Chapter LXX: Section 4: The United States shall guarantee to every State in (3)

[29] Martin _v._ Hunter's Lessee, 1 Wheat. 304, 335 (1816).

[30] 93 U.S. 130, 137 (1876).

[31] Mondou _v._ New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912).

[32] 330 U.S. 386 (1947).

[33] Ibid. 393.

[34] Ableman _v._ Booth, 21 How. 506, 523 (1859), followed in United States _v._ Tarble, 13 Wall. 397 (1872).

[35] Tennessee _v._ Davis, 100 U.S. 257 (1880); _see also_ Maryland _v._ Soper, 270 U.S. 36 (1926).

[36] 135 U.S. 1 (1890).

[37] Keith _v._ Clark, 97 U.S. 454, 461 (1878).

[38] White _v._ Cannon, 6 Wall. 443, 450 (1868). _See also_ Hickman _v._ Jones, 9 Wall. 197 (1870); Dewing _v._ Perdicaries, 96 U.S. 193, 195 (1878).

[39] Ford _v._ Surget, 97 U.S. 594, 604 (1878); United States _v._ Keehler, 9 Wall. 83, 86 (1870).

[40] Texas _v._ White, 7 Wall. 700, 726 (1869).

[41] Ibid. 733. _See also_ Horn _v._ Lockhart, 17 Wall. 570, 580 (1873); Thomas _v._ Richmond, 12 Wall. 349, 357 (1871); White _v._ Hart, 13 Wall. 646 (1872); United States _v._ Home Ins. Co., 22 Wall. 99 (1875); Taylor _v._ Thomas, 22 Wall. 479 (1875); and Huntington _v._ Texas, 16 Wall. 402 (1873).

[42] 9 Wheat. 788 (1924).

[43] Ibid. 865.

[44] Ibid.

[45] Ibid. 866.

[46] Ibid. 867.

[47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce _v._ Comrs. of Taxes and Assessments, 2 Bl. 620 (1863).

[48] 12 Stat. 710 (1863).

[49] 31 U.S.C. Sec. 742 (1946).

[50] 7 Wall. 26 (1869).

[51] Hibernia Sav. & L. Soc. _v._ San Francisco, 200 U.S. 310, 315 (1906).

[52] Smith _v._ Davis, 323 U.S. 111 (1944).

[53] Plummer _v._ Coler, 178 U.S. 115 (1900); Blodgett _v._ Silberman, 277 U.S. 1, 12 (1928).

[54] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136, 140 (1927).

[55] Miller _v._ Milwaukee, 272 U.S. 713 (1927).

[56] Provident Inst. for Savings _v._ Massachusetts, 6 Wall. 611 (1868); Society for Savings _v._ Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co. _v._ Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. _v._ New York, 134 U.S. 594 (1890).

[57] Macallen _v._ Massachusetts, 279 U.S. 620, 625 (1929).

[58] Northwestern Mutual L. Ins. Co. _v._ Wisconsin, 275 U.S. 136 (1927).

[59] 9 Wheat. 738 (1824).

[60] Ibid. 867.

[61] 302 U.S. 134 (1937).

[62] Alward _v._ Johnson, 282 U.S. 509 (1931).

[63] Trinityfarm Const. Co. _v._ Grosjean, 291 U.S. 466 (1934).

[64] Atkinson _v._ Tax Commission, 303 U.S. 20 (1938).

[65] Superior Bath House Co. _v._ McCarroll, 312 U.S. 176 (1941).

[66] Buckstaff Bath House _v._ McKinley, 308 U.S. 358 (1939).

[67] Collins _v._ Yosemite Park & Curry Co., 304 U.S. 518 (1938).

[68] Alabama _v._ King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. _v._ Knox, 277 U.S. 218 (1928) and Graves _v._ Texas Co., 298 U.S. 393 (1936). _See also_ Curry _v._ United States, 314 U.S. 14 (1941).

[69] Wilson _v._ Cook, 327 U.S. 474 (1946).

[70] 306 U.S. 466 (1939), followed in State Tax Comm'n. _v._ Van Cott, 306 U.S. 511 (1939). This case overruled by implication Dobbins _v._ Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers _v._ Graves, 299 U.S. 401 (1937), which held the income of federal employees to be immune from State taxation.

[71] 306 U.S. 466, 487 (1939).

[72] Ibid. 492.

[73] 4 Wheat. 316, 426 (1819).

[74] Thompson _v._ Union P.R. Co., 9 Wall. 579, 588 (1870); Railroad Co. _v._ Peniston, 18 Wall. 5, 31 (1873).

[75] Susquehanna Power Co. _v._ State Tax Comm'n., 283 U.S. 291 (1931).

[76] Baltimore Shipbuilding & Dry Dock Co. _v._ Baltimore, 195 U.S. 375 (1904).

[77] Northern P.R. Co. _v._ Myers, 172 U.S. 589 (1899); New Brunswick _v._ United States, 276 U.S. 547 (1928).

[78] Irwin _v._ Wright, 258 U.S. 219 (1922).

[79] United States _v._ Allegheny County, 322 U.S. 174 (1944).

[80] 117 U.S. 151 (1886).

[81] Lee _v._ Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925).

[82] Clallam County _v._ United States, 263 U.S. 341 (1923). _See also_ Cleveland _v._ United States, 323 U.S. 329, 333 (1945).

[83] Mayo _v._ United States, 319 U.S. 441 (1943).

[84] Western U. Teleg. Co. _v._ Texas, 105 U.S. 460, 464 (1882).

[85] Des Moines Nat. Bank _v._ Fairweather, 263 U.S. 103, 106 (1923); Owensboro Nat. Bank _v._ Owensboro, 173 U.S. 664, 669 (1899); First Nat. Bank _v._ Adams, 258 U.S. 362 (1922).

[86] Baltimore Nat. Bank _v._ State Tax Comm'n., 297 U.S. 209 (1936).

[87] Maricopa County _v._ Valley National Bank, 318 U.S. 357, 362 (1943).

[88] 308 U.S. 21 (1939).

[89] 314 U.S. 95 (1941).

[90] Ibid. 101.

[91] Ibid. 102; _cf._ 9 Wheat. 738, 864-865 (1824).

[92] Colorado Nat. Bank _v._ Bedford, 310 U.S. 41 (1940).

[93] 342 U.S. 232 (1952).

[94] 60 Stat. 765; 42 U.S.C. Sec. 1809 (b).

[95] 342 U.S. 232, 234.

[96] Ibid. 236.

[97] Long _v._ Rockwood, 277 U.S. 142 (1928).

[98] 286 U.S. 123 (1932).

[99] Educational Films Corp. _v._ Ward, 282 U.S. 379 (1931).

[100] 235 U.S. 292 (1944).

[101] Indian Territory Illuminating Oil Co. _v._ Oklahoma, 240 U.S. 522 (1916).

[102] Howard _v._ Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. _v._ Howard, 248 U.S. 549 (1919).

[103] 257 U.S. 501 (1922).

[104] Oklahoma Tax Comm'n _v._ Barnsdall Refiners, 296 U.S. 521 (1936).

[105] 330 U.S. 342 (1949). Justice Rutledge, speaking for the Court, sketched the history of the immunity of lessees of Indian lands from State taxation, which he found to stem from early rulings that tribal lands are themselves immune (The Kansas Indians, 5 Wall. 737 (1867); The New York Indians, 5 Wall. 761 (1867)). One of the first steps taken to curtail the scope of the immunity was Shaw _v._ Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, though purchased with restricted Indian funds, were subject to State taxation. Congress soon upset the decision, however, and its act was sustained in Board of County Comm'rs _v._ Seber, 318 U.S. 705 (1943).

[106] McCulloch _v._ Maryland, 4 Wheat. 316, 416 (1819).

[107] Ex parte Garland, 4 Wall. 333, 337 (1867).

[108] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867).

[109] The Federalist No. 27, p. 123; I Farrand Records, 404.

[110] _See_ Article I, Section III, Paragraph 1; Section IV, Paragraph 1; Section X; Article II, Section I, Paragraph 2; Article III, Section II, Paragraph 2; Article IV, Sections I and II; Article V; Amendments XIII, XIV, XV, XVII, and XIX.

[111] 1 Stat. 73 (1789).

[112] 5 Stat. 322 (1839).

[113] 1 Stat. 302 (1793).

[114] 2 Stat. 404 (1806).

[115] _See_ 2 Kent's Commentaries, 64-65 (1826); 34 Stat. 590, 602 (1906); 8 U.S.C. Sec. 357, 379; 18 ibid. Sec. 135 (1934); _also_ Holmgren _v._ United States, 217 U.S. 509 (1910).

[116] For the development of opinion especially on the part of State courts, adverse to the validity of the above mentioned legislation, _see_ 1 Kent's Commentaries, 396-404 (1826).

[117] 16 Pet. 539 (1842).

[118] 24 How. 66 (1861).

[119] 16 Pet. at 622.

[120] 24 How. at 107-108.

[121] 100 U.S. 371 (1880).

[122] Ibid. 392.

[123] Claflin _v._ Houseman, 93 U.S. 130, 136, 137 (1876); followed in Second Employers' Liability Cases, 223 U.S. 1, 55-59 (1912).

[124] 40 Stat. 76 (1917).

[125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia University Press, 1938).

[126] _See_ James Hart in 13 Virginia Law Review, 86-107 (1926) discussing President Coolidge's order of May 8, 1926, for Prohibition enforcement.

[127] Clark, New Federalism, cited in note 2 above; [Transcriber's Note: Reference is to Footnote 125, above.] Corwin, Court Over Constitution, 148-168 (Princeton University Press, 1938).

ARTICLE VII

RATIFICATION

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

IN GENERAL

In Owings _v._ Speed,[1] the question at issue was whether the Constitution of the United States operated upon an act of Virginia passed in 1788. The Court held it did not, stating in part:

"The Conventions of nine States having adopted the Constitution, Congress, in September or October, 1788, passed a resolution in conformity with the opinions expressed by the Convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, 'for commencing proceedings under the Constitution.'

"Both Governments could not be understood to exist at the same time. The new Government did not commence until the old Government expired. It is apparent that the Government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the 1st of November, by the successive disappearance of its Members. It existed potentially until the 2d of March, the day preceding that on which the Members of the new Congress were directed to assemble.

"The resolution of the Convention might originally have suggested a doubt, whether the Government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March 1789 * * *"

Notes

[1] 5 Wheat. 420, 422-423 (1820).

AMENDMENTS TO THE CONSTITUTION

AMENDMENTS NOS. 1-10

Bill of Rights

Page
History 749
Ordinance of 1787 749
Formulation and adoption of the bill of rights 750
Bill of rights and the States: Barron _v._ Baltimore 750
Bill of rights and Amendment XIV 750

AMENDMENTS TO THE CONSTITUTION

AMENDMENTS NOS. 1-10

Bill of Rights

HISTORY: THE ORDINANCE OF 1787

While the Constitutional Convention was engaged in drafting the Constitution, the Congress of the Confederation included in the Ordinance for the government of the Northwest Territory, adopted July 13, 1787, the following provisions:

"It is hereby ordained and declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:

"Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

"Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, _bona fide_, and without fraud, previously formed.

"Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

* * * * *

"Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[1]

FORMULATION AND ADOPTION OF THE BILL OF RIGHTS

Two months later, at the very end of its labors, the Constitutional Convention rejected, with scant consideration, a proposal by Gerry and Mason, to prepare a bill of rights.[2] This omission furnished the principal argument urged against ratification of the Constitution. Hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * It is evident, therefore, that according to their primitive signification, they have no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[3]

The people did not find this line of reasoning persuasive. Several States ratified only after Washington put forward the suggestion that the desired guarantees could be added by amendment.[4] No less than 124 amendments were proposed by the States.[5] Shortly after the First Congress convened, Madison introduced a series of amendments,[6] designed "to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable * * *"[7] After prolonged debate seventeen proposals were accepted by the House two of which were rejected by the Senate. The remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of States.[8]

THE BILL OF RIGHTS AND THE STATES: BARRON _v._ BALTIMORE

One of the amendments which the Senate refused to accept--the one which Madison declared to be "the most valuable of the whole list"[9]--read as follows: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."[10] The demand for assurance of these rights against encroachment by the States would not die. In spite of the deliberate rejection of Madison's proposal the contention that the first Ten Amendments were applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833, the argument was consistently rejected. Nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. Expression such as the statement of Justice Miller in Citizens Savings and Loan Association _v._ Topeka that: "It must be conceded that there are * * * rights in every free government beyond the control of the States"[12] probably account for the fact, reported by Charles Warren that: "In at least twenty cases between 1877 and 1907, the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833, * * *"[13]

THE BILL OF RIGHTS AND AMENDMENT XIV

After the adoption of the Fourteenth Amendment, a fresh attack was launched on that front. The rights assured against encroachment by the Federal Government were claimed as privileges and immunities which no State may deny to any citizen.[14] As early as 1884 the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[15] For many years, the Court continued to reject these arguments also, over the vigorous and prophetic dissents of Justice Harlan. With respect to the due process clause it held that these words have the same meaning in the Fourteenth Amendment as in the Fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the Constitution.[16] In 1897, however, it retreated from this position to the extent of holding that the Fifth Amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the Fourteenth.[17] Later cases have established that the terms, "liberty" and "due process of law" as used in Amendment XIV, render available against the States certain fundamental rights guaranteed accused persons in the Bill of Rights[18] and the substantive rights which are protected against Congress by Amendment I.[19]

Notes

[1] 1 Stat. 51 n.

[2] Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, V, 538 (1836).

[3] The Federalist No. 84.

[4] McLaughlin, A Constitutional History of the United States, 203 (1936).

[5] Ames, The Proposed Amendments to the Constitution, 19 (1896).

[6] Annals of Congress, I, 424, 433.

[7] Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 324 (1893).

[8] Ames, _op. cit._, 184, 185 (1896).

[9] Annals of Congress, 1, 755.

[10] Ibid.

[11] 7 Pet. 243 (1833); Lessee of Livingston _v._ Moore, 7 Pet. 469 (1833); Permoli _v._ New Orleans, 3 How. 589, 609 (1845); Fox _v._ Ohio, 5 How. 410 (1847); Smith _v._ Maryland, 18 How. 71 (1855); Withers _v._ Buckley, 20 How. 84 (1858); Pervear _v._ Massachusetts, 5 Wall. 475 (1867); Twitchell _v._ Pennsylvania, 7 Wall. 321 (1869).

[12] 20 Wall. 655, 669 (1875).

[13] Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev., 431, 436 (1926).

[14] Slaughter-House Cases, 16 Wall. 36 (1873); Spies _v._ Illinois, 123 U.S. 131 (1887); O'Neil _v._ Vermont, 144 U.S. 323 (1892); Maxwell _v._ Dow, 176 U.S. 581 (1900); Patterson _v._ Colorado, 205 U.S. 454 (1907); Twining _v._ New Jersey, 211 U.S. 78 (1908).

[15] Hurtado _v._ California, 110 U.S. 516 (1884).

[16] Ibid. 534, 535.

[17] Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897).

[18] _See_ Twining _v._ New Jersey, 211 U.S. 78 (1908); Adamson _v._ California, 332 U.S. 46 (1947).

[19] _See_ Gitlow _v._ New York, 268 U.S. 652 (1925); Beauharnais _v._ Illinois, 343 U.S. 250, 288 (1952).

AMENDMENT 1

RELIGION, FREE SPEECH, ETC.

Page
Absorption of Amendment I into the Fourteenth Amendment 757
"An establishment of religion" 758
"No preference" doctrine 758
"Wall of separation" doctrine 759
Zorach Case 762
Permissible monetary aids to religion 763
Free exercise of religion; dimensions 764
Parochial schools 765
Free exercise of religion; federal restraints 765
Free exercise of religion; State and local restraints 766
Free exercise of religion; obligations of citizenship 768
Freedom of speech and press 769
Blackstonian background 769
Effect of Amendment I on the common law 769
Amendment XIV and Blackstone 771
Clear and present danger rule, meaning 772
Contrasting operation of the common law rule 772
Emergence of the clear and present test 773
Gitlow and Whitney Cases 775
Acceptance of the clear and present danger test 777
Police power and clear and present danger 777
Public order 777
Public morals 779
Picketing and clear and present danger 781
Contempt of court and clear and present danger 783
Freedom of speech and press in public parks and streets 784
Censorship 786
Clear and present danger test: judicial diversities 788
Taxation 792
Federal restraints on freedom of speech and press 792
Regulations of Business and Labor Activities 792
Regulation of political activities of federal employees 793
Legislative protection of the armed forces and the war power 794
Loyalty regulations: The Douds Case 794
The Case of the Eleven Communists 795
Subversive organizations 801
Recent state legislation 801
Loyalty tests 801
Group libel 802
Censorship of the mails 804
Rights of assembly and petition 805
Restraints on the right of petition 806
The Cruikshank Case 807
Hague _v._ C.I.O. 808
Recent cases 809
Lobbying and the right of petition 810

RELIGION, FREE SPEECH, ETC.

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Absorption of Amendment I Into the Fourteenth Amendment

Eventually the long sought protection for certain substantive personal rights was obtained by identifying them with the "liberty" which States cannot take away without due process of law. The shift in the Court's point of view was made known quite casually in Gitlow _v._ New York,[1] where, although affirming a conviction for violation of a State statute prohibiting the advocacy of criminal anarchy, it declared that: "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."[2] This dictum became, two years later, accepted doctrine when the Court invalidated a State law on the ground that it abridged freedom of speech contrary to the due process clause of Amendment XIV.[3] Subsequent decisions have brought the other rights safeguarded by the First Amendment, freedom of religion,[4] freedom of the press,[5] and the right of peaceable assembly,[6] within the protection of the Fourteenth. In consequence of this development the cases dealing with the safeguarding of these rights against infringement by the States are included in the ensuing discussion of the First Amendment.

An Establishment of Religion

THE "NO PREFERENCE" DOCTRINE

The original proposal leading to the First Amendment was introduced into the House of Representatives by James Madison, and read as follows: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[7] This was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[8] In the Senate the above formula was replaced by the following; "Congress shall make no law establishing articles of religion."[9] The conference committee of the two houses adopted the House proposal, but with the neutral term "respecting an establishment," etc., taking the place of the original sweeping ban against any law "establishing religion."[10] Explaining this phraseology, in his Commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather "to exclude from the National Government all power to act on the subject." He wrote: "The situation, * * *, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."[11]

For the rest, Story contended, the no establishment clause, while it inhibited Congress from giving preference to any denomination of the Christian faith, was not intended to withdraw the Christian religion as a whole from the protection of Congress. He said: "Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."[12] As late as 1898 Cooley expounded the no establishment clause as follows: "By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 _id._, App. Note G.). It was never intended by the Constitution that the government should be prohibited from recognizing religion, * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."[13]

THE "WALL OF SEPARATION" DOCTRINE

In 1802 President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut in which he declared that it was the purpose of the First Amendment to build "a wall of separation between Church and State,"[14] and in Reynolds _v._ United States,[15] the first Anti-Mormon Case, Chief Justice Waite, speaking for the unanimous Court, characterized this as "almost an authoritative declaration of the scope and effect of the amendment," one which left Congress "free to reach actions which were in violation of social duties or subversive of good order."[16] Recently the Court has given Jefferson's "almost authoritative" pronouncement a greatly enlarged application. Speaking by Justice Black, a sharply divided Court sustained in 1947 the right of local authorities in New Jersey to provide free transportation for children attending parochial schools,[17] but accompanied its holding with these warning words, which appear to have had the approval of most of the Justices: "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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations of groups and _vice versa_."[18] And a year later a nearly unanimous Court overturned on the above grounds a "released time" arrangement under which the Champaign, Illinois Board of Education agreed that religious instruction should be given in the local schools to pupils whose parents signed "request cards." The classes were to be conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance records were kept and reported to the school authorities in the same way as for other classes; and pupils not attending the religious-instruction classes were required to continue their regular secular studies.[19] Said Justice Black, speaking for the Court: "Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State."[20]

Justice Frankfurter presented a concurring opinion for himself and Justices Jackson, Rutledge and Burton. "We are all agreed," it begins, "that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.'"[21] What ensues is a well documented account of the elimination of sectarianism from the American school system which is reinterpreted as a fight for the secularization of public supported education.[22] Facing then the emergence of the "released time" expedient,[23] Justice Frankfurter characterizes it as a "conscientious attempt to accommodate the allowable functions of Government and the special concerns of the Church within the framework of our Constitution."[24] Elsewhere in his opinion he states: "Of course, 'released time' as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. * * * The substantial differences among arrangements lumped together as 'released time' emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied. How does 'released time' operate in Champaign?"[25] And again: "We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. Different forms which 'released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable."[26] Justice Jackson added further reservations of his own as follows: "We should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain. * * * It is important that we circumscribe our decision with some care."[27]

In a dissenting opinion Justice Reed took exception to the extended meaning given to the words "an establishment of religion." "The phrase 'an establishment of religion,'" said he, "may have been intended by Congress to be aimed only at a state church. When the First Amendment was pending in Congress in substantially its present form, 'Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.' Passing years, however, have brought about the acceptance of a broader meaning, although never until today, I believe, has this Court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion."[28] He further pointed out that "the Congress of the United States has a chaplain for each House who daily invokes divine blessings and guidance for the proceedings. The armed forces have commissioned chaplains from early days. They conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the United States and dedicated to the services of religion. Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense for the ministry in denominational schools. The schools of the District of Columbia have opening exercises which 'include a reading from the Bible without note or comment, and the Lord's Prayer.'"[29]

THE ZORACH CASE; THE McCOLLUM CASE LIMITED

In a decision handed down July 11, 1951 the New York Court of Appeals, one Judge dissenting, sustained the "released time" program of that State, distinguishing it from the one condemned in the McCollum Case as follows: "In the New York City program there is neither supervision nor approval of religious teachers and no solicitation of pupils or distribution of cards. The religious instruction must be outside the school building and grounds. There must be no announcement of any kind in the public schools relative to the program and no comment by any principal or teacher on the attendance or non-attendance of any pupil upon religious instruction. All that the school does besides excusing the pupil is to keep a record--which is not available for any other purpose--in order to see that the excuses are not taken advantage of and the school deceived, which is, of course, the same procedure the school would take in respect of absence for any other reason."[30] On appeal this decision was sustained by the Supreme Court, six Justices to three.[31] Said Justice Douglas, speaking for the majority: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here."[32]

A few weeks earlier, moreover, the Court had indicated an intention to scrutinize more closely the basis of its jurisdiction in this class of cases. This occurred in a case in which the question involved was the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament.[33] The Court held that appellant's interest as taxpayers was insufficient to constitute a justiciable case or controversy, while as to the alleged rights of the child involved the case had become moot with her graduation from school.[34]

PERMISSIBLE MONETARY AIDS TO RELIGION

In 1899 the Court held that an agreement between the District of Columbia and the directors of a hospital chartered by Congress for erection of a building and treatment of poor patients at the expense of the District was valid despite the fact that the members of the Corporation belonged to a monastic order or sisterhood of a particular church.[35] It has also sustained a contract made at the request of Indians to whom money was due as a matter of right, under a treaty, for the payment of such money by the Commissioner of Indian Affairs for the support of Indian Catholic schools.[36] In 1930 the use of public funds to furnish nonsectarian textbooks to pupils in parochial schools of Louisiana was sustained,[37] and in 1947, as we have seen, the case of public funds for the transportation of pupils attending such schools in New Jersey.[38] In the former of these cases the Court cited the State's interest in secular education even when conducted in religious schools; in the latter its concern for the safety of school children on the highways; and the National School Lunch Act,[39] which aids all school children attending tax-exempt schools can be similarly justified. The most notable financial concession to religion, however, is not to be explained in this way, the universal practice of exempting religious property from taxation. This unquestionably traces back to the idea expressed in the Northwest Ordnance that Government has an interest in religion as such.

FREE EXERCISE OF RELIGION: DIMENSIONS

The First Amendment "was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of (this) amendment."[40] "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."[41]

PAROCHIAL SCHOOLS

The Society of Sisters, an Oregon corporation, was empowered by its charter to care for orphans and to establish and maintain schools and academies for the education of the youth. Systematic instruction and moral training according to the tenets of the Roman Catholic Church was given in its establishments along with education in the secular branches. By an Oregon statute, effective September 1, 1926, it was required that every parent, or other person having control or charge or custody of a child between eight and sixteen years send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides; and failure so to do was declared a misdemeanor. The District Court of The United States for Oregon enjoined the enforcement of the statute and the Supreme Court unanimously sustained its action,[42] holding that the measure unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control--a liberty protected by the Fourteenth Amendment. While the First Amendment was not mentioned in the Court's opinion, the subsequent absorption of its religious clauses into the Fourteenth Amendment seems to make the case relevant to the question of their proper interpretation.

FREE EXERCISE OF RELIGION: FEDERAL RESTRAINTS

Religious belief cannot be pleaded as a justification for an overt act made criminal by the law of the land. "Laws are made for the government of action, and while they cannot interfere with mere religious belief and opinions, they may with practices."[43] To permit a man to excuse conduct in violation of law on the ground of religious belief "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[44] It does not follow that "because no mode of worship can be established or religious tenets enforced in this country, therefore any tenets, however destructive of society, may be held and advocated, if asserted, to be a part of the religious doctrine of those advocating and practicing them * * * Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so-called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion."[45] Accordingly acts of Congress directed against either the practice of the advocacy of polygamy by members of a religious sect which sanctioned the practice, were held valid.[46] But when, in the Ballard Case,[47] decided in 1944, the promoters of a religious sect, whose founder had at different times identified himself as Saint Germain, Jesus, George Washington, and Godfre Ray King, were convicted of using the mails to defraud by obtaining money on the strength of having supernaturally healed hundreds of persons, they found the Court in a softened frame of mind. Although the trial judge, carefully discriminating between the question of the truth of defendants' pretensions and that of their good faith in advancing them, had charged the jury that it could pass on the latter but not the former, this caution did not avail with the Court, which contrived on another ground ultimately to upset the verdict of "guilty." The late Chief Justice Stone, speaking for himself and Justices Roberts and Frankfurter, dissented: "I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences."[48]

FREE EXERCISE OF RELIGION: STATE AND LOCAL RESTRAINTS

The Mormon Church cases were decided prior to the emergence of the clear and present danger doctrine dealt with below. In its consideration of cases stemming from State and local legislation the Court has endeavored at times to take account of this doctrine, with the result that its decisions have followed a somewhat erratic course. The leading case is Cantwell _v._ Connecticut.[49] Here three members of the sect calling itself Jehovah's Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds on the representation that they were for religious or charitable purposes, and also on a general charge of breach of the peace by accosting in a strongly Catholic neighborhood two communicants of that faith and playing to them a phonograph record which grossly insulted the Christian religion in general and the Catholic church in particular. Both convictions were held to violate the constitutional guarantees of speech and religion, the clear and present danger rule being invoked in partial justification of the holding, although it is reasonably inferable from the Court's own recital of the facts that the listeners to the phonograph record exhibited a degree of self-restraint rather unusual under the circumstances. Two weeks later the Court, as if to "compensate" for its zeal in the Cantwell Case, went to the other extreme, and urging the maxim that legislative acts must be presumed to be constitutional, sustained the State of Pennsylvania in excluding from its schools children of the Jehovah's Witnesses, who in the name of their beliefs refused to salute the flag.[50] The subsequent record of the Court's holdings in this field is somewhat variable. A decision in June, 1942, sustaining the application to vendors of religious books and pamphlets of a nondiscriminatory license fee[51] was eleven months later vacated and formally reversed;[52] shortly thereafter a like fate overtook the decision in the "Flag Salute" Case.[53] In May, 1943, the Court found that an ordinance of the city of Struthers, Ohio, which made it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature, was violative of the Constitution when applied to distributors of leaflets advertising a religious meeting.[54] But eight months later it sustained the application of Massachusetts' child labor laws in the case of a nine year old girl who was permitted by her legal custodian to engage in "preaching work" and the sale of religious publications after hours.[55] However, in Saia _v._ New York[56] decided in 1948, the Court held, by a vote of five Justices to four, that an ordinance of the city of Lockport, New York, which forbade the use of sound amplification devices except with the permission of the Chief of Police was unconstitutional as applied in the case of a Jehovah's Witness who used sound equipment to amplify lectures in a public park on Sunday, on religious subjects. But a few months later the same Court, again dividing five-to-four, sustained a Trenton, New Jersey ordinance which banned from that city's streets all loud speakers and other devices which emit "loud and raucous noises."[57] The latest state of the doctrine on this particular topic is represented by three cases, all decided the same day. In one the conviction of a Baptist minister for conducting religious services in the streets of New York City without first obtaining a permit from the city police commissioner was overturned,[58] a permit having been refused him on the ground that he had in the past ridiculed other religious beliefs thereby stirring strife and threatening violence. Justice Jackson dissented, quoting Mr. Bertrand Russell to prove that "too little liberty brings stagnation, and too much brings chaos. The fever of our times," he suggested, "inclines the Court today to favor chaos."[59] In the second, the Court upset the conviction of a group of Jehovah's Witnesses in Maryland for using a public park without first obtaining a permit.[60] The third case,[61] which had nothing to do with religion, affords an interesting foil to the other two. It is dealt with in another connection.[62]

FREE EXERCISE OF RELIGION: OBLIGATIONS OF CITIZENSHIP

In 1918 the Court rejected as too unsound to require more than a mere statement the argument that the Selective Service Act was repugnant to the First Amendment as establishing or interfering with religion, by reason of the exemptions granted ministers of religion, theological students and members of sects whose tenets exclude the moral right to engage in war.[63] The opposite aspect of this problem was presented in Hamilton _v._ Regents.[64] There a California statute requiring all male students at the State university to take a course in military science and tactics was assailed by students who claimed that military training was contrary to the precepts of their religion. This act did not require military service, nor did it peremptorily command submission to military training. The obligation to take such training was imposed only as a condition of attendance at the university. In these circumstances, all members of the Court concurred in the judgment sustaining the statute. No such unanimity of opinion prevailed in In re Summers,[65] where the Court upheld the action of a State Supreme Court in denying a license to practice law to an applicant who entertained conscientious scruples against participation in war. The license was withheld on the premise that a conscientious belief in nonviolence to the extent that the believer would not use force to prevent wrong, no matter how aggravated, made it impossible for him to swear in good faith to support the State Constitution. The Supreme Court held that the State's insistence that an officer charged with the administration of justice take such an oath and its interpretation of that oath to require a willingness to perform military service, did not abridge religious freedom. In a dissenting opinion in which Justices Douglas, Murphy and Rutledge concurred, Justice Black said, "I cannot agree that a State can lawfully bar from a semipublic position a well-qualified man of good character solely because he entertains a religious belief which might prompt him at some time in the future to violate a law which has not yet been and may never be enacted."[66]

Freedom of Speech and Press

THE BLACKSTONIAN BACKGROUND

"The liberty of the press," says Blackstone, "is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure from criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."[67]

EFFECT OF AMENDMENT I ON THE COMMON LAW

Blackstone was declaring the Common Law of his day, and it was no intention of the framers of Amendment I to change that law. "The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. And it deserves to be noted that in writing to John Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States.[68] * * * 'The law is perfectly well settled,' this Court said over fifty years ago, 'that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.'[69] That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years."[70]

AMENDMENT XIV AND BLACKSTONE

Nor was the adoption of Amendment XIV thought to alter the above described situation until a comparatively recent date. Said Justice Holmes, speaking for the Court in 1907: "We leave undecided the question whether there is to be found in the Fourteenth Amendment a prohibition similar to that in the First. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such _previous restraints_ upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth _v._ Blanding, 3 Pick. 304, 313, 314; Respublica _v._ Oswald, 1 Dallas 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth _v._ Blanding, _ubi sup._; 4 Bl. Comm. 150."[71] This appears to be an unqualified endorsement of Blackstone. But, as Justice Holmes remarks in the same opinion, "There is no constitutional right to have all general propositions of law once adopted remain unchanged."[72] As late as 1922 Justice Pitney, speaking for the Court, said: "Neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restriction about 'freedom of speech' or the 'liberty of silence' * * *"[73]

THE CLEAR AND PRESENT DANGER RULE, MEANING

The rule requires that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances or have been of such a nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent.[74] The question whether these conditions exist is one of law for the courts, and ultimately for the Supreme Court, in enforcement of the First and/or the Fourteenth Amendment;[75] and in exercise of its power of review in these premises the Court is entitled to review broadly findings of facts of lower courts, whether State or federal.[76]

CONTRASTING OPERATION OF THE COMMON LAW RULE