Justice Reed and the First Amendment: The Religion Clauses

By F. William O'Brien | Go to book overview

III Modest victories

Health, Morals, and Religion

ALTHOUGH Reed's views relative to local government, judicial review, and alleged infringements of religious liberty did not often rule the Court, on four notable occasions during the 1942-1950 period the majority was persuaded to adopt the policy he defended in his Jones, Murdock, Struthers, Marsh, and Tucker opinions. These cases represented modest victories for the justice who had established himself as somewhat of a dissenter from the so-called liberal thought ruling the Court.

In January 1944 the case of Prince v. Massachusetts1 was decided by an 8 to 1 majority against the Witnesses and in favor of the right of a state to forbid minors to sell magazines on the streets. The particular charge against Mrs. Prince was that she had allowed her nine-year-old niece, Betty Simmons, to sell the Witnesses' literature in defiance of the law. In defense of her action, Mrs. Prince contended that the "child is exercising her God-given right . . . to preach the gospel, and no creature has a right to interfere with God's commands."2 Moreover, Betty and her aunt both testified that they were ordained ministers;3 and at the trial it was argued that Betty believed it was her "duty to perform this work and failure would bring condemnation 'to everlasting destruction at Armageddon.'"4 But the Court, through Justice Rutledge, ruled "that legisla-

____________________
1
321 U.S. 158 ( 1944).
2
Ibid., 162.
3
Ibid., 161.
4
Ibid., 163.

-45-

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Justice Reed and the First Amendment: The Religion Clauses
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • Part I- The "Free Exercise" Clause 11
  • I- Reed''s Position Undefined 13
  • II- Patterns of Division 20
  • III- Modest Victories 45
  • IV- Doubts Plague the Court 69
  • V- Emerging Leadership 80
  • Part II- The "Establishment" Clause 105
  • VI- The New Doctrine 107
  • VII- Reed and Incorporation 111
  • IX- An Evaluation of Reed''s Dissent 145
  • X- Life with Mccollum 154
  • Part III- Constitutional Principles of Justice Reed 195
  • XII- The Critics and Reed''s Liberalism 197
  • XIII- Reed and Pluralistic Democracy 208
  • XIV- Federalism and the Separation of Powers 221
  • XV- Reed and Judicial Restraint 232
  • Bibliography 243
  • Index 257
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