Call me a liberal—or maybe a libertarian—but I can’t help
noticing that the worst thing about the decision of the Ninth
Circuit Court that the Pledge of Allegiance is unconstitutional,
is not that the Pledge, like the Lord’s Prayer, might be taken
out of the nation’s classrooms but that it now seems more than
ever taken for granted on all sides that it is perfectly
appropriate for a court to decide the matter one way or another.
If the flag to which the Pledge is ostensibly made stands for
anything it is for the principle of freedom from arbitrary
governance. And what is it but arbitrary governance to submit a
matter of all-but universal custom and consensus to a three-judge
panel to decide on any ground that they may find congenial—such
is our progress in the exegetical and interpretative arts since
the days of the Founding Fathers—that that matter of custom and
consensus is inconsistent with the Constitution?

To be sure, there are still some principled holdouts, such as The
Wall Street Journal’s editorial page, which censured another
federal judge, this one in Manhattan, for taking it upon himself
to decide that the death penalty was unconstitutional on the
grounds that it is “tantamount to foreseeable, state-sponsored
murder of innocent human beings.” The judge is of course entitled
to his opinion, but what entitles him to make it the law of the
land? Where in the Constitution does it say that such an
eccentric point of view