties as a Violation of Both Equal Protection and Professional Ethics

This article builds on the work of others by demonstrating that as a matter of academic ethics, informed by cardinal legal standards of decency, the disparate treatment and adverse terms and conditions imposed on writing professors are not simply unfair but defy the ethical aspirations of American law schools. Specifically, as the construct for analysis, this article establishes and utilizes the proposition that the discordant status of legal writing professors fails to satisfy minimal professional ethics. As a model, this article shows that it is not even minimally rational under the Equal Protection Clause of the United States Constitution, our nation’s bedrock protection against arbitrary, irrational, unreasonable and unfair treatment

Deontological Originalism: Moral Truth, Liberty, and, Constitutional Due Process: Part I - Originalism and Deontology

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral. Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local. Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage