Discriminations has several posts developing an argument that "adverse possession" should not apply to Constitutional rights. In other words, unconstitutional practices of long standing usage should not be entitled to deference. Something unconstitutional ab initio does not become constitutional over time. The author writes:
In "One Nation Under God," its similar editorial, the New York Times made exactly the same point (without attribution to Brennan). "After millions of repetitions over the years," opined the NYT, "the phrase ["under God"] has become part of the backdrop of American life, just like the words 'In God We Trust' on our coins and 'God bless America' uttered by presidents at the end of important speeches." Nevertheless, the NYT admitted that "We wish the words had not been added back in 1954."
That's a bit lame. It says, in effect, that the Congressional action adding "under God" to the Pledge might well have been unconstitutional when it was done in 1954, and perhaps for a year or two (or three? or four?) afterwards, but now that we're used to it it's O.K. Actually, it's worse than lame. We were also used to racial segregation, after all, as critics of Brown v. Board of Education (also 1954) have long pointed out. Have the WP and the NYT developed a new appreciation for those critics?
One of the few examples in the law of two wrongs making a right is trespass. If trespass is allowed to occur long enough, the trespasser can take adverse possession of the property he invades. Reasonable people can disagree over whether a "living Constitution" (as compared to what? A dead one?) provides the best protection of our rights, but everyone should reject the principle that trampling on Constitutional rights long enough gives adverse possession of them to the trespassers.
With all due respect, while this argument is probably quite appealing in certain quarters - anywhere Chablis is sipped while casting aspersions on the mindless followers of tradition (who tend to drink beer or gin) - it fails to take into account either human nature or constitutional law.
First, there is a psychological difference between removing 'under God' from the Pledge and not including those words in the first place. People as a matter of individual and social psychology easily distinguish between losing something and not getting something. People irrationally overvalue losses. [Some economists have concluded that investors typically consider the loss of $1 dollar twice as painful as the pleasure received from a $1 gain. ] For example, if someone asked me whether I would contribute to an inititiative to include the phrase 'under God' in the Pledge, I probably wouldn't contribute. However, I probably would contribute a much larger amount to a drive to amend the Constitution in order to keep it in.
Usage creates expectation. The elimination of that usage - even if it causes a return to the status quo ante - is going to be seen as a loss of something. In the case of Pledge, it is also going to be seen as state action against the God-believing majority of Americans, not simply an endorsement of neutrality. As Oliver Wendell Holmes, Jr. wrote - before he became Justice Holmes - in the Common Law, even a dog distinguishes between being kicked and being stepped on. The majority sees the Pledge decision as hostile state action, and they're probably right if this post from the Brothers Judd Blog which links to a New York Times article is correct.
This psychological observation informs various Constitutional decision. In Board of Education v. Pico (1982)102 S.Ct. 2799,73 L.Ed.2d 435, 4 Ed. Law Rep. 1013, a splintered majority held that a school board could not remove books from a school library for ideological reasons, although it couldn't be forced to buy the books in the first place. Similarly, in Planned Parenthood v. Casey(1992) 112 S.Ct. 2791, the Court reaffirmed Roe explicitly because of stare decisis considerations, a classic case of "adverse possession." Likewise in Romer v. Colorado, the Court again concluded that a state referendum that had outlawed local ordinances making homosexuals a protected class for civil rights purposes was unconstitutional state action against a discrete minority, even though the state law had (a) expressed a neutral position and (b) returned the state legal environment to the status quo ante.
The apparent counter-argument based on Brown v. Board of Education is inapposite. In fact, there was no single case outlawing Jim Crow Laws. There was a whole series of cases that accomplished that result, along with a committed Federal executive and aroused Northern public opinion. The reason for this incremental approach was obviously because of a concern for usages, and because the Surpreme Court knew that the South would view the Supreme Court's project - quite accurately - as having an agenda against racial discrimination.
Brown is quite frankly a strange case to cite in support of the Pledge decision. In fact, the citation to Brown may give the show away when it comes to offering a window into the minds of the decision's supporters. The Pledge case is supposed to be about enforcing a rule of neutrality among religious and non-religious. In contrast, in no way was the Supreme Court in Brown, and the many other anti-segregation cases, trying to be neutral; it was in fact trying to take apart a system of racial segregation. Brown would be apposite if the official policy of the United States was a hostility to religious usages altogether, such as with respect to the privilege of the confessional and the tax-exempt status of churches. [By the way, I don't believe that Discriminations is saying that religious expressions in the secular polity are the moral equivalent of racial segregation. On the other hand, sometimes in the practice of law we can become prisoner of our rhetoric, and using Brown as a precedent can lead to Brown-like results.]
Finally, was the phrase 'under God' clearly unconstitutional in 1954? Other similar usages have been upheld as Constitutional, and the actual language and historical context of the 'enduring' Constitution does not lead to a conclusion that in 1954 the phrase was considered constitutionally noxious. It wasn't until later that the contemporary understanding of the First Amendment developed. [For that matter, is Roe v. Wade good constitutional law? I don't think so, and probably neither did a majority of the Casey court, but usages have weight, according to Casey. Or, is it only "progressive" usages that have weight?]
The cases cited herein are not presented as controlling authority. They can obviously be distinguished. The truth, though, is that the Pledge decision was not intended - certainly by the Plaintiff's father - to be a neutral, it takes away a usage that is cherished, it was a slap at mainstream religious believers who are being told that their most innocuous beliefs are inherently dangerous to the constitutional polity, and it is another gambit in the continuing culture wars.