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Justice Hugo Black egregiously manipulated Jefferson\u2019s words and intent. Black\u2019s malfeasance stands as possibly our nation\u2019s most disgraceful example of an attack against Christianity and misuse of the legal system. Why would a Supreme Court justice behave in such an inappropriate manner? The answer may lie in Black\u2019s history:<\/p>\n
Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920\u2019s when the Klan was deeply resentful of the growing influence of Catholicism in the United States. According to Hugo Black, Jr., his father shared the Klan\u2019s dislike of the Catholic Church: \u201cThe Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanchard\u2019s books exposing the power abuse in the Catholic Church. He thought the Pope and the bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed: he felt they got most of their revenue from the poor and did not return enough of it.\u201d<\/p><\/blockquote>\n
Reading Hugo Black Jr. raises the frighteningly familiar concept of Marx\u2019s class struggle. As if this was not bad enough, Black also declared that the religion clauses of the First Amendment, which were intended to be a check on the federal government, were now applicable to state and local governments, and in this way, the \u201cwall of separation\u201d would henceforth attach to every case or controversy arising under the establishment clause of the free exercise clause.<\/p>\n
Black succeeded in creating a new definition of \u201cwall of separation\u201d and then mandated that this new definition would forevermore be applied to all cases dealing with religion. The court in Everson interpreted the \u201cseparation\u201d phrase as requiring the federal government to remove religious expressions from the public arena. This is the complete opposite of the First Amendment\u2019s meaning. Now the First Amendment is no longer a limitation on government interference. It is now a limitation on religious expression and principles.<\/p>\n
Black is transparent and his motives are quite clear when he opted not to publish Jefferson\u2019s letter in full, which is actually very short. Instead, he published only the eight words to which Black attaches his new definition. What we see here is Black using the techniques of avoiding the whole truth and mis-defining words. Barton Summarizes the perverse nature of Black\u2019s decision:<\/p>\n
Furthermore, the Court did not give the context of the phrase, or Jefferson\u2019s numerous other statements on the subject; in fact, it did not even mention that previous Supreme Courts had used Jefferson\u2019s letter to preserve religious principles in public society rather than remove them. In short, that 1947 Court was the first to divorce Jefferson\u2019s metaphor from its context and then apply it in a manner exactly opposite to Jefferson\u2019s clearly articulated intent.<\/p><\/blockquote>\n
How did all this go wrong? What was the legal situation that was such a First Amendment catastrophe? The catalyst that threw our nation into one of religious intolerance was created in Everson. In the 1940\u2019s in some jurisdictions, most schools were Catholic, and it is within this environment that the controversy was addressed. A New Jersey statute authorized its local school districts to make rules and contracts for the transportation of children to and from schools. The township board of education authorized reimbursement to parents of money for the bus transportation of their children. Part of this money was for the payment of transportation to Catholic parochial schools, which of course, gave their students religious instruction. The New Jersey statute was challenged as a \u201claw respecting an establishment of religion.\u201d This is the nidus of the problem. Mere transportation was deemed respecting the \u201cestablishment of religion.\u201d The court set about redefining transportation.<\/p>\n
Justice Black summarized the importance of religious freedom and religious practices from the founding of the original colonies to his present day. Black used one paragraph to describe what the \u201cestablishment of religion\u201d clause of the First Amendment meant but ended his paragraph by opening a door to judicial mischief:
\nThe \u201cestablishment of religion\u201d 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 or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by laws was intended to erect \u201ca wall of separation between Church and state.\u201d [Emphasis added.]<\/p>\nThe bold sentence is the point where Black completes his manipulation. Black set the stage early in the paragraph. He slipped in the following sentences to support his conclusion: \u201cNeither 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.\u201d Black is plainly wrong on two accounts. First, federal government disallows the establishment of a national religion. It says nothing about the states. Many states had a preferred religion . . . Secondly, the First Amendment says nothing about aiding a religion. In fact, our federal government has always aided religion and still aids religion today. Black shifts the scope from a narrowly intended theory to this amazingly overbroad, generalized list of non-tolerance and non-support. It is here that justice Black morphed Jefferson\u2019s words from Jefferson\u2019s original concept of a wall of non-interference, as we saw above, into a concept of a wall of non-support. Ironically, Justice Black goes on to decide the case in favor of the New Jersey statute and even remarks:<\/p>\n
That Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions then it is to favor them.<\/p>\n
Again, Black is distinctly wrong. The First Amendment does not require the federal government to be neutral to religion. Once again Black shifts the scope of the subject when he states, \u201cState power is no more to be used so as to handicap religions than it is to favor them.\u201d The word \u201cstate\u201d can be used to mean the state as in a federal government or a state as in thirteen states. He is not clear but his ambiguity echoes his attempt as seen in the first paragraph when he uses, \u201cNeither a state or federal government\u201d to change the focus of the First Amendment from the federal government to the states.<\/p>\n
Justice Black gives with one hand and takes away with the other. He concludes his opinion by stating, \u201cThe First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.\u201d Justice Black created a bomb but decided not to use it in the Everson case. Ironically his decision aided religion in the short term.<\/p>\n
Barron et al, in their textbook Constitutional Law, summarize the significance of the Everson case. Everson\u2019s incorporation of the non-establishment principle as a part of due process liberty, which limits state power, essentially doomed the narrow concept that the national government would not interfere with state prerogatives in the religious sphere. As Barron, et al note, \u201cjustice black in Everson condemned \u2018aid to religion\u2019 as an invalid establishment.\u201d<\/p>\n
Was Justice Black unable to comprehend the Constitution? Unfortunately, the answer to that question is probably no. It is more likely that Black\u2019s tortured manipulation of Jefferson\u2019s letter was a purposeful first shot fired in the Supreme Court\u2019s attack on Christianity based on Black\u2019s fear of Catholicism.<\/p>\n
Mark Levin, Men in Black: How the Supreme Court is Destroying America (Washington: Regnery, 2004) 43. Here Levin quotes from Gerald T. Dune, Hugo Black and the Judicial Revolution (New York: Simon & Shuster), 269. Quoting form Hugo Black, Jr., My Father (New York: Random House, 1975), 104.
\nDavid Barton, Separation of Church & State: What the Founders Meant (Aledo: Wallbuilders, 2007), 5.
\nId., 14.
\nEverson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, (1947).
\nId.
\nId.
\nJerome Barron, C. Dienes, Wayne McCormack and Martin Redish, Constitutional Law: Principles and Policy, 5th ed. (Charlottesville: Michie, 1996), 1238.
\nId., 1239.
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