The Morality of Democratic Citizenship: Goals for Civic Education in the Republic's Third Century

R. Freeman Butts
Center for Civic Education
Calabasas, California

Chapter Two
Another Clear Mandate: Teach the Constitution (continued)

C. Whose Constitution Shall We Teach?

In view of this very brief history of the way the Constitution has been taught in the schools, I believe that the public and the profession must face candidly the fact that the schools should deal not only with the formal, structural description of the various sections of the Constitution but with some of the variety of meanings and conflicting interpretations that have marked its history. Obviously, the schools cannot try to prepare constitutional experts, but they should try to give prospective citizens some useful understanding of the principles and the different interpretations underlying our democratic constitutional order. At this point I would like to illustrate what I mean by discussing a theme important for students, teachers, and citizens alike. It focuses on religion, education, and the First Amendment.

I believe that much depends on what history you read and believe–about the "original intention" of the framers of the Constitution and how the Constitution has been interpreted since then by the Supreme Court and the whole federal court system. I shall try to state as fairly as I can what I believe to be the appropriate "history lesson" on this extraordinarily complex and important issue and then indicate how I view the "civics lesson" that the schools might teach.

I hope that such "lessons" might be instructive for the teaching profession, the public, and possibly even for the new Chief Justices and Associate Justice of the Supreme Court. My major point here is to remind the educational profession and the public that present controversies over religion and education have a long history and that the way we read and understand that history makes a difference in our informed policy judgments.

Although the issues are of long-standing dispute, there are three historical clusters of questions that can be discerned in recent controversies over religion and education: 1. What are sound constitutional principles and wise public policies with respect to the use of public funds to aid religious schools?

Since the Everson case in 1947, arguments have revolved around the meaning of the establishment clause of the First Amendment, which has generally been taken to mean that tax funds should not be used in ways that benefit religious schools.  25  But contrary arguments have also been advanced supporting such public aid on theories that it benefited the child, not the school; that it provided public funds for auxiliary services and indirect aid, not basic or direct support; that it purchased specialized but non-religious services; that vouchers or tuition tax credits increased parental choice but did not go directly to religious schools; or that "shared time" in which public school teachers are sent to give remedial instruction to private school students in parochial schools is justified as aid to disadvantaged children.

2. What are sound constitutional principles and wise public policies with respect to religious instruction or observances in public schools?

The most visible cases on this issue in recent years have revolved around prayer in the public schools. But, again, this is a long and complicated issue with which the Supreme Court has struggled since the McCollum case in 1948, when it ruled that allowing children to attend sectarian classes in public schools during regular school hours and taught by outside religious instructors was unconstitutional.  26  Controversy continues to arise over organized and required prayers, Bible reading, Christmas pageants, reciting the Ten Commandments, teaching creationism, censoring "antireligious" or "irreligious" or "secular humanist" textbooks, voluntary vocal prayer, voluntary silent prayer or meditation or reflection, or simply "moments of silence" as a substitute for prayer. The defeat in the Senate of a constitutional amendment on prayer in May 1984 led to the passage of the "equal access" act which may have opened another Pandora's box of disputes, because it permits philosophical, religious, and political discussions to be conducted by student groups in extra curricular periods in the schools so long as other student groups may meet for other purposes.

3. There is a third cluster of issues over religion, politics, and education that is not so prominent on the national scene as the above, but it is growing rapidly at the state level. This is the effort to free private religious schools from state authority or state regulation on the basis of the free exercise clause of the First Amendment. It takes the form of arguing that religious schools should not be obliged to meet state requirements concerning certification of teachers, curriculum or textbook standards, or compulsory attendance laws if these conflict with the religious beliefs of the parents or the sponsors of the schools. Some lawyers are even arguing that a public school system based on secular principles is itself a violation of the First Amendment and thus is unconstitutional. Their view is that all schools should be private.  27  Their motto is: separate the schools from the state. The more prevailing and established constitutional view is that the states do have the competency and the obligation to use their regulatory power to see to it that education for democratic citizenship is promoted in private as well as in public schools. Opposing views on such issues are spelled out in several recent publications.  28 

The discussion here is deliberately limited to education for citizenship in the schools and does not try to cover a wide range of other religious-political topics, such as anti-abortion laws, child abuse, teen-age pregnancy, religious objections to photographs for automobile licenses, requirements that employers give a day off on the Sabbath, religious exemption from draft registration, conflicts over property rights of churches, U.S. representation to the Vatican, Nativity scenes on public property, etc.

With regard to religion and education in the schools there is a concerted revival to call upon the founders of the Republic as witnesses in support of closer ties between religion, politics, and education and thus reverse what conservatives perceive to be ominous trends toward liberalism and secularism during the past 40 or 50 years. Specifically, the effort is to try to show that the doctrine of separation of church and state is a myth or a fiction and to prove that the framers of the First Amendment sought solely to prevent the federal government from establishing a particular single church in preference to all others, and thus the framers supposedly would have approved state establishments of religion that could provide support for religious schools of different faiths just so no preference was shown among them.

In the Everson case in 1947 the Supreme Court affirmed an interpretation of the intentions of the Amendment's framers, especially of James Madison, as favoring considerable, if not absolute, separation of church and state at the federal level. This might be termed a "liberal reformation" of the meaning of the First Amendment. The Court went back to the original sources, the historical setting, and the currents of ideas that formed the intellectual and political context in which the First Amendment was framed. Then, by arguing that the mandates of the First Amendment applied to the states as well as to the federal government through the Fourteenth Amendment (the principle of "incorporation"), the Court arrived at the following formulation, which has dominated constitutional thinking for most of 40 years:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... 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.... In the words of Jefferson, the clause against establishment of religion by law was intended to "erect a wall of separation between Church and State."  29 
The occasion for this case was a challenge to a New Jersey law permitting tax funds to be used by Catholic parents to send their children by bus to parochial schools. The Court split 5-4 in the Everson case on whether this practice was in effect an establishment of religion and thus unconstitutional, but there was no disagreement on the principle of separation of church and state embodied in the establishment clause. Justice Hugo Black wrote for the majority what is quoted above, but in his dissenting opinion, Justice Wiley Rutlege was, if anything, even more sweeping in his statement of the meaning of the establishment clause:

The prohibition broadly forbids state support, financial or other, of religion in any guise, form or degree. It outlaws all use of public funds for religious purposes.  30 
These pronouncements gave a broad meaning to the establishment clause; they constituted a "liberal reformation" of the narrow meaning which had been formulated by such conservative legal authorities of the nineteenth century as Joseph Story and Thomas Cooley. Moreover, the liberal interpretation relied heavily upon the historical record and the original intention of James Madison as revealed in his activities and writings in the context of the 1770s and 1780s, when the state constitutions and federal constitution were being drafted and adopted.

The Everson majority accepted the broad principle but nevertheless decided that bus fares were merely welfare aid to parents and children and not aid to the religious schools themselves. Soon afterward, the McCollum case of 1948 prohibited released time for religious instruction in the public schools of Champaign, Illinois as a violation of the Everson principle. These two cases set off a thunderous denunciation of the Supreme Court and calls for impeachment of the justices. They also sent some of us historians of education scurrying to the original sources to see how valid was this broad and liberal interpretation agreed to in principle by all the members of the Supreme Court. The outpouring of writing pro and con cannot be cited here, but the interested reader could look for critiques by Edward S. Corwin, Mark DeWolfe Howe, Wilfrid Parsons, and many Catholic writers; for support of the Supreme Court's principle to Anson Phelps Stokes, Leo Pfeffer, Herman Pritchett, Philip Kurland, Milton Konvitz, the American Civil Liberties Union, and Protestants and Others United for Separation of Church and State.

The two books at that time that gave most attention to the establishment principle as it related specifically to education were: James M. O'Neill's Religion and Education Under the Constitution  31  and my own The American Tradition in Religion and Education.  32  O'Neill found the Court's interpretation appalling; I found it basically true to Madison and the majority of the framers. O'Neill's book was hailed by many Catholic reviewers and a few Protestants. Mine received favorable reviews in a score of scholarly journals and a dozen educational journals. Successive editors of America, Father Robert Hartnett and Father Thurston Davis, lambasted my book, as did O'Neill. But it was cited in 1971 in the concurring opinions of Justices Brennan, Douglas, and Black in Lemon v. Kurtzman when Chief Justice Burger summarized for a unanimous court the accumulated precedence since Everson. These were the three tests of constitutional state action in education: primarily a secular purpose; neither advancement nor inhibition of religion; and no excessive government entanglement with religion.  33 

With that decision I had concluded that my views of the framers' historical intentions had been pretty well accepted: namely, that "an establishment of religion" in the 1780's was widely known to be "a multiple establishment" whereby public aid went to several churches, not just one, and that this is what the majority of framers, above all Madison, intended to prohibit in the First Amendment.  34 

The Conservative Counterreformation

But now in recent years something like a "conservative counterreformation" has arisen to attack once again the Court's adherence to a broad or liberal principle of separation between church and state and, as I have said, to characterize it as a "myth," a "fiction," or merely "rhetoric." The conservative underpinnings are clear in "a jurisprudence of original intention," which has revived the debates of the 1940s and 1950s, expounding much the same views as those of O'Neill, namely, that "the framers" intended only to prohibit Congress from establishing a single national church, but would permit Congress to aid all religions on a non-discriminatory basis and would even permit the states to establish a single church if they wished. Such arguments are now being resurrected or reincarnated (if I may use the secular meaning of those terms) with even more sophisticated scholarship by such authors as Walter Berns of Georgetown University, Michael Malbin of the American Enterprise Institute, and Robert L. Cord of Northeastern University.  35 

The point is that these conservative revisionist views of the historical meaning of the establishment clause of the First Amendment are being advanced by powerful voices in the White House, the Justice Department, the Senate, and the federal judiciary itself as well as by a variety of conservative religious organizations. In January 1983 Federal Judge W. Brevard Hand gave credence to these views when he upheld Alabama laws providing for prayer in the public schools on the grounds that the Supreme Court had erred in its historical reading of the intentions of the framers of the First Amendment. He relied on Robert L. Cord's study by arguing that the First Amendment was intended solely to prevent the federal government from establishing a single church like the Church of England and that the state of Alabama could therefore establish a state religion if it chose to do so.  36  This line of argument and supporting documentation were adopted by the Republican majority on the Senate Judiciary Committee in January 1984 when it recommended a constitutional amendment to permit school prayer in the public schools. But the proposal was defeated after long and rancorous debate in the Senate in March 1984.

On June 4, 1985, the Supreme Court further rebuked this argument when Justice John Paul Stevens in his opinion for the Court (6 to 3) in the Wallace v. Jaffree case reversed Judge Hand and referred to his "newly discovered historical evidence" as a "remarkable conclusion" wholly at odds with the firmly embedded constitutional proposition that "the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States." Justice Stevens insisted that the Court had confirmed and endorsed time and time again the principle of incorporation by which the Fourteenth Amendment imposes the same limitations on the States that it imposes on Congress with regard to the protection of civil liberties guaranteed by the First Amendment and the original Bill of Rights.  37 

It was plain, however, that the confrontations between these views of history were not over. In his long dissent in Jaffree Justice William H. Rehnquist, now Chief Justice, reasserted an "accommodationist" view of church and state relations, and, relying on O'Neill and Cord, he argued that the "wall of separation between church and state" is a metaphor based on bad history and furthermore that the Everson principle "should be frankly and explicitly abandoned." Justice Byron R. White in his dissent supported such "a basic reconsideration of our precedents."  38 

Determined not to be boxed in by the Supreme Court majority, Judge Hand reversed his field on March 4, 1987 by ruling that "secular humanism" was a religion being preached by 40 textbooks used in Alabama's schools and so ordered them to be removed under the First Amendment.  39  If Alabama children could not pray in school, then neither could they study textbooks that neglect the role of traditional religion and discriminate against theistic religion in favor of humanistic religion. Judge Hand had given fair warning in a footnote in his earlier 1983 decision that he might well render such a decision on secular humanism.  40 

Although on September 10, 1985 the Senate by a vote of 62-36 once more defeated Senator Jesse Helms' effort to pass legislation preventing federal courts from ruling on prayer issues, as early as October 3 the Republican controlled Senate Judiciary Committee approved (12-6) yet another constitutional amendment proposed by Senator Orrin Hatch to permit "individual or group silent prayer or reflection" in the public schools.  41 

Soon thereafter, the Supreme Court ruled on July 1, 1985 in Aguilar v. Felton (5-4) that the practices of New York City (and Grand Rapids, Michigan) in sending public school teachers into private religious schools to teach remedial and enhancement programs for disadvantaged children were also unconstitutional, invoking the Everson principle that the state should remain neutral and should not become entangled with churches in administering educational affairs in the schools. The Court's opinion was delivered by Justice William J. Brennan, and dissents were written by Chief Justice Burger and by Justices Sandra Day O'Connor, White, and Rehnquist.  42 

These Supreme Court decisions on school prayer and "shared time" were greeted with some surprise and considerable elation in liberal quarters of government, religion, education, and politics, but with dismay in conservative sectors. Attorney General Edwin Meese III quickly and forcefully responded on July 10, 1985 in a speech before the American Bar Association in which he explicitly criticized the Court's decisions on religion and education as a misreading of history. He castigated the justices for relying on their own ideological predilections rather than on the original intentions of the founders. He stressed the fact that the Bill of Rights did not apply to the states until 1925 when the Supreme Court began to argue that the limitations upon Congress as stated in the original Bill of Rights were applied to the states through the Fourteenth Amendment, i.e., the principle of incorporation carries federal protections of "life, liberty, and property" to the states:

...nothing can be done to shore up the intellectually shaky foundation upon which the [incorporation] doctrine rests. And nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation.  43 
Mr. Meese commended Justice Rehnquist's argument that the Court's decision in Jaffree was based upon a misreading of history and therefore that Everson should be overruled:

The point, of course, is that the Establishment Clause of the First Amendment was designed to prohibit Congress from establishing a national church. The belief was that the Constitution should not allow Congress to designate a particular faith or sect as politically above the rest. But to have argued, as is popular today, that the amendment demands a strict neutrality between religion and irreligion would have struck the founding generation as bizarre.

The purpose was to prohibit religious tyranny, not to undermine religion generally... it seems fair to conclude that far too many of the Court's opinions were, on the whole, more policy choices than articulations of constitutional principle. The voting blocs, the arguments, all reveal a greater allegiance to what the Court thinks constitutes sound public policy than a deference to what the Constitution–its text and intention–may demand....

In my opinion a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court would once again be a threat to the notion of limited but energetic government.

What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and the charge of being either too conservative or too liberal.

A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.

In concluding his speech Attorney General Meese gave a challenge and a warning to the Supreme Court:

Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was....

It has been and will continue to be the policy of this administration to press for a Jurisprudence of Original Intention. In the cases we file and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.

Attorney General Meese was obviously relying upon views like those of Grover Rees, law professor at the University of Texas, who defended President Reagan's prayer amendment by calling the wall of separation of church and state a myth and who became a special assistant to Mr. Meese supervising the process by which judges are selected and appointed to the federal judiciary.  44 

The fact that President Reagan had already appointed by 1986 more than 25% of the nation's federal judges and may well have appointed over half of all federal judges by the end of his second term has led several noted legal scholars to express great concern about the ideological tests being applied to the appointment process. Among these critics are such legal scholars as Laurence H. Tribe, professor of constitutional law at Harvard,  45  Herman Schwartz, professor of law at The American University,  46  and A.E. Dick Howard, professor of law at the University of Virginia.  47 

On several occasions in July and August 1985 Secretary of Education William J. Bennett also rose to the fray by asserting that the Supreme Court's "fastidious disdain for religion" as revealed in its summer decisions was unhealthy, badly reasoned, and historically unjustified: "Nor is it required by the First Amendment, in any historically sound reading of its purpose or meaning."  48 

In a notable speech to the Knights of Columbus on August 7, 1985 Secretary Bennett gave a ringing affirmation that public as well as private schools "have no higher calling than to transmit those values that all Americans share." By this he meant:

It remains a fact that in the President's words "the Western ideas of freedom and democracy spring directly from the Judeo-Christian religious experience." The fate of our democracy is intimately intertwined, "entangled," if you will with the vitality of the Judeo-Christian tradition.  49 
Secretary Bennett gave notice that the Supreme Court's "misguided judgments" of the past 20 years would not dissuade the U.S. Department of Education from trying to nullify the Court's decisions on shared time and prayer. It will refuse to accept the reasoning underlying the Court's recent decisions as sound; it will not only work to restore prayer to public schools but for vouchers and tax credits for private schools:

The Administration in which I serve will continue to press for legislation and, where necessary, judicial reconsideration and constitutional amendment to help correct the current situation of disdain for religious belief.  50 

Raising the Debate to New Heights

A public confrontation between the conservative expressions of the Administration spokesmen and the most outspoken liberal on the Supreme Court was soon joined in a speech given by Justice Brennan at Georgetown University on October 12, 1985. In unusually sharp terms Brennan took direct issue with the "jurisprudence of original intention." Without mentioning names, he said:

There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive.... Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstances....  51 

Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate "the majestic generalities of the Bill of Rights, conceived as part of a pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." (Barnette, 319 U.S. at 639)

We current Justices read the Constitution in the only way that we can: as 20th century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time?  52 

Pointedly referring to "the amended Constitution" Brennan stressed that the very purpose of the Constitution was "to declare certain values transcendent, beyond the reach of temporary majorities" that would operate against the rights of minorities. And he reminded his audience that the unamended Constitution dealt primarily with prescribing and limiting the powers of government, whereas the amendments addressed the vision of the rights and dignity of the individual.

Justice Brennan then gave a ringing defense of the process since 1925 whereby the great rights of expression and of conscience were indeed "absorbed" into our basic charter by the Court's interpretation of the Fourteenth Amendment. He concluded this part of his speech with an accurate restatement of the Jeffersonian and Madisonian purposes of civic education, namely, to prepare citizens to engage in "robust public discussion" as a means to "form and express political judgments:"

Recognition of broad and deep rights of expression and of conscience reaffirm the vision of human dignity in many ways. They too redeem the promise of self-governance by facilitating--indeed demanding--robust, uninhibited and wide-open debate on issues of public importance. Such public debate is of course vital to the development and dissemination of political ideas. As importantly, robust public discussion is the crucible in which personal political convictions are forged. In our democracy, such discussion is a political duty; it is the essence of self government. The constitutional vision of human dignity rejects the possibility of political orthodoxy imposed from above; it respects the right of each individual to form and to express political judgments, however far they may deviate from the mainstream and however unsettling they might be to the powerful or the elite.  53 
Adding still another dimension to the unusual public confrontation between individual members of the Supreme Court and of the Administration, Associate Justice John Paul Stevens criticized Attorney General Meese by name in his speech to the Federal Bar Association on October 23, 1985. He stressed the uncertainty attending the messages being conveyed by the framers 200 years ago as well as the complexity and diversity of the original intentions of the framers:

We must, of course, try to read their words in the context of the beliefs that were widely held in the late 18th century.... The term "founding generation" [as used by Attorney General Meese] describes a rather broad and diverse class. It includes apostles of intolerance as well as tolerance, advocates of different points of view in religion as well as politics, and great minds in Virginia and Pennsylvania as well as Massachusetts. I am not at all sure that men like James Madison, Thomas Jefferson, Benjamin Franklin or the pamphleteer, Thomas Paine, would have regarded strict neutrality on the part of the Government between religion and irreligion as "bizarre."  54 
Nearly a year later this debate broadened to the Fourteenth Amendment.In August 1986 Justice Brennan in a speech to the American Bar Association hailed it as perhaps the most important "legal instrument of the egalitarian revolution that transformed contemporary American society. In effect, the Reconstruction amendments gave us a brand new Constitution; new meanings for "due" in "due" process" and new meaning for "equal" in "equal protection of the laws." In September William Bradford Reynolds, Assistant Attorney General for civil rights, denounced Justice Brennan and his radical egalitarianism as "perhaps the major threat to individual liberty in the United States today."  55 

Then, on October 22, 1986, Attorney General Meese returned to the argument on judicial activism by stating that the Supreme Court's rulings are not necessarily binding on persons or government officials who had not been parties to the Court's decisions.  56  Once gain, his example had to do with an educational issue. He referred to Cooper v. Aaron (1958) in which the Supreme Court overruled Governor Orval Faubus who had argued that the Brown decision of 1954 ordering desegregation of public schools in Topeka, Kansas did not apply to Little Rock, Arkansas, because Little Rock had not been a party to the Brown case. Meese seemed to be arguing that each branch of government could decide for itself what was and what was not constitutional.

In Cooper v. Aaron, however, the Supreme Court, in an unprecedented opinion personally signed by all nine justices, stated that the Supremacy Clause made the Constitution the supreme law of the land, that it was the function of the Supreme Court to say what the law is, and that the Fourteenth Amendment applied Brown to all state officials as well as federal officers.  57  What the Attorney General might have done next on these issues is not clear, because his and the nation's interests were soon absorbed by the November revelations concerning the Iran-Contra affair. Then, with Justice Lewis Powell's resignation in June 1987 and the nomination of Judge Robert Bork to replace him, constitutional ideology once again came to the fore in the confirmation hearings of 1987.

Meanwhile, in May 1987 still another Supreme Court Justice entered the public arena of debate over constitutional questions. Justice Thurgood Marshall stirred more than a ripple of debate by his direct criticism of the "original intent" of the framers who accepted continuation of the slave trade in the Southern states as a trade­off to the Northern states' desire for Congressional power to regulate commerce. The Constitution of 1787 gave no vote to women and regarded black slaves as rightful property to be bought and sold, an original intent reaffirmed by the Dred Scott case in 1857. In these words Justice Marshall announced that he would celebrate the Constitution on its Bicentennial as "a living document," which evolved through the Bill of Rights and the other amendments protecting individual freedoms and human rights:

... I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do 1 find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago....

While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education, housing, and employment, and to have their votes counted, and counted equally....

What is striking is the role legal principles have played throughout America's history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The process has been dramatic, and it will continue.

The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a women and the descendent of an African slave. "We the People" no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them.  58 

This series of direct and personal encounters reveals a remarkable and major difference between the debates of the late 1940s and early 1950s and the present public confrontations. Then, the Truman and Eisenhower Administrations pretty much left the matter in the hands of the courts and the Congress. In 1986, the White House, the Attorney General and the Justice Department, the Secretary of Education, the Republican majority on the Senate Judiciary Committee, and the new Chief justice and conservative justices on the Supreme Court were ranged against the liberal and centrist members of the Supreme Court and the Congress and such notable constitutional scholars as Laurence H. Tribe of Harvard, Herman Schwartz of American University, A. E. Dick Howard of the University of Virginia, and Leonard W. Levy of the Claremont Graduate School. They all appeal to history in one way or another. Whose history do you read and believe?

In general, I believe that the views of Justices Brennan and Stevens regarding the original intention of the framers are closer to the mark than are those of Attorney General Meese, but I also believe that the "original intention" argument should not be easily given away when it comes to the historical meaning and even the wording of the establishment clause of the First Amendment. It is true that the framers could not have anticipated 20th century issues growing out of wiretapping or electronic surveillance as a means of unwarranted "search," or busing as a device to achieve "equal protection of the laws.

But it is also true that today's controversies over the relations of church and state are not all that different from what they were in the latter part of the eighteenth century. The issues involved in achieving and maintaining religious freedom in a pluralist society have a long and remarkably persistent history from the Protestant Reformation of the sixteenth century to the present day.

Continue to Chapter 2, Part D

25. Everson v. Board of Education, 330 U.S. 1 (1947).  back 

26. McCollum v. Board of Education, 333 U.S. 203 (1948).  back 

27. See, e.g., Stephen Arenas, Compelling Belief: The Culture of American Schooling (New York: McGraw-Hill, 1983).  back 

28. See, e.g., the Commentary section of Education Week, Nov. 9, 1983, "State Regulation of Private Schools: Three Views." The authors were William Bentley Ball, constitutional lawyer involved in many lawsuits on this issue; Donald A. Erickson, professor of education at the University of California at Los Angeles, and myself. Recent books include James C. Carper and Thomas C. Hunt, eds., Religious Schooling in America (Birmingham, Ala.: Religious Education Press, 1984); James E. Wood, ed., Religion and the State: Essays in Honor of Leo Pfeffer (Waco, Texas: Baylor University Press, 1985); articles on religion and politics in PS, the quarterly newsletter of the American Political Science Association, Fall 1986; and special issue on Religion in the Public Schools, Educational Leadership, May 1987.  back 

29. Everson v. Board of Education, 330 US 1, 1947 at p. 13. Justice Hugo L. Black was joined by Chief Justice Fred M. Vinson and Justices William O. Douglas, Frank Murphy, and Stanley E. Reed.  back 

30. Ibid., at p. 6 in Wiley B. Rutledge's dissent. He was joined by Justices Felix Frankfurter, Robert H. Jackson, and Harold H. Burton.  back 

31. James M. O'Neill, Religion and Education Under the Constitution (New York: Harper, 1949). O'Neill was chairman of the Department of Speech at Queens College, New York. See also Wilfrid Parsons, S.J., The First Freedom: Considerations on Church and State in the United States (New York: Declan X. McMullen, 1948).  back 

32. R. Freeman Butts, The American Tradition in Religion and Education (Boston: Beacon Press, 1950). I was professor of education at Teachers College, Columbia University, teaching courses in the history of education. See O'Neill's critical review of my book in America, Sept. 9, 1950, pp. 579-583. See Leo Pfeffer, Church, State, and Freedom (Boston: Beacon Press, 1953) for views similar to mine.  back 

33. Lemon v. Kurtzman, 403 US 602 (1971). The Court struck down a Pennsylvania law that would use public funds to pay part of the salaries of private school teachers of non-religious subjects.  back 

34. For details supporting this view, see not only my book cited in Note #32, but also R. Freeman Butts, "James Madison, the Bill of Rights, and Education," Teachers College Record, Vol.. 60, No. 3, December 1958, pp. 123-128. For recent massive documentation see Leonard W. Levy, The Establishment Clause; Religion and the First Amendment (New York: Macmillan, 1986).  back 

35. Chester James Antieau, Arthur T. Downey, and Edward C. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment's Religious Clauses (Milwaukee: Bruce Publishing Co., 1964); Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976); Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute, 1978); Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982) with a Foreword by William F. Buckley, Jr.; Jerry Combee, Democracy at Risk: The Rising Tide of Political Illiteracy and Ignorance of the Constitution (Cumberland, Va.: Center for Judicial Studies, 1984); A. James Reichley, Religion in American Public Life (Washington, D.C.: Brookings Institution, 1986); Waiter Berns, Taking the Constitution Seriously (New York: Simon and Schuster, 1987); and special issue of Public Interest, Winter 1987.  back 

36. Jaffree v. Board of School Commissioners of Mobile County, et al., 554 F. Supp. 1104 (1983).  back 

37. Wallace v. Jaffree, 105 S.Ct. 2479 (1985).  back 

38. Ibid., Justice William H. Rehnquist, dissenting at p. 17; Justice Byron R. White, dissenting at p. 2.  back 

39. Smith v. Board of School Commissioners of Mobile County, U.S. District Court for the Southern District of Alabama, Southern Division, Civil Action No. 82­0544­8­31, March 4, 1987.  back 

40. Jaffree v. Mobile, 554 F. Supp. 1104, 1129 and footnote 41, Appendix A.  back 

41. The New York Times, Oct. 4, 1985.  back 

42. Aguilar v. Felton, 105 S. Ct. 3232 (1985).  back 

43. This and following quotations from the speech by Attorney General Edwin Meese III, at the American Bar Association (July 9, 1985) are contained in the text issued by the U.S. Department of Justice, pp. 13-17.  back 

44. Wall Street Journal, July 22, 1982.  back 

45. The New York Times, September 29, 1985.  back 

46. Ibid., October 14, 1985.  back 

47. Ibid., October 17, 1985.  back 

48. Ibid., July 3, 1985.  back 

49. Speech by Secretary William J. Bennett to Knights of Columbus (August 7, 1985). Text reprinted in Education Week (August 21, 1985), p. 11.  back 

50. Ibid.  back 

51. Speech by Justice William J. Brennan, Georgetown University (October 12, 1985). Text issued by the U.S. Supreme Court, pp. 4-5. Major excerpts are contained in Kettering Review, Fall 1987, pp. 6-11.  back 

52. Ibid., p. 7.  back 

53. Ibid., p. 13.  back 

54. The New York Times, October 26, 1985.  back 

55. Ibid., September 13, 1986.  back 

56. Ibid., October 23, 1986.  back 

57. Cooper v. Aaron, 358 U.S. 1 (1958).  back 

58. Remarks of Thurgood Marshall at the Annual Seminar of the San Francisco Patent and Trademark Law Association in Maui, Hawaii, May 6, 1987 (Washington, D.C.: Supreme Court of the United States).  back 

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