Justice Reed and the First Amendment: The Religion Clauses

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

V Emerging leadership

THE MANY cases presented in the preceding pages appear to confirm the judgment: of Professor Corwin that during the 1940-1950 decade the Court's holdings in the area under study are "singularly erratic."1 The Court is seen groping for answers to a multitude of questions that arise when actions, really or at least allegedly religious, collide with the competing rights of a community to peace, order, and quiet. On the one hand, Black, Douglas, Murphy, and Rutledge decided almost every case in favor of the individual who challenged a regulation limiting his public activity. On the other hand, Reed, Frankfurter, Jackson, and Roberts were more inclined to allow the community solution to prevail. A majority was formed either by defections from these two groups or by the vote of Stone, Byrnes, Burton, Vinson, Clark, or Minton, all of whom served as justices during some of this controversial period.

Justice Reed was one of the leaders, if not the leader, of the bloc with which he was generally associated. Rarely, if ever, did he abandon the philosophy of government which they espoused--judicial restraint, deference to legislatures, and faith in local determination. This philosophy, however, at no point during this decade ever fully captured the Court with the single exception of the Prince case. Reed won a narrow victory for his views in the Summers case, and in 1949 he rallied a hesitant and doubtful majority to support his Kovacs decision. But these modest victories cannot conceal the fact that for the most part

____________________
1
Edward S. Corwin, The Constitution and What It Means Today ( 11th ed.; Princeton: Princeton Univ. Press, 1954), p. 257.

-80-

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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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