The atheist creche in the Wisconsin Capitol rotunda.

We checked out the Christmas displays today...

Indoctrinating children.

I'm working on editing some video I took at the Capitol today, showing the political indoctrination of children. It pains me to see children taught to intone or chant things that should be understood first. When you think of things like that, what comes to mind? Maybe you think of the schoolkids taught to sing "Mmm mmm mmm/Barack Hussein Obama." Maybe you think about making kids say the Pledge of Allegiance, about which Justice Frankfurter wrote:

The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality. For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs.... But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances. So to hold would, in effect, make us the school board for the country. That authority has not been given to this Court, nor should we assume it....

(Details on that case, Gobitis, here.)

I'll have my video up in a separate post soon.

UPDATE: Here.

IN THE COMMENTS: What Irene thinks of is "The old country."

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:

[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.

The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''

I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.

"See, for example, the words of former Governor Sarah Palin of Alaska: 'If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me....'"

Those words appear in Palin's Gubernatorial Candidate Questionnaire, Eagle Forum Alaska, July 31, 2006. In his dissenting opinion in the new 9th Circuit case upholding the constitutionality of the Pledge of Allegiance, Judge Reinhardt cited Palin's words in a footnote in support of the proposition that "some individuals" don't know their history:

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.

Orin Kerr sees the hand of a smartass clerk:

I think it’s notable when a federal court of appeals judge with a well-established political view picks up a meme from political blogs and pokes fun at a politician on the other side in a pretty gratuitous way. It also screams “law clerk idea.” If you don’t think that’s notable, then I suppose we’ll just have to disagree.

A Kerr commenters defends Palin. DrGrishka says:

Reinhardt’s citation is misleading. The question to which Sarah Palin responded read:

11. Are you offended by the phrase “Under God” in the Pledge of Allegiance? Why or why not?

The answer was

Not on your life. If it was good enough for the founding fathers, its good enough for me and I’ll fight in defense of our Pledge of Allegiance

It could be that she gave a stupid answer in which the “it” referred to the Pledge itself. That would be historically inaccurate. But the “it” could have just as easily referred to the phrase “under G-d.” If so, the answer would be completely plausible as founding fathers used such phrases all the time.

And Palin's task at hand was to be an effective political candidate, and that is not about parsing the question and saying the most technically correct thing. People who assume they are smarter than Palin need to perceive the contextual dimension of intelligence. Are you smart at doing the thing you are currently trying to do or smart in the abstract? Because life is not in the abstract, and the people who are smartest in the abstract are not the ones who win political power. Reinhardt/his law clerk was overconfident, perhaps, in his own intelligence and failed to pay attention to the context in which he was operating, a judicial opinion. Fortunately, the political process is pretty good at filtering out individuals afflicted with this form of stupidity. But if they have life tenure, as judges do, we are stuck with it. And yet, Reinhardt needed votes too, and here we see he is writing in dissent, having lost.

Another commenter, footnoter, says:

What a sad reflection on Reinhardt. When a judge gets to doing this, it’s past time to hang up the spurs.

On the topic of a 133-page dissent with its own table of contents, on a rather simple issue, I’m reminded of EZ Rider’s dictum: “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . . when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief”

[I]magine if Judge Bybee or Justice Scalia said “we have 50 states– a fact unknown to some Americans in power” with a footnote saying “see, e.g., President Obama’s remarks he had visited ’57 states.’”

What if the other side had done the equivalent? That question pops up so often these days.

It's me and Emily Bazelon -- on the new Bloggingheads!

They've called this one "Playground Edition" -- because all the topics involve children -- also law, Lori Drew, suicide, dressing like stereotypical Indians, book-learning, and the Pledge of Allegiance:

"I could hear little Muscovites recite a similar pledge to their hammer-and-sickle flag with equal solemnity."

The Rev. George M. Docherty -- who died on Thanksgiving, at the age of 97 -- sermonized about the Pledge of Allegiance:

[He] was summoned from his native Scotland in 1950 to become pastor of the historic church in downtown Washington, which Abraham Lincoln attended when he was president in the 1860s. Each year on the Sunday closest to Lincoln's birthday, Feb. 12, the church had a special service that was traditionally attended by the president.

On Feb. 7, 1954, with President Dwight D. Eisenhower sitting in Lincoln's pew, Rev. Docherty urged that the pledge to the flag be amended, saying, "To omit the words 'under God' in the Pledge of Allegiance is to omit the definitive factor in the American way of life."

He borrowed the phrase from the Gettysburg Address, in which Lincoln said, "this Nation, under God, shall have a new birth of freedom."

Rev. Docherty's inspiration for the sermon came from his son's schoolroom experience of reciting the Pledge of Allegiance, which was written in 1892 by Baptist minister Francis Bellamy. When Rev. Docherty realized that it had no reference to God, he later said, "I had found my sermon."

Without mentioning a deity, Rev. Docherty said, the pledge could just as easily apply to the communist Soviet Union: "I could hear little Muscovites recite a similar pledge to their hammer-and-sickle flag with equal solemnity."...

But in 1954, with Eisenhower in the congregation and the threat of communism in the air, Rev. Docherty's message immediately resounded on Capitol Hill. Bills were introduced in Congress that week, and Eisenhower signed the "under God" act into law within four months....

"An atheistic American is a contradiction in terms," he said in his sermon. "If you deny the Christian ethic, you fall short of the American ideal of life."

Those words may grate on some liberals' ears. Remember the oral argument in the Supreme Court case challenging the constitutionality of the words "under God" in the Pledge?

Michael A. Newdow stood before the justices of the Supreme Court on Wednesday, pointed to one of the courtroom's two American flags and declared: ''I am an atheist. I don't believe in God.''...

Earlier, Dr. Newdow responded to Justice Stephen G. Breyer's suggestion that ''under God'' had acquired such a broad meaning and ''civic context'' that ''it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge.''

''I don't think that I can include 'under God' to mean 'no God,' '' Dr. Newdow replied. ''I deny the existence of God.'' He added, ''Government needs to stay out of this business altogether.''...

[The 9th Circuit court] ruled last year that the addition of ''under God'' turned the pledge into a ''profession of religious belief'' and made it constitutionally unsuitable for daily recitation in the public schools. Congress added the phrase at the height of the cold war in an effort to distinguish the American system from ''Godless Communism.''

But Docherty was no arch conservative. From the first link:

During his 26 years as pastor, he became better known for his liberal social activism than for his quest to alter the Pledge of Allegiance. He promoted racial equality and led outreach efforts to feed and educate the city's hungry and poor. His church was often a staging point for civil rights and antiwar demonstrations, and the Rev. Martin Luther King Jr. preached from its pulpit. Rev. Docherty was with King on the Edmund Pettus Bridge during the "Bloody Sunday" civil rights march in Selma, Ala., in 1965.