The Religion Clause Turned Upside Down

The View From 1776 ^ | 020305 | Thomas Brewton

[Sirc_Valence]

Not until 1876 were the religious clauses of the First Amendment revisited. In that year, James G. Blaine, then Speaker of the House of Representatives, proposed the Blaine Amendment, which would have extended the religious establishment prohibition of the First Amendment to the states. [It] failed in the Senate...

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[Sirc_Valence]

...in 1925, the dike was breached by a case involving New York’s criminal anarchy statute. Benjamin Gitlow, a member of the Socialist Party, had endeavored to incite action to overthrow the constitution and to institute a socialist government, if necessary, by means of violent revolution. In this case (Gitlow vs. New York, 268 U.S. 652, 666) the Supreme Court completely reversed field and held that the New York statute infringed Gitlow’s First Amendment rights of free speech. Apart from the fact that the Justices were making a legislative decision that revolutionary socialism is no threat to Constitutional government, they had at a stroke abandoned 136 years of case law and arbitrarily redefined the Bill of Rights.

By 1925, Mussolini was getting favorable press in the United States as an example of restoring social and political order after the earlier Socialist Party turmoil. Americans noted approvingly that under Mussolini the trains ran on time and mail delivery was dependable. Simultaneously academics like John Dewey and the Greenwich village literati were singing the praises of Soviet socialism under Lenin and Stalin. Socialism was increasingly becoming a subject of sympathetic attention among the general public, even from the pulpits of Christian ministers who should have known better.

In 1916 President Woodrow Wilson had appointed Louis Brandeis to the Supreme Court, where he joined fellow Massachusetts liberal-socialist Oliver Wendell Holmes (it sometimes seems that whatever is rotten in American politics and social views emanates from Massachusetts). Brandeis had gained fame before joining the Court for what came to be known as the “Brandeis brief,” arguments before the Supreme Court based, not on existing law, but on sociological theories and reams of statistics collected by academic researchers. Both Brandeis and Holmes were predisposed to reach judicial opinions on the basis of what seemed to them to be the socially desirable outcome of the case, regardless of existing law or legal case precedent.

Theirs was a view that was part of the climate of opinion developing among liberal Republicans, as well as Democrats. Enough of their fellow Justices shared the views of Holmes and Brandeis to decide the Gitlow case, not on the basis of law, but on on the basis of what they thought the New York legislature ought to have done.

Another point to be noted is the shift away from a traditional principle of jurisprudence: wariness about unforeseeable effects of broad-based decisions. The Supreme Court traditionally had rendered decisions on the narrowest possible basis, preferably linked to specific facts of a case, as opposed to rendering a decision on the basis of a sweeping principle.

As an example, when the Court decided against a challenge to the Federal Tennessee Valley Authority (TVA), it hung the the decision on a relatively obscure law and a highly specific set of facts. The challenge to TVA was that it authorized the government to go into business, competing directly against private electric utility companies that lacked the Federal government’s immense financial resources and its low interest rates on borrowed money. Rather than ruling that the Federal government can compete in this fashion with private businesses, the Court noted that the original TVA hydroelectric power dam at Mussel Shoals, Alabama, had been built during World War I to provide power to a munitions plant, which the Court said was a legitimate exercise of Federal power.

The change wrought by Justices Holmes and Brandeis and their sympathizers was to assert broad principles, such as unlimited rights of free speech, and then to decide cases on the basis of whether they thought a particular law coincided with the asserted right. The problem is that, once this process begins, there is literally no end to it. After nearly eighty years of such judicial activism, almost any action short of murder can be construed as lawful expression of private opinion that is to be protected by the First Amendment’s free speech clause.

In fairness, it must be noted that later, during the New Deal, the Supreme Court invalidated many of President Roosevelt’s socialistic regulatory and control schemes. It was the liberals’ turn to scream at the top of their lungs against what they called judicial activism. President Roosevelt’s response was the 1937 court-packing plan...

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Rather than issuing decisions that said, if people wanted different answers, they should pressure their representatives in the legislatures to change the laws, the Justices with increasing frequency infringed the legislatures’ prerogatives by making up their own law. None of these cases, however, involved the First Amendment’s religion clauses.

During the 1920s there were many unsuccessful challenges in state courts to legislation authorizing things like school prayers or aid to parochial schools. None of these challenges succeeded, and no plaintiff ever suggested that such laws were violations of the First Amendment.

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As Walter Berns noted in “Freedom, Virtue, and the First Amendment” regarding the Cantwell case, “The Supreme Court is permitted to define what is and what is not a bona fide religion, but when local officials are given this authority it is censorship forbidden by the Constitution.”

Having come down emphatically against the city of New Haven, the Justices nonetheless wavered in the following years, deciding some cases in favor of, and others against, Jehovah’s Witnesses, who seemed to have a monopoly on religion cases coming before the Supreme Court. Their opinions sometimes directly contradicted other decisions that had been rendered within the same decade...

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Needless to say, historically that is not the stuff of justice. Law and order, when people have no clear idea of what the Court will rule or its reasons for its rulings, is replaced by what resembles a casino where one places his bets and hopes to win. Ultimately, as we saw in the riots, burnings, looting, murders, and drug dealing in central cities after the start of the Great Society in the late 1960s, this moral relativism degenerates into fearful anarchy. In Thomas Hobbes’s words, life becomes nasty, brutish, and short.

-HUGO BLACK SNIP-

Recent challenges of Michael Newdow to the “under God” phrase inserted by Congressional act into the Pledge of Allegiance and to the inclusion of a prayer at the President’s inaugural ceremony were put off on technical grounds or were simply deferred for later decision. Sooner of later those challenges will come again to the Supreme Court.

The United States, if liberal-socialists prevail, will become firmly committed to an anti-religious, secular materialism, because it is now the Federal courts, not Congress, that ultimately make the laws.

[msdrby]

ping

[Sirc_Valence]

Thanks ms.