Activism, Schmactivism

Via Russo, Education Week reports($) that Senator McCain has cited a 2002 9th Circuit Court decision finding the Pledge of Allegiance to be unconstitutional, due to the part about "under God," as the kind of "judicial activism" his appointees will eschew.

This is nonsense. The First Amendment says that "Congress shall make no law respecting an establishment of religion." Historically, the courts have interpreted the establishment clause broadly, to the point that the bleeding edge of First Amendment jurisprudence tends to center on questions like "Can the city council of East Podunk spend $75 to place a nativity scene on the lawn in the town square before Christmas, and if not, would including a plastic Santa Claus make it better?"

But this is a case where Congress made a law, in 1954, specifically adding the words "under God." This made the Pledge so clearly unconstitutional that the Supreme Court's only recourse was to throw the case out on a highly dubious technicality (that the plaintiff, who was suing on behalf of his school-age daughter, lacked standing to sue, because he was divorced and didn't have custody).

In other words, McCain is saying "My judges will rule based on popular sentiment and cultural sympathies, constitutional law be damned." That's the definition of judicial activism.