There are books, like movies, that may entertain, but effectively remain entirely forgettable shortly after their term of entertainment. Others leave an indelible impression. Hidden under the rather frivolous title, “Confusion Twice Confounded”, the present writer has found a mother lode of ideas which are relevant to the present: judicial activism, the bloated state, threats to democracy, and American exceptionalism, the interpretation of the intention of a law, to state a few – all deriving from the interpretation of the First and Fourteenth Amendments, especially through the lenses of two judicial decisions. This article expands on what was found in that book, and shows that the major argument is not confined to the United States, but to other republics with similar ideas in their legal frameworks; and to actions taken by Presidents even after publication of the aforementioned work.
In the few days prior to writing this article, the present author picked up a book bought second-hand at least twenty years ago. Often ignored, perhaps because the title seemed frivolous, or because the topic would concern principally the citizens of the United States of America, this writer never-the-less selected it over the many others in his library, and was pleasantly surprised by one interesting idea after another. It has been decided to write this as an embedded book review embellished as an essay.
Confusion Twice Confounded. Joseph H. Brady. Seton Hall University, South Orange, New Jersey, 1955.
The title of the book under review sounds bothfrivolous and redundant. If not the latter, the author shows a certain optimism in counting the number of times the Supreme Court of the United States of America may have misinterpreted the First and Fourteenth Amendments of the Constitution. Because of the cut-off date of 1955, this could be a useful textbook in teaching logical thinking, by which it is not meant to say that all arguments are flawless, and indeed, at least one author has dissented. Observant readers who care about the values of their country might also be piqued into reacting in favour of eroded rights. Among these could be religious people, libertarians, and with some trepidation I would say, strict Constitutionalists. (The latter will probably understand my concern.)
The book begins with a citation of a part of the First Amendment. emphasizing the words, “Congress shall make no law respecting the establishment of religion”. Time and again, it is pointed out that this does not mean the separation of Church and State, it does not mean that any established Church existing of the time cease its relations with the state, or that the state must not in any way support any religion. Indeed, it is pointed out, that since the very beginnings of the existence of the United States of America, and without batting an eyelid, Presidents and other actors have to one degree or another supported this or that religion, without any serious challenges (up to that moment, and even in some more recent times).
Perhaps in keeping with the norms of the legal profession, which the current writer is unaware of, Joseph Brady is quite repetitious in pointing out the the First Amendment does not say what was decided in two particular cases, Everson (New Jersey Bus Law), and McCollum (Illinois Religious Education). Both the majority and minority opinions are presented and critiqued. It is shown, at least in Brady’s opinion, that the reasoning of the Justices was mostly flawed, even if the outcome of the case was correct. It is shown that the decisions by supposedly learned judges was not in keeping with the intent of the original law(s) involved, that the second case mentioned in this paragraph used as its precedent the flawed arguments of the first case, and that the Justices did not even act in accordance with their own previous declarations on how judicial decisions are to be arrived at. The quite minutely detailed dissection of these verdicts may the result of a Thomistic education received by Brady, but this is a speculation based on his own theological formation, which, whether or not in consonance with Scholasticism, does suggest the writer’s probable bias.
In the course of his writing, certain details stand out as having contemporary significance, such that, even if Church – State relations are to be considered as a settled question, profit may be obrtained by considering this analysis made 60 years ago. A consideration of the previous paragraph shows that the cases decided by the Supreme Court, if their titles are sufficient for definition, were not even about “the establishment of religion”, and Church – State separation, but about bussing and education. The reader might guess, due to the influence of the bussing issue of integration, that bussing also refers to education.
This issue, even if relatively settled for inhabitants of the United States, remains a topic of controversy in some other republics. Should someone converse, for example, with tourists to Argentina, who, with a sufficient smattering of Spanish, might cull from the ironically-placed graffiti from the walls of houses of worship, “Separation of Church and State”, or “Secular Education in State-run (“Public”, in U.S., not British usage) Schools” [Educación laica y pública]. The Constitution of that country was heavily influenced by the United States, and whatever differences may currently exist, upon reading Brady, it becomes difficult to see that the logic employed by Argentine politicians is in any wise worse than that of their North American model (whether either party cares to admit or not).
Another ironic situation seems to occur in an example of what is now called “spreading democracy”. It concerns, on page 111, a quotation from a proceeding by a Porto-rican municipality, apparently American-run, against ecclesiastical-owned property: Ponce vs. the Roman Catholic Church, [210 U.S. 296: http://supreme.justia.com/cases/federal/us/210/296/case.html%5D which includes words of future President Taft to Pope Leo XIII in 1902, in his capacity of President of the United States Philippine Commission. The text seems to misquote, but there seems to be a certain amount of chutzpah in the U.S. running to the Vatican, when it wants a separation of Church and State, claiming that there had been an establishment of religion in the Philippines, but a “transfer … to a government which, by the law of its being, is prevented from having such association with any church [210 U.S. 322]. When the Romans conquered a country, they usually allowed existing law to continue, just the taxes and the soldiers had to be supplied, if the present author is correct.
Of further interest to the present writer, who lives in an environment where this expression if oft bandied about, is the meaning of the idea of the intent of the legislator. It is shown that the intention, at least in the specific case of the Constitution, but by extension, similarily applicable in other cases, is to limit oneself to the meaning of the words as clearly understood by people writing at the time of the drawing up of the document, without drawing upon any private opinions not directly related to such document. Brady points out that the faulty logic leading to the Church – State dichotomy comes from incorrectly-cited and used documents which have no bearing on the constitutionality of the questions under consideration. More precisely, and this is, in this writer’s opinion, even more relevant to the present day, is the search for antecedents by the Justices in neither the Constitution nor “any other legal source”, but in “their own prepossions” [Justice Jackson, in the concurring opinion of the McCollum Case, 333 U.S. 237-238 (http://supreme.justia.com/cases/federal/us/333/203/case.html); Brady, 192.] Partially seen here are the seeds of judicial activism, which Brady points out, using different terminology, was already a fear which Thomas Jefferson had expressed several times [pp. 179 – 184].
A criticism of Brady’s scholarship, claiming that his emphasis on slavish literal interpretation of the Constitution, offered by Robert Rodes seems almost to be a dangerous straw-man argument, ignoring the main point, as already implied, rather nauseatingly repeated: that the First Amendment says nothing about the separation of Church and State, that this is erroneously understood through the words of Jefferson, and incorrectly applied by the Court. To the words of Justice Frankfurter, that in such a case, “good fences make good neighbors” [333 U.S. 232], Brady points out that with the decision to create a “high and impregnable” wall, what was actually created was a “spite” fence, totally opposed to the low, access-permitting fences between good neighbours [Brady, 149].
Indeed, Brady elsewhere showed that he did not believe in “slavish” interpretation where it was not in agreement with his moral position. He believes that where such is the case, the law might simply be ignored. Supposedly Andred Jackson had a negative opinion of a Supreme Court ruling, and his reaction implied that it would be only the responsibility of the Chief Justice to have it carried out, “… let him enforce it.” [p, 190, citing Horace Greeley, The American Conflict, (Hartford, 1864), I, 106, available at <http://books.google.com/books?id=AwIpAAAAYAAJ&q=106+enforce#v=snippet&q=106%20enforce>%5D This seems to be the sense of the somewhat mysterious Spanish expression, “Obedezco, pero no cumplo”, (I obey, but do not comply), unsatisfactorily explained as the reaction of the Spanish Colonies to the impractical dictates from the Mother Country. Brady, it seems, comes closer to a clergyman whom this author once met. The man of the cloth, asked by the latter why certain regulations were not being implemented, answered that he, or someone in particular, simply had not gotten around to complying.
Brady, through this book, has also given rise to a certain quantity of anti-Catholic hysteria on the internet. In a limited search for reviews, 2 such articles were found, citing this work in the context of Catholicism supposed out to control the world. Adding “books.google.com”, the first result at the time of this writing gave “Scientology”, the second refers to “Bilderberg cabal” and Babylon, the third, “Mark of the Beast”, the fourth, “Wondering after the Beast”, and the remaining 6 results were related neither to Brady, nor his text, neither were any of the ten on the following page. This may be contrasted with a comment by Charles S. Desmond, an Associate Judge of the Court of Appeals in the State of New York back in 1955, that the ¨treatment of the United States Supreme Court may seem a little rough at times, but [Brady’s] argument is simply unanswerable [from the back flap of the 1955 edititon].
From cases in which objections are made to either bussing to school for non-public schools, or the established practise of teaching a non-denominational form of religion, acceptable to Protestants, Catholics, and Jews [p. 127], objected to by an atheist, the Monsignor Brady has shown that education was never under the purview of the Constitution nor its Amendments, or that, for example, State aid was never considered to be denied to any religion. Examples are cited of how there are military chaplains, which this author considers the best example of non-separation, in that, during the non-too-recent past, the military decided to expand their “chaplaincies” to practictioners of such cults as “Wiccam” [The following link refers to a court being so ordered, a supreme irony: http://finance.townhall.com/news/politics-elections/2013/02/20/court-calif-may-have-to-hire-wiccan-chaplain-n1516607. The next link refers to the military: http://www.washingtonpost.com/wp-dyn/content/article/2007/02/18/AR2007021801396.html%5D. The more complicated question in all of this, which do pertain to the two cases cited by Brady, as well as others en passant, is the use of taxpayers’ money to benefit any organization which is not part of the government. If here, to use Andrew Jackson’s misused metaphor, there is to be a wall, there could be no aid to non-governmental organizations, no cookies passed to protesters in foreign countries, and perhaps no tax-exempt organizations. This is as little, or as much germane to the First and Fourteenth Amendments, as the supposed separation of the ecclesiastical from the secular governmental organizations.
What may have been a degrading, through judicial actions, of the intent of the legislator as far as Church-State relations are concerned, has been further seen, since the time of Brady’s book, in another First Amendement Right, Free Speech. While political conservatives of the law-and-order stripe, as well as the groups interested in politically-correct language, may well see a need for limiting some actions on the part of those whom they consider in the wrong, it would seem that the Justices allow themselves to be swayed by pressure groups in conformity with the Zeitgeist, even more than by any other factor. Perhaps there should be no surprise in this at all, in that the amendment under discussion denied Congress the right to make any laws about “an establishment of religion … or abridging freedom of the press”, etc., but, was the judicial power, through intent or omission, denied the opportunity to do what Congress could not?
Article code: 1Ñö-20prelim. март/März/March.
Copyright © 2012 Paul Karl Moeller.