Sunday, January 31, 2021

Bad Legal Takes


 “The answer is clear,” Scalia wrote. “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)”

I know Scalia was not writing a legal opinion; but the context for that quote is this:

If there were any doubt remaining after that, late Supreme Court Justice Antonin Scalia set it to rest more than a century later with his response to a letter from a screenwriter in 2006 asking if there is a legal basis for secession.

And the context for that quote is the immediately preceding paragraph, viz;

Yet even before Texas formally rejoined the nation, the U.S. Supreme Court declared that secession was not legal, and thus, even during the rebellion, Texas continued to be a state. In the 1869 case Texas v. White, the court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas Legislature — even if ratified by a majority of Texans — were “absolutely null.”

Why do I mention all this?  Because the Pledge of Allegiance is not a legal document.  

The Pledge of Allegiance was written in August 1892 by the socialist minister Francis Bellamy (1855-1931). It was originally published in The Youth's Companion on September 8, 1892. Bellamy had hoped that the pledge would be used by citizens in any country.

In its original form it read:

"I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all."

In 1923, the words, "the Flag of the United States of America" were added. At this time it read:

"I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all."

In 1954, in response to the Communist threat of the times, President Eisenhower encouraged Congress to add the words "under God," creating the 31-word pledge we say today. Bellamy's daughter objected to this alteration.  

If you're like me, you're wondering about that "socialist minister" designation.

Bellamy was a Christian socialist who "championed 'the rights of working people and the equal distribution of economic resources, which he believed was inherent in the teachings of Jesus.'" In 1891, Bellamy was "forced from his Boston pulpit for preaching against the evils of capitalism", and eventually stopped attending church altogether after moving to Florida, reportedly because of the racism he witnessed there.  Francis's career as a preacher ended because of his tendency to describe Jesus as a socialist. In the 21st century, Bellamy is considered an early American Republican socialist.

A man after my own heart.

Still, Scalia's "argument" is no more a legal opinion than shouting "Fire!" in a crowded theater is banned by the First Amendment.  I just wanted to make that clear.  Secession of the states from the Union is not only not allowed by the Union, it's a legal nullity.  Sort of like declaring yourself a "sovereign citizen" (remember those?).  Go ahead and do it, but no court or government is going to recognize your claim (probably why they finally dwindled out of perception).

I kinda like the original pledge.  At least in it's 19th century context.  Really can't recite it anymore (personal experiences, nothing for you to be aware of).

No comments:

Post a Comment