Origin and Impact of Government Regulations
Origin and Impact of Government Regulations
Joseph M. Fitzgerald 0
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JOSEPH M. FITZGERALD
As you know, the First Amendment of the Constitution of the United
States provides, among other things, that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof." This language obviously means that the church and state cannot
be "formally united in an exclusive union."' This differs considerably from
the concept of separation of Church and State in other countries. The
phrase "separation of Church and State" had its beginning in the State of
Virginia. The Anglican Church, which was then the state church and
united to it, was finally separated from the government of Virginia through
the efforts of Jefferson and Madison.
"Congress shall make no law respecting an establishment of religion"
is a clear statement that the Congress of the United States shall not enact
any legislation which results in "an establishment of religion." The words
"separation of Church and State" are patently ambiguous, since
"separation," "Church," and "State" each have many meanings.
Actually, the phrase "separation of Church and State" does not appear any
place in the Constitution of the United States or in the constitution of any
state, as it may pertain to the relationship of the government to religion.
Madison and Jefferson, being regarded as the authors of the Bill of
Rights, neither before nor after its enactment expressed any discontent
with or opposition to the use of federal funds or state funds (as in Virginia)
in aid of religion or religious education. To have done so would have been
inconsistent with their Official Records while holding public office and
while acting as Commander in Chief of the Armed Forces.
A change in the philosophy of the Supreme Court came in 1947 when
Justice Rutledge, writing a dissenting opinion in the Everson bus case,'
expressed an opinion contrary to that attributed to Jefferson and Madison
expressed above. Joined by Justices Frankfurter, Jackson, and Burton,
Rutledge decided, without the benefit of previous citations, that the
purpose of the first amendment was to outlaw, not merely a formal
relationship between church and state, but "to uproot all such relationships." He
further elaborated "that the purpose of the first amendment was to create
a complete and permanent separation of the spheres of religious activity
and civil authority by comprehensively forbidding every form of public aid
or support for religion. In proof, the amendment's wording and history
unite with this Court's consistent utterances, whenever attention has been
fixed directly upon the question-the prohibition broadly forbids state
support, financial or other, of religion in any guise, form or degree. It
outlaws all use of public funds for religious purposes. Legislatures are free
to make and courts to sustain, appreciations only when it can be found that
in fact they do not aid, promote, encourage or sustain religious teaching
or observance." ' Justice Rutledge here mentions the amendment's
wording, history, and the Supreme Court's previous utterances. It appears that
Justice Rutledge misconstrued the purpose of the amendment, since no
mention was ever made in the amendment of financial support or public
funds. He was unable to demonstrate any previous "consistent utterance"'
of the Supreme Court in support of his thesis, for there never had been any.
Therefore, his argument is fallacious.
Unfortunately, the philosophy of Justice Rutledge took on a degree of
credibility with some other members of the Court. In the McCollum case,5
despite the fact that the released time program established in the State of
Illinois was found to be constitutional by the trial court and the supreme
court of the state, and was approved by the board of education, the entire
educational administration, and the parents of the children involved, the
Supreme Court of the United States followed the reasoning of Justice
Rutledge and struck down the statute as being unconstitutional. The
reference and use of Jefferson's phrase, "wall of separation," as a means of
finding aid unconstitutional, was severely criticized by an eminent group
of Protestant ministers and educators, as well as by the Catholic Bishops
of the United States. James M. O'Neill, cited above, in my opinion
correctly construes Jefferson's use of the phrase "a wall of separation between
Church and State" as pertaining to the "rights of conscience," 6 and not as
bearing the interpretation portrayed by Rutledge in Everson or by the
Court in (...truncated)