Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (30 page)

Hugo Black (1886-1971) was the leading proponent of the Incorporation Doctrine by which the Supreme Court in the twentieth century applied various provisions of the federal Bill of Rights against the states-and thus inverted the
federal system created by the ratifiers of the Constitution and Bill of Rights. Black, a former Ku Klux
Klansman, also took the lead in writing the twentieth-century Klan's views on church-state relations
into "constitutional law" in cases such as Everson v. Board of Education and Engel v. Vitale. It is to
Black that we owe the prominence of Thomas Jefferson's inapt "wall of separation" metaphor in the
Court's twentieth-century church-state jurisprudence. Black's first purpose on the Court, however,
was to support Franklin Roosevelt's New Deal, and he joined a new majority that eschewed the
Supreme Court's traditional (intended) role of checking congressional efforts to legislate beyond its
enumerated powers.

In deciding the 1940 case of Cantwell v. Connecticut the Court took the
Free Exercise Clause of the First Amendment ("Congress shall make no
law... prohibiting the free exercise [of religion]") and turned it upside
down. The case involved the prosecution of Newton Cantwell, a Jehovah's Witness, for disturbing the peace: he had gone door-to-door on
behalf of his religion and played an anti-Catholic record in a Catholic
neighborhood.

The purpose of the Free Exercise Clause was to keep the federal government from interfering in religious matters (and laws) in the states. But
using the Court's handy Incorporation Doctrine and the Fourteenth
Amendment, the Court ruled that by arresting Cantwell, Connecticut had
violated his First Amendment rights. The Free Exercise Clause had
become a vehicle for federal judges' oversight of state policies affecting
religion!

The Court performed a similar feat with the Establishment Clause in Everson V. Board of Education of Ewing Township (1947). Writing for the majority was Justice Hugo Black, once a stridently pro-New Deal senator from
Alabama who in winning election to the Senate had had the active support
of his fellow members of the Ku Klux Klan. To its nineteenth-century
racism, the Klan in the twentieth century had added anti-Catholicism as
well as anti-Semitism. And the most important issue of the time for antiCatholics was opposing any sort of government support for parochial
(meaning, in most cases, Catholic) schools.

Black claimed that not only did the First Amendment Establishment
Clause apply to state and local governments (which it decidedly did not,
in its original understanding, as some states at the time of ratification had
established state churches), but that it also erected, in language not found
in the Constitution, "a wall of separation between church and state."

Black reasoned thus:

A large proportion of the early settlers of this country came
here from Europe to escape the bondage of laws which compelled them to support and attend government favored
churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with
turmoil, civil strife, and persecutions, generated in large part
by established sects.

These practices of the old world were transplanted to and
began to thrive in the soil of the new.

"These practices," Black continued, "became so commonplace as to
shock the freedom-loving colonials into a feeling of abhorrence." Such
feelings "found expression in the First Amendment."

In support of this claim, Black pointed to the history of revolutionary
Virginia, which suspended collection of taxes to support the Anglican
establishment in June 1776 and, at James Madison's instigation, adopted
Thomas Jefferson's Virginia Statute for Religious Freedom, with its freethinking first section, ten years later. "This Court has previously recognized that the provisions of the First Amendment, in the drafting and
adoption of which Madison and Jefferson played such leading roles, had
the same objective and were intended to provide the same protection
against governmental intrusion on religious liberty as the Virginia statute."

"In the words of Thomas Jefferson," he concluded, "the clause against
establishment of religion by law was intended to erect `a wall of separation between Church and State.'"

As an essay in history, Black's opinion was remarkable for its
ignorance-which has not stopped it, and especially Jefferson's phrase,
from being invoked ad nauseum. The First Amendment does not say that
there shall be no establishments of religion in the states. And in fact, the
first federal Congress pointedly rejected Madison's proposal to address
the question of state establishment of religion.

The purpose of the First Amendment was to ensure that Congress
would neither establish a religion for the United States nor interfere in
the religious policy of individual states-including Massachusetts, Connecticut, and New Hampshire-that retained their colonial religious
establishments.

But what about the "leading role" Justice Black assigned to Thomas Jefferson, author of the "wall of separation" metaphor? As every student
who passes my History 101 course knows, it
is a myth. Thomas Jefferson played no role
in drafting or adopting the Establishment
Clause. He was neither a member of the first
Congress that drafted the First Amendment
and sent it to the states for ratification nor a
member of the Virginia General Assembly
that voted to ratify it. And the metaphor of a
"wall of separation" between church and
state was coined by President Jefferson in a
letter written a decade after the First
Amendment's ratification. Moreover, the letter concerned not the issue of state establishments, but an explanation of why Jefferson did not issue presidential
declarations of Thanksgiving and fasting, as Presidents Washington and
Adams had done.

And even the broadest reading of the Due Process Clause of the Fourteenth Amendment cannot be seen as inviting the Supreme Court to supervise the religious policies of states, counties, cities, and school
boards. Yet the Supreme Court has done this-and done it with the
approval of dominant liberal opinion.

If Only...

"The public welfare demands that constitutional cases must be decided according
to the terms of the Constitution itself,
and not according to judges' views of fairness, reasonableness, or justice."

Justice Hugo L. Black

Surely the most notorious Court decision building on Everson came in
the 1962 case of Engel v. Vitale-the School Prayer Case. In this case, the
Court considered the constitutionality under Everson of a New York policy requiring school districts to have children recite a supposedly innocuous prayer each morning. The prayer said, "Almighty God, we
acknowledge our dependence upon Thee, and we beg Thy blessings upon
us, our parents, our teachers, and our country." Jewish, Unitarian, and
nonbeliever parents of ten students in the New Hyde Park, New York,
school district challenged this practice as violating the Establishment
Clause.

The Court's resident expert in early American history, former Klansman Hugo Black, wrote for a seven-justice majority. "There can be no
doubt," he solemnly scribbled, "that New York's state prayer program
officially establishes the religious beliefs embodied in the Regents'
prayer." This, apparently, was an Establishment Clause-as-applied-to-thestates-by-the-Incorporation-Doctrine no-no.

How could that be? What, exactly, were the "religious beliefs" reflected
by this anodyne prayer? Apparently that there was a god and that the students were dependent upon it.

A traditional Christian might have objected to the prayer on the
grounds that it did not invoke the name of the Trinity. Black's objection
was rooted in his peculiar understanding of the First Amendment's history. But even if one assumed (as Black incorrectly did) that Thomas Jefferson's personal views somehow informed the Establishment Clause,
shouldn't we remember that Jefferson had written, with editorial help
from John Adams and Benjamin Franklin, that all men were "endowed
by their creator with certain unalienable rights"? If that reference to
God-and President Jefferson's references to God in his annual messages to Congress-did not offend his sensibilities, why would he have been
offended by the New Hyde Park prayer?

Engel v. Vitale's ban on prayer in public schools provoked widespread
outrage. As well it should. It was essentially a judicial coup de main that
amended the Constitution without troubling to go through the arduous
process of amending it the constitutional way (as specified by Article V).
The amendment process was made difficult in order to protect the states
from federal innovation. Back then, however, no one assumed that
Supreme Court justices would simply ignore the Constitution-or that
Congress would let them get away with it. But the justices do, and Congress does, and thus justice Black's handiwork continues to shape our
public schools, which now bear the imprint of an anti-Catholic Klansman
who advanced the cause of left-liberal secularists.

Having spat the constitutional bit out of its mouth, the Court raced further and further from the Constitution on issues of church and state. In
1971, the Court announced the "Lemon test" for judging state laws
regarding religion (from Lemon v. Kurtzman, a 1971 case that barred
Pennsylvania from reimbursing non-public schools-mostly Catholic
parochial schools-for some of their educational expenses). In order to
pass constitutional muster, the Court said, the challenged state law must
have a secular purpose, it must have a primary effect that neither
advances nor inhibits religion, and it must not foster excessive churchstate entanglement.

How the Supreme Court found the Lemon test within the language of
the Establishment Clause barring Congress from making laws "respecting
an establishment of religion" is not a mystery: it didn't. And the same
holds true for finding some alleged justification in the Fourteenth
Amendment's Due Process Clause for enforcing this test against the states. The Supreme Court was not only unconstitutionally making law, but was
also making law that the ratifiers of the Bill of Rights and the Fourteenth
Amendment would have rejected.

Chief Justice Warren Burger said that America needed the Lemon test
because

To have States or communities divide on the issues presented
by state aid to parochial schools would tend to confuse and
obscure other issues of great urgency. We have an expanding
array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole
history and tradition to permit questions of the Religion
Clauses to assume such importance in our legislatures and in
our elections that they could divert attention from the myriad
issues and problems that confront every level of government.

With this in mind, "the Constitution's authors sought to protect religious worship from the pervasive power of government."

To paraphrase: "Common citizens, as represented in state legislatures,
are not bright enough to walk and chew gum simultaneously. Fortunately,
I, Warren Burger, lead a committee of well-connected lawyers established
for the purpose of determining which issues should be plucked from the
state legislatures and decided in the way the intellectual elite prefers.
Whenever anyone points out that the Constitution does not actually
address such matters, except insofar as the Tenth Amendment says that
powers not delegated to the federal government are reserved to the states,
we tell them that the Constitution is actually extremely complicated, and
that only three years of law school and appointment to a judicial post can
prepare one to interpret it."

As we shall see, Chief Justice Burger applied a mixture of condescension and historical ignorance to a huge array of questions. Like his immediate predecessor, Earl Warren, he understood the Court as a permanent constitutional convention, a nine-man committee to decide issues purposely left to the states.

One response to Engel v. Vitale was Alabama's 1981 statute authorizing a period of silence "for meditation or voluntary prayer." The legislature hoped to make the law palatable to the Court by leaving out the
state-mandated prayer decreed unconstitutional in Engel.

At trial in the federal district court, Judge Brevard Hand correctly
pointed out that "the Establishment Clause of the First Amendment to the
United States Constitution does not prohibit the state from establishing
a religion." He then dismissed the plaintiffs' claims against Alabama's
statute. The Circuit Court of Appeals reversed him, and the case found
itself in the Supreme Court.

Justice John Paul Stevens called it unsurprising that Hand had been
reversed. Turning to the Lemon test rather than to the Constitution,
Stevens found no difficulty in declaring the Alabama law "unconstitu-
tional"-meaning "inconsistent with Supreme Court precedent." No surprise there. The interesting element of the Court's performance in this
case, Wallace v. Jaffree (1985), lay in the dissent filed by Justice William
Rehnquist.