Berns, Walter F.

English

Yale Law School Legal Scholarship Repository

REVIEWS
issues. Others, such as the diagnostic methods employed by the more Freudu-
lent psychologists,3 9 and the increase in the amount of hide which motion pic-
ture actresses are expected to expose,40 have more entertainment value than
real importance. But all alike are treated in a manner which may charitably
be described as sciolistic. 41
All the same, I am glad that Mr. Packard picked these topics, and particu-
larly the Bill of Rights, for the latest in his string of best sellers. If the gap
between The Naked Society and the polemics of James Madison is as the
- Grand Canyon, be it remembered that Mr. Packard's useful and unpretentious
volume is aimed at a mass audience which, if it lacks the wit and education
to read and understand the prose of the founding fathers, is nonetheless al-
lowed to vote, and on whose understanding depends the survival of our ancient
liberties. The defense of the first ten amendments has been too often left to
eggheads, while such masters of the popular style as the late Joe McCarthy
systematically downgraded them to a point where millions of honest, if not
overly bright, citizens regard as subversive contemporary advocacy of the ideas
contained in the first, fourth, fifth and sixth amendments. If Mr. Packard can
help to reverse that trend, he deserves well of the Republic.
JOSEPH NV. BISHOP, JR.'
THE SUPREME COURT AND PUBLIC PRAxYRS: THE NEED FOR RESTRAINT. By
Charles E. Rice.* New York: Fordham University Press, 1964. 202 pp.,
$5.00.
RELIGION, THE COURTS, AND PUBLIC POLICY. By Robert F. Drinan, S.J.**
New York: McGraw-Hill Book Co., Inc., 1963. 261 pp., $5.95.
Professor Rice's thesis is that government cannot remain neutral with respect
to religion and that the Supreme Court's decisions in the school prayer cases1
will merely substitute one religion, agnosticism, which entails "a perpetual sus-
pension of judgment on the part of government as to the existence of God,"
39. See, e.g., pp. 141-42, for a description of tests solemnly instituted to detect among
school children Oral Eroticism, Anal Sadism, Oedipal Intensity, Penis Envy and other
fearfully and wonderfully named specimens from the neo-Freudian bestiary.
40. Pp. 220-21.
41. One of Mr. Packard's bits of doubtfully relevant information is, however, worth
the price of the book. Any transistor radio within a "few feet" can be put out of action by
dialing your own set (silently) to a point 460 kilocycles below the vave length of the
station broadcasting the offensive noises. P. 339.
tProfessor of Law, Yale University.
*Associate Professor of Constitutional Law; Fordham University.
**Dean, Boston College Law School.
1. Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township
v. Schempp, 374 U.S. 203 (1963).
19641
THE YALE LAW JOURNAL
for another, the theistic profession that "there is a God and ... a divine law
to which men and nations are subject."'2 To avoid the consequence of this,
the moral disarming of the country in its struggle with materialistic Commu-
nism, he urges support for a constitutional amendment as a means of checking
"the agnostic trend of the Court" and thereby reconsecrating the nation. This
would enable us to "draw upon the religious wellsprings of our greatness [in
order] to fulfill our national destiny," which is to preserve freedom against
Communist tyranny.3
But Rice does not rest his case against the prayer decisions merely on this
appeal to their possible consequences. He states at the outset that these cases
were wrongly decided, and to prove it he turns to history: to the Declaration
of Independence, the debates of the Constitutional Convention and to those of
the first Congress, to the proclamations and inaugural addresses of various
presidents, and to the constitutions of all fifty states, from all of which he
amasses a host of references to God. Since the logic of the prayer cases would
make all these official pronouncements unconstitutional, and since so many
Americans, including the framers of the first amendment, obviously did not
regard them as unconstitutional, it follows for him that the prayer cases were
wrongly decided.
Of course, this history proves both too little and too much. It proves what
everyone already knows, and it also proves that the original first amendment,
by placing limits only on the national government, did not prevent and was
not intended to prevent all kinds of state laws respecting an establishment of
religion, including even laws prohibiting Roman Catholics from holding public
office.4 Surely we can all agree that the fourteenth amendment was intended
so to incorporate the first amendment as to prevent at least that sort of thing;
we begin to disagree when we consider what else it was intended to prevent,
and the words of the amendment provide very little to guide us. Rice argues
that the Court, following the Palko rule,5 should permit state and local govern-
ments greater latitude and flexibility in dealing with religion than Congress
enjoys,6 but he fears that the Court, driven by its logic, will not permit this.
In fact, he thinks it will now go right on to invalidate tax exemptions, both
state and federal: ". . . the logic of the various opinions makes that result a
probability," he says.7 He may be right. It is not a difficult task to show that the
principle of the prayer cases cannot logically be withheld from cases involving
2. Rice, pp. ix-x.
3. Rice, pp. xii-xiii.
4. The North Carolina Constitution of 1776, Article XXXIII, provided that only
Protestants were eligible to hold public office in the state. This constitution remained
in force for sixty years.
5. The fourteenth amendment applies to the states only those provisions of the Bill
of Rights that are "implicit in the concept of ordered liberty." Palko v. Connecticut,
302 U.S. 319, 325 (1937).
6. Rice, p. 135.
7. Rice, p. 102.
[Vol. 74:193
REVIEWS
the constitutionality of tax exemptions or of certain public oaths, to mention
another example; but it is no more difficult to show that the Court will be ill-
advised to be guided only, or even primarily, by logic. This is not to suggest
that decisions should not be "principled ;" it is to insist that the Court, since
it is now avowedly engaged in making political policy (and not only in religious
cases), must be guided by the virtue that is supposed to govern politics,
namely, prudence.
The prayer cases were not "wrongly decided" on the merits; they were
"wrongly decided" because they were decided on the merits. They were not
"wrongly decided" because they were "unprincipled," in Professor Wechsler's
sense of that term; they were "wrongly decided" because the Court ignored
the standing requirement and thereby reached the merits. Unfortunately, Rice
does not make this argument as well as he could have. To have denied stand-
ing to the Unitarians of New Hyde Park, New York, or to Mrs. Murray,
having granted it to Mrs. McCollum, might not have been consistent, but it
would have avoided what the Court's actions threaten now to do, and what the
first amendment was designed to prevent: the making of religion into a na-
tional political issue. As Professor Bickel has so persuasively argued, in addi-
tion-to invalidating legislation as "inconsistent with principle," and validating
legislation as consistent with principle, the Court may also do neither, and
there are occasions when it best performs its function by doing neither - that
is, by refusing to decide a case on the merits.8 To do this may not "be principled
in the sense in which we have a right to expect adjudications on the merits
to be principled," but, I would insist, in the area of religion it would be wholly
in the spirit of the Constitution. It is up to the Court and the commentators
to learn to live with the illogicalities left unresolved.
Professor Rice subtitles his book, The Need for Restraint, an admonition
addressed to the Court. Dean Drinan's temperate, and for this reason among
others, praiseworthy book demonstrates that it is not only the Court that
needs to learn restraint. He deals with every aspect of the contemporary
religion-government controversy in this country, showing what is important
and what is not, fairly setting forth the views of his antagonists as well as
those of the Roman Catholic Church, which he supports - but not uncritically
- analyzing the relevant case law, and because of all this, providing the reader
with an understanding of what is involved and at stake in the controversy. He
also shows us that learning to live with illogicalities means learning to live
and let live, and it seems obvious from his account that too many of us, who
bave now been given access to the Supreme Court, are not willing to do this.
He does not attribute bad motives to anyone, but the reader is left wondering
whether it is really a concern for constitutional integrity that moves many of
the participants in this controversy.
Is it a concern for the Constitution or is it something else that leads the
Los Angeles chapter of the American Civil Liberties Union to seek to enjoin
8. BicEEL, Tnz LEAST DANGEROUS BAxcH 69 (1962).
9. Id. at 132.
19641
THE YALE LAW JOURNAL
the use of the words "under God" in the Pledge of Allegiance? (And even
if the civil libertarians are morally outraged by being expected to recite these
words, can they not be made to see the probable consequences of a Supreme
Court decision in their favor - for example, the required number of signatures
on Congressman Becker's discharge petition?)
And what difference does it really make to the New Jersey ACLU if chap-
lains are employed in the military services?
Is it a concern for the law or is it something else that leads local authorities
to enforce Sunday closing laws against Jewish merchants? (And if it is a
question of unfair competitive advantage, is it beyond the wit of nine men to
devise a solution without telling Christians that Sunday closing laws have
only a secular reason ?1o)
Is it fidelity to the Constitution that accounts for the intense opposition
among Protestants to public bus transportation for Catholic school children?
Why should the Wisconsin Council of Churches object to a plan whereby
children attending private schools would be granted free transportation on the
regular school buses, not to the private schools they were attending, but to
the public schools they were entitled to attend, a plan under which the children
would be forbidden to leave such buses before they arrived at the public
schools even though they passed directly in front of the private schools on
their way?
Dean Drinan, who devotes much of his analysis to this church-related
school question, says that the opponents of these schools are moved primarily
by a certain view of democracy. This is suggested in a New Republic editorial,
which he quotes, and which Rice might have quoted to support his charge that
agnosticism will be the newly established national religion: "'. . . it is the
mission of the state to discourage parochial schools .... W~e misunderstand
the scheme if we think of the state as neutral. It is neutral in that it must prefer
none of our many religious and cultural strains. But it is itself committed to
exerting a secular, unifying, equalitarian force.' ",H He then quotes a Methodist
bishop to the same effect: "'It cannot be argued ... that a system of private
and parochial schools could meet the basic requirements of democracy ....
Such schools are designed primarily to serve denominational interests and to
foster institutional control of the educational process. Certainly the values of
democratic citizenship can be more fully realized by public education.' "12 In his
restrained fashion Dean Drinan asks: "Do not these two opinions assert, or at
least imply, that the basic objection... to any form of Federal aid to nonpublic
schools derives from the almost mystical powers which they attribute to the
public schools?" Perhaps. But is it merely an attachment to the public schools
that leads Max Lerner to argue that the Court "took the first step in breaking
10. Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961) ; McGowan v. Maryland,
366 U.S. 420 (1961).
11. Drinan, p. 177.
12. Ibid.
[Vol. 74: 1.03
REVIEWS
down the separation of church and state when it 'decided [in Pierce v. Society
of Sisters'3] that a religious group could not be compelled to send its children
to the public schools, and it could run its own schools at its own expense.' "14
It is one thing to argue that nothing in the Constitution prevents a state from
requiring all children to attend public schools, but it is something else - a
doctrinaire liberalism or perhaps even an intolerance differing from Know-
Nothingism only in the polite form it takes - to argue that the first amend-
ment of the Constitution requires this compulsion, or at least, that the first
amendment is violated unless a state be permitted to compel children in this
manner.
In the beginning of his book Dean Drinan reminds us that we existed under
the present Constitution for a century and a half "without a ruling from the
nation's highest tribunal on the constitutional prohibition of an 'establishment'
of religion."'15 We had an establishment of sorts: "WAre are a Christian people,"
Sutherland reiterated for the Court as recently as 1931.16 Nominally Christian
and Protestant, we were generally satisfied with what Drinan calls "an in-
formally established 'pan-Protestantism;'" and those who were not satisfied,
perhaps because they were neither Christian nor Protestant, either accommo-
dated themselves or received short-shrift in the federal courts.1 7 What may
be said to distinguish the present from the past is not, as he suggests, that
America is a "newly pluralistic land," by which he means that so many of us
are now Roman Catholic and Jewish as well as Protestant; this is true enough,
but there were Roman Catholics and Jews in this country from the beginning,
and even non-believers, if the truth be told. What has happened is that the
Supreme Court has provided a forum for the militant secularists who insist
that this informally established "pan-Protestantism" be replaced by a formally
established "agnosticism," as Rice puts it, or, in the words of the New Republic,
a "secular, unifying" equalitarianism. 8 But the framers of the first amendment
recognized that the nation was not united on religious matters, that it was a
"house divided," and they knew that any attempt to unite us on either a
religious or an anti-religious principle would succeed only in transforming
religious passions into political passions. We have already seen the beginning
of this, and we shall certainly see its culmination if the Court continues along
the lines suggested by Douglas in his concurring opinion in Engel v. Vitale.
Such judicial action would almost certainly be followed by political action,
and to judge by what has already taken place in the House of Representatives,
that political action will not take a principled form.
WALTER F. BERNSt
13. 268 U.S. 510 (1925).
14. Drinan, p. 118.
15. Drinan, p. 4.
16. United States v. Macintosh, 283 U.S. 605, 625 (1931).
17. See, e.g., Davis v. Beason, 133 U.S. 333 (1890).
18. Drinan, p. 177.
tProfessor of Government, Cornell University.
19641


Rice: The Supreme Court and Public Prayers: The Need for Restraint

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Rice: The Supreme Court and Public Prayers: The Need for Restraint

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