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Hon. Kenneth Starr – former Independent Counsel
Ken Starr has a long list of legal accomplishments to his credit. In addition to arguing numerous cases in front of the United States Supreme Court, he has served in several high profile legal positions including Independent Counsel, D.C. Circuit Court of Appeals Judge and U.S. Solicitor General. He currently serves as the Dean of Pepperdine University’s School of Law.
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The Founding of the American Republic represented an enormous step forward in the science and art of government. First and foremost, the theory of the Founding, embodied in the Declaration of Independence, was that individual rights were derived from higher, non-earthly authority. Government was ordained to secure rights irrevocably conferred by the Creator. That theistic-rich theory of rights—and their origin –was then given further, more concrete expression in the First Amendment. There, in the opening sixteen words of the first enumeration of rights under the Bill of Rights, the philosophy of the Declaration was reaffirmed. Congress was to make no law abridging the pre-existing, primordial set of rights that included—as the first of the first freedoms—religious liberty. Tellingly, the Founding generation agreeably embraced a definition of religion as “the duty that [an individual] owes to the Creator.”
Second, this theologically rich, foundational theory of rights has never been abandoned or jettisoned over the course of our unfolding history as the oldest republic on the face of the earth. In all amendments, whether ratified or merely proposed, and in the occasional calls for a constitutional convention over the course of the nation's history, not once has a serious call been made to reexamine the philosophical basis of individual rights articulated at the time of the Declaration. To the contrary, one of the few holidays that truly unites Divided America to this day is the Fourth of July, where we celebrate the fact of our birth as a nation and take note of Jefferson's immortal expression of the worldview that justified our bloody rebellion.
Third, this time-honored, well-settled theory of human rights itself reflected a magnificent step in shaping attitudes toward the intellectual and moral basis of human liberty. John Locke and other great theorists of human liberty unabashedly summoned forth supra-human authority as the basis for liberal notions of freedom of conscience. These notions were heartily embraced by a young republic that, at every turn, lifted up the value of faith communities—and of religion more generally—as at minimum helpful and perhaps even indispensable in securing ordered liberty.
It was therefore entirely natural for the first Congress—the very Congress that fashioned the venerated words of the First Amendment—also to engage (at taxpayer expense) a member of the clergy to serve as a chaplain and to begin legislative sessions with prayer. The pivotal message of the First Amendment was, in short, prevention of official recognition of a church or violations of freedom of conscience. It was emphatically not to eradicate all references to God or religion more generally from our official life. So it has been that, without interruption, Congress, whether controlled by Democrats or Republicans, has always had a paid chaplain who begins each session with an invocation of the blessing of God.
This simple example of uninterrupted practice vividly demonstrates that the effort to excise references of “under God” from the Pledge of Allegiance represent a complete departure from our constitutional traditions. If change is to come, and the two challenged words purged from the Pledge, that change should come only from the process of thoughtful deliberation through the political process. It is through that process that we identify, and change, who and what we are as a people. The post-Civil War Amendments bear witness to the democratic ideal that epic change should come through the will of the people through their representative institutions. Those convulsive changes manifestly should not come from judicial interpretation of words that simply will not bear the meaning that Pledge opponents seek to champion. The short answer to the challengers of the words “under God,” is to direct their grievances to the American people and their representatives.
So what does the First Amendment's protection of religious liberty, properly interpreted, mean? At bottom, it means that Americans are to enjoy the fullest possible extent and range of protections for religious activity and religious expression. It means that the government is to be wary of interfering with faith communities, or taking sides in the clash of religious ideas or theologies. It further means, as it did of old, that freedom of conscience should be honored. No one should be forced to say the Pledge, or to utter the particular words that give rise to an offense to conscience.
This then was the Great Philosophical Compromise of the Founding: The nation could in fact, and necessarily did, have an animating vision and worldview that justified the revolution and the establishment of a new political order. The Compromise also meant that not all persons had to assent to that animating worldview. Freedom should ring, including at a decidedly individual level. A non-believer could, without fear of governmental interference, decry Jefferson's lofty sentiments as mere claptrap. So too, the non-believer could, and still can, say that “I will not utter words with which I profoundly disagree.” The proper constitutional response is, “more power to you.” This is a free country, and coercion of belief and matters of conscience will simply not be allowed. The non-believer, in short, is to enjoy the same full measure of freedom of thought—or what Justice Robert Jackson eloquently called the freedom of the mind—as all other members of the polity.
What the non-believer cannot successfully do is to tear down the intellectual and historical underpinning of our rights as individuals through judicial interpretation of words meant to ensure the maximum of religious liberty. To the contrary, our history can—and I believe should—be honored in non-coercive ways. To embrace the national motto, “In God we trust,” is to recognize our history and tradition, uttered by every President—including Madison and Jefferson—and given immortal voice by Abraham Lincoln at Gettysburg when he drew from our cultural traditions, looked back at the Declaration and the Revolution, and called for a new birth of freedom for this nation "under God."
Thus, what Congress did in 1954 was to more fully state the philosophical basis of the American experiment, as given voice by Lincoln in the throes of the terrible Civil War. Something was missing. Ours was not simply “one nation.” That could be said of Canada, or France, or Mexico. No, our Founding was distinctive and particularistic. It was a nation founded “under God,” as evidenced by the words of the Declaration itself, the embrace of Declaration values in the First Amendment, and Lincoln's eloquent expression on a cold battlefield in 1863. This is likely to endure as long as the Republic itself stands, and should stand until we embark on a new philosophical course that would justify the case for human liberty and freedom of conscience.
© Hon. Kenneth Starr
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Sen. Clinton called on Attorney General Alberto Gonzales to step down in the wake of the firing of several U.S. attorneys -- firings we now know to be political.
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