Justice Reed and the First Amendment: The Religion Clauses

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

XIII Reed and pluralistic democracy

An Education in Pluralism

THE FACTS and figures presented in the previous chapter lead undoubtedly to the conclusion that, when individual claimants have pleaded an infringement of civil and personal liberties, Justice Reed denied their claims in more than 80 per cent of the cases, while, in sharp contrast, Black and Douglas gave them a sympathetic hearing 90 per cent of the time. In the present chapter an attempt is made to see what other values may exist in Reed's constitutional world which compel him to follow this rather consistent pattern of decision.

A quick glance at Reed's background should be helpful to discover some of the experiences and occupations which perhaps conditioned his thinking and supplied him with values which influenced his activity while on the Bench.1 Soon after he finished his formal education, Reed took up the practice of law in Kentucky where his two outstanding clients were the Chesapeake and Ohio Railroad and the Burley Tobacco Growers' Co-operative Association. He also was associated with a law firm representing the American Railway Express Company, the Bank of Maysville, and the London Guarantee, Accident, Fidelity and Casualty Company. Thus, for the twenty years before 1929 when he went to Washington, Reed gained great experience in farm co-operatives, banking, and corporations.

His association with the railroad naturally placed him

____________________
1
The best and most comprehensive treatment of Reed's background is that given in Mark J. FitzGerald, "Mr. Justice Reed: A Study of a Center Judge", unpublished Ph.D. dissertation, Univ. of Chi., 1950, pp. 9-60.

-208-

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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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