Justice Reed and the First Amendment: The Religion Clauses

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

XIV Federalism and the separation of powers

State and Local Government

ON ONE Of these pages federalism was mentioned as being "a species of pluralism," support for such a statement being borrowed from Professor Friedrich, who has written that federalism in a very broad and popular sense refers to "any kind of association of autonomous units."1 "Localized groupings are treated in a manner analogous to the treatment of the individual citizen, to whom a sphere of relative independence, of civil liberties, is likewise guaranteed."2

That one of the values in Reed's constitutional world, responsible for many of his so-called illiberal decisions, is respect for this type of pluralism can be made clearer in the following brief review of cases already studied.

First to be mentioned in this connection is the Adamson case where Reed's vote was supremely important in preventing the Court from adopting the thesis of the nationalizers that the entire Bill of Rights is applicable against the states. In his opinion for a five-man majority, Reed said:3

It [the traditional theory of the Fourteenth Amendment] accords with the constitutional doctrine of federalism by leaving to the states the responsibility of dealing with the privileges and immunities of their citizens except those
____________________
1
Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice ( Boston, Ginn: 1950), p. 189.
2
Ibid., p. 220.
3
Adamson v. California, 332 U.S. 46, 53 ( 1947).

-221-

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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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