Origin and Impact of Government Regulations

The Catholic Lawyer, Apr 2017

By Joseph M. Fitzgerald, Published on 04/29/17

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Origin and Impact of Government Regulations

Origin and Impact of Government Regulations Joseph M. Fitzgerald 0 Recommended Citation 0 Thi s Diocesan Attorneys' Papers 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 The C atholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information , please contact Follow this and additional works at; https; //scholarship; law; stjohns; edu/tcl - 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)


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Joseph M. Fitzgerald. Origin and Impact of Government Regulations, The Catholic Lawyer, 2017, Volume 24, Issue 3,