Justice Reed and the First Amendment: The Religion Clauses

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

IX An evaluation of Reed's dissent

SUFFICIENT has already been said about Reed's position on the incorporation of the establishment clause of the First Amendment by reason of the due process clause of the Fourteenth Amendment. This present section is devoted to an evaluation of the arguments from the practical construction of the relevant clauses of the First Amendment.

It should be pointed out that Reed did not disavow the "no aid" principle first laid down in the Everson case. In his McCollum opinion he professed his acceptance of it thus:1

I agree that they [state and national governments] cannot "aid" all or any religions or prefer one "over another." But "aid" must be understood as a purposeful assistance directly to the church itself or . . . organization doing religious work of such a character that it may fairly be said to be performing ecclesiastical functions.

The question may be asked: Is this a useful or "purposeful" distinction? It is true that a great part, if not the greater part, of "aid" to religion can be justified on the ground that it is "nonpurposeful," i.e., given by the government for a purpose altogether other than religious although it indirectly and significantly assists the sects in their religious work. The New Jersey plan upheld in the Everson case is an example of aid given indiscriminately to all children to help them get a secular education, although it also helped some of them get religious instruc

____________________
1
333 U.S. 203, 248. See n. 5infra for a probable interpretation of Reed's phrase "purposeful assistance."

-145-

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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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