Church-State Relationships in America

By Gerard V. Bradley | Go to book overview

aid is pure conjecture, for only Justice Rehnquist has evinced any attraction to the idea. One may at least hope that in the future, the other justices give the plain meaning of the words a fairer hearing than they did in Everson. Before they further leave behind sect equality for some other preferred norm--that is, before they embark on another journey from someplace to what will likely be no place--they might well consider the counsel of Jefferson, who stressed that the meaning of the Constitution is "to be found in the explanations of those who advocated it, upon which the people relied in adopting the Constitution." 48 Or perhaps Madison should have the last word after all. If the "sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers." 49


NOTES
1.
E. Corwin, "The Supreme Court as National Board," 14 L. & Contemp. Prob. 3 ( 1949).
2.
See, e.g., R. Cord, Separation of Church and State 5 ( 1982).
3.
See, e.g., Wallace v. Jaffree, -----. U.S. -----. 105 S. Ct. 2479, 2520 ( 1985) ( Rehnquist, J., dissenting).
4.
On stare decisis, see generally, H. Monaghan, "Taking Supreme Court Opinions Seriously," 39 Md. L. Rev1 ( 1979). See also the exchange between Justices Stevens and White in Thornburgh v. American College of Obstetricians and Gynecologists, 54 U.S.L.W. 4618 ( 1986).
5.
D. Anderson, "The Origins of the Press Clause," 30 UCLA L. REV.455, 462 ( 1983); M. Nimmer, "Introduction: Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?" 26 Hastings L.J.639, 640 ( 1975).
6.
Maxwell v. Dow, 176 U.S. 581, 601-2 ( 1900).
7.
J. Ely, Democracy and Distrust 27 ( 1980).
8.
See, e.g., P. Brest, "The Misconceived Quest for the Original Understanding," 60 B.U.L. Rev.204, 237 ( 1980).
9.
Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-3 ( 1819).
10.
L. Levy, Emergence of a Free Press 268 ( 1985).
11.
See New York Times, October 16, 1985, July 25, 1986, Pp. 23.
12.
W. Brennan, "The Constitution of the United States: Contemporary Ratification," speech delivered October 12, 1985 at Georgetown University.
13.
Wallace at 2502 ( 1985) ( O'Connor, J., concurring).
14.
Ex parte Quirin, 317 U.S. 19, 41-42 ( 1942).
15.
Marsh v. Chambers, 463 U.S. 783 ( 1983).
16.
Lynch v. Donnelly, 465 U.S. 660 ( 1984).
19.
Wallace at 2514.
21.
105 S. Ct. at 2503 ( O'Connor, J. concurring).
22.
Ibid.

-146-

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