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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 15, 2004

True Patriots Recite the Preamble

Posted by Ernest Miller

Yesterday, the Supreme Court dodged a political bullet by refusing to rule on whether the phrase "under God" should remain in the Pledge of Allegiance as led and recited by public school teachers and instead declared that the challenger had no standing (Thank God It's Standing). Today, a Washington Post (reg. req.) editorial declares, Never Mind the Pledge.

But should we ignore the Pledge?

I think not. Though many see the pledge as an expression of patriotism (not to mention a national religiosity), I believe it instills a very poor idea of what this nation is all about in schoolchildren. Not only is the phrase "under God" either meaningless "ceremonial deism" or an affront to our freedom from the establishment of religion, but the whole pledge celebrates values anathema to a democratic people. It seems clear to me that the best solution, the solution true patriots ought to support, is that children recite the Preamble to the Constitution of the United States of America.

Let us compare the two texts:

We the people of the United States,I
This is an inclusive statement that unites the speakers and reminds them that they are part of a greater community. As this would be recited in a classroom, it serves to pull together the class and teacher. And isn't true patriotism about uniting for a common purpose? It is also a statement of where power comes from - "We the people" - not common racial or geographic origins. In the very first words, this is a profoundly democratic statement.Though, on the surface, this recalls the American belief in individuality, it is a false individuality when recited daily, en masse. It is a statement of conformity, not unity.
in orderpledge allegiance
This is a statement of common purpose. It will be followed by the goals towards which, we, the people of the United States strive. Again, this unites, though we may disagree about the means we can at least agree as to the purpose. And, even if we don't individually agree as to the purpose, this is a statement of communal purpose, not individual purpose. This language is invitational, not a command.A "pledge," of course, is a solemn, binding promise. It is an affirmative statement of action. Question whether it makes sense to have children who cannot legally sign contracts "pledge" something (even if you agree with the purpose). It is also a point that divides; as the Supreme Court has held, children cannot be made to pledge allegiance. Indeed, loyalty oaths for adults are right out too. Why, then, should we promote this "voluntary" loyalty oath? Is not a recitation of our common purpose good enough? Is our system of government flawed in a such a way that people must be bound to it by oath rather than conviction?
to form a more perfect union,to the Flag of the United States of America,
This sentence is aspirational and inclusive. We are not a perfect union today, but we seek to become one. What better goal of our citizenship to be reminded of daily?These two passages hardly bear any comparison whatsoever. Pledge Allegiance to an emblem? What the heck is that? It is not even logically coherent. Of course, some will say, you're pledging to that which the emblem represents. However, the following phrase puts a lie to that notion. You wouldn't need it if the flag was merely a symbol of that which loyalty was desired. Furthermore, what, exactly does the flag represent other than the Republic? Either the symbolism of the flag is redundant with the following phrase, or it is representing something else in addition to the Republic. What might that be? Why should anyone pledge allegiance to that?
establish justice,and to the Republic for which it stands,
Again, an aspirational statement. Justice does not exist, but must be established. Every morning, there is a reminder of the great task that unites us.This is the finest part of the Pledge. Though one might ask why pledge allegiance to an emblem first? Or why this Republic? Are all Republics equally virtuous and worth of loyalty?
insure domestic tranquility, provide for the common defense, promote the general welfare,one Nation under God,
Once again the preamble provides aspirational goals that seek to unite a disparate people. Especially in time of war, isn't this a better reminder that we are in the fight together?The Pledge speaks of unity but immediately follows it with a divisive statement. Oh, that's right, "under God" is a meaningless, superfluous bit of "ceremonial deism." If children are meant to recite something every morning, shouldn't it be something that is more than excess verbiage and has meaning? And even though the pledge commands loyalty, it provides no purpose for the loyalty but only an object. Contrast the Preamble, which provides purpose before object.
and secure the blessings of liberty to ourselves and our posterity,indivisible,
Once again, the Preamble provides an aspirational goal that we, as citizens of the United States, must ever seek. Moreover, which we do well to note in time of war, liberty is something that must be secured, it isn't just given or guaranteed. Furthermore, these goals are meant to unite us. We secure liberty not for ourself but ourselves. And unlike the Pledge, the Preamble has us look at the big picture. We aspire to these goals not just for present but the future. We are tied into something bigger than just present concerns.It is not so much that we are indivisible (we aren't), but that we seek unity.
do ordain and establish this Constitution for the United States of America.with liberty and justice for all.
The Pledge asks for loyalty (to what is unclear) and what that loyalty requires is never mentioned. It is very nearly an empty promise. Here, however, the Preamble, after giving us the purpose of our common project, tells us how we are to go about it: the Constitution. The Preamble provides the noble goals and then points us to the means of achieving those goals. It engages the speaker with the democratic project. It invites those who recite it to engage with our fundamental laws by which the whole of our society is organized. The Preamble points both to the future (posterity) and our common past, the Constitution. The Preamble is isolated from history.These words weren't true 100 years ago when the Pledge was written. They weren't true fifty years ago when the Pledge was altered courtesy of Congress and the Knights of Columbus. They are not true today. They will never be true. Where the Preamble has us aspire to mutually seek these goals, the Pledge presumes that we have achieved them. There is no reminder that we must ever work towards them. How easy it is to pledge allegiance to something that already provides justice and liberty. How much more difficult and inspiring, however, to seek those goals in an imperfect world. Some people speak of hard and soft America. Well, the Pledge is soft America and the Preamble hard America. The Pledge is mere agreement with, the Preamble responsibility for.

I'm terribly sorry, but I can't take the patriotism of people who would rather children recite the Pledge of Allegiance than the Preamble of the Constitution seriously.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression


1. cypherpunk on June 15, 2004 09:46 PM writes...

This is a good analysis, but it doesn't make sense to recite the preamble as written, since the classroom is not proceeding to do anything with the Constitution. It should be re-written as something like,

We, the people of the United States, commit ourselves to forming a more perfect union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity.

That would be enough.

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2. Thomas on June 16, 2004 03:36 PM writes...

I think I understand your thoughts here, but the comparison is, well, not a good comparison. You've essentially written that when comparing an apple to an orange, we should pick the orange if we are true patriots.

Permalink to Comment

3. Brad Hutchings on June 21, 2004 08:00 PM writes...

Ernest, I agree with you on this issue. But the reason to prefer the preamble is that you can't sing the pledge of allegience.

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