This is a plea in confession and avoidance which can by no means be granted. It is not to be presumed that the Constitution puts burdens on the Court in the discharge of which with appropriate modesty it must still risk disaster for the country. The decision in the McCollum case, however, is not a "modest" decision. Instead it is to be grouped with those high-flying tours de force in which the Court has occasionally indulged, to solve "forever" some teasing problem-slavery, for example, in the Dred Scott case—or to correct, as in the Pollock case,87 "a century of error." In my opinion the Court would act wisely to make it clear at the first opportunity that it does not aspire to become, as Justice Jackson puts it, “a super board of education for every school district in the nation."68 Dred Scott v. Sanford, 19 How. 393 (U. S. 1856). 67 Pollock v. Farmers Loan and Trust Co., 157 U. S. 429 (1895). 68 McCollum v. Board of Education, supra note 5, at 237. LAW OR PREPOSSESSIONS? JOHN COURTNEY MURRAY* The constitutional law written in the Everson1 and McCollum2 cases is obviously not what is called learned law; consequently one who is not a lawyer, learned in the law, may speak his mind on it. In fact, to do so is a matter of civic duty, since, as the Journal of the American Bar Association pointed out, these decisions contain “a pronouncement by our Supreme Court on a fundamental principle, not only of national policy but of our civilization and way of life." Reasoned civic judgment on such a pronouncement is very necessary. Obviously, as embodying a rule of law, these decisions impose themselves on the collective will as norms of action; but by the same token they present themselves to the individual intelligence as matter for reflection; for law, I take it, ought to be reason and not arbitrary will. My concern is with the reasoning of the Court in support of its new rule of lawwith this reasoning in itself and as it reveals a concept of the problem of separation of church and state. These decisions represent the first formal efforts of the Court to work out an official contemporary philosophy of the political principle enshrined in the "establishment" clause of the First Amendment. Such an essay in philosophy is a much more crucial matter than the simple laying down of pragmatic rules to govern the relations between religion and government; it therefore deserves close scrutiny. No one who knows a bit about the literature on separation of church and state, that for centuries has poured out in all languages, will be inclined to deny that hardly another problem in the religious or political order has received so much misconceived and deformed statement, with the result that the number of bad philosophies in the matter is, like the scriptural number of fools, infinite. As I see it, the original American philosophy that inspired the First Amendment was fundamentally sound; it is therefore important to see that it is not corrupted, under the pretext, for instance, of “development." A second reason for close scrutiny of the Court's reasoning in these cases derives from the absoluteness of the rule of law that has emerged from them: "no aid of any kind to religion in any form." I have been given to understand that the present Court has a certain horror of absolutes, and is disinclined to give room for them in its jurisprudence; if this is so, it is somewhat ironical that the Court should suddenly have come up with one: "absolute separation of church and state, as an absolute principle." At all events, dogmas that pretend to be absolute must rest S.J., Professor of Theology, Woodstock College; editor of THEOLOGICAL STUDIES. 1 Everson v. Board of Education, 330 U. S. 1 (1947). 2 McCollum v. Board of Education, 333 U. S. 203 (1948). on reasons that are themselves absolute, unchallengeably ultimate. One would like to know therefore what these reasons are in the case. Moreover, the far-reaching consequences of this absolute doctrine, if it should be logically applied, make it further imperative that the reasons for the doctrine should be unshakably valid. Justice Reed in his McCollum dissent pointed out that the Court's "rigid interpretation" of the First Amendment "conflicts with accepted habits of our people," and is capable of "upsetting practices embedded in our society by many years of experience." Moreover, it is the considered opinion of many that the decision will contribute towards an alteration in the very quality of American society by altering the traditional friendly, cooperative attitude of government toward religious forces, especially in the field of education. It may be that the state is still neutral as between religious belief and unbelief," as Justice Black in the Everson decision said it should be (although to fly through the air between these two trapezes is in itself an act not to be accomplished with the greatest of ease). At all events, the McCollum decision gives rise to a decided impression that the state to apply the famous Irish phrase is now neutral against religious belief. I understand that one must be chary about drawing out the logical implications of a particular decision; we are constantly being given the soothing assurance, on Holmes's paramount authority, that the life of the law is not logic but experience. However, there can be no complementary assurance of the Court's complete immunity from sudden attacks of logic; it seems to have had one in the McCollum case. It is not therefore comforting to see lying about, ready to the legal hand, a premise of deduction as sweeping and absolute as the McCollum rule. Finally, the decision seems to mark the assumption by the Court of a new role; I mean a role in the field of educational policy. This is much more delicate ground than, for instance, the field of economic policy. To touch education is to lay hands on the child-parent relationship; and this is a far more sensitive zone of right than the one marked out by the relationship between the citizen and his property. If therefore the Court is to venture into this field (in what must seem a rather heavyfooted way), it must at very least have cogent reasons for doing so, as for instance, the protection of clearly threatened rights." I Given then the need of good tight reasoning in support of our new constitutional doctrine, it is dismaying to the citizen not to find it. Let me be precise about the 'McCollum v. Board of Education, 333 U. S. 203, 256 (1948). "The Court's disclaimer of any intent hostile to religion is of course accepted. It remains to consider the effects of the ruling, and the use that will be made of it, e.g., by anti-religious groups. For my part, I fully agree with the public statement made by a group of the most thoughtful minds in Protestantism: "We believe that, whatever its intention may be, this hardening of the idea of 'separation' by the Court will greatly accelerate the trend toward the secularization of our culture." 8 CHRISTIANITY AND CRISIS 90 (1948). Everson v. Board of Education, 330 U. S. 1, 18 (1947). "No such threat to any rights-personal or property-was visible in the McCollum case. issue. It is not a question of the reasons for a constitutional separation of church and state in some general sense, but for the particular rigid, radical, and absolute doctrine laid down in the Everson and McCollum cases. What needs justification is the absoluteness of the doctrine; and at this point the Court fails. Actually, it has advanced two separate lines of reasoning. Taken together, they tend to negate one another; taken singly, neither of them is valid. In the Everson case the Court undertook to show that "no law in aid of religion" was the original meaning and native intent of the clause, "no law respecting an establishment of religion," as this meaning and intent emerges from its general historical background. Justice Rutledge for the minority took the same line; his opinion differed from that of the Court chiefly by its more extensive allegation of the supposedly unique authority of James Madison, and consequently by the more radical and rigid character of its conclusions. In the McCollum case this line of argument was severely challenged by appellee. Assembling all the available historical data, he argued that the clause in question natively and originally forbade only laws "respecting" (ie., favoring or disfavoring) “an establishment of" (ie., preferential status in law for) "religion" (ie., the doctrines, practices, or modes of worship of a particular religious group). The historical evidence does not yield the absolute Everson conclusion: “no aid of any kind to religion in any form." In reply, the McCollum decision simply stated that the Court was "unable to accept" appellee's historical argument. It did not go on to say why the argument was unacceptable, whether for the reason that it was bad history or for other reasons, not historical. Nor has one any way of knowing what impression was made on the judges (other than Justice Reed, whose dissent reveals that he was impressed) by a presentation of the historical data far more complete and scientific than their own. At all events, a new line of argument appears in the McCollum case. It does not appear in the opinion of the Court, which is content curtly to reaffirm the sweeping Everson doctrine, without pausing to consider that the grounds had been shot out from under it; the new line appears in the opinion of Justice Frankfurter, in which the original Everson minority concurred. Justice Frankfurter's concern is not with what the First Amendment meant in 1791, which was the concern of the whole Court in the Everson case, but singly with what the First Amendment meant in 1948. The appeal now is not to the wisdom of the Founding Fathers, led by James Madison, but to the developed wisdom of their children, uttered by Justice Frankfurter. In token of this alteration of viewpoint, the constitutional formula, no "establishment of religion," drops completely out of sight, in favor of the more accordion-like slogan, "separation of church and state." From the Everson opinions it would indeed have seemed that the content even of this latter formula had been defined by the constitutional consensus of the "Brief for Appellees, filed by Messrs. Franklin, Peterson, Rall, and Fisk, pp. 24-100, McCollum v. Board of Education, 333 U. S. 203 (1948). McCollum v. Board of Education, 333 U. S. 203, 211 (1948). states in 1791. Not so, Justice Frankfurter now says. We have to do here "not with a full-blown principle"10 but with one historically subject to progressive inflation. Separation of church and state is a "spacious conception";11 and, contrary to Justice Rutledge's Everson view (in which Justice Frankfurter concurred), its interior reaches of space were not measured out by James Madison and made the native dimensions of the First Amendment. Rather (Justice Frankfurter corrects himself and his colleagues), they have awaited survey in later ages, and the "metes and bounds"12 (a phrase of Madison's), so far from being fixed by Madison, are not yet finally fixed. The first Congress did indeed erect a wall of separation between church and state, on Jeffersonian specifications. However, time and “changing conceptions regarding the American democratic society”13 alter all constitutional blueprints. Always impregnable, the wall has not been immovable; originally high, it has not proved high enough. The Founding Fathers, whose Madisonian masonry Justice Rutledge had viewed as architecturally complete, actually left much building for future masons to do. And the masons have appeared to do it. They have, on Justice Frankfurter's account, progressively walled religion out of the public school, and likewise walled government off from aid to religious education. Finally, in contradiction of Justice Rutledge's Everson thesis, in which the "wholly secular" atmosphere of the public school is a federal "constitutional necessity"14 by intrinsic exigence of the First Amendment in its native meaning as determined by Madison, Justice Frankfurter now asserts that the “basis of the restriction [of government to purely secular education] is the whole experience of our people.' "15 Here in brief are the two lines of argument presented by the judges to persuade the American people that an absolute doctrine of separation of church and state, as having rigid application in the field of education, is reason and not arbitrary will. In the Everson case the Court in effect said: “Absolute separation always was the meaning of the First Amendment, as determined by the Founding Fathers." In the McCollum case we read in effect: "Absolute separation has become in time the meaning of the First Amendment, as determined by the whole experience of our people." Well, one asks, which is it? The judges can hardly have it both ways. It is not a question here of two mutually supporting lines of argument; on the contrary, the two lines negate one another. (Unless it be that lawyers possess some philosopher's stone for dissolving logical inconsistencies that is denied to a mere philosopher?) Moreover, the poor citizen is left at a loss even to know what jurisprudential theory the judges intend to apply in interpreting the First Amendment. Is it to be an appeal to legislative intent-to the meaning of the First Amendment “in the light of its history and the evils it was designed forever to suppress"16 (the Everson line)? 11 Id. at 213. 12 Id. at 217. 10 Id. at 217. 13 Id. at 214. |