Example 10.3

Takeaway point 10.3: History can provide clues about the meaning of a constitu-tional provision or the scope of a legal tradition.

History can be especially helpful when courts need to assess the bounds of a constitutional provision (such as what “privileges and immunities” meant to the Founders) or a legal tradition (such as the scope of habeas corpus rights).

A school in California required schoolchildren to recite the Pledge of Allegiance, which has contained the words “under God” since Congress, by statute, added those words. One father, upset that his daughter was required to recite these words, filed a lawsuit. The suit alleged that forcing children to recite the Pledge of Allegiance violated the First Amendment’s Establishment Clause, which prohibits state-sponsored religiosity. The federal government used history to argue that the words “under God” do not violate the Establishment Clause.

Source: Brief of the United States in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (some citations and footnotes omitted).

Clear topic sentences like this one are especially useful in historical arguments. Without these sharp reminders of what a paragraph is discussing, historical facts can quickly seem random and dull.

The brief uses cornerstones of American life — Thanksgiving, inaugural addresses, the national anthem, currency — to show that religion has been present in civic life in the United States throughout its history. Given that Jefferson’s view is especially important (as the brief notes in footnote 20), the point about presidents declaring a day of thanksgiving is only moderately helpful given that Jefferson chose not to do so.

The brief delves into what the Founders approved for public events. But the brief did not discuss religion in early American schools, including the following potentially useful examples:

· The first graduation ceremony (in 1804) of one of the nation’s first public universities — the University of Georgia — included an invocation and a prayer delivered by reverends.

· Benjamin Rush, who led the ratification fight in Pennsylvania, called for “the universal education of our youth in the principles of Christianity by means of the Bible.”

· The First Congress passed legislation in 1789, which presumed that religion would be taught in public schools.

· Representative Fisher Ames, who drafted the House’s version of the Establishment Clause, wrote that “[m]ost young hearts are tender … why then … should not the Bible regain the place it once held as a school book?”

· Finally, Thomas Jefferson, who was in charge of the first public education program in the District of Columbia, used the Bible and a religious text called Watt’s Hymnal as the primary texts for students, explaining, “The Bible is the cornerstone of liberty … a student’s perusal of the Sacred volume will make them better citizens.”

I found this evidence simply by reviewing earlier briefs and by conducting a bit of original research.