The decision yesterday in the case of Newdow v. U.S. Congress, in which a panel of appellate judges who ride the Ninth United States Circuit ruled God out of the Pledge of Allegiance, immediately put us in mind of the case of Atkins v. Virginia. That was the case in which the Supreme Court held that executing a mentally retarded murderer was “cruel and unusual punishment” under the Eighth Amendment. Justice Stevens and the majority based their opinion largely on their reading of current public opinion. This was done under the theory that our nation’s founding document is a “living Constitution,” under which transient public sentiment informs the meaning of the text. Yesterday, the joeys of the 9th Circuit held that the 1954 act of Congress that inserted the words “under God” into the Pledge violates the First Amendment’s Establishment Clause. It’s hard to imagine they were thinking much about public opinion, since the overwhelming majority of Americans are God-fearing individuals who are perfectly happy to pledge their allegiance to one nation under God. Indeed, if there is any logic to the ruling in San Francisco, it is that the Constitution was designed to protect the cantankerous odd dissident here and there, public opinion be damned. It will be interesting to see how Justice Stevens and his majority in Atkins deal with public opinion and the Pledge should Newdow ever reach the high court.