Document Type
Article
Publication Date
1954
Publication Information
9 Rutgers L. Rev. 682 (1954-1955)
Abstract
Confusion Twice Confounded is sufficiently typical of a growing body of literature to warrant more extensive treatment than is usually accorded in a book review. It analyzes at great length the opinions in the Everson and McCollum cases and criticizes them in the light of the historical background of the First Amendment. Everson, it will be recalled, derived from the Founding Fathers the doctrine that the Constitution required a "wall of separation between church and state," which was not breached by public payment of transportation to and from parochial schools. McCollum used the test laid down in Everson to invalidate a system whereby school children wishing to do so were given an opportunity to attend for a short period each week classes of instruction in the religion of their choice conducted on the school premises. Msgr. Brady argues that the Founding Fathers, in forbidding laws "respecting an establishment of religion," intended to do no more than forbid the federal government either to subsidize a religious ministry of official sanction or to interfere with those subsidized by a number of the states. He shows us that in our early history no constitutional objection was raised either to public support of religion generally or to public assistance whereby persons for whom there was some special public responsibility (Indians, the military, etc.) could procure the ministrations of the religion of their choice.
Msgr. Brady comes to us with the credentials of an eminently qualified historian, and there is no reason to question the historical accuracy of anything he says. But in delimiting his historical inquiry by the view that the Constitution furnishes one and only one answer to questions of this sort, discoverable by any fair-minded person without regard to contemporary political or social institutions, it seems to this reviewer that he does a disservice to the cause of formulating an alternative to the unfortunate doctrine laid down in the two decisions under consideration. The canon of constitutional construction he employs is one with which he himself would surely be less than content were it applied in other contexts. It is a narrow examination of the specific purpose of the framers of the provision under consideration. He derives his chief support for it from Taney's opinion in the Dred Scott case. Taney, following this criterion, held that the ownership of slaves by some of the Founding Fathers proved that they intended to exclude members of the Negro race, free or slave, from the enjoyment of advantages otherwise accorded to human beings as such under the Constitution. To be sure, there is a certain magnificence in the relentless logic of this opinion, but we are hardly proud of it today. Nor should Msgr. Brady, who is very much disturbed by Jackson's avowal in McCollum that he is judging according to his "prepossessions," have failed to notice the correlation between the prepossessions of the several judges and their holdings in Dred Scott.
Since Msgr. Brady seems to have oversimplified, the most appropriate means of reviewing his work is probably to fill in the omitted complexities. This review will accordingly take up the ideological framework in which the historical questions discussed by Msgr. Brady and the Court present themselves, the manner in which historical material is used by the Court, and the role of the judicial "prepossession" in the decision of constitutional cases.
Recommended Citation
Robert E. Rodes,
Religious Education and the Historical Method of Constitution Interpretation - A Review Article,
9 Rutgers L. Rev. 682 (1954-1955).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/698