By Edward Miller

Many Americans were shocked in the summer of 2002 when a three judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco suggested that their Pledge of Allegiance was unconstitutional. This decision in this case, brought to the court by a father who argued that the pledge injured his daughter’s legal rights by the inclusion of the words “under God,” was immediately stayed. The entire court reviewed the case. On 26 February 2003, a majority of the entire 24 judges let stand the previous decision. Thus the court asserted that the official oath of loyalty to the nation violates the separation of Church and State. In its ruling, the court urged that schools allow children to decide if they want to say the following: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands: one nation under God, indivisible, with liberty and justice for all.”

The pledge has long been controversial. It has undergone at least three major changes since it was first written in 1892. It is now attributed to the pen of Francis Bellamy, who was both a religious man (he was a Minister) and, like his cousin the novelist Edward Bellamy, a socialist. In 1954 at the urging of an Italian-American organization, the Knights of Columbus, President Eisenhower signed a law that inserted the words “under God” (upper case G, of course) into the once secular pledge. According to United States Statue 36 USCA Sec. 172, the pledge of allegiance should be accompanied by a particular bodily posture. One should stand “at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.” In many public schools, children are taught to stand hand on heart and unlike military men join in the proclamation of the words of oath.

The case continues to be the cause for a legal “theater of war” for God-fearing Christians and atheists alike—especially when the need for expressions of American patriotism is seen by many to be especially helpful for the nation. After the Ninth Circuit’s decision, Attorney General Ashcroft announced that the Justice Department will ensure that the Court of Appeal’s decision is revisited by the highest court of the land. Ashcroft noted that the Supreme Court itself begins each session with the invocation “God save this honorable court.” In this view, expressions of American identity have long referenced what is assumed to be the deity originally known as Yahweh, revered by Christians, Jews, and Muslims. And these references do not necessarily impinge upon religious freedom, they are mere common expressions.

In October of 2003, the Supreme Court announced that it will hear the case in the following year, with a verdict announced in June. There is precedent that suggests that the Supreme Court might agree with Ashcroft. In 1984, members of the Court argued that statements such as "In God We Trust" (which appears on U.S. money) are protected from First Amendment application because the religious significance of such a reference is lost “through rote repetition.” Actually, in my opinion, the opposite is more accurate. Printed reproductions and parroting of phrases that include the word “god” might act as tacit accommodation to a nation-state that is increasingly theocratic. The words we are invited or obliged to include in our speech acts matter very greatly. Language’s significance does not disappear when phrases are repeated.

J.L. Austin’s insights into the workings of language, recently revisited by contemporary philosophers such as Jacques Derrida as well as queer theorists such as Eve Sedgwick, alert us to the power of routine speech. In How to Do Things with Words (1975), Austin divided spoken language into two categories--constatives and performatives. Performatives occur when word matches deed or when "to say something is to do something (12)." One example he uses to illustrate the performative is the marriage ceremony--the groom becomes wedded at the exact moment he issues forth with the words "I do." Another example Austin uses is the ceremony of naming a boat--when the dignitary declares "I christen this boat....(5)." In these utterances, words not only narrate or describe (like constatives). They act upon the environment; they enter the speaker into a contract or a promise or initiate a pronouncement upon an object or an action that continues to have an impact upon the future.

The Pledge of the Allegiance then is a performative in the Austinian sense. Those who speak those words enter in an agreement with the Republic and perform their adherence to the meaning of the words, and hence the social ritual, by saying them out loud. In this performative, speakers promise to be true to the symbol of the flag and to that which the flag symbolizes--a nation that cannot be divided. Reciting this performative is accompanied by a gesture, a hand on the heart, which underlines the sincerity and conviction of this spoken act of patriotism. Indeed, many performatives that are social conventions involve a matching gesture or movement. The gesture that matches the naming of a boat is, for example, the smashing of the bottle; the gesture for being sworn into an elected office--or into a court of law--is a hand on the bible. (Is this utterance also a constitutional contradiction?) Importantly, for Austin, though, one must speak the performative--and be heard by an auditor--in order for the event to be completed.

As a student in the New York City public schools in the mid-to-late1960s, I was impelled by the structure of the morning assembly to repeat this now controversial performative in its revised form, with the words "under God" added to the original. After this repetition, I also remember that we had to sing "The Star Spangled Banner"--even though no ball game followed! No one asked us if we agreed to participate in this daily ritual even though in 1943 the Supreme Court ruled this was our right. Nor do I remember anyone explaining the meaning of the words (especially "indivisible"), although I remember we lined up in rows with our teachers in front and the flag facing us. Even as we inherited these rules of conduct, we still found room for improvisation. We invented new versions of the pledge, indulging in substituting words and relishing in all sorts of deliberate mispronunciations (I leave these to your imagination!). Our main struggle was not in the mixed emotions this caused us. Rather we strived to cover up our snickers in order not to be noticed by the rather serious Principal, Mr. Blitz. He stood near the flag and seemed to scan our faces for smirks and suppressed laughter.

J.L. Austin was keen to this kind of vocal delivery, calling them infelicities. Examples of infelicities include an unforeseen divorce rendering that "I do" null and void or crossing one's fingers while promising to keep a secret or lying on the stand after solemnly swearing in a court of law. Using Austin's classifications of such "performatives," our youthful treatment of the Pledge of Allegiance might be deemed as an "abuse"--"an act professed but hollow (18)." We knew we were going through the motion. We pledged to be playful. We were misbehaving kids. Whether we knew it or not, as kids in the late-1960s, we were rebelling against much of the conformity of the previous decade--including the Cold War impulse to add God to the official words of allegiance. The 1954 revision of the original was meant to suggest, I suppose, that if Communism was godless, American capitalism and democracy, even if the Constitution underlined the importance of the separation of Church and State, was nonetheless under the dominion of God. Even though we were kids, did we smell the odor of this contradiction?

Of course, not only are there many atheists in the U.S., there are many Americans who believe in many gods--at once. There are also loyal taxpayers who believe in a distinctly female divine presence and not a presumed male one. Indeed there are dedicated voters who follow religious principles and practices that do not involve a god at all. In addition, there are citizens who believe that near-mandatory displays and recitations of national pride are in fact not patriotic at all. Perhaps they believe that celebrating the nation through rituals doesn't always encourage debate and diversity and inhibits free speech. Such "radicals" may never burn the flag or even appear at a protest against the war with Iraq. Yet one can imagine that these law-abiding Americans still believe in democratic principles and remain convinced that patriotism, particularly one purportedly endorsed by "God" may lead to chauvinism and exclusion (If we are so good at being us, then they must be bad being them.).

I believe that back in grade school we were acting as good future citizens in our mockery (sorry Mr. Blitz). We didn't know the meaning of the performative and thus we refused to be convinced of its imperative by repetition (sorry Mr. Austin). We didn't take an invented tradition seriously and challenged authority as it was being imposed upon us. Don’t get me wrong—none of us sported a Che t-shirt or clutched Marcuse’s One Dimensional Man. We simply rallied against boredom at the beginning of the school day, preparing us to be alert for our more important lessons and playground games to follow. Such “activism” sounds quite American to me.

Austin's emphasis of language as event allows us to realize words form the world and do not merely skim and bounce against its surfaces. They are not rote. Words are events and actions. It is thus crucial when and what we say and in whose presence. We enter into agreements that are binding via our utterances and we move into a group structure--for better or worse--by saying socially rehearsed phrases. A young girl in California with an atheist father is going to grade school during an era that is more conservative than the time when I was a child, even though we share growing up during wartime. There is less domestic rebelliousness and more talk of God now. The words she uses--and when she performs them--are crucial, now more than ever. If she agrees with her father and believes she is living not only in a secular nation but also a godless universe, she should be supported to exercise her legal right to be true to her word and avoid an infelicity. Best of all, she should be encouraged to recite a pledge she improvised herself.

Details
Austin, J.L. How to Do Things with Words.
Cambridge, MA: Harvard University Press.
2nd edition, 1975.

Author Details
Edward D. Miller is the Chair of the Department of Media Culture at The College of Staten Island, part of the City University of New York. His book, Emergency Broadcasting and 1930s American Radio, is published by Temple University Press.