June 28, 2002

Last post on the pledge

Last post on the pledge I posted a condensed version of the following as a comment over at The Spoons Experience

The pledge is not a law. Congress passes many actions which are included in the US code which are not laws. They issue proclamations, resolutions, and so on, none of which have the force of law.

The Pledge is located in Title 4, Chapter 1, section 4 of the current US code. You can look it up here

Sec. 4. - Pledge of allegiance to the flag; manner of delivery

The Pledge of Allegiance to the Flag, ''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.'', should be rendered by standing 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


Note that throughout the citation, the word 'should' is used, rather than shall. This may seem minor, but that is the key difference between a requirement with the force of law, and a recommendation. When the word 'shall' is used, the citation has the force of law. When the word 'should' is used, then the citation is given as guidance only.

Compare it with section 3:

Sec. 3. - Use of flag for advertising purposes; mutilation of flag

Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature; or who, within the District of Columbia, shall manufacture, sell, expose for sale, or to public view, or give away or have in possession for sale, or to be given away or for use for any purpose, any article or substance being an article of merchandise, or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached, or otherwise placed a representation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court. The words ''flag, standard, colors, or ensign'', as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America

Note the word 'shall' is used and a specific penalty is attached to violation of this section.

To further explain the difference, we can look at the origin of Title 4, section 4. Title 4 section 4 was originally contained in Title 36, Chapter 10, Section 172, which was entitled "Patriotic Customs." Other items in Title 36 include:


among others. If I refuse to recognize these 'special days', am I in violation of federal law?
Of course not.
Title 36 also contains the National Anthem, and rules of conduct when it is played. Again, the word 'should' is used throughout. It is not a violation of federal law to sing the wrong words, or to refuse to stand and face the flag during the playing of the national anthem, even though those rules are contained in section 301.

So, since there has been no law issued declaring what must be said in the Pledge, much less that anybody must recite the pledge, the first amendment is intact.

For a short history of the pledge, read here

Posted by Rich at June 28, 2002 1:49 AM