Fagan, Edward Thomas, Jr.

English

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Religion and Education Under the Constitution (Book Review)

St. John's University School of Law

St. John's Law Review Volume 24 Number 2 Volume 24, April 1950, Number 2 Article 19 May 2013 Religion and Education Under the Constitution (Book Review) Edward Thomas Fagan Jr. Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Fagan, Edward Thomas Jr. (1950) "Religion and Education Under the Constitution (Book Review)," St. John's Law Review: Vol. 24 : No. 2 , Article 19. Available at: https://scholarship.law.stjohns.edu/lawreview/vol24/iss2/19 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. 19501 BOOK REVIEWS 343form for allocating in an agreement a purchase price among classes of assetssold.One of the best chapters, and there are many of much merit, is on corpo-rations. The author discusses the problem of the transfer of property to acorporation, non-taxable exchanges, reorganizations, liquidations, redemptionsof stock, dividends and distributions. In a later edition of this book this re-viewer would like to read the author's comments on involuntary conversions.The meaning of earnings and profits is significant in considering the taxabilityof corporate distributions. There is a good discussion in this chapter on themeaning of "Earnings and Profits."The author probably had valid reasons for not discussing the personalholding company provisions in the law. One aspect of the problem of thepersonal holding company arises where a corporation rents its property to apartnership consisting of its stockholders. Such a situation invariably raisesthe question of the status of the corporation as a personal holding company.This is a pitfall of which stockholders should be aware The author will un-doubtedly wish to treat this situation in the next edition of the book.The forms illustrated in the chapter on corporations include minutes incase of dissolution, minutes and plan in case of dissolution of subsidiary cor-poration, and the resolution for declaring a dividend in property.This reviewer has not attempted to mention all the excellent material tobe found in this important tool for the average legal practitioner. Undoubt-edly the book fills a need that the lawyer will be quick to see.BENJAmIN HARROW.*RELIGION AND EDUCATION UNDER THE CONSTITUTION. By James M. O'Neill.New York: Harper & Brothers, 1949. Pp. xii, 338, index. $4.00.Professor O'Neill's scholarly and well documented book bitterly condemnsand refutes the interpretation by the present United States Supreme Court ofthe phrase, "an establishment of religion," as contained in the First Amend-ment to the United States Constitution. His attack is leveled upon the recentcontroversial cases of Everson v. Board of Education 1 and Illinois ex rel.McCollum v. Board of Education,2 wherein the Supreme Court construed thisprohibition of an establishment of religion as in effect creating a completeseparation of church and state. Hence, in the language of the Court, "Notax in any amount, large or small, can be levied to support any religious ac-tivities or institutions, whatever they may be called ..... 3Professor O'Neill contends that such a construction is patently erroneousand historically false. He critically analyzes and dissects the individual opin-* Professor of Taxation, St. John's University School of Law.1330 U. S. 1 (1947).2 333 U. S. 203 (1948).3 Everson v. Board of Education, 330 U. S. 1, 16, 723 (1947).ST. JOHN'S LAW REVIEWions of the justices in the two decisions and reveals that they are based uponhistorical misinterpretation and inaccuracy, apparent only to the searchingscrutiny of the trained historian. Once having placed the stigma of mis-interpretation upon the opinions, he proceeds to prove his contentions with amasterful compilation of historical evidence that has since evoked the highestpraise from legal scholars in the field of constitutional law.He offers in rebuttal his thesis that "the words establishment of religionmeant to Madison, Jefferson, the members of the First Congress, the his-torians, the legal scholars, and substantially all Americans who were at allfamiliar with the Constitufion until very recent years, a formal legal unionof a single church or religion with government, giving the one church or re-ligion an exclusive position of power and favor over all other churches ordenominations."Under the above interpretation, a separation of church and state may besaid to exist, but only as applied to the union between one church and thegovernment. It follows, also, according to Professor O'Neill, that all re-ligions may be treated equally by governmental support or non-support of allindiscriminately. Either treatment is equally constitutional, although the con-sistent American practice has been the indiscriminate support of all, ratherthan the non-support of any.Professor O'Neill takes violent exception to the position of the SupremeCourt in the McCollum case, since he claims that the issue is not the consti-tutionality of either of the aforementioned treatments, but the wisdom ofchoice of one or the other in the light of current educational necessities inthe United States. This choice, he argues, should be made only after fulldebate and should not be stifled by unwarranted and unjustified interferenceon the part of the Supreme Court.The spirited defense and clear-cut statement of position in this treatisehave provoked wide-spread comment by reviewers. As is always the case whencontroversial matters are at issue, this comment has been both favorable andadverse. The stand taken by those critical of Professor O'Neill's assertionsis well expressed by Professor Benjamin F. Wright of Harvard Universityin a review published in the New York Times, wherein he states, "He (Pro-fessor O'Neill) is probably correct in his assertion that the establishment-of-religion clause had a relatively limited meaning in 1789 and that Madison andJefferson did not support so sweeping a doctrine of separation in their timeas that now accepted by every member of the court."The weakness of his position lies less in his conception of the originalmeaning of the clause than in the assumption underlying the entire argument.This is that the meaning of constitutional clauses is fixed and unchangeableexcept by formal amendment. Yet surely most of the major developmentsin American government and constitutional law since 1789 have come throughcustom and interpretation, not through formal amendment."In answer to Professor Wright, this reviewer is of the opinion that eco-nomic exigencies may not enlarge or restrict constitutional power, althoughthey certainly make necessary the reexamination of first principles. It is ad-mitted that unless progress is blocked by an iron-clad rule of stare decisis,constitutional growth receives a new impetus by economic and social evolution.[ VOL. 241950] BOOK REVIEWS 345Indeed, the Supreme Court's constitutional judgments are more than technicalconstructions of our organic law: they represent the shaping of a nationalpolicy.There is abundant precedent for interpreting the Constitution in order tocope with emergencies or changed conditions or in order to effectuate newhabits of life or thought. Such interpretation, however, must not be incon-sistent with the plain unmistakable mandate of the Constitution. This re-examination of first principles because of changing conditions merely allowsthe Court to refuse to be bound by case precedents that dealt with facts orconditions which have been completely supplanted by a changing world.It is true that of necessity judicial discretion has a substantial place inthe decisions of the Supreme Court. The learned constitutional law authority,Professor Corwin, once emphasized this discretion thus, "Judicial review, frombeing an instrument for the application of the Constitution, tends to supplantit. In other words, the discretion of the judges tends to supplant it." 4Discretion, however, must exist somewhere and additional ideas must besupplied by some agency if controversies are to be determined. Judicial re-view, as we have it, is a component part of one method of dividing betweenthe executive, the legislature and the judiciary the task of supplying the dis-cretion needed. Whatever method is ad6pted, a body of interpretation will bedeveloped around the Constitution. This body of interpretation and the methodby which it is produced can hardly be said to supplant the Constitution, unlessit is inconsistent with it. The idea of inconsistency, then, involves a judgmentof the true meaning and, if the true meaning can be accurately ascertained byclear historical evidence as presented by Professor O'Neill, then it is sub-mitted that any other meaning of necessity is inconsistent with the Constitution.Indeed, if Professor O'Neill is correct, it would seem apparent that theSupreme Court by its present attempts to amend the Constitution in the guiseof judicial construction has divorced itself from its former consistent supportof constitutional principles. Our hope for the future, then, is that in timeto come it may have the resilience and support to enable it to resume itsproper position in our scheme of government under the Constitution.EDWARD THOMAS FAGAN, JR.*LAW OF TRUSTS. By Ralph A. Newman. i Brooklyn: The Foundation Press,Inc., 1949. Pp. XI, 452. $4.50.In the preface of this .elatively brief work on the law of trusts the authorcomments upon "what appears .. . to be the inadequacy of judicial thinkingin this branch of the law." 2 Because of the obscurity of the subject, he feels4 CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY, preface (10thed. 1948).* Instructor in Law, St. John's University School of Law.I Professor of Law, St. John's University School of Law.2 P. III.

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Religion and Education Under the Constitution (Book Review)

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