It is time for the Supreme Court to discontinue promulgating a distorted version of American history brought into being, and carefully maintained, by the selection and omission of primary historical sources. Those who believe in religious liberty and freedom of religion may have won a small battle in the Everson case, but as history shows us they lost the war. This landmark case paved the way for the court's decision in 1962 to prohibit voluntary school prayer which would have been impossible without Black's broad interpretation of the Establishment Clause based on a selective review of history and his desire to make the Establishment Clause applicable to the States. Chapter 1 Footnotes 'Adamson v. California, 332 U.S. 46 (1947) at p. 63. 'Paul Brest "The Misconceived Quest for the Original Understanding" Boston University Law Review, Vol. 60, p. 204 (1980). 'This interpretation of the First Amendment is discussed by: James B. McClellan, "The Making and Unmaking of the Establishment Clause," in Patrick B. McGuigan and Randall R. Rader, eds., A Blueprint for Judicial Reform (Washington, D.C.: Free Congress Foundation, 1981), pp. 295-326; Peter J. Ferrara, Religion and the Constitution: A Reinterpretation (Washington, D.C.: Free Congress Foundation, 1983); Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982); Joseph Story, III Commentaries on the Constitution sections 1864 thru 1873 (1833). 'Joseph Story, III Commentaries on the Constitution section 1871 (1833) (Emphasis added.) "Ibid., Section 1873 (Emphasis added.) "Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982) p. 49; James B. McClellan, "The Making and Unmaking of the Establishment Clause," in Patrick B. McGuigan and Randall R. Rader, eds., A Blueprint for Judicial Reform (Washington, D.C.: Free Congress Foundation, 1981) p. 295. McClellan, in A Blueprint for Judicial Reform, pp. 300-308, and Cord, Separation of Church and State p. 4. "McClellan, in A Blueprint for Judicial Reform. "Marsh v. Ernest Chambers (no. 82-83) 51 L.W. 5162, June 28, 1983. Cord, Separation of Church and State, p. 45 citing Public Statutes at Large, Vol. 1, "Acts of the Fourth Congress," Sess. I, Chap. 46, pp. 271-72. "James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, Vol. I (Washington, D.C.: Bureau of Literature and Art, 1901) p. 64. "Edward S. Corwin, "The Supreme Court As National School Board," Law and Contemporary Problems, Vol. 14, p. 14 (1949) citing I Messages and Papers of the Presidents (Richardson ed. 1896). "Swanson, "Religion in Public Schools; Nebraska Law Review, Vol. 59, p. 425 (1980) at p. 436 citing 1. stat. 52 (July 13, 1787). "McClellan, in A Blueprint for Judicial Reform, p. 311. "Everson v. Board of Education, 330 U.S. 1, (1947). "In 1937, in De Jonge V. Oregon (299 U.S. 353) the guarantee of freedom of assembly was made applicable to the states. In 1940, in Cantwell v. Connecticut (310 U.S. 296) the freedom of religion was made applicable to the states. In 1947, in Everson v. Board of Education (330 U.S. 1) the Establishment Clause of the First Amendment was made applicable to the states. In 1949, in Wolf v. Colorado (338 U.S. 25) the Fourth Amendment right to be free from unreasonable searches and seizures was made applicable to the states. In 1981, in Mapp v. Ohio (367 U.S. 643) the Fourth Amendment right to exclude from criminal trials evidence seized illegally was made applicable to the states. In 1962, in Robinson v. California (370 U.S. 660) the Eighth Amendment prohibition against cruel and unusual punishment was made applicable to the states. In 1963, in Gideon ‹. Wainright (372 U.S. 335) the Sixth Amendment right to counsel was made applicable to the states. In 1964, in Malloy v. Hogan (378 U.S. 1) the Fifth Amendment right against selfincrimination was made applicable to the states. In 1965, in Pointer v. Texas (380 U.S. 400) the Sixth Amendment right of a criminal defendant to confront the witnesses against him was made applicable to the states. Also in 1965, in Griswold 1. Connecticut (381 U.S. 479) the Ninth Amendment implied right to privacy was made applicable to the states. The most notable is Charles L. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law Review, Vol. 2, p. 5 (1949) Note also: Raoul Berger; Government by Judiciary: The Transformation of the Fourteenth Amendment. (Cambridge, Mass: Harvard University Press, 1977): Robert L. Cord, "NeoIncorporation: The Burger Court and the Due Process Clause of the Fourteenth Amendment" Fordham Law Review, Vol. 44, p. 215 (1975). "Berger, Government by Judiciary, p. 156, n. 95 quoting Fairman, Standford 137. 20Barron v. Baltimore 32 U.S. (7 Peters) 242 (1833). US. v. Cruikshank 92 U.S. 542 (1875) p. 551. Prudential Insurance Co. v. Cheek, 259 U.S. 530, p. 543 (1922). House Resolution 1, 44th Congress, 1st Session (1876). Joseph H. Brady, Confusion Tuice Confounded: The First Amendment and the Supreme Court (South Orange, N.J.: Seton Hall University Press, 1954), p. 35. Everson v. Board of Education, 330 U.S. 1 (1947) at pp. 15-16. "Everson v. Board of Education, 330 U.S. 1 (1947) at p. 16. Full text of the letter: Saul K. Padover, The Complete Jefferson (Freeport, N.Y: Books for Libraries Press, 1943), pp. 518-19. (Emphasis added.) Corwin, "The Supreme Court As National School Board," p. 14. (Emphasis added.) 2McCollum v. Board of Education, 333 U.S. 203 (1948). *McCollum v. Board of Education, 333 U.S. 203 (1948). "Cord, Separation of Church and State, p. 217 citing Boyd, The Papers of Thomas Jefferson, pp. 305-7. 32Ibid., p. 220. "For example, Leo Pfeffer, Church, State and Freedom (Boston: Beacon Press, 1967) Leo Pfeffer, God, Caesar and the Constitution (Boston: Beacon Press, 1975) and Supreme Court Justices Rutledge and Black. "Cord, Separation of Church and State, p. 36. 35Corwin, "The Supreme Court as National School Board." Religion and the Constitution A Reinterpretation By Peter J. Ferrara The Child and Family of The Free Congress Research & Education Foundation Chapter 2: The Original Intent Issues of church and state played a central role in the very founding of this country. It was largely to escape from the religious wars and persecution of Europe that the earliest settlers came to America, and this remained an important motivation thereafter. The character and concerns of these early settlers in turn played a key role in the contours of early American culture and government. Historical Experience A brief understanding of this history provides a useful perspective on the issues discussed in this book. By the 16th century, Catholicism was interwoven with government throughout Western Europe as the official, established church of virtually every kingdom, sometimes providing more legitimacy and support to the secular government than vice versa. The Protestant Reformation, however, begun in the early 16th century in Germany by Martin Luther challenged the primary religious authority of the Catholic Church and the Pope. This sparked religious strife all across Europe. In England,1 this strife combined with the incendiary personality of King Henry VIII. Henry's Spanish Catholic wife, Catherine, had failed to bear him a male heir, and he had fallen in love with Anne Boleyn anyway. He asked the Pope to annul the first marriage so he could marry Anne. But Catherine's powerful friend, King Charles V of Spain, prevailed upon the Pope to refuse the request. Eventually, this led Henry to disestablish Catholicism as the official Church of England, establishing the Anglican Church instead, with Henry as the head. He then annulled his own marriage and married Anne. The law required payments to the new church, professed allegiance to its doctrines, and attendance at its ceremonies, as it had previously for Catholicism. Those who resisted were often beaten, jailed, hanged or burned at the stake. The Anglican Church followed all the traditional Catholic rites, except recognition of the Pope. This led to the ironic government persecution of Catholics who refused to accept the new church, and of Protestant dissenters who believed it did not go far enough in rejecting Catholic practices. In one reported instance, Henry had three Protestants and three Catholics burned at the stake at the same time.2 Henry was succeeded by his son Edward, but because of his frail health, Edward died soon thereafter. This brought the Catholic Mary, |