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35. Poore, supra n. 26, at II. p. 1339. 36. Story, supru n. 2, at 1, $114. 37. Poorc, supra n. 26, at II, p. 1.313. The 1776 Constitution provided further that no

person should "ever be obliged to pay tithes, taxes or any other ralcs, for the pure posc or building or repairing any other church or churches, placc or places of wor. ship, or for the maintenance of any minister or ininistry, contrary to what he

bclicvcs to be righe, or has dclibcratcly or voluntarily cngaged himself 10 pcrform." 38. Id. at 1. p. 276. 19. Cobh, supro n. 24, p. 48.3. 40. Poore, supra n. 26, at II, p. 1541. 41. Id. at p. 1543. 42. Id. at 1. p. 819. The protection of religious liberty was restricced to "all persons

prosessing the Christian religion." The term "Christian" rather than “Proicstani"

was used apparently because of the presence of a large Catholic population. 43. Id, at II, p. 1413. 44. Id. at pp. 1626-27. 43. Id. at I, p. 38.3. 46. Reba Carolyn Sirichland, Religion and the State of Georgia in the Eighteenth

Century (New York: Columbia University Press, 1939), p. 164. 47. Poore, supra n. 26, at 1, p. 379. 48. Cobb, supra n. 24, pp. 490-92. 49. Id. at pr. 493-94. 50. Id. at pp. 495-97. Si. Id. al pp.1497-98. See, I eonard Williams Levy. Judgments: Essays on American

Constitutional History (Chicago: Quadrangle Books, 1972), pp. 200-01. 52. In Massachusetts, for example, "(i)t was not an establishment like that of the

Church or England... because thic Lcgislaturc had no power to regulate doctrine and enforce conformily, and becausc disseniers received a sharc of theiaxes levied for religious purposes. Consequently, it is more icchnically accurate to describe the Congregationalist order as favored rather than legally cstablished in Massachusetts." John Francis Thorning. Religious Liberry in Transition (Washington,

1).C.: The Catholic University of Anicrica, 1931), p. 27. 53. Cobb, supra n. 24, p. 307. Actually four states excluded ministers from public of

sice, arier Georgia adopied a new constitution in 1789. Sec Article 1. $18 in Poorc,

supra n. 24, at I, p. 385. 54. Thorning, supra n. 52, n. 3. See also Cobb, supra n. 24, p. 510. Issac Cornelison,

The Relation of Religion to Civil Government in the United Stales of America

(New York: Putnam, 1895), pp. 95, 111. 55. Thorning, supra n. 52. p. 7. 56. Cobb, supra n. 24, p. $12. 57. Poorc, supra n. 26, at I, p. 259. 18. Id, at p. 264. 59. Cobb, supra n. 24, p. 517. 60. Id. al p. $16. 61. Cornclison, supra n. 54, p. 106. 62. Id. al p. 108. 61. Id. al p. 109. 64. Baker v Pales, 16 Massachuschis 487 (1820). 65. Cornelison, supra n. 54. p. 110. Religious tests for office were abolished at the

Siale constitutional convention of 1820. 66. See. Poore, supra n. 26. nr. 278-88 (Delawarc); 11. pp. 1314-25 (New Jersey); 11, 67. Id. at II, p. 1554. 68. Id. al I, p. 832. 69. Id. at II, p. 1418. 70. Id, al p. 1446. 71. Id. at pp. 1632-3. 72. Id. at p. 1663. 73. Sec id, at 1, pp. 384-426. 74. Cobb, supra n. 26, pp. 511-12. 75. Id. at p. 320. 76. Pennsylvania, 1913; Delaware and Tennessee, 1915; New Jersey, 1916; Alabama,

pp. 1341-ST (New York).

1919; Georgia, 1921; Maine, 1923, Kentucky, 1924; Florida and Idaho, 1925; Aro kansas, 1930. Avin Johnson and Frank Yost, Separation of Church ond Stale in

The United Stales (New York: Greenwood Reprint Company, 1948), p. 33. 77. Abington School Districi v. Schempp, 374 U.S. 203 (1963). 78. Lemon v. Kurtzman, 403 U.S. 602 (1971). 79. McClellan, supra n. 2, pp. 135-36. 80. Everson v. Board of Education, 330 U.S. 13 (1947). 81. Edward S. Corwin, "The Supreme Court as a National School Board," as re

printed in A Constitution of Powers in a Secular Stale (Charlottesville, Virginia:

Michic Company, 1951), p. 116. 82. Abington School District v. Schempp, 374 U.S. at p. 217. 83. Adamson v. California, 332 U.S. 72 (1947). “An Amendment to the Constitution

should be read," said Justice Frankfurter in the same casc, “in a sense most ob

vious to the common understanding at the time of its adoption." Id. at p. 63. 84. Charles Miller. The Supreme Court and the Uses of Ilissory, (Cambridge, Massa

chusetts: Harvard Universily Press, 1969), p. 195. 85. Sidney Hook, as quoted in Miller, id. 86. In The Federalise No. 45, Jaines Madison explained that "the powers reserved to

the several Staics will cxtcnd 10 all the objects which, in the ordinary course of af. fairs, concern ihc lives, liherries and properties of the people; and the internal order, improvement and prosperity of the State." The Federalist p. 303 (Modern

Library Edition). 87. Six of the Staics which ratificd the Constitution before it went into effect pro. 92. See C. Warren, The New "Liberly." Under The Fourteenth Amendmeni, 34 Har.

posed lengthy lists of amendinents. “It has frequently been slated that the motive bchind these amendments was a desire 10 secure greater protection for the natural rights of the people. This is true only in pari. An examination of the proposals of the first three stales to inake them, Massachusetts, Souih Carolina, and New Hampshire, will assord sufficient evidence of the fact that the members of these conventions were much more perturbed about the righis and powers of the states Than about the righıs of the people." Massachusciis proposed ninc aniendments but only the sixth, referring to indictment by grand jury, dealt with individual liberty as such. In one place the short list proposed by South Carolina makes menlion of "the freedom of the people," but otherwise it deals with the issue of the "sovercignty of the states." Or the (welve proposed amendments offered by New Hampshire, only the last three have a dircci bearing on individual liberty. Only Virginia and North Carolina, it seems, proposed a true bill of rights to the people. Benjamin Wrighi, American Interpretations of Natural Law (Cambridge, Massa

chusetts: Harvard University Press, 1931), p. 147. 88. As quoted in McClellan, supra n. 2, p. 147. 89. Id. at pp. 147-48. 90. Barron v. Baltimore, 7 Peiers 250 (1833). 91. Permoli v. New Orleans, 3 Howard 609 (1845).

11-323 0.83

vard Law Review 436 (1926). 93. Prudential Insurance Company v. Cheek, 259 U.S. 530 (1922). 94. Gillow i'. New York, 268 U.S. 666 (1925). 95. Near v, Minnesota, 283 U.S. 697 (1931). 96. Dejonger. Oregon, 299 U.S. 353 (1937) (freedom of assembly); Caniwell v. Con.

neclicui, 310 U.S. 296 (1940) (Free cxercise of religion). 97. Since 1961 the doctrine of incorporation has been extended beyond the first

Amendment to the fourth, Filih, Sixth, Eighth and Ninth Amendmenis. See e.8.,

Duncan x, Louisiana, 391 U.S. 145 (1968). 98. Corwin, supra n. 81. p. 106. 99. Mark Howc, The Garden and the Wilderness: Religion and Government in Ameri.

can Constitutional llistory, (Chicago: University of Chicago Press, 1965), p. 31. 100. Id. 101. Francis ('Brien, Justice Reed and the First Amendmeni, (Washington, D.C.:

Cicorgetown University Press, 1958), p. 134. The significance of the word "re. speciing" in the establishment clause should thus be noted: Congress is to make no law “respecting" (i.c., dealing with the subject on the establishment of religion, so That cxisting church-state relations in each State shall remain undisturbed. In the words of Justice Siory: "ihe whole power over the subject of religion is left exclusively, in the State governmenis, 10 he acted upon according to their own scnsc of justice, and inc Stale constitutions." Story, supra n. 2, at 111, $1873. Jefferson embraced the same vicw: “I consider the government of the United States as interdicied hy the Constitution from intermeddling with religious institutions, their doctrines, disciplinc, or crercises. This results not only from the provision that no law shall be made respecting the establishment or free cxcrcisc of religion, bul from that also which reserves to the States the powers not delcgared to the Uniicd Siales. Coriainly, no power to prescribe any religious cxcrcise, or to assume authority in religious disciplinc, has been delegated to the General Government. It must then rest with the States...." Jefferson 10 Rev. Samuel Miller, XI, The H'ritings of Thomas Jefferson (Washington, D.C.: Andrew Lipscomb Co., 1903-04, issued under the auspices of the Thoinas Jefferson Memorial Associa

lion of the United States), p. 428. 102. Everson v. Board of Education, 3.30 U.S. 1, 31 (Rutledge, J. concurring). 103. Engel v. Virale. 370 U.S. at p. 442 n. 7 (Douglas, J. concurring). 104. Sec C. Fairman. Does the fourteenth Amendineni Incorporate the Bill of Righis?

The Original Understanding, 2 Stanford Law Review 5-139 (1949). 105. O'Brien, supra n. 101 at p. 116. 106. Id. al pp. 116-17. "A majority of people in any state in this union can, therefore,

if they desire il." said Blaine in an "open Iclier" 10 The New York Times, "have an established church..." Francis O'Brien, The Slules and 'No Establishment: Proposent Amendments 10 the Constitution Since 1798, 4 Washburn Law Journal 188 (1965). Between 1876-1910, nores O'Brien, nincicen separatc amendment pro. posals were introduced without success in Congress for the purpose of making the rcligious provision of the First Amendinent binding on the States. Id. al p. 210. See also A. Meyer, The Bluine Amendment and the Bill of Righis, 64 llarvard

Law Revicw 919 (1951). 107. Corwin, supra n. 81, atp. 116. Under the doctrine of incorporation, the Court in.

terpress the word "liberty" of the duc process clause to include ihe absence of an established religion, cien though it is not a personal liberty like freedom of speech. press, asscinblv or religion that an individual can exercise. Nevertheless, it is not necessary, according to the Couri, for parties protesting state religious programs to product evidence that their religious liberty has in any way becn abridged. Asche Couri asserted in Sihempp: "'ll goes without saying that the laws and pracrices involved here can he challenged only by persons having standing to complain. But the requirements for standing to challenge state action under the establish. ment clause, unlike those relating to the free exercise clause, do not include proor that particular religious frecdoms arc infringed." Ahington School Districi v. Schempp, 374 U.S. at p. 224. Why the requirements should not be the same for the free exercise clause and the establishincni clausc the Court has not explained. Moreover, there is a compelling argument that hy its actions the Court itself has denied the right of free exercise 10 a majority of public school children, who are in cfíect compclied through a combination of federal court rulings and state compulsory school aliendancc laws 10 shed their constirutional righes of religious

liecdom while under the control of government authorities. 108. Thc Helms Amendment to S. 210, 96th Cong., 1st Sess, was subscqucnily shifted

10 S. 450, a bill dcaling with the jurisdiction of the Supreme Court. The House Judiciary Commilice, however, refused to take action on ilic miegsure. See Gerald Gunther, Constitutional Law (Mincola, New York: Foundation Press, 1979 Sup. plcnicni) nr. 1-2. Proposed amendments to the Constitution to reverse the Prayer Decision have bcen introduced in most sessions of Congress since 1962. that spon. sored by Evercil Dirksen (R.-III.) achieving the widest support. On Seniemher 21, 1966, Dirksen carried a majorily with him, but the voic of 49-37 fall short of the two-thirds majority necessary to propose a constitutional amendment. Dirksen's proposed amendment (S.J. Res. 148) was one of 150 measures introduced in the 88th Congress to reversc the Court's holding in the Prayer Decision. See Congres. sional Quaricrly, II Congress and the Nation, pp. 410-11 (1969).

[From 27 Villanova Law Review, 5 (1982)]

CONGRESSIONAL RETRACTION OF FEDERAL COURT JURISDICTION OVER THE RESERVED POWERS OF THE STATES: THE HELMS PRAYER BILL AND A RETURN TO FIRST PRINCIPLES

(By James McClellan*) Since the earliest days of the Warren Court, countless bills have been introduced in Congress which would deny the federal courts jurisdiction over a great variety of subjects ranging from busing to abortion." The exceptions clause of article III of the Constitution provides Congress with the authority to enact such bills.2 While none of these proposed bills has been enacted into law, it is noteworthy that two have passed at least one house of Congress, and that both of these have sought to deny all federal courts, including the Supreme Court, jurisdiction over certain cases arising under the fourteenth amendment. The first of these two bills, introduced by Representative William Tuck of Virginia in the 88th Congress in 1964, would have eliminated federal court jurisdiction over state legislative apportionments. It passed the House of Representatives but was defeated in the Senate. The second measure, the Helms Prayer Bill, 4 passed the Senate two years ago but failed to get out of the House Judiciary Committee. The Helms Bill sought to deny all federal court jurisdiction over cases involving voluntary prayer in the public schools.5 Its chief sponsor was Senator Jesse Helms of North Carolina, who has been introducing similar legislation since 1974. He has again introduced it in the 97th Congress, and its chances of passage seem excellent, not only because it passed before under a Democrat-controlled Senate, but also because it was endorsed by the Republican Party platform of 1980 and apparently also by President Reagan. 6

These bills limiting jurisdiction all have one subject in common: They all deal with civil rights issues. This is true of every bill introduced since 1957 which has challenged the jurisdiction of the federal courts.? Moreover, these bills all involve

*Chief counsel and staff director, Separation of Powers Subcommittee, Committee on the Judiciary, U.S. Senate, B.A., University of Alabama, 1960; Ph. D. 1964, J.D., 1981, University of Virginia.

See Baucus & Kay, The Court Stripping Bills: Their Impact on the Constitution, the Courts, and Congress, 27 Vill. L. Rev. -,- (1982).

2 U.S. Const. art. III, § 2. CI. 2. The exceptions clause states: "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Id.

3 See H.R. 11926, 88th Cong., 2d Sess. (1964).
* S. 210, 96th Cong., 1st Sess. (1979). See also note 5 and accompanying text infra.

5 The Helms Prayer Bill originally was an amendment to a bill which created the Department of Education. S. 210, 96th Cong., 1st Sess. (1979). The amendment proposed by Senator Helms have added two new sections to 28 U.S.C.:

"§ 1259. Notwithstanding the provisions of sections 1253, 1254, and 1257 of this chapter the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute (which) relates to voluntary prayers in public schools and public buildings.

“8 1364. Notwithstanding any other provision of law, the district courts shall not have jurisdiction of any case or question which the Supreme Court does not have jurisdiction to review under Section 1259 .. S. 210, 96th Cong., 1st Sess. (1979). The Helms amendment was subsequently attached to a bill dealing with the jurisdiction of the Supreme Court. See S. 450, 96th Cong., 1st Sess. (1979). The House Judiciary Committee, however, refused to take action on the measure. See G. Gunther, Constitutional Law 57 (10th ed. 1980); G. Gunther, Constitutional Law 1 (1981 Supp.).

Proposed amendments to the Constitution which would reverse the Supreme Court's decision on prayers in public schools have been introduced in most sessions of Congress since 1962. Such an amendment sponsored by Senator Everett Dirksen during the 88th Congress achieved the widest support. On September 21, 1966, Dirksen carried a majority of the Senate with him, but the vote of 49-37 fell short of the two-thirds necessary to propose a constitutional amendment. Dirksen's proposed amendment (S.J. Res. 148) was one of the 150 measures introduced in the 88th Congress to reverse the Court's holding in the prayer decision. See 2 Congress and the Nation 410-11 (1969).

& The Republican Party platform states: "We support Republican initiatives in the Congress to restore the right of individuals to participate in voluntary, non denominational prayer in schools and other public facilities. We applaud the action of the Senate in passing such legislation." Cong. Q. 2035 (July 19, 1980). President Reagan specifically supported congressional ef. forts to restore voluntary prayer in the schools in an interview with reporters from the Washington Star. The text of the interview is printed in the Washington Star, August 5, 1981, at A-4.

During the Warren Court years, Congress was provoked by several of the Court's decisions. In response, the Jenner-Butler Bill was introduced to curtail Supreme Court jurisdiction over cases involving subversive activity and state bar admission. S. 2646, 85th Cong. Ist Sess (1957).

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