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4.2.12
WC: 191694

I also knew that our Constitution said some things about religion. In our Yeshiva we learned mostly about the First Amendment’s protection of freedom of religion. But I started to read a little more about the Constitution and quickly learned that there were three references to religion in that great document of liberty. The first, in the body of the original Constitution, declared that “no religious test shall ever be required” for holding office under the United States. Wow, is this really true? I wondered, then why hasn’t there been a Jewish president? And why is there only one “Jewish seat” on the Supreme Court? It sure sounded to me like religious tests were being applied in fact, although it was unconstitutional to do so. This got me to thinking about the difference between the law as written and practiced.

I also discovered that the First Amendment, in addition to guaranteeing freedom of religion, had an awkwardly phrased guarantee which I did not understand: “Congress shall make no law respecting an establishment of religion.” There were two words I didn’t understand. What does “respecting” mean? I had always used it to suggest a positive attitude—respect—toward others. Clearly it had a different meaning in the First Amendment, something like “regarding.” Second, what did the word “establishment” mean? I simply had no idea and so I began to do some research. The answer was anything but simple and the meaning of the term is still not completely clear to me after 60 years of thinking, writing and teaching about it.

So there was some upside for me in the words “under God” being added to our pledge. It not only got me thinking, it got me arguing with my friends and even with some of my teachers. It’s an ongoing argument…

The downside, which was evident to me even back then, was that whatever the words prohibiting an establishment of religion meant, they seemed incomparable with compelling every school boy to declare his belief in a God inserted into the pledge by Congress. So, although I believed in God (or more likely never thought about any alternative), I decided never to say the words. I continued to recite the old pledge, confident that it was I, and not those who amended the pledge, who were being patriotic and faithful to the meaning of our Constitution. I guess I was an early Originalist in that regard, since my reading suggested to me that Jefferson and Madison would not have approved of making young kids declare a belief in God.⁹⁰

Flashing forward a generation, my oldest son Elon, had a similar epiphany in 1970, when my family moved to California for a year so that I could take up residency in The Center For Advanced Study of Behavioral Sciences at Stanford. We enrolled our kids in a Palo Alto Public School and my 8 year old son Elon got into trouble for refusing to recite the words “under God” in the pledge. When he came home from school, I asked him how come he had just noticed the words under God, since his elementary school in Cambridge also required periodic recitations of the pledge. He told me that we were at war in Vietnam and he thought the words—pronounced with a Boston accent—were “under guard.” It was only a California teacher writing the words on the blackboard that revealed to him that he was being required to take a pledge that included God. By this time I knew that the Supreme Court had ruled that a religious objector could not be required to recite the pledge, because, as the justices put it:

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⁹⁰ Nor would the composer of the original pledge who was an early socialist.
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