First Amendment, National Anthem, Pledge of Allegiance

National Anthem

O say can you see, by the dawn’s early light,
What so proudly we hailed at the twilight’s last gleaming,
Whose broad stripes and bright stars through the perilous fight,
O’er the ramparts we watched, were so gallantly streaming?
And the rockets’ red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there;
O say does that star-spangled banner yet wave
O’er the land of the free and the home of the brave?

On the shore dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner, O long may it wave
O’er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle’s confusion,
A home and a country, should leave us no more?
Their blood has washed out their foul footsteps’ pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave,
O’er the land of the free and the home of the brave.

O thus be it ever, when freemen shall stand
Between their loved homes and the war’s desolation.
Blest with vict’ry and peace, may the Heav’n rescued land
Praise the Power that hath made and preserved us a nation!
Then conquer we must, when our cause it is just,
And this be our motto: ‘In God is our trust.’
And the star-spangled banner in triumph shall wave
O’er the land of the free and the home of the brave!

“The Star-Spangled Banner” was made the national anthem by a congressional resolution on March 3, 1931 (46 Stat. 1508, codified at 36 U.S.C. § 301), which was signed by President Herbert Hoover.

The lyrics come from “Defence of Fort M’Henry”, a poem written on September 14, 1814, by the 35-year-old lawyer and amateur poet Francis Scott Key after witnessing the bombardment of Fort McHenry by British ships of the Royal Navy in Baltimore Harbor during the Battle of Baltimore in the War of 1812. Key was inspired by the large American flag, the Star-Spangled Banner, flying triumphantly above the fort during the American victory.

According to British historian Robin Blackburn, the words “the hireling and slave” allude to the thousands of ex-slaves in the British ranks organised as the Corps of Colonial Marines, who had been liberated by the British and demanded to be placed in the battle line “where they might expect to meet their former masters.” Writer Jon Schwarz of The Intercept wrote that the song is a “celebration of slavery”

A plaque displayed at Fort Meade, South Dakota, claims that the idea of making “The Star Spangled Banner” the national anthem began on their parade ground in 1892. Colonel Caleb Carlton, Post Commander, established the tradition that the song be played “at retreat and at the close of parades and concerts.” Carlton explained the custom to Governor Sheldon of South Dakota who “promised me that he would try to have the custom established among the state militia.” Carlton wrote that after a similar discussion, Secretary of War, Daniel E. Lamont issued an order that it “be played at every Army post every evening at retreat.”

In 1899, the US Navy official adopted “The Star-Spangled Banner”. In 1916, President Woodrow Wilson ordered that “The Star-Spangled Banner” be played at military and other appropriate occasions. The playing of the song two years later during the seventh-inning stretch of Game One of the 1918 World Series, and thereafter during each game of the series is often cited as the first instance that the anthem was played at a baseball game, though evidence shows that the “Star-Spangled Banner” was performed as early as 1897 at opening day ceremonies in Philadelphia and then more regularly at the Polo Grounds in New York City beginning in 1898. In any case, the tradition of performing the national anthem before every baseball game began in World War II.

Before 1931, other songs served as the hymns of American officialdom. “Hail, Columbia” served this purpose at official functions for most of the 19th century. “My Country, ‘Tis of Thee”, whose melody is identical to “God Save the Queen”, the British national anthem, also served as a de facto anthem. Following the War of 1812 and subsequent American wars, other songs emerged to compete for popularity at public events, among them “The Star-Spangled Banner”, as well as “America the Beautiful”.

United States Code, 36 U.S.C. § 301, states that during a rendition of the national anthem, when the flag is displayed, all present except those in uniform should stand at attention facing the flag with the right hand over the heart; Members of the Armed Forces and veterans who are present and not in uniform may render the military salute; men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart; and individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note; and when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed. Military law requires all vehicles on the installation to stop when the song is played and all individuals outside to stand at attention and face the direction of the music and either salute, in uniform, or place the right hand over the heart, if out of uniform. A law passed in 2008 allows military veterans to salute out of uniform, as well.

However, this statutory suggestion does not have any penalty associated with violations. 36 U.S.C. § 301 This behavioral requirement for the national anthem is subject to the same First Amendment controversies that surround the Pledge of Allegiance.

The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Pledge of Allegiance

The Pledge of Allegiance of the United States has been criticized on several grounds. Its use in government funded schools has been the most controversial, as critics contend that a government-sanctioned endorsement of religion violates the Establishment Clause of the First Amendment to the U.S. Constitution. Critics feel that the pledge is incompatible with democracy and freedom, and suggest that pledges of allegiance are features of totalitarian states like Nazi Germany.

In 1940, the Supreme Court, in Minersville School District v. Gobitis, ruled that students in public schools, including the respondents in that case—Jehovah’s Witnesses who considered the flag salute to be idolatry—could be compelled to swear the Pledge.

In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court reversed its decision. Justice Robert H. Jackson, writing for the 6 to 3 majority, went beyond simply ruling in the precise matter presented by the case to say that public school students are not required to say the Pledge on narrow grounds, and asserted that such ideological dogmata are antithetical to the principles of the country, concluding with:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

June 14, 1954: Dwight D. Eisenhower stated:

From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our nation and our people to the Almighty…. In this way we are reaffirming the transcendence of religious faith in America’s heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource, in peace or in war.

The phrase “under God” was incorporated into the Pledge of Allegiance on June 14, 1954, by a Joint Resolution of Congress amending § 4 of the Flag Code enacted in 1942.

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