New Forum Books

From "Higher Law" to "Sectarian Scruples"

James Hitchcock

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400826261
• Topic: Law
• Subtopic: Public Law
• Index: Law

School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing.
This, the second of two volumes by historian and legal scholar James Hitchcock, offers a complete analysis and interpretation of the Court's historical understanding of religion, explaining the revolutionary change that occurred in the 1940s. In Volume I: The Odyssey of the Religion Clauses (Princeton), Hitchcock provides the first comprehensive survey of the court cases involving the Religion Clauses, including a number that scholars have ignored.
Here, Hitchcock examines how, in the early history of our country, a strict separation of church and state was sustained through the opinions of Jefferson and Madison, even though their views were those of the minority. Despite the Founding Fathers' ideas, the American polity evolved on the assumption that religion was necessary to a healthy society, and cooperation between religion and government was assumed.
This view was seldom questioned until the 1940s, notes Hitchcock. Then, with the beginning of the New Deal and the appointment of justices who believed they had the freedom to apply the Constitution in new ways, the judicial climate changed.
Hitchcock reveals the personal histories of these justices and describes how the nucleus of the Court after World War II was composed of men who were alienated from their own faiths and who looked at religious belief as irrational, divisive, and potentially dangerous, assumptions that became enshrined in the modern jurisprudence of the Religion Clauses. He goes on to offer a fascinating look at how the modern Court continues to grapple with the question of whether traditional religious liberty is to be upheld.

Chapter One

ORIGINAL INTENT

WHEN THE FIRST religion case came before the Court in 1815, the justices referred to the Founding Fathers not for constitutional guidance but merely on a legal point, finding that a postrevolutionary Virginia statute had revoked all colonial land grants made to the Anglican Church and placed them under the state, which had then properly and legally sold some of the land to particular congregations.¹ Throughout most of the nineteenth century the Court was far more likely to cite prerevolutionary English cases as precedents than the writings of the Founding Fathers.

Only in the first of the Mormon polygamy cases in 1878 were the intentions of the Founders finally deemed relevant to a case involving the Religion Clauses.

As many justices would later do, Chief Justice Waite recalled that in 1784 the state of Virginia had considered mandating official procedures for the teaching of Christianity but that this had been opposed by, among others, James Madison, and that not only had the bill been defeated but a proposal by Madison and Thomas Jefferson was adopted whereby religious liberty was guaranteed to Virginia citizens. Jefferson later expressed disappointment at the absence of an explicit guarantee of religious freedom in the new Federal Constitution, a provision that Madison was eventually able to obtain.²

In 1878, for the first time, the Court quoted the momentous phrase, “Wall of separation between Church and State,” which Jefferson used in a letter to a group of Baptists, assuring them that the Constitution did not establish a state church. Waite, for the first time with reference to the Religion Clauses, treated the opinion of the Founders as normative: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”³

However, Jefferson had also written that man “has no natural rights in opposition to his social duties,” Waite noted, and his conclusion from this was that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which are in violation of social duties or subversive of good order.”⁴ He noted that, shortly after enacting its Act Establishing Religious Freedom, the Virginia legislature in 1789 had explicitly incorporated the English law against polygamy, including a provision for the death penalty, thus demonstrating that the Bill of Rights was not intended to protect polygamy.⁵

The Court’s first appeal to the will of the Founders, ninety years after the adoption of the Constitution, was therefore dictated by the need to show that it was permissible under the Bill of Rights to restrict certain religious practices.

Returning to the issue in 1889, the Court in the person of Justice Bradley deemed it “sophistry” to argue that it had ever been the intention of the Founders that the Constitution should protect acts that were “abhor-rent” and “uncivilized,” asking sarcastically “what about thugee and human sacrifice?”⁶

Thus, besides their importance in establishing the principle that there were limits to religious liberty, the Mormon cases were significant in ex-pressing for the first time the Court’s view that in matters of religion the intention of the Founding Fathers was to be taken as an authoritative guide in interpreting the Religion Clauses.

In the Holy Trinity case (1892), holding that a federal law prohibiting bringing foreigners into the United States for purposes of employment did not apply to churches, Justice Brewer cast his net much wider than merely the Constitution, going back to the voyages of Christopher Columbus, which had been commissioned under an explicitly religious mandate, and to the establishment of the various English colonies. The Founders were invoked in connection with their reference to “the Creator” in the Declaration of Independence and in the fact that the Constitution (Article I, Section 7) exempted Sunday as a day of official government business. Various state constitutions contained explicitly religious expressions, and the official form of oaths (“so help me God”), legislative chaplains, sabbath laws, and other customs demonstrated the Christian character of the nation, Brewer argued.⁷

But for almost fifty years after the Holy Trinity case, the Court again virtually ignored the thought of the Founders as it sorted out the meaning of the Religion Clauses, failing to allude to the subject in dealing with, for example, public aid to religious institutions or conscientious objection to military service.

In the 1940 Gobitis case requiring Jehovah’s Witnesses to salute the flag, Justice Frankfurter made merely a passing reference to the subject, observing that freedom of religion as guaranteed by the First Amendment had never been intended to imply an exemption from general laws binding all citizens.⁸

Three years later, in a case challenging licensing fees imposed on distributors of religious literature,⁹ Justice Reed (albeit that his summary was only three paragraphs in length) made the fullest examination to date of the intentions of the Framers with respect to the Religion Clauses.

Several states, he recalled, had objected to the absence of a Bill of Rights from the proposed Constitution, whereupon a bill was drafted. Its chief drafter, Madison, was called upon at one point to explain the meaning of the Religion Clauses, and he stated that they meant that “no religion shall be established by law, nor shall the equal rights of conscience be in-fringed.” Reed then found that there was no evidence Madison intended that this should grant an exemption from taxes. The Founders were well aware of the unpopular taxes that the royal government had imposed on the press, and they would have explicitly banned such fees had they in-tended to outlaw them.¹⁰

When, also in 1943, the Court reversed its position with respect to the flag salute, Justice Murphy quoted the Virginia Statute for Religious Freedom as an apt summary of the meaning of freedom of religion.¹¹

On the opposite side of the same case, Frankfurter repeated his 1940 claim that the writings of the Founders provided no evidence whatever that religious freedom implied an exemption from generally applicable laws. Jefferson understood, Frankfurter insisted, that religious minorities could be disruptive forces in society and that it “never would have occurred to them [the Framers] to write into the Constitution the subordination of general civil authority to sectarian scruples.”¹²

Frankfurter also made an argument with implications vastly wider than the Religion Clauses themselves, when he insisted that the Founders did not intend for the courts to have any role in the legislative process.¹³

In the 1944 case overturning the conviction of the leaders of the I Am Movement for mail fraud, Justice Douglas stated for the majority that the “Fathers of the Constitution” were aware of the variety of religious sects and their propensity for strife, and therefore they fashioned a document providing “the widest possible toleration of conflicting views.” Each man was granted the right to worship as he chose and was to be answerable to no one for his beliefs.¹⁴

The 1947 Everson case laid down the principles of the modern jurisprudence of the Establishment Clause, and an integral part of that jurisprudence was a particular reading of the intention of the Founders. In their various opinions the justices made the most extensive summary of those intentions yet undertaken from the bench.

The Establishment Clause, Black reported in his majority opinion, reflected the determination by “early Americans” to prevent the recurrence of certain “evils, fears and political problems” that existed in colonial times. The immediate background to the colonization of America had been rampant religious persecution in Europe, the use of government power to enforce conformity. But, even though many people came to America to escape such persecution, such occurrences were often replicated in the New World, with Catholics, Quakers, and Baptists, among others, often being subject to discrimination or persecution.¹⁵

These practices eventually shocked the consciences of many Americans, and the Religion Clauses were enacted to prevent them, Black asserted, and he proceeded to summarize the events leading to Jefferson’s and Madison’s successful fight to defeat the proposed tax in support of religion, and their enactment of the Statute for Religious Liberty.¹⁶

The Court, according to Black, had previously recognized that these sentiments underlay the Religion Clauses. Some states at the time practiced religious discrimination, but the Fourteenth Amendment extended to them as well.¹⁷

In recent years, Black warned, the greatest threat to religious freedom had been attempts to offer some kind of public support to church schools and to introduce religious teachings into public schools. For the first time since 1878, the Court, through Black, now invoked Jefferson’s metaphor of the “wall of separation of church and state” as defining the meaning of the Religion Clauses.¹⁸

Justice Jackson, in dissenting from the majority conclusion that the reimbursement of bus fares to students in religious schools was constitutional, did not find it necessary to refer to the intentions of the Founders.¹⁹

However, in his own dissent Justice Rutledge addressed an argument often made by critics of strict separationism, when he recalled that Madison intended to prohibit not merely an official state church but any form of public aid to religion. It was the Religion Clauses’ aim “to create a complete and permanent separation of the spheres of religious activity and civil authority” by comprehensively forbidding every form of public aid or support for religion. Just as “religion,” with respect to its free exercise, was to be understood in the broadest possible sense, so it was to be understood with respect to establishment as well.²⁰

Rutledge became the first justice to refer explicitly to the personal views of Jefferson and Madison to exp...

Table of contents

• Table of Contents
• Introduction to Volume 2
• chapter one ORIGINAL INTENT
• chapter two PATTERNS OF ESTABLISHMENT
• chapter three PILLARS OF A WALL
• chapter four THE FAITHS OF THE JUSTICES
• chapter five A FRAGILE WALL
• CONCLUSION
• NOTES
• BIBLIOGRAPHY
• NEW FORUM BOOKS