A Response to David Toy: "It's 'Under God,' for God's Sake!"

I. INTRODUCTION

"Perhaps the most frequent and repetitive violators of the Constitution are public school teachers." So begins David A. Toy in his well-researched article, The Pledge: The Constitutionality of an American Icon.1 With this statement, he sarcastically suggests that leading students

in claiming that we are "one Nation under God"-a practice regularly employed by an entire body of concerned and dedicated individuals - is not likely to controvert the principles of equality and liberty that form the basis of our freedoms. Interestingly, less than a month before Congress inserted "under God" into the Pledge of Allegiance the Supreme Court ruled that this very group of professionals were doing just that in schools throughout the nation. The case was Brown v. Board of Education,2 and Toy ought to re-read his article with that case in mind. As Thomas Paine wrote, "a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom."3 Toy's efforts are part of that formidable outcry which followed the Ninth Circuit's June 2002 opinion. Perhaps some day the myopia that now exists regarding the religious prejudice against atheists will be recognized as clearly as is the racial myopia that existed last century. When that occurs, the propriety of the Ninth Circuit's opinion will be understood.

Brown is the perfect case to keep in mind, because the Establishment Clause is, in actuality, nothing more than an Equal Protection Clause, specifically addressed to religious belief. One can see this by going back to Madison's Memorial and Remonstrance, which he wrote to counter Patrick Henry's attempt to have Virginia pass a Bill Establishing a Provision for Teachers of the Christian Religion. In that famous thesis, equality is referenced thirteen times. For instance, Madison wrote that Henry's plan should be defeated "[b]ecause the Bill violates the equality which ought to be the basis of every law," because "we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us," and because the Bill "degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority" (emphases added). If Toy were to simply substitute "one Nation under white superiority" for "one Nation under God," he would likely realize the serious flaws in his arguments.

II. TOY'S THREE ARGUMENTS

Toy makes three arguments: (1) "the pledge . . . lacks any religious significance,"4 (2) "the pledge survives all approaches to Establishment Clause analysis,"5 and (3) Supreme Court dicta indicate that the pledge is constitutional. The first argument reveals a common error, focusing on the Pledge as a whole, when the challenge has only been upon the two words, "under God." The second is patently wrong. "Under God" in the pledge fails every Supreme Court test. The third argument-even were it true-is irrelevant. Prior to 2004, the Supreme Court had simply never considered the constitutionality of the Pledge of Allegiance. Moreover, the dicta Toy references are few and without any principled basis. Attention would better be paid to the hundreds or thousands of principled statements made by the Justices, each of which immediately reveals the unconstitutionality of "under God" in the Pledge.

The first two arguments merit a more detailed response. In contrast, the third warrants dismissal without more.

A. The Pledge's Religious Significance

Writing that "[t]he Newdow decision sparked immediate public reaction,"6 Toy spends a page and a half just on footnotes, detailing the uproar. Why was the reaction so great? If the Ninth Circuit had opined that "to the republic" was unconstitutional, or that "liberty and justice" needed to be removed, objections - although present - would never have reached the fevered pitch that occurred in June 2002. President Bush would not have made those rulings the first subject in a press briefing following his meeting with the president of Russia, and the entire Senate would not have stopped its work to pledge allegiance on the Capitol steps. The outcry seen after the Ninth Circuit ruled "under God" unconstitutional7 was in response to a single stimulus: God, the same entity that was the cause of the 1954 alteration.8 God, Toy must admit, has rather marked religious significance.

The argument that the Pledge is not religious is a straw man. A high school graduation is not religious either. Spatchcocking a clergy-led prayer to God in its midst, however, is unconstitutional.9 Morning exercises are not religious. Yet placing Bible readings among them constitutes an Establishment Clause violation.10 A classroom certainly isn't religious. Nonetheless, teachers may not put a Ten Commandments plaque on its walls." Had these cases been analyzed using the methodology Toy wishes to employ, their respective practices would have been ruled constitutional as well. In fact, any religious practice can be found permissible using this approach. Congress could pass a law recommending that before casting his or her ballot, each citizen should face Mecca, get on his or her knees, and recite verses from the Qu'ran, arguing all the while that voting is not religious. To be perfectly clear: pledging allegiance to one's flag is a patriotic and completely secular act. Putting purely religious phrases within that patriotic and secular act is religious. The infraction does not disappear by refusing to address it.

Repeatedly focusing on the pledge-rather than on the constitutional offense of interlarding it with religious dogma-Toy expends a great deal of effort demonstrating how notions that have never been challenged are not constitutionally infirm. Yes, the purpose of pledging allegiance is secular. Yes, the pledge serves patriotic ends. Yes, the pledge inspires a sense of respect for our nation's heritage. But all of that occurred for sixty-two years without the two offensive words. Never do we see that fact recognized.

Toy concludes his "the pledge is not religious" argument by writing that "[t]he bottom line is that the pledge of allegiance bears no religious significance whatsoever."12 Interestingly, in the Supreme Court case, amicus briefs were filed by the Christian Legal Society; the Knights of Columbus; the Catholic League for Religious and Civil Rights and Thomas More Law Center; the National Jewish Commission on Law and Public Affairs; the Institute in Basic Life Principles, Faith and Action; the American Jewish Congress; Focus on the Family, Family Research Council and Alliance Defense Fund; the Liberty Counsel; the Rutherford Institute; the Pacific Legal Foundation; the Claremont Institute; Americans United for Separation of Church and State; the Seattle Atheists; the Freedom From Religion Foundation; the American Humanist Association; Buddhist Temples; the Church of Freethought; Atheists for Human Rights; Associated Pantheist Groups; Atheists and Other Freethinkers; American Atheists; 19 Religious Scholars and Theologians; and 32 Christian and Jewish Clergy. That is an awful lot of religious interest for something with "no religious significance whatsoever."

B. Establishment Clause Analysis

In applying the Supreme Court's Establishment Clause tests, Toy again refuses to focus on the issue addressed by the Ninth Circuit, hiding behind the umbrella of the Pledge prior to 1954. For instance, applying the Lemon test, he writes, "the law must have some nonreligious purpose,"13 and then discusses only the state statutes laws (which were acknowledged to have been constitutionally acceptable in terms of Lemon's purpose prong). But that argument ignores the true "bad apple" in this case: the Congress of the United States. As even a cursory review of the Congressional Record immediately reveals, Congress's purpose in enacting the Act of 1954 was clearly religious. Their own report accompanying the bill-along with the address of President Elsenhower-were unabashedly clear that the underlying reason for the legislation was to declare that we-as a nation-believe in God.14 To be sure, Congress had succeeded in being dismissed from the case. However, the Supreme Court has the power to look at the legislative history and declare a law unconstitutional without Congress as a party.15

The discussion of Lemon's "effects prong" similarly misses the mark by once again avoiding any mention of what was being challenged. The question is not whether the pledge has nonreligious effects. The question is whether placing the two words, "under God," in the pledge has religious effects. Every school day, children-led by their public school teachers in a joint recital with all of their peers-are asked to stand and face the flag of the United States, place their hands over their hearts, and affirm that ours is a nation "under God." How can anyone possibly contend that this does not have religious effects? If the students were asked to stand and state we are one nation under the Rev. Sung Myung Moon every day, would anyone claim that there were no effects upon the students with respect to the existence of Rev. Moon? Upon the importance of Rev. Moon? Upon the government's recognition of the existence and the importance of Rev. Moon? How do the effects become different when it is a generic God instead of an earthly individual?

The Pledge fails the endorsement test as miserably as it fails the purpose and effects prongs of Lemon. According to the test's author, endorsement is determined by looking to "an objective observer, acquainted with the text, legislative history, and implementation of the statute."16 The text is quite clear. In 1954, two words were added to an all-inclusive pledge of allegiance that had gotten us through two world wars and a great depression without any religious verbiage. Those words were "under God." Taken together, they are purely, 100% religious.

The legislative history fares no better. The idea of infusing the secular Pledge of Allegiance with religious dogma first came from the Knights of Columbus-"the largest Catholic laymen's organization"-in 1951." The Knights recommended the change to our federal leaders in 1952,18 the same year Congress requested that the president "set aside and proclaim . . . a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."" On April 20, 1953 (two months after the introduction of the Congressional resolution to create a "Prayer Room" in the Capitol "to seek Divine strength and guidance"20), the first of more than fifteen bills to place "under God" into the Pledge was proposed.21 Authored by Michigan's Rep. Louis Charles Rabaut-who was soon to enter into the Congressional Record the outrageous statement that "An atheistic American . . . is a contradiction in terms"22-the bill gathered its main support on February 7, 1954, when the Rev. George M. Docherty spoke before his congregation at the New York Avenue Presbyterian Church. Thus, the chief catalyst for placing purely religious words into our perfectly functioning secular pledge was a Sunday sermon.

Attending that sermon was President Eisenhower. Three days earlier, the President and other of the nation's leaders publicly joined in attending a prayer breakfast sponsored by the International Council for Christian Leadership.23 On the afternoon of Rev. Docherty's sermon, the President took part in a radio and television broadcast of the American Legion's "Back to God" program. The program was "an appeal to the people of America and elsewhere to seek Divine guidance in their everyday activities, with regular church attendance, daily family prayer and the religious training of youth."24 The President stated he was "delighted that our veterans are sponsoring a movement to increase our awareness of God in our daily lives."25

Over the next months, the House and Senate worked together on the legislation, with numerous congressmen openly expressing proMonotheistic and anti-Atheistic biases.26 The final bill passed without objection in either house.27 Preparing to celebrate the religious conversion of the previously secular Pledge as part of an enhanced Flag Day ceremony, Rep. Oliver Bolton of Ohio (a proponent of the change) called the White House regarding a picture taking. He recommended "that a Protestant, a Catholic and a Jew be in the group."28 At the ceremony itself,

Onward Christian Soldiers was played.29 The lyrics to that song are:

Onward, Christian soldiers, marching as to war,

With the cross of Jesus going on before.

Christ, the royal Master, leads against the foe;

Forward into battle see His banners go! Congress stated, "The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism . . ."30 President Elsenhower noted, "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."31

This "text, legislative history, and implementation of the statute" demonstrates an unquestionable violation of the endorsement test. "Under God" was intruded into the Pledge to affirmatively proclaim that Americans, as a people, actively believe in God. Congress, therefore, not only made a law "respecting an establishment of religion," it made a law establishing religion-namely, Monotheism-in a country with millions of Atheistic32 citizens.

The suggestion that the pledge recitations are not coercive-in view of the Supreme Court's decision in Lee v. Weisman33-simply makes no sense. As Justice Thomas noted, "[a]dherence to Lee would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee."34 In Lee, the Court looked at public and peer pressure, recognizing that "though subtle and indirect, [this pressure] can be as real as any overt compulsion."35 This was the case with students on the brink of adulthood, who merely listened twice in their entire school careers as religious dogma was proffered by an invited guest. The coercion with the pledge-where younger, more impressionable children are encouraged by government-employed teachers to actively recite religious dogma more than 2000 times-is vastly greater.

Couching the constitutional transgression within a patriotic exercise does not lessen the offense. On the contrary, it exacerbates "the real conflict of conscience faced by the young student."36 As the Court earlier clarified: "All of the eloquence by which the majority extol the ceremony of flag saluting as a free expression of patriotism turns sour when used to describe the brutal compulsion which requires a sensitive and conscientious child to stultify himself in public."37 This is neither hyperbole nor an abstract construct concerning hypotheticals. These are real effects, foisted upon real children, that can have severe social and intellectual adverse consequences. In fact, those consequences can be life-long. Toy can show no countervailing benefits that outweigh these harms. The comfort the majority feels from governmental displays of its preferred religious dogma should not be paid for with stigmatization and emotional turmoil inflicted upon a subset-whatever its size-of our youngest citizens . . . especially when governmental service of that comfort is specifically prohibited by the first ten words of the Bill of Rights.

Toy's reference to the dissenting opinion in the Ninth Circuit's denial of en banc review in Elk Grove deserves some mention as well, since that opinion entirely mischaracterized the facts of the case (in addition to the essence of the Establishment Clause). That "almost every cultural practice is bound to offend someone's sensibilities"38 is certainly true, and government generally is allowed to cause such offense. Thus, it may advocate for a war in Iraq, for drilling in ANWR, against stem cell research, or for or against virtually any other issue. What the government may not advocate for or against, however, is anything in the realm of religion. When that subject arena is approached, government-under the terms of the Establishment Clause-must keep silent. Demanding that the government remains true to this constitutional obligation is "impos[ing] his views on others" only as far as "his views" refer to upholding the equality mandated under our constitutional scheme.39 In terms of religion, "his views" are that God doesn't exist, and Toy will spend an eternity before he finds any request to have "under no God"-which would be just as constitutionally infirm as "under God"-intruded into the Pledge. All that is being asked is that the Pledge return to its former state, "one nation indivisible," where religious ideology is simply not addressed.

In his "history and tradition" argument, Toy does as so many others have done: focusing everywhere except on the Constitution and the ideals that led to its language. According to Elliot's Debates, the Bible, Jesus, and the Ten Commandments were mentioned a grand total of zero times during the constitutional convention. God is only mentioned three times: Monday, June 18, when Alexander Hamilton stated that "[t]he voice of the people has been said to be the voice of God . . . it is not true in fact;" Saturday, July 7, when Gouverneur Morris stated, "Good God, sir, is it possible they can so delude themselves?;" and Thursday, June 28, when Ben Franklin-recognizing the absence of prayers to God during the convention-suggested that such religious activity was necessary to achieve success. He was ultimately proven wrong: his call for a clergyman was not acted upon, and the Constitution was created without a single invocation to the Almighty.40

In fact, in view of the religious references in the State constitutions and in virtually every other official document of the time, the resulting document is staggering for its secularity. The only reference to religion is in Article VI, cl. 3, which states that, "no religious test shall ever be required as a qualification to any office or public trust under the United States." This is the case even though religious oaths of office were pervasive throughout the colonies. Likewise, the only oath contained in the Constitution-that of the President-has no "So help me, God" or any other of the theistic references that were standard for the day.41

If this is not telling enough, the creation of the oath of office for the members of Congress, themselves, certainly sends the death knell to the notion that the Framers considered "God" to be a "foundational" part of this government. The committee assigned "to bring in a bill to regulate the taking the oath or affirmation prescribed by the sixth article of the Constitution," resolved to use, "I, A.B., a Representative of the United States in the Congress thereof, do solemnly swear (or affirm as the case may be) in the presence of Almighty GOD, that I will support the Constitution of the United States. So help me God."42 Yet the final version of the oath-"as required by the third clause of the sixth article of the Constitution"-was, "I, A.B., do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States."43 Thus, it was not as if the First Congress-busy with all their duties creating a new nation-simply failed to consider bringing God into the oath. They affirmatively removed both references to God. For what conceivable reason would this have occurred except to adhere to the notion that "there is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation."44

Allusions to the many invocations of God by politicians is standard fare by those interested in ignoring the principles involved here. However, as Justice Brennan stated, "the historical record is at best ambiguous, and statements can readily be found to support either side of the proposition."45 Furthermore, "the Framers . . . like other politicians, could raise constitutional ideals one day and turn their backs on them the next."46 Thus, reference to Washington's Thanksgiving proclamation should be considered with the fact that the nation erupted in anger when John Adams attempted a similar act. As the Philadelphia Aurora, a colonial newspaper, wrote, "there is nothing in the constitution giving authority to proclaim fasts . . . prayer, fasting, and humiliation are matters of religion and conscience, with which government has nothing to do . . . we consider a connection between state and church affairs as dangerous to religious and political freedom and that, therefore, every approach towards it should be discouraged . . ."47 The matter was so contentious, that Adams became the only president of the first five who failed to win a second term. As Adams recounted:

The national fast recommended by me turned me out of office . . . . This principle is at the bottom of the unpopularity of national fasts and thanksgivings. Nothing is more dreaded than the national government meddling with religion.48

Madison-apparently for political reasons-proclaimed a national day of Thanksgiving as well. However, as Toy acknowledges, he later expressed a different view: "Religious proclamations by the Executive recommending thanksgivings & fasts . . . imply a religious agency, making no part of the trust delegated to political rulers."49 One can certainly take issue with Toy's claim that the earlier action is more important than the latter statement. It seems at least as reasonable to suggest that the principles of equality and liberty are far easier to appreciate and uphold when there are no pressing political ramifications.

The other historical fact that deserves comment is that the Declaration of Independence has four references to the deity. First of all, it might be of interest to note that Jefferson only inserted one such reference when he first drafted the document, and the version he kept only had two. Additionally, there was a marked change in the understanding of religion and government between the Declaration and the Constitution. In 1779, for instance, Jefferson tried to get his Bill for Religious Freedom passed by the Virginia House of Burgesses. He failed in that year. Seven years later, however-before the constitutional convention or the Establishment Clause-the Bill was passed. Thus, any religious consensus at the time of the signing of the Declaration of Independence-which, of course, is not a charter for any legal construct-underwent a sea-change over the next eleven years.

III. CONCLUSION

In examining the words "under God," Toy ought to consider how hollow his arguments would sound if it were racial, rather than religious, preference that was being intruded into the Pledge of Allegiance. Certainly there is much historical evidence supporting the notion that the fifty-five white males who stuck a three-fifths clause and a guarantee of the perpetuation of slavery into the constitutional text believed in a racial hierarchy. A Pledge containing the words "one nation under white superiority" would be at least as justifiable as the current Pledge under his approach.

It is extraordinary how so many look everywhere except at the Constitution's text and the principles it obviously seeks to uphold in maintaining their quest to have government support a particular religious framework. What ideals underlie their efforts to maintain "under God" in the Pledge? Do they really believe that all American citizens are treated equally when one religious belief system is furthered in direct opposition to another?

Again, the analogy to racial insensitivity and discrimination is dispositive. In 1987, a law review article authored by Clarence Thomas was published. Then Chairman of the Equal Employment Opportunity Commission, the future Justice pondered how to make sense of the colonial leaders' claim that "all men are created equal" when they were simultaneously buying and selling people based on the color of their skin. His words are as applicable to religious prejudice as much as they were to racial prejudice: "[T]he strength of those universal principles of equality and liberty provide the means of resolving contradictions between principle and practice."50 Government's taking one position on the quintessential religious question-does God exist?-unquestionably violates those universal principles.

FOOTNOTE

1. 34 J.L & Educ. 25(2005).

2. 347 U.S. 483 (1954).

3. Common Sense (1776).

4. Toy, supra n. 1, at 32.

5. Id.

6. Id.

7. Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

8. In its report accompanying the Bill, Congress wrote that "[t]he inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator." H.R. 1693, 83rd Cong., 2nd Sess. (1954). Moreover, in his address marking the enactment of the new legislation, President Eisenhower wrote: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty." 100 Cong. Rec. 7, 8618 (June 22, 1954) (Statement by President Dwight D. Eisenhower, as reported by Sen. Ferguson.).

9. Lee v. Weisman, 505 U.S. 577 (1992).

10. Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).

11. Stone v. Graham, 449 U.S. 39 (1980).

12. Toy supra n. 1, at 39.

13. Id. at 41 (citing Wallace v. Jaffree, 42 U.S. 38, 56 (1985)).

14. See supra n. 8 and accompanying text.

15. See, e.g., Legal Serv. Corp. v. Velazquez, 531 U.S. 533 (2000) (Congress violated First Amendment with Rescissions and Appropriations Act); U.S. v. Morrison, 529 U.S. 598 (2000) (Congress lacked authority to enact Violence Against Women Act under the Commerce Clause); Printz v. U.S., 521 U.S. 898 (1997) (Congress's interim provisions of Brady Act violated dual sovereignty); City of Boerne v. Flores, 521 U.S. 507 (1997) (Congress exceeded its powers in passing Religious Freedom Restoration Act); U.S. v. Lopez, 514 U.S. 549 (1995) (Congress lacked authority to enact Gun-Free School Zones Act under the Commerce Clause); Plaut v. Spendthrift Farm, 514 U.S. 211(1995) (Congress lacked authority to force judiciary to reopen case after final judgment issued); U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995) (Congress's ban on governmental employees' acceptance of honoraria violated First Amendment); New York v. U.S., 505 U.S. 144 (1992) (Congress violated Tenth Amendment in passing Radioactive Waste Policy Act); Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252 (1991) (Congress violated separation of powers doctrine with Airports Act); Bowsher v. Synar, 478 U.S. 714 (1986) (Congress lacked authority to discharge an "executive" official); INS v. Chadha, 462 U.S. 919 (1983) (Congress may not employ one-house veto of executive branch decision); U.S. v. Lovett, 328 U.S. 303, 321 (1946) (Congressional act was bill of attainder); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (Congress lacked authority to reopen proceeding after final judgment of court).

16. Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O'Connor, J., concurring).

17. Brief for amicus curiae Knights of Columbus at 1, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

18. Id. at 1-2.

19. 66 Stat. 64 (1952); 36 U.S.C. 169h.

20. The Prayer Room in the United States Capitol, H.R. Doc. 234, 84th Cong., 1st Sess. 1 (1954).

21. Big Issue in D.C.: The Oath of Allegiance. E7 N.Y. Times (May 23, 1954).

22. 100 Cong. Rec. 2, 1700 (Feb. 12, 1954) (statement of Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words "under God" into the previously secular Pledge of Allegiance).

23. Elsenhower Joins in a Breakfast Prayer Meeting, AlO N.Y. Times (February 5, 1954).

24. Nation Needs Positive Acts of Faith, Elsenhower Says, Al N. Y. Times (February 8, 1954).

25. Text of President's Talk on Faith, All N.Y. Times (February 8, 1954).

26. The Original Complaint (Appendix B) in Elk Grove provided eight and a half pages of citations.

27. 100 Cong. Rec. H7757-66 (June 7, 1954); 100 Cong. Rec. S7833-34 (June 8, 1954).

28. Elk Grove, Original Complaint, Appendix C.

29. 100 Cong. Rec. 7, 8617-8618 (June 22, 1954) (statement of Sen. Homer Ferguson).

30. H.R. 1693, 83rd Cong., 2nd Sess. (1954).

31. 100 Cong. Rec. 7, 8618 (June 22, 1954) (statement by President Dwight D. Eisenhower, as reported by Sen. Ferguson).

32. Others-such as polytheists, pantheists, and those with "no religion"-are also excluded. Still more-including staunch Christians-are offended as well by this involvement of their religion in government.

33. 505 U.S. 577 (1992).

34. Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2328 (2004).

35. 505 U.S. at 593.

36. Id. at 596.

37. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. at 635 n.15 (citation omitted).

38. Newdow v. U.S. Congress, 328 F.3d at 481 (dissenting from denial of en bane reconsideration.).

39. Toy supra n. 1, at 52 (citing Newdow, 328 F.3d at 481 (dissenting from denial of en banc reconsideration).

40. These citations are available online at http://memory.loc.gov/ammem/amlaw/lwed.html. They can be accessed by date, or by searching the Debates for the word "God."

41. U.S. Const., art. II, 1, cl.7.

42. 1 Annals of Cong. 102 (1789).

43. 1 Stat. 23.

44. James Madison, June 12, 1788, speaking to the Virginia State Ratifying Convention (as provided in Elliot's Debates, Volume 3, at 330).

45. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 237 (1963) (Brennan, J., concurring).

46. Lee v. Weisman, 505 U.S. 577, 626 (1992) (Souter, J., concurring).

47. Philadelphia Aurora, Wednesday, May 9, 1798.

48. June 12, 1812 Letter of John Adams to Benjamin Rush.

49. James Madison, Detached Memoranda.

50. Clarence Thomas, An Afro-American Perspective: Toward a "Plain Reading " of the Constitution-The Declaration of Independence in Constitutional Interpretation, 1987 How. L.J. 691, 702 (1987).