A Country I Do Not Recognize

by Robert H. Bork

  84. 3 U.S. (3 Dall.) 386, 398–399.

  85. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 176, 178.

  86. McCulloch v. Maryland, 17 U.S. (Wheaton) 316 (1819), 407.

  87. Barron v. Baltimore, 32 U.S. (7 Peters) 243 (1833), 250.

  88. Gerald Gunther, ed., John Marshall’s Defense of McCulloch v. Maryland (Stanford, Calif.: Stanford University Press, 1969), 167, 168–169.

  89. Joseph Story, Commentaries on the Constitution of the United States, 4th ed., 2 vols. (Boston: Little, Brown and Co., 1873), I: 295.

  90. Ibid., 314–315.

  91. Ibid., 315.

  92. Joseph Story, Commentaries on Equity Jurisprudence, 12th ed., 2 vols. (Boston: Little, Brown and Co., 1877), I: 15.

  93. Story, Commentaries on the Constitution, I: 322.

  94. 60 U.S. (19 Howard) 393, 426.

  95. Ibid., 621.

  96. Ibid.

  97. Ibid.

  98. Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525, 568.

  99. Baldwin v. Missouri, 281 U.S. 586 (1930), 595.

  100. 478 U.S. 186, 191, 194. Justice White here was repeating part of his dissent in Moore v. East Cleveland, 431 U.S. 494 (1977), 544. He there went on to argue that “the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers.” As a result, he warned, “the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare.” Ibid.

  101. Justice Scalia has come closest to denouncing the doctrine in a series of cases dealing with punitive damages wherein he has raised fundamental questions about the idea of substantive due process. See Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991), 24–39; TXO Production Corp. v. Alliance Resources, 509 U.S. 443 (1993), 470–472; BMW of North America v. Gore 517 U.S. 559 (1996), 598–607. He has also extended his criticism to criminal procedure in Albright v. Oliver, 510 U.S. 266 (1994), 275–276. In Albright (p. 275) he insisted that while the due process clause may be understood to incorporate “certain explicit substantive protections of the Bill of Rights,” it was not home to other “(unspecified) liberties.” He had been even more explicit in TXO Production Corp. (pp. 470–471) where he argued that he was unwilling to “accept the proposition that [the due process clause] is the secret repository of all sorts of other, unenumerated rights—however fashionable that proposition may have been ... at the time of the Lochner-era cases. . . .”

  102. Scalia, Matter of Interpretation, 24–25.

  103. See, for example, his opinion in Michael H. v. Gerald D. in which he conceded that substantive due process “is an established part of our constitutional jurisprudence” but sought to fence it in by recourse to history and tradition, relying on Cardozo’s standard of protections “so rooted in the traditions and conscience of our people as to be ranked fundamental.” 491 U.S. 110 (1989), 121, 122.

  104. 60 U.S. (19 How.) 393 (1857); 163 U.S. 537 (1896). Philip B. Kurland, Politics, the Constitution, and the Warren Court (Chicago: University of Chicago Press, 1970), 186.

  105. Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England, ed. Joseph Cropsey (Chicago: University of Chicago Press, 1971), 129.

  106. 156 L. Ed. 2d., 533.

  107. Ibid., 515.

  108. J. A. C. Grant, “The Natural Law Background of Due Process,” Columbia Law Review 31 (1931): 56, 81.

  — 3 —

  A Court Tilting against Religious Liberty

  Terry Eastland

  The First Amendment provides in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The amendment became part of the Constitution in 1791, but not until 1940, in Cantwell v. Connecticut, did the Supreme Court declare that the states are “as incompetent as Congress to enact” laws establishing religion or prohibiting its free exercise.1 Citing the Fourteenth Amendment’s provision that no state may deprive a person of liberty without due process of law, the Court held that “this fundamental concept of liberty . . . embraces the liberties guaranteed by the First Amendment.” Before Cantwell, the states had passed plenty of laws touching on religion—far more than Congress. Cantwell meant that state laws involving religion could be challenged under the First Amendment. With the necessary plaintiffs quickly emerging, the Court has now decided a long list of cases concerning a wide range of issues, most of them arising from the states.

  The Court’s religion jurisprudence is almost entirely a product of the cases since Cantwell. Legal scholars agree that it is an intellectual mess. Unfortunately, that is not the worst that can be said about it. The truth is that the Court’s religion decisions have done serious damage to the country.

  Religious liberty is a core American value. Indeed, some scholars call it our “first liberty.” The purpose of the treatment of religion in the First Amendment was to protect religious liberty. Yet rather than understanding the First Amendment as containing a single clause with that purpose, the Court has persisted in finding two religion clauses in the amendment—the establishment clause and the free exercise clause—and in reading them independently of one another. Through the establishment clause the Court has insisted on a stricter “separation of church and state” than the original intent of the First Amendment demands. The Court has used the clause to push religion from the public schools and to inhibit efforts to provide public aid for church-related schools. Meanwhile, the Court has had little to say about “free exercise” and in recent years has treated it as a subset of free speech, lacking any independent value. Thanks to the Court, Americans are not as free to exercise religion as the Constitution, properly interpreted, allows.

  The Court is a major reason that the country today is far more secular than the one a dwindling number of Americans grew up in. The secularizing influence of the Court’s decisions can be seen in many areas, not least our public schools.

  Early Cases

  In Minersville (Pa.) School District v. Gobitis (1940), public school authorities required students to salute and pledge allegiance to the flag as part of a daily exercise.2 Two students, both Jehovah’s Witnesses, refused to participate on the ground of religious conscience. For them, saluting the flag “of any earthly government” was idolatrous. The students were expelled. Their father, Walter Gobitis, filed a lawsuit alleging a violation of “free exercise.” Gobitis won in the lower courts, but the Supreme Court ruled in favor of the school district, holding that the First Amendment did not exempt the students from the compulsory exercise.

  Citing the decision in Gobitis, the West Virginia State Board of Education voted to require all public school students to participate in a flag-salute ceremony. Expulsion was the penalty for anyone who refused, and the parents of children so expelled were subject to criminal prosecution. Once again students who were Jehovah’s Witnesses objected on the ground of religious conscience. But in deciding West Virginia State Board of Education v. Barnette (1943), the Court took the broader First Amendment position that no one should be forced to salute and pledge allegiance to the flag.3 At stake, wrote Justice Robert Jackson, was “the constitutional liberty of the individual.”

  Neither Gobitis nor Barnette concerned the First Amendment’s ban on establishing religion. But soon enough the Court had before it a case—Everson v. Board of Education (1947)—in which it would, for the first time, declare the meaning of that provision.4 Between 1937 and 1941 the New Jersey legislature debated whether the state, which had a substantial Catholic population, should fund the transportation costs of parochial school students. In 1941 the state passed a law authorizing local school boards to make rules and contracts for transporting children “to and from school other than a public school.” Ewing Township, like other jurisdictions, proceeded to implement the law. Previously it had reimbursed the fares paid t
o public carriers by parents of students attending public schools. Now it decided to reimburse as well the fares paid by the parents of students going to parochial schools.

  Arch Everson, a resident of Ewing Township and executive director of the New Jersey Taxpayers Association, sued the state. As it happened, Everson was a nominal plaintiff. The lawsuit was initiated and paid for by the Junior Order of United American Mechanics. The JOUAM was a century-old organization with a nativist, anti-Catholic past. It was a vigorous supporter of public schools, including their lingering Protestant orientation. A leading opponent of the parochial school bus bill, the JOUAM was now continuing the same battle in the courts.

  Everson and his allies succeeded in persuading the Court to interpret the establishment clause as Thomas Jefferson had said the First Amendment should be interpreted—as mandating a “wall of separation between church & State.” In his opinion for the Court, Justice Hugo Black spelled out what this “wall of separation” meant—among other things, that no government can pass laws which “aid all religions” and that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” Surely, on those terms, New Jersey had violated the clause. But Black reached the opposite conclusion by maintaining that the transportation subsidy benefited not the parochial schools themselves but the children attending them.

  The four dissenting justices, all of whom voted to strike down the reimbursement scheme, were incredulous. “The undertones of the opinion, advocating complete and uncompromising separation of Church from State,” wrote Justice Robert Jackson in dissent, “seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, ‘whispering “I will ne’er consent,”—consented.’” In a case decided sixteen years later, Abington v. Schempp (1963), Justice William O. Douglas, a member of Black’s majority, confessed to a change of mind about Everson.5 Had Douglas voted as he later came to believe he should have, a majority would have found the bus subsidy unconstitutional.

  Everson’s importance lay less in the result, which happened to be correct, than in the separationist doctrine it embraced. Agreed to by all nine justices, the doctrine provided the foundation for many of the religion decisions the Court would hand down over the next several decades. Yet, as some later justices have realized, the doctrine was grounded in dubious history. Thirty-eight years after Everson, in Wallace v. Jaffree (1985), Justice William Rehnquist carefully examined the actual framing of the establishment clause—a task no justice in Everson or since had undertaken—in concluding that it “forbade establishment of a national religion and . . . preference among religious sects or denominations.”6 In pointed disagreement with the justices in Everson, Rehnquist added that “the establishment clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.” Rehnquist’s withering judgment was this: “There is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” Jefferson’s letter to the Danbury Baptists did not express the intent of the First Amendment.

  It will be noted that in the Jaffree case Justice Rehnquist wrote in dissent. The Court has yet to repudiate Everson’s wrong history and the wrong doctrine it yielded. Nor has the Court attempted to read the ban on establishing religion in conjunction with the prohibition on free exercise, although the latter is the more fundamental value. Indeed, as political scientist Vincent Phillip Munoz has pointed out, Congress in 1791 was prohibited from making an establishment of religion because religious establishments tended to abridge religious liberty.7

  Religion and the Public Schools

  The first schools founded in the colonies had as one of their purposes religious education. The founding generation assumed that religion would be part of education. The Northwest Ordinance, passed in 1787 and then again by the First Congress in 1789, explicitly identified religion as one of the values that schools established in the territory would advance. Public schools, which emerged in the first half of the nineteenth century, retained religious instruction, though less of it was included in the everyday lesson plan as communities became more religiously diverse. During the first decades of the twentieth century, many schools opted for programs in which children were “released” from their classroom schools for an hour during which clergy of their parents’ choice would provide religious instruction. Meanwhile, the school day in many parts of the country began with prayer or Bible reading or both.

  Everson’s separationist doctrine called into question the public schools’ various involvements with religion. In McCollum v. Board of Education (1948), the Court struck down a released-time program initiated in 1940 in Champaign, Illinois.8 Teachers from all religious groups choosing to participate were allowed to offer religious instruction in school buildings for one hour once a week. Students in grades four to nine had the option of attending religion classes of their choice (as approved by parents) or continuing their regular studies. The religion teachers weren’t paid by the state but were subject to the approval and supervision of the school superintendent. Defending itself against Vashti McCollum’s contention that the program established religion, the school board argued that the meaning of the establishment clause was not to be found in Jefferson’s metaphorical wall of separation. This was a brave argument, since all the Justices who had decided Everson only a year earlier still sat on the Court. The argument was rejected, as was the board’s actual (and correct) interpretation of the clause—that it forbids only the government’s preference of one religion over another, and not impartial government assistance to all religions. Black, again writing for the Court, was unwilling to back away from his Everson statement that government may not “aid all religions.” A state, he opined, may not “utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.”

  In his recent book, Separation of Church and State, University of Chicago law professor Philip Hamburger points out that by the time Everson was decided many Protestants had accepted a “Protestant” version of separation of church and state. Indeed, Arch Everson had pressed this version of separation in his case, hoping to deny state aid to children attending Catholic schools. McCollum stunned Protestants around the country, however, because the students typically taking advantage of released-time programs were Protestant. Protestants, writes Hamburger, “now suddenly found themselves confronted with a secular version [of separation], which threatened the nonsectarian religiosity of America’s public institutions. It was an experience they would feel even more profoundly in the wake of later Supreme Court cases and that would gradually bring many Protestants to recognize that they faced a greater threat from secularism and separation than from Catholicism.”9

  Zorach v. Clauson (1952) was not one of those later cases.10 Here the Court sustained a released-time program from New York City that differed from the one in McCollum in that the religious instruction it permitted was provided off campus. That fact impressed Douglas, who in his opinion for the Court said that the First Amendment does not command a “separation of church and state” in “all respects.” The Court would have to press the concept to “extremes,” he said, to condemn the New York program. And in that event, the Court would be insisting on a “constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” Because McCollum had drawn criticism from a wide variety of clergy, Douglas might have felt compelled to reassure Americans that the Court was not really hostile to religion. Douglas famously declared, “We are a religious people whose institutions pres
uppose a Supreme Being.” Black, along with Frankfurter and Jackson, voted to strike down the program, arguing that church and state must be kept “completely separate.”

  Douglas later recanted his “accommodationist” view of the First Amendment and became the Court’s most ardent separationist. But at least he voted the right way in Zorach. Unfortunately, the Court did not use Zorach to overrule McCollum. And soon enough the Court resumed its project of pushing religion from the public schools.

  In Engel v. Vitale (1962) the Court struck down state-sponsored school prayer.11 In 1951 the New York State Board of Regents, in consultation with area clergy, composed and recommended for daily use in public schools a nondenominational prayer of twenty-two words: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” Officials justified the prayer as a part of a child’s moral and spiritual training. Student participation was voluntary. New York courts said that the Regents prayer passed muster because students weren’t compelled to join in. But the Supreme Court sided with the separationists who brought the case. Writing for the majority, Justice Black said it was beside the point that students weren’t forced to participate, because the ban on establishing religion “does not depend on any showing of direct government compulsion.” What offended the First Amendment, he continued, was that the state had engaged in religious activity by writing a prayer. And under the establishment clause, government is “without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.” Only Justice Potter Stewart dissented.

  Evidently worried about negative public reaction, Black said that the decision did not evince “hostility to religion.” He wrote that the framers of the First Amendment wanted to get government out of the business of “writing or sanctioning official prayers.” But Black did not address the fact that the First Congress, which proposed the Bill of Rights, also elected a chaplain who was surely expected to say prayers. Or that it passed a resolution asking the president “to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God.” The resolution didn’t include an actual prayer but stated what its substance should be—substance strikingly similar to that found more than 170 years later in the Regents prayer.