The Meaning of the First Amendment

[Paul]

Amendment XIV, passed July 9, 1868

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court ruled in Cantwell v. Connecticut, 1940, – “1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment.” No reasoning is set out for the basis of this position, but it is simply stated. Then, the Court rules – 2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by the Fourteenth Amendment. 3. Under the constitutional guaranty, freedom of conscience and religious belief is absolute....”

How did it come about 73 years after the 14th Amendment was passed, that it was held as applying the Establishment and Free Exercise Clauses of the First Amendment against the states? Actually, the answer to this question requires another topic thread with many posts to examine all the issues, litigation, and history involved. However, at this time I will try to set out a basic review as an introduction to the relevant background and cases. I will break this analysis down into two posts, according to a logical division of the concepts involved.

Two lines of reasoning on the proper interpretation of the 14th Amendment were developed over the history of cases arising for review by the Court. Initially, the Court held the 14th Amendment was clearly intended to prevent hostile discrimination against African-Americans and the denial of equal protection before the law for former slaves. The main purpose of the Amendment was to overturn the Dred Scott case and establish citizenship for black people. Neither the Privileges and Immunities Clause, nor the Due Process Clause, of the 14th Amendment created rights for citizens, but the intent of Congress was merely to guarantee that the law will be applied equally and without discrimination on all rights arising from legislation, common law, or Natural Law – referring to inalienable rights endowed by their creator, as the Declaration of Independence says. However, there was some dissent in these early cases, that the 14th Amendment, in fact, did apply the Bill of Rights against the states for all citizens, and as well secured rights established by Natural Law, according to our English legal heritage.

However, beginning with Chicago, Burlington & Quincy Railroad v. Chicago, 1897, the Court distinguished between procedural and substantive due process of law. The Court ruled that confiscation of property for the public good according to legislation that procedurally eliminates compensation to the owner violates due process of law in substance. Then, in Allgeyer v. Louisiana, 1897, the Court held that legislation that prohibits citizens to enter a contract violates their right to liberty under the Due Process Clause of the 14th Amendment. However, with ensuing decisions, the Court did not find all the rights of the first ten amendments applied against the states for protection under the 14th Amendment, but only those rights arising from Natural Law, liberties that are fundamental, immutable, inalienable under a free government. However, Justice Cardozo referred to these rights in Palko v. Connecticut, 1937, as coming from “the very essence of a scheme of ordered liberty.”

The concept of holding that all of the first ten amendments apply to the states through the 14th Amendment is known as “entire incorporation;” while specifying that only certain of these rights come under protection is called “selective incorporation.”

Case Review on Historical Background and Non-Incorporation

First, it should be noted that originally the Supreme Court definitively held that the Bill of Rights was not binding on the states, but was a restraint upon the federal government, in the historic case of Barron v. Baltimore, 1833. In 1815 John Barron and John Craig purchased a deep water wharf and warehouse at Baltimore harbor. Construction in the area was associated with excavation and landscaping by the City of Baltimore, which changed water runoff, causing sand and mud to fill the harbor in front of the wharf. Barron and Craig requested the dredging of the harbor by the wharf at city expense, but without receiving a response. In bringing litigation and on appeal, the wharf owners charged that their Fifth Amendment rights were abridged, that property cannot be taken for public use without just compensation, and eventually the case arrived at the Supreme Court, as the country's first Bill of Rights case. Chief Justice Marshall did not even allow the presentation of an opposing argument by the city, in the Court's ruling that the Fifth Amendment was not binding on states, as it must be understood as a restraining power on the federal government. Marshall noted that if “the framers of these amendments intended them to be limitations on the powers of state governments, they would have... expressed that intention.”

However, another historic case by the Court created an outrage in the nation, which led to the Civil War, and which eventually would focus attention on how the liberties of the Bill of Rights should affect individual citizens. Dred Scott v. Sandford, 1857, made a ruling that Negro slaves were not citizens and were not entitled to the rights, privileges, and immunities guaranteed by the Constitution.

In 1832, Dr. John Emerson, a resident of Missouri, a slave state, purchased Dred Scott. In 1833, Dr. Emerson reported for duty at Ft. Armstrong, Illinois, a free state, taking Dred Scott with him. In 1836, Dr. Emerson was transferred to Ft. Snelling, Minnesota, a part of the Wisconsin Territory, where slavery was prohibited by the Missouri Compromise. Due to ill health in cold weather, Dr. Emerson transferred to Ft. Jesup, Louisiana, but Dred Scott remained at Ft. Snelling until 1838. After Dr. Emerson made another brief stay at Ft. Snelling, he and Dred Scott eventually returned to St. Louis, Missouri. Dr. Emerson died in 1843, and his wife hired out Dred Scott. In 1846, he sued for his freedom, asserting he was no longer a slave, having lived in free territory. He may have been assisted in bringing the litigation, by others desiring to set up a test case on slavery, or lawyers seeking a large settlement for back wages.

After many years of litigation, the case was decided by the Supreme Court, with Roger Brooke Taney as Chief Justice, the lawyer representing the city of Baltimore in the Barron case. The Court ruled,
-- that a Negro, whose ancestors were imported into the country and sold as slaves, could not become part of the political community created by the Constitution and were not entitled to the rights, privileges, and immunities guaranteed this document to the country's citizens. The Negro race had been regarded as inferior for more than a century, was unfit to associate with the white race, and had no rights. Thus, Negroes were not citizens and could not sue in a federal court;
-- that as soon as Dred Scott returned to Missouri, its laws were controlling, and he was not a citizen in that state but a slave;
-- that the Missouri Compromise of 1820 was unconstitutional, as no person could be deprived of life, liberty, and property by the federal government without due process of law, according to the Fifth Amendment. To hold that property that is removed to a particular Territory of the United States is forfeited does not satisfy due process of law.

As an example of this principle, the Court noted that no one would presume that Congress could make laws in a Territory respecting the establishment of a religion, or the free exercise thereof, or abridging the freedom of speech or the press, or the right of people to peaceably assemble or petition or the government for redress of grievances. Congress also cannot deny the right of the person to keep and bear arms, nor to a trail by jury, nor to refrain from being a witness against oneself in a criminal proceeding. The right to private property is protected by the Constitution with equal care. In the same manner, Congress cannot make a law to quarter a soldier in a house in a Territory without the consent of the owner, except in a manner prescribed by law; nor to forfeit the property of a person convicted of treason, for a period longer than that person's life; nor to take private property for public use without just compensation. Slaves are as much property as any other described form.

Five of the nine justices on the Court were southern. A few weeks after the decision, Dred Scott was manumitted. Four years later, Chief Justice Taney gave Abraham Lincoln the oath of office for the presidency.

However, in 1865 the 13th Amendment passed abolishing slavery, and involuntary servitude. Then, southern states passed “black codes,” which in essence attempted to re-institute slavery, specifying blacks could not have firearms, assemble after sunset, take on types of employment, enter into a business, etc. In April 1866 Congress passed The Civil Rights Act to ensure equality of rights for all citizens as a counter measure to these codes. However, to deal with objections raised regarding the Act and to place the common rights of all citizens under the national government, the 14th Amendment was passed in 1868.

The meaning of the language of Section 1 of the Amendment was brought before the Court in the Slaughterhouse Cases, 1872. In order to curb rampant disease from unsanitary butchering practices, the city of New Orleans granted a monopoly for 25 years to a single grand slaughterhouse. 400 members of the Butcher's Benevolent Association sued to prevent the takeover of the industry. They alleged that the statute created involuntary servitude contrary to the 13th Amendment, abridged the privileges and immunities of citizens of the United States, denied the owners of the other slaughterhouses equal protection of the laws, and deprived them of their property without due process of law, contrary to Section 1 of the 14th Amendment.

The Court held that a state's right to grant a monopoly was not forbidden by the 13th Amendment, and an examination of the history of the reasons for adopting the 13th and 14th Amendments clearly indicated the causes of the freedom of the African race and of protection from the oppressions of white men who formerly held them in slavery.

The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions...

The clause which forbids a State to deny to any person the equal protection of the laws was clearly intended to prevent the hostile discrimination against the negro race so familiar in the States where he had been a slave, and, for this purpose, the clause confers ample power in Congress to secure his rights and his equality before the law...

It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.

The Court noted that Section 1. clearly distinguishes between a citizen of the United States and a citizen of a state. The prohibition against abridging the privileges and immunities applies to citizens of the United States, not of a state; and therefore, the intent is not to protect the citizen of a state against its legislative power.

However, Justice Field in dissenting stated that in his judgment the 14th Amendment did protect citizens from denial of rights by state legislation, which included those of the Bill of Rights, and further that the Amendment did not distinguish between federal and state citizenship, but set out how citizenship was established.

Justice Field asserted that the language of Section 1. made being a citizen of a state the basis of being a federal citizen, an issue that was debated before the Amendment's passage. He then notes the terms “privileges” and “immunities” are found in the second section of the Fourth Amendment, “which declares 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'” He cited precedent in noting that those privileges and immunities are more tedious than difficult to enumerate but include the right to life, liberty, property, and to pursue and obtain happiness and safety. In short, the privileges are those that belong to the citizens of all free governments. As the Fourth Amendment protects the citizen of one state to enjoy these privileges in all states, and no discrimination can be made in favor of a citizen of a state and against a citizen of another state, so also the 14th Amendment protects the equality of these privileges between all federal citizens. Therefore, as the Fourth Amendment would protect the citizens of other states against a monopoly, so does the 14th Amendment protect federal citizens against legalized monopolies.

In United States v. Cruikshank, 1875, the Court affirmed and expanded on the Slaughterhouse decision. The case arose from an incident known as the Colfax Massacre. After a disputed election in Louisiana in 1872, a group of armed black men assembled at the Colfax courthouse, taking it over. They were attacked by a band of whites, led by William Cruikshank, who burned down the courthouse, with over 100 of the blacks being killed, most after surrender. Cruikshank and other defendants were convicted of depriving the blacks of their Constitutional rights to peaceably assemble for a lawful purpose and to bear arms.

In reviewing the conviction, the Court noted citizenship arises from being a part of a political community, and as there are both state and national governments, the same person may be a citizen of each at the same time, the one distinct from the other, with differing rights pertaining to each. The national government can only grant rights and privileges under its jurisdiction, leaving matters outside its purview to the states.

The Court considered whether Cruikshank and the others hindered the right of citizens to peaceably assemble for a peaceful and lawful purpose granted by the Constitution. The Court found that the right to assemble for a lawful purpose existed before the Constitution and is an attribute of citizenship under a free government. No such right was granted by the Constitution, but the First Amendment prohibits Congress from abridging “the right of the people to assemble and to petition the government for redress of grievances.”

The Court considered whether Cruikshank and the others hindered the right of citizens to bear arms for a lawful purpose. Again, the Court found the right to bear arms is not granted by the Constitution, but the Second Amendment declares that the right to bear arms shall not be infringed by Congress.

The Court considered whether Cruikshank and the others deprived citizens “of their respective several lives and liberty of person without due process of law...” The Court found these rights do not arise from the Constitution, but they are, as the Declaration of Independence say, “unalienable rights with which they were endowed by their Creator,” or that is, they arise from Natural Law. However, the 14th Amendment does not add to the right of one citizen against another, but it guarantees that the States will apply the law on rights equally, without discrimination.

The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society...
The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.

The charges in Cruikshank were brought under the sixth section of the Enforcement Act of 1870, which guaranteed the right to vote without distinction to race, and which made a felony of injuring, oppressing, threatening, or intimidating any citizen with “intent to prevent and hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.”

The 15th Amendment invested citizens of the United States a right to exemption from discrimination on the elective franchise of voting on the account of race, color, or previous condition of servitude. “The right to vote in States comes from the States, but he right of exemption from prohibited discrimination comes from the United States.” It was not the intent of Cruikshank and the defendants to hinder voting based on race, and it was not averred in legal proceedings that race was the cause of the hostility. The incident was nothing more than a breach of peace within a state, and it is a state's responsibility to protect itself against domestic violence.

Thus, the Court held that in the case it was nowhere alleged that the reviewed rights were hindered based on race, color, or previous condition of servitude, and wherein discrimination actually was alleged, there was no specification of the violation of a particular right. Thus, the Court indicated that the case was not properly brought and set out by the United States.

In Hurtado v. California, 1884, Joseph Hurtado fatally shot his wife's lover. He was brought to trail according to the provisions of the California Constitution, which made an indictment by a grand jury unnecessary, in place of an information standard. After being sentenced to death, he appealed to the Supreme Court, contending that the Fifth Amendment requirement of indictment by a grand jury applied to the states through the 14th Amendment's Due Process of Law Clause.

Hurtado contended that the phrase “due process of law” is equivalent to “law of the land,” as found in the 29th chapter of the Magna Carta, and by immemorial usage the concept includes “general principles of public liberty and private right which lie at the foundation of all free government,” transplanted from England to the colonies and established in the fundamental laws of the states.

The Court held that “due process of law” merely referred to the law of the land, as derived by the authority of the state legislature, interpreted according to principles of common law. The people of the state have the right to make their own laws, to alter them at their pleasure, and to decide what influence the tradition of an English legal heritage should have on their particular circumstances. The 14th Amendment did not guarantee the right to a grand jury and makes no declaration regarding the embodiment of such a right from the Fifth Amendment. Therefore, Hurtado's right to due process of law had not been violated.

Justice Harlan in dissenting noted that the phrase “due process of law” is not new in America or England and antedates the establishment of our institutions. Those driven from the mother country brought with them as their inheritance certain guarantees of the rights of life, liberty, and property, fundamental to Anglo-Saxon institutions. The Congress of the Colonies asserted that the people were entitled to the rights, liberties, privileges, and immunities confirmed by the Magna Carta, and to the full possession of such rights as held by all Englishmen, according to immutable laws. These fundamental doctrines were incorporated into the Constitution of the United States. The similarity of the language in the Fifth and 14th Amendments was no accident, “no person shall be deprived of life, liberty, or property, without due process of law,” but evinced “a purpose to impose upon the States the same restrictions.”

In Presser v. Illinois, 1886, the Court reaffirmed Cruikshank in holding that the Constitution does not grant the right to bear arms, but the Second Amendment protects against Congress infringing on such right. In Miller v. Texas, 1894, the Court again reaffirmed Cruikshank regarding the Second Amendment, as well as the Slaughterhouse cases in general.

M.Paul Webb
Copyright

[Paul]

Case Review on Selective Incorporation

This post is the second part of a review on how the Supreme Court incorporated the First Amendment to apply to the states through the 14th Amendment. The first part is found in the post just before this one.

In Chicago, Burlington & Quincy Railroad v. Chicago, 1897, a parcel of land owned by the railroad company was condemned and taken over by the city of Chicago, in order to widen a street, according to a state statute, with compensation required for the property being ascertained by a jury at one dollar.

The Court held that in “determining what is due process of law, regard must be had to substance, not to form.” Due process of law cannot consist of arbitrarily established proceedings that ignore principles of private right and distributive justice. A legislative act that appropriates the property of an individual without compensation violates the Due Process Clause of the 14th Amendment – “nor shall any State deprive any person of life, liberty, or property, without due process of law.” A verdict of one dollar was not compensation under substantive due process.

In Allgeyer v. Louisiana, 1897, a man was convicted for purchasing insurance on bales of cotton from a New York company not licensed in Louisiana. The Court distinguished the fact that the Louisiana law requiring such license applied to agents selling insurance for residents and considered the issue of whether Allgeyer could on his own contract outside the state for insurance. It found the right to enter into such a contract was protected by the Constitution under the 14th Amendment. Denying the liberty to so contract would be a violation of the Due Process Clause.

In the Allgeyer ruling, the Court quoted from the reasoning of two prior decisions.

The Supreme Court of Louisiana says that the act of writing within that state the letter of notification was an act therein done to effect an insurance on property then in the state, in a marine insurance company which had not complied with its laws, and such act was therefore prohibited by the statute. As so construed, we think the statute is a violation of the Fourteenth Amendment of the federal Constitution in that it deprives the defendants of their liberty without due process of law. The statute which forbids such act does not become due process of law, because it is inconsistent with the provisions of the Constitution of the Union. The "liberty" mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

It was said by Mr. Justice Bradley in Butchers' Union Company v. Crescent City Company, 111 U. S. 746, 111 U. S. 762, in the course of his concurring opinion in that case, that "the right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen."

Again, on page 111 U. S. 764, the learned Justice said: "I hold that the liberty of pursuit -- the right to follow any of the ordinary callings of life -- is one of the privileges of a citizen of the United States." And again, on page 111 U. S. 765:
"But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty, for it takes from him the freedom of adopting and following the pursuit which he prefers, which, as already intimated, is a material part of the liberty of the citizen."

It is true that these remarks were made in regard to questions of monopoly, but they well describe the rights which are covered by the word "liberty," as contained in the Fourteenth Amendment.

Again, in Powell v. Pennsylvania, 127 U. S. 678, 127 U. S. 684, MR. JUSTICE HARLAN, in stating the opinion of the Court, said: "The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guarantied by the Fourteenth Amendment. The Court assents to this general proposition as embodying a sound principle of constitutional law."

In Lochner v. New York, 1906, the Court reaffirmed Allgeyer , in holding a New York statute which limited bakers to 60 work hours per week as unconstitutional, when there was no issue of a safeguard to public health or special emergency. The right to contract labor was held as a liberty protected by the 14th Amendment.

In Twining v. New Jersey, 1908, the Court considered whether the Constitution protects an individual in state courts from being compelled to give self-incriminating testimony. The Fifth Amendment does exempt compulsory self-incrimination against legal action by the Federal Government.

The Court upheld the Slaughterhouse Cases, in holding that the Privileges and Immunities Clause of the 14th Amendment does not create rights through the first ten amendments applicable to the states.

The Court then considered whether the 14th Amendment creates a right of exemption to self-incrimination according to the Due Process Clause. The Court noted that “due process of law” is the equivalent to “law of the land” in the Magna Carta. In view of this historical origin, “due process of law” refers to certain immutable principles of justice inherent in the very idea of free government, to ideals of liberty and justice lying at the base of our civil and political institutions, to fundamental and inalienable rights which cannot be disregarded or denied.

The Court then reviewed the history of laws on compulsory incrimination. The right of exemption was not part of the “law of the land” of the Magna Carta; nor was the exemption regarded as fundamental in English law or the laws of the colonies. The Court then considered whether the exemption is a fundamental principle of liberty to the idea of free government and an inalienable right, by reviewing the early laws of the states, finding that such protection was not held as an immutable. The Court took note of the care that must be exercised in their determination of fundamental rights, to prevent merely importing personal views. However, Justice Harlan, in dissenting, questioned what facts were most relevant from the historical record, in arriving at a completely opposite conclusion.

In Gitlow v. People, 1925, the Court reviewed whether a state could make a felony of advocacy by word of mouth or writing the overthrow of the government by force, violence, or assassination. The written decision began – “1. Assumed, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States;“ later reiterated in the opinion, “For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The Court actually held, in confirming the statute in question, that freedom of speech and the press secured by the Constitution can be abused and is not an absolute right or an unrestricted license.

In Powell v. Alabama, 1932, various men convicted of rape and sentenced to death had been deprived of legal counsel at trail. In appeal to the Supreme Court, the right to counsel, as stipulated by the Sixth Amendment, was held as guaranteed by the Due Process Clause of the 14th Amendment, on the basis of fundamental principles of liberty.

The fact that the right involved is of such a character that it cannot be denied without violating those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316), is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the federal Constitution. Evidently this court, in the later cases enumerated, regarded the rights there under consideration as of this fundamental character. That some such distinction must be observed is foreshadowed in Twining v. New Jersey, 211 U. S. 78, 211 U. S. 99, where Mr. Justice Moody, speaking for the court, said that ". . . it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law."

While the question has never been categorically determined by this court, a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character.

In Palko v. Connecticut, 1937, Palko had been charged with first degree murder but convicted of second degree and sentenced to life in prison. The state appealed, and a new trail was ordered, on the basis that testimony had been improperly excluded and instructions to the jury had not correctly distinguished the definitions of first and second degree murder. At the new trail, Palko was found guilty of murder in the first degree and sentenced to death.
Palko appealed to the Supreme Court, on the basis that he had been subjected to double jeopardy, prohibited by the Fifth Amendment, made applicable to the states through the 14th Amendment. He argued that the entire Bill of Rights applied to the states by the 14th Amendment. However, the Court held, “There is no such general rule.”

Justice Cardozo noted the Court had already ruled on the states being able to end or modify rights found in the Fourth, Fifth, and Sixth Amendments. However, the Court also had noted that other rights found in the Bill of Rights are protected by the 14th Amendment, such as freedom of speech, of the press, and peaceable assembly, or the free exercise of religion. The line of division between the cases is based on what must be considered “the very essence of a scheme of ordered liberty.” Those rights in the Bill of Rights not protected by the 14th Amendment do not “violate a 'principle of justice so rooted in traditions and conscience of our people as to be ranked as fundamental....”

We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These, in their origin, were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed. Twining v. New Jersey, supra, p. 211 U. S. 99. [Footnote 4] This is true, for illustration, of freedom of thought, and speech.

Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.

In Cantwell v. Connecticut, 1940, the first sentence of the decision states – “1. The fundamental concept of liberty embobdied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment.” It elaborates on the reasoning for this ruling only as follows.

We hold that the statute, a construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. [Footnote 3] The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. [Footnote 4] The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee. [Footnote 5]

The footnotes in the above quote cite cases regarding the incorporation of similar rights. Since the Palko decision, the Court has ruled on incorporating various rights from the first ten amendments individually. The Court moved away from its position in Allgeyer on states not being able to restrict the right of the individual respecting private contracts.

In Adamson v. California, 1947, the Court upheld Twining on self-incrimination not being protected by the 14th Amendment. However, this case became noteworthy because of the dissent by Justice Black and his review of the legislative record on Section 1. of the Amendment. He began by arguing that Twining's use of Natural Law should be viewed as an incongruent and morbid tumor, itself a violation of the Constitution, as such rulings were actually legislative and arbitrary. And then, he noted that the Court in the Slaughterhouse cases actually rejected the use of Natural Law arguments, rather than holding they did not establish a prohibition against monopolies. Then, he set out particular interpretations on other relevant 14th Amendment incorporation cases.

However, in an appendix to his opinion, he also reviewed his historical research on the legislative process behind Section 1., in finding that it does incorporate the entire Bill of Rights. He noted that the author of the language, Congressman Bingham, stated his intention on meaning while being questioned in the House of Representatives. Bingham had read chief Justice Marshall's opinion in Barron v. Baltimore, 1833, and realized how much he had wanted to rule that the first eight amendments do apply against the states, but he could not, being constrained by their specific wording. Bingham wanted Section 1. to bring to reality what Chief Justice Marshall knew was best for the nation, that the Bill of Rights would thereafter apply to the states.

However, at this time an academic debate was ongoing between Charles Fairman of Harvard University and William W. Crosskey of the University of Chicago on what actually was the reality of Congressman Bingham's intent for Section 1. And further, Justice Frankfurter also set out a concurring opinion in Adamson, noting –- that Twining was “one of the outstanding opinions in the history of the Court; -- that Natural Law “has a much longer and much better founded meaning and justification” for incorporation of rights from the first eight amendments; -- and that the remarks of Bingham on the floor of the House have limited significance among many factors to be weighed on the intent of the language of Section 1., including a long history of opinions by many justices.

Final Note

If the Court applied the First Amendment to the states on the basis of Natural Law, should students in public schools be prohibited from praying to their Creator, according to the rights endowed to them by their Creator? Was it the intent of Congress in passing the 14th Amendment to protect the children of former slaves from having to pray?

In Palko, Justice Cardozo seemed to emphasize a basis for incorporation resting on a “scheme of ordered liberty,” on a principle of justice rooted in tradition and conscience. Was Cardozo trying to formulate a standard for incorporation outside of the concept of Natural Law? Then, did Cantwell follow soon thereafter by mere coincidence?

Justice Black's opinion in Adamson clearly did reflect a rejection of the concept of Natural Law. Are cases establishing the concept of the “Separation of Church and State” from the same period of time by coincidence?

In Roe v. Wade, 1973, did the Court find a right to privacy in some way within the Bill of Rights, applying to the states through the 14th Amendment, which grants a woman the right to terminate life through an abortion, according to what is endowed by her Creator – or did the Court have some other standard in mind?

In my next post, I will continue in a review of relevant cases on the Establishment Clause of the First Amendment.


M. Paul Webb
Copyright

[Paul]

Board of Education v. Allen, 1968, considers how much support the government may give to religion according to the the Establishment Clause. No one doubts that religious organizations should have access to police and fire protection, which is financed by taxes -- but then, where is a line drawn on when government assistance actually constitutes establishing a religion?

At issue in Allen was whether a New York state law requiring public school authorities to lend textbooks free of charge to all students in grades seven to 12, even those in private schools which were parochial, was a violation of the First and 14th Amendments. In actual fact, no evidence was found of any "religious" books having been loaned.

The Court held the state law on loaned textbooks did not violate the Constitution – as school authorities can distinguish between secular and religious books; as not all teaching in a sectarian school is religious; as secular textbooks do not teach religion; and as the loaned books do not coerce students in any way in the practice of religion.

The Court noted that the line between state neutrality on or support of religion is not easy to locate, but the constitutional standard of separation of Church and State is one of degree. However, Abington v. Schempp, 1963, fashioned a test based on Everson, Zorach, McGowan, and other cases.

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education. . . .

Although free textbooks make attendance at a sectarian school more likely, such provision alone does not “demonstrate an unconstitutional degree of support for a religious institution,” any more than state-paid bus fares did in Everson. Only secular books were loaned under the New York law, and it can be assumed they were suitable for use in public schools regarding religious content.

The Court reviewed the contention, that textbooks are critical to the teaching process, unlike bus fares, and in sectarian schools that process is to teach religion. However, the Court found from precedent a long recognition that religious schools pursue two goals, religious instruction and secular education. The state's interests are served by reliance on the secular education provided by religious schools. The manner of performance of this secular education is a public concern.

Justice Black, in dissenting, asserted that the New York law was a flagrant violation of the First and 14th Amendments, in protecting taxpayers from not being compelled to pay for the support of private religious organizations. The propagandists who succeeded in the passage of the New York law took a great stride in the direction of establishing a state religion, and their efforts would continue toward the objective of having one brand of religion become completely dominant and supreme.

Justice Black emphasized the discord, disharmony, hatred, strife, and tyranny that arises from taxpayer support of religious schools; and thus, he asserted that the Court's ruling bodes nothing but evil to religious peace in the country.

And it nearly always is by insidious approaches that the citadels of liberty are most successfully attacked...
I still subscribe to the belief that tax raised funds cannot constitutionally be used to support religious schools, buy their school books, erect their buildings, pay their teachers, or pay any other of their maintenance expenses, even to the extent of one penny. The First Amendment's prohibition against governmental establishment of religion was written on the assumption that state aid to religion and religious schools generates discord, disharmony, hatred, and strife among our people, and that any government that supplies such aids is, to that extent, a tyranny. And I still believe that the only way to protect minority religious groups from majority groups in this country is to keep the wall of separation between church and state high and impregnable as the First and Fourteenth Amendments provide. The Court's affirmance here bodes nothing but evil to religious peace in this country.

Justice Douglas, in dissenting, noted that the New York law would lead to the public schools selecting textbooks that have the seeds of creed and dogma, and that no reliable standard exists, to distinguish secular from religious textbooks on subjects such as science and history.

Justice Fortas, in dissenting, also noted that the New York law would lead to the public schools selecting books, in a manner transparently camouflaged, hand-tailored for sectarian schools.

Final Note

If Justice Douglas is correct, that no reliable standard exists to ensure that the selection of textbooks are neutral, then what bias is reflected in the those used by the public schools? According to Justice Fortas' concern on manner of selection, have these textbooks been chosen, in a transparently camouflaged but hand-tailored way, to reflect any particular viewpoint?

Next, I will review Epperson v. Arkansas, 1968, and the issues concerning the teaching of evolution in public schools.

M. Paul Webb
Copyright

[Paul]

Epperson v. Arkansas, 1968, arose from a 1928 statute which the Court referred to as an adaptation of the famous Tennessee “monkey law” of 1925, which led to the Scopes case in 1927.

Initiated Act No. 1, Ark. Acts 1929; Ark.Stat.Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.)
"§ 80-1627. -- Doctrine of ascent or descent of man from lower order of animals prohibited. -- It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals."
"§ 80-1628. -- Teaching doctrine or adopting textbook mentioning doctrine -- Penalties -- Positions to be vacated. -- Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars, and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member."

In 1965, Central High School in Little Rock issued a new biology textbook, which had a chapter on Evolution. A biology teacher filed a law suit to have the Arkansas statute declared void. In Epperson, the Court asserted initiating legal action was necessary, as the teacher “faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction, and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense, and subject her to dismissal.” However, in concurring with the ruling of the Court, Justice Black noted that he was uncertain the case was genuine, as there had never been a single attempt to enforce the statute, and the unenthusiastic, even apologetic, defense by the state indicated there never would be any effort at enforcement. The Arkansas Act was lifeless, and not one iota of evidence was presented to show students have not, nor will not, be taught about evolution.

At issue was whether a state could pass a law forbidding state supported schools and universities to teach that mankind descended from a lower order of animals. However, in the process of litigation, issue was also raised on what extent the statute was vague – did it prohibit explaining the theory of evolution; or did it prohibit teaching the theory of evolution was true? Thus, it was alleged that clarifying the intended meaning of the statute could affect the outcome of the Court's review of the case. The Supreme Court of Arkansas upheld the statute as valid, without resolving the issue on its precise meaning.

The U.S. Supreme Court held the Arkansas statute was not a manifestation of religious neutrality. “The statute was a product of the upsurge of 'fundamentalist' religious fervor of the twenties... There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma... 'Neither [a] State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another.'" The Arkansas statute aided religion and breached the wall of separation of church and state.

While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment's prohibition, the State may not adopt programs or practices in its public schools or colleges which "aid or oppose" any religion. Id. At 374 U. S. 225. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma...

In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. [Footnote 15] It is clear that fundamentalist sectarian conviction was and is the law's reason for existence. [Footnote 16] Its antecedent, Tennessee's "monkey law," candidly stated its purpose: to make it unlawful "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals. [Footnote 17]"

Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. [Footnote 18] It eliminated Tennessee's reference to "the story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man.

Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendments to the Constitution.

Justice Black concurred on the basis that the Arkansas statute was too vague to be enforceable. However, he also questioned whether the Court's decision infringed on the rights of people who consider Evolution an anti-religious doctrine.

2. A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion.

3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school's managers do not want discussed. This Court has said that the rights of free speech, "while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U. S. 536,379 U. S. 554; Cox v. Louisiana, 379 U. S. 559, 379 U. S. 574. I question whether it is absolutely certain, as the Court's opinion indicates, that "academic freedom" permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.

Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true...

The manner of teaching evolution in the classroom was brought to national attention recently in Kitzmiller v. Dover Area School District, 2005, decided by the United States District Court for the Middle District of Pennsylvania. A public school district required that students were to be made aware of gaps and problems in the theories of evolution, including a review of Intelligent Design as an alternative explanation for the origin of life. The students were to be informed evolution is a theory, not a fact, and encouraged to keep an open mind.

At issue was whether teaching Intelligent Design violated the Establishment Clause, because it is not science but religion.

Evidence reviewed in the course of the trail included
-- that the Intelligent Design position was being represented by a conservative Christian non-profit law center;
-- that 300 scientists had signed a statement that the claims of Intelligent Design were exaggerated;
-- that a number of experts testified Intelligent Design is not a testable theory; is not generally accepted by the scientific community; is merely another name for “Creationism” and an attempt to present religion as science; has an undeniable religious origin; and depends on many claims which had been falsified;
-- that a primary expert witness for the school district, Michael Behe, conceded – there were no peer review articles advocating support for Intelligent Design theory; and its definition was so loose, astrology could qualify as a science on the same basis; and his own research indicated the possibility of evolved life over a 20,000 year period;
-- that an Assistant Superintendent for the school district in an e-mail referred to a book that called the concept of “separation of church and state” absurd; and his participation in the statement of school district policy indicated bias.

The District Court found – that Intelligent Design violates centuries old ground rules of science, by invoking and permitting supernatural causation; that the concept of “Irreducible Complexity” is flawed and illogical; that negative attacks on evolution through Intelligent Design have been refuted by the scientific community; that the school district was using Intelligent Design as a pretext to promote religion.

The District Court held the overwhelming evidence at the trail established Intelligent Design is a religious view, not a scientific theory, and teaching this position in public school biology classes violates the First Amendment of the Constitution. The judge delivering the decision noted it was not the result of an activist court, but the case arose as the result of an activist school board.

Final Note

Have the Courts actually set out a ruling that any facts of nature which agree with Scripture must be held as not being science but religion? Then, must the many quotations of the fathers of the disciplines of science which confirm the laws of nature attest to the existence of a creator be concealed from the classroom, on the basis that these statements are unscientific? Is Evolution itself truly a science, or can it be considered a religion? What is the definitive study that establishes Evolution as science, rather than philosophy, and that sets out the details of how human life evolved from lower forms? Does any teacher have a constitutional basis to even question the theory of evolution in any way in the classroom? Have the Courts truly been unbiased in their rulings, or are they establishing a national religion in the country based on evolution and contrary to the First Amendment? What would have happened if the King of England ordered that only Evolution could be taught in schools in the 17th century? Was the issue on teaching Evolution brought before the Court in an effort to have this theory become the law of the land as our official religion?

Next I will review Walz v. Tax Comm'n of City of New York, 1970, and whether giving religious organizations a tax exemption is unconstitutional.

M. Paul Webb
Copyright

[Paul]

Apparently in order to establish the basis of its decision in Walz v. Tax Comm'n of City of New York, 1970, the Court noted the necessity of their prior opinions on the Religious Clauses not being consistent, in order to uphold the true purpose of the First Amendment.

At issue was whether property tax exemptions to religious organizations violate the Establishment Clause of the First Amendment. New York City granted such tax exemptions as authorized by the state constitution. A property owner unsuccessfully sought an injunction against the exemptions, on the basis that they indirectly required others to make a contribution to a religious body.

The Court set out its decision by first reviewing the background of the Establishment and Free Exercise Clauses. The Court noted these Clauses “are not the most precisely drawn portion of the Constitution.” Although the sweep of the absolute prohibitions of the Clauses was calculated, “the purpose was to state an objective, not write a statute.” Thus, the prior opinions of the Court have “considerable internal inconsistency,” which derived from utterances that were too sweeping “on aspects of these clauses that seemed clear in relation to particular cases, but have limited meaning as general principles.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other...

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference...

No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts -- one that seeks to mark boundaries to avoid excessive entanglement...

Mr. Justice Jackson, in perplexed dissent in Everson, noted that "the undertones of the opinion, advocating complete and uncompromising separation . . . seem utterly discordant with its conclusion... Perhaps so. One can sympathize with Mr. Justice Jackson's logical analysis but agree with the Court's eminently sensible and realistic application of the language of the Establishment Clause. In Everson, the Court declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history...

With all the risks inherent in programs that bring about administrative relationships between public education bodies and church-sponsored schools, we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a "tightrope," and one we have successfully traversed.

The purpose of these property tax exemptions “is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility.” The New York law, which is in common with other states, “has not singled out one particular church or religious group, or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic group.” However, the imposition of property taxes on religious organizations inherently risks intolerant, hostile, and “sometimes harshly oppressive” action on the part of government toward religion.

It is not necessary to justify the exemptions on social services that some churches perform, which could introduce an element of government evaluation and standards as to their worth, and which would lead to government entanglement with religion. And elimination of the exemptions also would expand government involvement with religion, giving rise to confrontations and conflicts over tax valuations, liens, and foreclosures.

These tax exemptions are not government sponsorship, as no revenue is transferred to churches. The exemptions do not convert churches into an arm of the state, just as libraries, art galleries, or hospitals have not been by having tax privileges. The exemptions only create minimal involvement between church and state.

All 50 states provide tax exemptions for places of worship, and few “concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long a none was favored over others and none suffered interference.” Congress from its earliest days has endorsed the exemptions, which reflects a national attitude toward religious tolerance, spanning over two centuries, and which has never shown the remotest sign of establishing a church or religion.

Justice Brennan, in concurring, noted the line between the permissible and the impermissible under the Establishment Clause must accord with history and reflect the understanding of the founding fathers. Secular and religious institutions must not become involved in a manner that “would subvert religious liberty and the strength of a system of secular government.” However, “there may be myriad forms of involvements of government with religion which do not import such dangers, and therefore should not, in my judgment, be deemed to violate the Establishment Clause."

Religious tax exemptions were not an issue in the formation of the Bill of Rights, were not an evil the framers and ratifiers sought to avoid. The practice of the Commonwealth of Virginia sets out the antecedents of the meaning of separation of church and state. Virginia did not view these tax exemptions as an establishment of religion. Thomas Jefferson and James Madison even voted for them, as did other framers and ratifiers of the Bill of Rights.

Government has two secular purposes for granting the exemptions. First, religious organizations contribute to the well being of the community in non-religious ways and bear burdens that otherwise “have to be met by taxation or left undone.” And it cannot be assumed religious organizations can be used exclusively for religious activities, but the facilities always are used for other purposes, such as Boy Scout meetings, discussion of public issues, or listening to music.
Second, religious organizations contribute to the pluralism of society in the same manner that social service organizations do, such as scientific, literary, or historical societies. The state does not “single out religious organizations for special preference.”

Tax exemptions are different than government subsidies. An exemption only assists an enterprise passively, and termination of tax relief would increase the extent of government involvement with religion.

Justice Harlan, in dissenting, noted that historically, tax exemptions for religious organizations arose at a time “when the church was an agency of the state.” However, the 14th Amendment created a revolution by imposing new and far reaching Constitutional restraints on the states. Justice Douglas quotes Flast v. Cohen, 1968, in noting that James Madison was “the leading architect of the religion clauses... All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing."

However, Madison asserted that no person should “be compelled to contribute even 'three pence' to support a church.” A tax exemption is “essentially a government grant or subsidy,” and the state may not finance religious worship or instruction.

Final Note

Is it possible that the Justices' admitted struggle to find a consistent manner to decide cases on the Religion Clauses actually has occurred due to an incorrect interpretation on their meaning by the Court, or even one that has been forced on the language? If another interpretation of the Clauses were upheld as arising from a more accurate review of their historical basis, would consistency of application of the alternative meaning to the issues reviewed by the Court serve as an indication of validity? Has the Court adequately explained in Walz why there is a struggle for consistency in the cases decided?

At this point in the topic thread, relevant cases before Lemon v. Kurtzman, 1971, have been reviewed. Like Everson v. Board of Education, 1947, the case of Kurtzman sets out a general standard for Religion Clauses decisions. Thus, these were the first cases reviewed in the thread on the Establishment Clause. In posting further, I will continue with a review of Establishment Clause cases since the time of Kurtzman. After completing this review, I will post on the actual historical basis for ascertaining the true meaning of the First Amendment. However, I believe a survey of all the important cases decided on the meaning of the Religion Clauses is essential to understanding the proper perspective of what was intended for the First Amendment and what has occurred in its enforcement. Arriving at truth often involves unraveling complexity, but to ensure success, the method must be chosen carefully.

M. Paul Webb
Copyright