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How Far Does the Constitution Separate Church and State?

Published online by Cambridge University Press:  02 September 2013

Lynford A. Lardner
Lynford A. Lardner
Affiliation:
Northwestern University
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Extract

Several years ago the Supreme Court of the United States touched off a flood of controversy when it made two attempts to breathe life and meaning into the constitutional injunction that “Congress shall pass no law respecting an establishment of religion.” In the first case, Everson v. Board of Education, a bare majority decided that a New Jersey township did not violate the injunction when it permitted the use of public funds to pay the transportation charges on common carriers for children attending public and Catholic schools. But in the second case, McCollum v. Board of Education, a majority of eight decided that the Constitution was violated when the Board of Education of Champaign, Illinois, made provisions for a short weekly period of religious instruction to be given during school hours to children whose parents requested that they be permitted to attend these classes. The instruction available during the school year 1945–1946 was either Roman Catholic, Jewish, Protestant or Interdenominational, the instructors being provided at no expense to the Board of Education by the religious groups concerned.

Type
Research Article
Information
American Political Science Review , Volume 45 , Issue 1 , March 1951 , pp. 110 - 132
Copyright
Copyright © American Political Science Association 1951

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References

1 330 U. S. 1 (1947).

2 333 U. S. 203 (1948).

3 See Justice Jackson's remarks in 333 U. S. at 237.

4 Wheaton 415 (1819).

5 See the constitutions of Delaware (1776), Art. 29; Massachusetts (1780), Art. 23; New Hampshire (1784), Art. 1, sec. 6; New Jersey (1776), Art. 19; and North Carolina (1776), Art. 34. Georgia's constitution of 1790 provided in Article 9, sec. 3, that “no preference shall ever be given by law to any religious establishments or modes of worship.”

6 See the constitutions of Massachusetts (1780), New Hampshire (1784), New Jersey (1776) and North Carolina (1776).

7 Annals of Congress, Vol. 1, p. 757Google Scholar.

8 See Koch, G. Adolph, Republican Religion: The American Revolution and the Cult of Religion (New York, 1933)Google Scholar; and Morais, Herbert M., Deism in Eighteenth Century America (New York, 1934)Google Scholar.

9 See Morais, op. cit., pp. 92 and 113.

10 Koch, op. cit., p. 269.

11 Ibid., p. 84, footnote.

12 Annals of Congress, Vol. 1, p. 759Google Scholar.

13 Ibid., pp. 758–759.

14 Journals of Congress (Philadelphia, 1777), p. 39Google Scholar.

15 Ibid., p. 53.

16 Annals of Congress, Vol. 1, p. 758Google Scholar.

17 The development of the system of “multiple establishment” has been well explained by Butts, R. Freeman in his American Tradition in Religion and Education (Boston, 1950), Chs. 2 and 3Google Scholar.

18 Statutes at Large, Vol. 8, p. 155Google Scholar.

19 Morais, op. cit., p. 158.

20 Senate Report, 376, 32nd Cong., 2nd Sess.

21 Annals of Congress, Vol. 22, p. 983Google Scholar.

22 Ibid., p. 1098.

23 Ibid., p. 984.

24 Idem. Italics supplied.

25 Commentaries on the Constitution of the United States (Boston, 1833), Vol. 3, sec. 1865Google Scholar.

26 Ibid., sec. 1867.

27 Ibid., sec. 1868.

28 Ibid., sec. 1866.

29 Ibid., sec. 1873. Italics supplied.

30 Ibid., sec. 1869.

31 Senate Report 376, 32nd Cong., 2nd Sess., p. 1.

32 Ibid., pp. 1–2.

33 Ibid., p. 4.

34 Vidal et al. v. Girard'a Executors, 2 Howard 127, 198 (1844).

35 Proceedings of the National Convention to Secure the Religious Amendment of the Constitution of the United States (Philadelphia, 1872), p. 2Google Scholar. This convention was held in Cincinnati on January 31 and February 1, 1872

36 Proceedings … (Philadelphia, 1873), p. 2Google Scholar. This convention was held in New York City on February 26 and 27, 1873.

37 Congressional Record, Vol. 4, p. 175Google Scholar.

38 Ibid., p. 181.

39 See Porter, Kirk H., National Party Platforms (New York, 1924), pp. 96, 110 and 93Google Scholar.

40 Ibid., pp. 86, 99, and 89.

41 Congressional Record, Vol. 4, p. 205Google Scholar.

42 Ibid., pp. 5189–5192.

43 The Senate version can be found in Congressional Record, Vol. 4, p. 5453Google Scholar.

44 The fact that this proposed amendment was made an issue in the presidential campaign of 1876, and also that the Papal Encyclical of 1864 was brought into the senatorial debate by Senator Edmunds, gave the issue a partisan flavor and possibly caused the proposed amendment to lose some support in the Senate which it otherwise would have had.

45 Congressional Record, Vol. 4, p. 5246Google Scholar.

46 See Statutes at Large, Vol. 25, p. 677Google Scholar, for North Dakota, South Dakota, Montana and Washington; Statutes at Large, Vol. 28, p. 108Google Scholar, for Utah; Statutes at Large, Vol. 34, p. 270Google Scholar, for Oklahoma; and Statutes at Large, Vol. 36, pp. 559 and 570Google Scholar, for New Mexico and Arizona.

47 Congressional Record, Vol. 4, p. 5455Google Scholar.

48 See Billington, R. A., The Protestant Crusade, 1800–1860 (New York, 1938)Google Scholar.

49 Senator Frelinghuysen in opposing the narrowness of the House version remarked: “We know that in one State within a decade $1,200,000 was voted Protestant institutions for which Catholics of the country were taxed, and we know that in the same period several millions of dollars were voted to Catholic institutions for which Protestants were taxed.” Congressional Record, Vol. 4, p. 5245Google Scholar.

50 Cooley, Thomas M., Constitutional Limitations (1st ed., Boston, 1868), p. 469Google Scholar.

51 Woolsey, Theodore, Political Science; or, The State Theoretically and Practically Considered (New York, 1877), Vol. 2, p. 467. Italics suppliedGoogle Scholar.

52 A number of statements to this effect are to be found in opinions of the United States Supreme Court. Justice Brewer, David J. wrote a book entitled The United States a Christian Nation (Philadelphia, 1905)Google Scholar.

53 Congressional Record, Vol. 4, p. 180Google Scholar. Italics supplied.

54 See Herman V. Ames, Proposed Amendments to the Constitution, House Document 353, Part 2, 54th Cong., 2nd Sess.; and M. A. Musmanno, Proposed Amendments to the Constitution, House Document 551, 70th Cong., 2nd Sess.

55 175 U. S. 291 (1899).

56 210 U. S. 50 (1908).

57 Ibid., p. 81.

58 For example see Reynolds v. United States, 98 U. S. 145 (1878).

59 281 U. S. 370 (1930).

60 See Torpey, William G., Judicial Doctrines of Religious Rights in America (Chapel Hill, 1948)Google Scholar for a discussion of numerous state court decisions on various aspects of sectarianism in the schools.

61 In a note on “Catholic Schools and Public Money” the authors observed that: “By 1938 only Vermont lacked at least one constitutional provision capable of limiting the grant of public funds for Catholic, or other sectarian, education. The phraseology of the provisions varies, but seven generic types are distinguishable: prohibition (1) against the use of public school funds for any purpose other than the support of common schools; (2) against any grant or appropriation of money, property, or credit of the state to educational institutions not under the exclusive control of the state; (3) upon the appropriation of public funds for any sectarian purpose, society, or institution; (4) denying state aid to educational institutions controlled by a sectarian denomination; (5) denying state aid to sectarian schools; (6) denying state aid to private schools; (7) upon appropriations of public money for any school in which a sectarian doctrine is taught. There are, in addition, miscellaneous groups of provisions, as well as statutes in some of the forms suggested.” Yale Law Journal, Vol. 50, pp. 920–921 (1941)Google Scholar.

62 For example see State ex rel Johnson v. Boyd, 28 N. E. (2nd) 256 (Indiana, 1940), and Harfst v. Hoegen, 163 S. W. (2nd) 609 (Missouri, 1942).

63 See Johnson, Alvin W. and Yost, Frank H., Separation of Church and State in the United States (Minneapolis, 1948)Google Scholar.

64 Greene, Evarts B., Religion and the State (New York, 1941), p. 85Google Scholar.

65 Black, Chauncey F., Essays and Speeches of Jeremiah S. Black (New York, 1886), p. 53Google Scholar.

66 See Justice Jackson in 330 U. S. 27; Justice Rutledge in 330 U. S. 32; Justice Frankfurter in 333 U. S. 231; and Justice Reed in 333 U. S. 248.

67 333 U. S. 212.

68 In the Everson opinion Justice Black observed: “It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their transportation.” 330 U. S. 17.

69 Brief for Appellant, pp. 8 and 11; and Appellant's Reply Brief, p. 5.

70 Amicus curiae briefs were filed in support of appellant by The American Unitarian Association, the Synagogue Council of America and National Community Relations Advisory Council, the General Conference of Seventh Day Adventists, the American Ethical Union, and the American Civil Liberties Union.

71 See Corwin, E. S., “The Supreme Court as National School Board,” Thought, Vol. 23, pp. 665–683 (December, 1948)CrossRefGoogle Scholar.

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