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?

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