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Newdow's Challenge Past and Future: The Roles of History, Logic, and Ubiquity in Establishment Clause Jurisprudence

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Abstract:

The recent Ninth Circuit Court of Appeals panel decision involving a challenge to the constitutionality of the phrase "under God" in the Pledge of Allegiance created apoplectic responses by virtually every politician and pundit in the country and reflected, if not the brittleness of our collective sense of self-worth and national mission, at least a concern about our moral rectitude! Thus the stage was set for the drama to be played out in the United States Supreme Court, but after accepting the case and hearing oral argument, the high Court released a non-decision, voting 5-3 to throw out the legal challenge, stating that Michael Newdow did not have proper standing. Nevertheless, three justices wrote separately to explain why they believed the phrase, "under God," did not amount to government-sponsored religion. In doing so, they ignored the traditional "Lemon" test and instead utilized history, common sense, and "ubiquity" as the central underpinnings for their conclusions.
Although the constitutional issue was not addressed by the full Court, the Newdow case served to highlight the deep divisions among its members over the meaning of the Establishment Clause and the appropriate test it should generate. This paper explores the history of Establishment Clause jurisprudence and concludes with a commentary about its current direction.

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court (106), religi (96), justic (77), religion (77), establish (76), claus (74), v (68), govern (65), u.s (62), id (56), state (45), test (41), school (38), lemon (37), purpos (33), would (31), o (30), one (29), public (28), case (28), endors (27),

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Establishment Clause Jurisprudence, Supreme Court, religion and government
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MLA Citation:

Mott, Kenneth. "Newdow's Challenge Past and Future: The Roles of History, Logic, and Ubiquity in Establishment Clause Jurisprudence" Paper presented at the annual meeting of the American Political Science Association, Marriott Wardman Park, Omni Shoreham, Washington Hilton, Washington, DC, Sep 01, 2005 <Not Available>. 2013-12-17 <http://citation.allacademic.com/meta/p41164_index.html>

APA Citation:

Mott, K. F. , 2005-09-01 "Newdow's Challenge Past and Future: The Roles of History, Logic, and Ubiquity in Establishment Clause Jurisprudence" Paper presented at the annual meeting of the American Political Science Association, Marriott Wardman Park, Omni Shoreham, Washington Hilton, Washington, DC Online <PDF>. 2013-12-17 from http://citation.allacademic.com/meta/p41164_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: The recent Ninth Circuit Court of Appeals panel decision involving a challenge to the constitutionality of the phrase "under God" in the Pledge of Allegiance created apoplectic responses by virtually every politician and pundit in the country and reflected, if not the brittleness of our collective sense of self-worth and national mission, at least a concern about our moral rectitude! Thus the stage was set for the drama to be played out in the United States Supreme Court, but after accepting the case and hearing oral argument, the high Court released a non-decision, voting 5-3 to throw out the legal challenge, stating that Michael Newdow did not have proper standing. Nevertheless, three justices wrote separately to explain why they believed the phrase, "under God," did not amount to government-sponsored religion. In doing so, they ignored the traditional "Lemon" test and instead utilized history, common sense, and "ubiquity" as the central underpinnings for their conclusions.
Although the constitutional issue was not addressed by the full Court, the Newdow case served to highlight the deep divisions among its members over the meaning of the Establishment Clause and the appropriate test it should generate. This paper explores the history of Establishment Clause jurisprudence and concludes with a commentary about its current direction.

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Document Type: PDF
Page count: 24
Word count: 10189
Text sample:
NEWDOW’S CHALLENGE PAST AND FUTURE: THE ROLES OF HISTORY LOGIC AND UBIQUITY IN ESTABLISHMENT CLAUSE JURISPRUDENCE The fair inference is that there was no common understanding about the limits of establishment prohibition.... What the evidence does show is a group of statesmen like others before and after them who proposed a guarantee with contours not wholly worked out leaving the Establishment Clause with edges still to be determined.1 SYLLABUS The recent Ninth Circuit Court of Appeals panel decision involving
programs of aid typically include conditions which must be met by recipient organizations and as those organizations become increasingly dependent upon public largess they may be induced to modify their religious practices in order to qualify and that in turn will damage a principal constitutional value of protecting religion and the autonomy of religious institutions from government. In the interest of predictability and the necessity of informing the Constitution the high Court will continue to search for Establishment Clause


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