Tag: Supreme Court

The Lochner Era & “Substantive Due Process” (Part Two)

~ Blue Cereal

NOTE: If you haven’t already done so, you should probably start with Part One of this post. I mean, I can’t force you or anything, but…

“Economic Substantive Due Process” in the Lochner Era

Lochner Era Court“School choice” wouldn’t emerge onto the national scene until after Brown v. Board of Education (1954) and the various forays into moral corruption and social decay wouldn’t become staples of the nation’s highest court until a decade after that. The rest of the Lochner Era was largely about how freedom meant letting corporations do whatever they wanted to workers because those being exploited had just as much theoretical control over the outcome as their gilded overlords did. (They didn’t put it in those exact terms.) Between 1897 – 1937, the Supreme Court struck down nearly 200 different statues, most as violations of “freedom of contract” or other violation of “economic substantive due process.”

The Court acknowledged in principle that state and even sometimes federal government had some limited authority to regulate workplaces in order to promote safety and the general welfare, but only in cases involving explicit physical danger. Efforts to regulate mining, for example, might have a chance; restricting the hours during which one could safely bake bread, on the other hand… not so much.

Any such regulations should avoid restricting “market choices”; they couldn’t interfere with the ability of men to sign up for whatever working conditions they choose at whatever wages are available. The Lochner Era had little use for Congress’s claims to expanding authority under the Commerce Clause, making it one of those rare periods in U.S. history during which federal power didn’t simply expand at will. The Court was particularly unsympathetic towards labor unions during this period, regularly striking down laws facilitating union activities or offering workers more leverage in negotiations.

Other Major Cases of the Lochner Era

Here are a few of the more frequently cited cases of the period, although there were dozens of others which  could just as readily demonstrate the ideology of the era:

Labor SqueezeAdair v. United States (1908) – Congress passed legislation in 1898 prohibiting “yellow dog contracts” in which workers agreed to forego union membership in order to obtain employment. When an interstate railroad company nevertheless fired an employee for joining a labor union, they argued that the Fifth Amendment protected them from being deprived of their liberty or property without due process (no doubt meaning the “substantive” variety). The Supreme Court agreed. While Congress had the right to regulate interstate commerce, that didn’t give them the right to interfere in the “liberty of contract” between employers and employees.

Hammer v. Dagenhart (1918) – In 1916, Congress passed the Keating-Owen Bill, which attempted to standardize protections for children under the age of 16 (or 14 in some industries) working in factories or other labor-intensive industries. The Court declared Keating-Owen unconstitutional, insisting that Congress’s power to regulate interstate commerce was intended to facilitate trade among the States, not stretched to regulate labor and production itself. Besides, the Court pointed out, the States had already addressed the issue in their own ways, as the Tenth Amendment allowed.

child labor smoking boysAdkins v. Children’s Hospital (1923) – The District of Columbia passed a minimum wage law for women and minors, complete with provisions for investigation and enforcement. The Children’s Hospital of D.C. protested that this was a violation of their “freedom of contract” as clearly established in Lochner v. New York (1905). The Supreme Court agreed and overturned the minimum wage legislation based on the same principles articulated in Lochner, adding that the law was “arbitrary” in that it imposed a uniform minimum wage regardless of women’s individual skills, occupations, wants, or needs. Besides, the Court added, with the passage of the 19th Amendment only a few years before, the idea that women required special protection was quickly becoming antiquated.

Carter v. Carter Coal Company (1936) – The Bituminous Coal Conservation Act of 1935 was intended to establish national standards for the coal industry. It was not technically mandatory, but companies who agreed to pay the designated wages, limit working hours to those spelled out in the legislation, and follow the suggested pricing guidelines, received a substantial tax refund. The Court determined that Congress had (once again) overstepped its authority under the Commerce Clause. Employee wages and hours were part of  production, not distribution or sales, and any relationship between the two was indirect at best. If individual states wished to regulate their industries in this way, that was fine – but nothing in the Constitution gave the federal government the right to step in on this level.

West Coast Hotel Co. v. Parrish (1937)

On its surface, West Coast Hotel was a fairly straightforward case. The State of Washington set a minimum wage for women and minors working in most professions. Elsie Parrish, who worked at a local hotel, sued for the difference between what she actually made and the legal minimum. Lower courts, following the precent set in Adkins v. Children’s Hospital (1923), found in favor of the hotel – “freedom of contract” and “substantive due process” and all the usual staples of what was by this time forty years of “Lochner Era” jurisprudence.

West Coast Hotel Co.When the case reached the Supreme Court, however, they found for Parrish and the State of Washington. The minimum wage was fine. Adkins was officially overturned. Just like that, the Lochner Era was over.
West Coast Hotel marked a dramatic shift in the Court’s approach towards legislation regulating industry and protecting workers. This was not the result of a massive change of heart or mind by nine robed individuals, but a philosophical reversal on the part of a single Supreme – Justice Owen J. Roberts. Many of the infamous Lochner cases were decided by split votes, with 5 – 4 being the most common. West Coast Hotel was decided 5 – 4 as well, but 4 of the new 5 were the same core group who’d been overruled in similar cases for decades prior.

Why the change? Popular wisdom suggests it was a reaction to President Franklin D. Roosevelt’s infamous “court packing plan” via the Judicial Procedures Reform Bill of 1937. Tired of having so many of his New Deal efforts stymied or outright overturned by the Court, FDR proposed adding six additional justices over a period of several years – claiming he simply wanted to help the Court manage its extensive workload.
There was nothing unconstitutional about adding Justices to the Court, but even his supporters saw it as a rather obvious ploy to gain some leverage over a troublesome Supreme Court. Although the bill failed, perhaps Roberts sensed a change in the popular winds and decided it was time for the Court to pick its battles more carefully. Someone coined the phrase “the switch in time that saved nine” in reference to Roberts’ change of heart and the term stuck.

The Inglorious Demise of Economic Due Process

The Majority Opinion in West Coast Hotel, penned by Chief Justice Charles Evans Hughes, accepted the State’s argument that women and minors were particularly vulnerable to exploitation by employers and that what was bad for women (many of them mothers) usually ended up being bad for society as well. This was the opposite of the “women don’t need no stinkin’ protection” approach of Adkins, but if you’re going to overturn a previous ruling, you might as well go all the way.

Supreme Court For DummiesIn an instant, the “economic substantive due process” went from being head cheerleader to the weird girl no one would invite to parties. It fell out of favor, seemingly inexplicably, and has been generally villified ever since. Lochner v. New York (1905) is now regularly lumped together on “worst ever” lists with cases like Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Citizens United v. FEC (2010).

The idea that there are unenumerated rights just as essential to personal liberty as those spelled out explicitly, however, did not go away. Some would argue it had been there all along – hence the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Eventually “substantive due process” would re-emerge. It periodically popped up in the slew of “rights of the accused” cases for which the Warren Court is best-remembered, then – as previously mentioned – became a staple of both sexual freedom jurisprudence and a re-imagining of “religious liberty” far more aggressive than a generation ago. Because it relies on inference and historical interpretations, it’s both malleable and unpredictable. Perhaps the biggest error of the Lochner Era courts wasn’t their use of “unenumerated rights” in making their decisions, but their elevation of those inferred rights to a status which trumped all other considerations – economic, social, or legal.

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The Lochner Era & “Substantive Due Process” (Part One)

~ Blue Cereal

The Lochner Era (Introduction)

City Bakeries

There are several periods in the history of the Supreme Court in which tend to be remembered for an overall approach and lasting impact rather than for a specific case or two. Often they’re simply referred to by the name of the Chief Justice at the time – the Marshall Court of the early 19th century promoted federal power in the early days of the United States, the Warren Court discovered a slew of new rights and protections for the accused in the 1950s and 1960s, and the Roberts Court…

Well, it’s a bit early to make that call.

The Lochner Era (1897 – 1937), however, is named for a case representing a judicial philosophy which dominated the nation’s highest court for nearly forty years. For over a generation, the Court pushed back against the reform efforts of the Progressive Era and gave FDR fits by overturning many of his best efforts to regulate industry during the Great Depression. They laid the foundation for the modern “school choice” movement by uncovering new rights related to parenting and families. In the process, they brought to life an understanding of the Fourteenth Amendment that would end up securing the rights of American citizens to contraception, gay sex, and abortions.

Who saw THAT coming?

The 20th Century Begins

The Spanish-American War was over, the U.S. was quickly becoming a leader in imperialist expansion, and World War I wasn’t yet a twinkle in the Kaiser’s eye. The Second Industrial Revolution was in full swing; massive manufacturing and swelling cities increasingly absorbed available real estate. The American Federation of Labor (AFL) had recently formed under the leadership of Samuel Gompers and was already making headway with practical issues like slightly higher wages and better working conditions. These gains were local and inconsistent, however, and advocates hoped for a little help from higher-ups.

How The Other Half LivesCrowded, dirty, dangerous cities and the evolving power of media to reveal “how the other half lives” brought about what would be remembered as the “Progressive Era.” Reformers began staking out victories, primarily at the municipal level – although by 1920 they could celebrate four new constitutional amendments as well. Both churches and charities were inspired by the idea that individuals, with a little help and “encouragement,” could improve. Individuals make up families, families make up societies… the world could become a better place, starting with the education of one child, the health of one mother, the reform of one man.

At the same time, human fallibility was both substantial and entrenched. While individuals offering soup and a place to sleep were certainly part of the solution, many believed fundamental changes in the system would be necessary for long-lasting, widespread prosperity. It was time to get local, state, and even national government to “promote the general welfare” a bit more aggressively. The most logical place to begin was the epicenter of discord between the handful of men who seemed to own everything and those perpetually consumed in their name – the workplace.  

Lochner v. New York (1905)

It was in the spirit of societal progress that the State of New York passed the “Bakeshop Act,” which prohibited bakers from working more than 10 hours a day or more than 60 hours a week. Like other labor reform, the intent was to protect workers from being exploited by greedy owners – those certain intellectuals referred to as the bourgeoisie. Joseph Lochner was a New York baker who violated this law several times and was fined as a result. Lochner protested that the law was unconstitutional. The Fourteenth Amendment, he argued, protects “freedom of contract,” in principle if not in name. Why should the government interfere with an otherwise legal, private business arrangement between two rational adults?

The case eventually reached the Supreme Court, which sided with Lochner. Justice Rufus W. Peckham, writing for the majority, explained the Court’s reasoning:

There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.

In short, bakers are grown-ups just like anyone else, and they can make their own decisions about whether or not to agree to specific hours, wages, or anything else. Expand that to include most of the adult workforce, and you have the basic philosophy of the entire Lochner Era.

Allgeyer v. Louisiana (1897)

Allgeyer v. Louisiana

Lochner wasn’t the first indication the Court was moving this direction. Nearly a decade before, the case of Allgeyer v. Louisiana had reached the Supremes. Louisiana had passed a law intended to protect state businesses by prohibiting out-of-state insurance companies from selling policies in Louisiana. Allgeyer & Co. was a Louisiana company that bought out-of-state insurance anyway and were assessed heavy fines by the State as a result. They argued that the law itself was unconstitutional based on the Fourteenth Amendment’s “due process” guarantee.

The Court acknowledged the State’s obligation to protect its inhabitants but found in favor of Allgeyer & Co. based on a rather Gordian brew of precedent and equivocation. Along the way, however, a concept emerged which would shape the next forty years – “economic liberty.” While the term itself was absent from the Fourteenth Amendment (or any amendment, for that matter), the idea is inherent in the text as a whole – or so the Court determined. Although no one knew it yet, the Lochner Era had begun.

“Procedural” Due Process v. “Substantive” Due Process

This discovery of “economic liberty” in the Fourteenth Amendment meant that states like Louisiana, and later New York, couldn’t limit an individual’s right to make his or her own economic decisions without what the Fifth and Fourteenth Amendments call “due process.” (The Fifth specifically limits federal power; the Fourteenth extends those limits to state and local governments.)

The Framers wished to prevent the sort of tyrannical justice handed out by kings or dictators, and to ensure the U.S. remained a nation of laws rather than of men and their unreliable judgements. While the government can, in some situations, take your life, liberty, or property, doing so requires they first clear numerous hurdles and meet certain standards.  Those hurdles and standards are “due process.”

Due Process FlowchartThe most common understanding of this principle involves “procedural due process.” Anyone accused of a serious crime is guaranteed a fair trial before a jury of their peers. They have a right to an attorney and there are limits as to how the State may go about making the case against them. “Procedural due process” refers to the steps which must be taken and the hurdles which must be cleared before any level of government can take or limit your life, liberty, or stuff – whether the issue is property taxes, prison time, or capital punishment. The concept isn’t limited to criminal law; “due process” is also the steps your public school has to go through before suspending or expelling little Marco for his various violations, and why his guardians or other advocates have the right to challenge the system along the way.

What the Court was calling forth in Lochner, however, wasn’t procedural. The steps had been followed – the legislature passed a law, the bureaucrats distributed the rules, Lochner violated them, enforcers caught him, and the local court heard his case and declared him guilty, all before assessing those fines. What Peckham and the majority were relying on was something else – what would eventually be referred to as “substantive due process.”

Defining Between the Constitutional Lines

“Substantive due process” is a bit harder to define, and it’s been controversial ever since it first emerged. Some see it as jurisprudential accommodation of the natural rights and common law traditions which sparked the nation’s birth to begin with, while others find it more akin to the Voldemort tumor under Professor Quirrell’s turban, manipulating dark justices into sacrificing spare rights on their way to defeating the Constitution-that-Lived once and for all.  

One of the better explanations comes from Professor Erwin Chemerinsky, Dean of UC Berkeley’s Law School:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed proper procedures when it takes away life, liberty, or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation.

Consider this simple illustration. The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.

Pierce v. Society of SistersWhat “substantive due process” protects, then, are what we sometimes refer to as “unenumerated rights” – protections implied by the written words of the Constitution and its Amendments, perhaps even inherent in them, but not spelled out as such. In the Lochner Era, this primarily referred to “economic substantive due process” – ideas like “freedom of contract” between companies and workers. It was during this same era, however, that two cases were decided largely on the basis of “substantive due process” which had nothing to do with workers rights or minimum wages. Meyer v. Nebraska (1923) involved the right of parents to determine the specifics of their child’s education and of educators to offer wildly controversial courses like foreign languages. Pierce v. Society of Sisters (1925) allowed parents to choose private schooling, religious or otherwise.

Both Meyer and Pierce were cited repeatedly throughout the 20th century as evidence of the validity of unenumerated rights. They are, in fact, the foundation of most “school choice” arguments – particularly by those most determined to funnel public tax dollars into religious training via “vouchers” and related schemes. Ironically, however, the same controversial judicial philosophy which allowed the Lochner Courts to strike down efforts to regulate big business and which encourages “school choice” advocates to keep fighting the good fight served as the foundation for another collection of unenumerated rights which emerged rather dramatically in the late 20th century.

It called itself the “right to privacy.” You’d recognize it anywhere because it wears a giant “pro-choice” button, uses contraception, and constantly marries someone of a different race but the same sex.

NEXT: The Lochner Era & “Substantive Due Process” (Part Two)

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Property Rights vs. The Communal Good – Two Early Supreme Court Cases

~ Blue Cereal

Supreme Court GenericThe dilemma of any effort to compile “must know” Supreme Court cases is deciding where to draw the line. If you narrow it to a list of 12, there are at least 3 or 4 others that really MUST be added in the name of consistency. If you expand the list to, say… 24, you’re sacrificing another half-dozen that should simply NOT be neglected if you’re to retain ANY credibility.

Then there’s the actual summarizing. How much background really matters to the casual reader or panicked student? Is it enough to say that the Dred Scott decision declared that slaves weren’t people and Congress couldn’t limit slavery in the territories, or is it necessary to explain how this helped lead to the Civil War? What about the individuals involved and their stories? Even notoriously bad Supreme Court decisions are built around real situations, the details of which matter very much to the outcome. Besides, decisions (good or bad) mean nothing out of their historical context, do they?

It’s in that spirit I’ve decided to add a dozen or so cases to my ongoing effort to publish my own compilation of accessible, enlightening, brilliantly witty summaries of the “Landmark Supreme Court Cases” every American should know and every worried student can reference before the AP Exam or Semester Test. Rather than duplicate my approach with the current fifteen or so, these additions will be one-page summaries hitting the highlights of each case along with a brief excerpt from the Court’s majority opinion.

In my draft, I’m calling these “Worth A Look.” Because they’re, well… you know.

The two cases below occurred forty years apart and involved very different circumstances. In Charles River Bridge v. Warren Bridge (1837), the issue was whether or not Massachusetts owed it to a company with whom they’d done business to stick to the implied terms of their original contract. In Munn v. Illinois (1877), the question was whether or not the state could regulate private business in the name of public good. Both, however, dealt with the question of property rights and individual autonomy vs. the social contract – what was good for society as a whole. It’s that aspect I find most interesting, and most relevant all these years later.

Worth A Look: Charles River Bridge v. Warren Bridge (1837)

{W}hat is a monopoly, but a bad name, given to anything for a bad purpose? Such, certainly, has been the use of the word in its application to this case… A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious. It is, then, something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one.

But the grant of a franchise is not a monopoly, for it is not part or parcel of a common right. No man has a right to build a bridge over a navigable river, or set up a ferry, without the authority of the state. All these franchises, whether public property or public rights, are the peculiar property of the state… and when they are granted to individuals or corporations, they are in no sense monopolies; because they are not in derogation of common right.

{from the Court’s Majority Opinion, by Chief Justice Roger B. Taney}

In 1785, the Massachusetts legislature worked out a deal with the Charles River Bridge Company (CRBC). In exchange for building and maintaining a bridge across the Charles River (connecting Boston and Cambridge), the company would have the right to collect tolls from those traveling over the bridge. The bridge was built and the company because quite wealthy from the tolls, which they kept rather steep even long after their initial costs were recouped. Over time, as Massachusetts continued to grow, people grew rather annoyed with the high tolls and demanded their elected representatives do something about it.

Charles River Bridges MapIn 1828, the state legislature granted a new charter to the Warren River Bridge Company (WRBC), who built a second bridge not all that far from the first. This bridge, however, was to be toll-free once initial costs were recovered and a reasonable profit earned for the company. Not surprisingly, people liked this bridge much better. The Charles River Bridge Company sued in state court, claiming the new charter violated their property rights and represented a broken contract by the State of Massachusetts. Not only was this very naughty, they argued, but it violated Article I, Section 10 of the U.S. Constitution, which says (among other things) that “no state shall… pass any… law impairing the obligation of contracts…”

The case worked its way to the Supreme Court, which found that Massachusetts had neither broken their original contract with CRBC nor violated the “contract clause” of the Constitution. While the original contract with CRBC may have been reasonably understood to suggest monopoly rights for the life of the company or the bridge, the contract never actually stated that, so… oops.

The Charles River decision was important for several reasons beyond “read the small print before you sign.” It was an early demonstration of Chief Justice Roger B. Taney’s desire to pull back from the passionate nationalism of his predecessor, John Marshall. Taney was a big believer in States’ Rights, which would shape a generation of Supreme Court decisions in various ways – most infamously in the Dred Scott decision authored by Taney in 1857.

Charles River also reflected a concern with the “general welfare” of both society and the economy. The perceived exploitation by CRBC as they refused to back down on their rates or otherwise compromise for the good of the collective meant they were standing in the way of prosperity. What if steamboat operators who’d received exclusive rights up and down the river took a similar approach and decided that competition from railroads violated the spirit of that agreement? Should perceived property rights be allowed to hold back society’s progress indefinitely?

States can limit or modify what’s acceptable even in contracts between private citizens or organizations as long as such interference is tempered with reason and done in the name of appropriate state “police powers.” They also have great latitude to serve the “general welfare” of their citizens. That didn’t start with Charles River, but the case certainly helped clarify and strengthen those roles going forward.

Worth A Look: Munn v. Illinois (1877)

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, “is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”

This does not confer power upon the whole people to control rights which are purely and exclusively private… but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government…

Under these powers, the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise, it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property…

{from the Court’s Majority Opinion, by Chief Justice Morrison R Waite}

Responding to pressure from the National Grange (a farmers’ cooperative often remembered simply as the “Grangers”), the state of Illinois passed legislation capping the amounts grain elevators and storage warehouses could charge. A Chicago warehouse run by Munn & Scott was caught overcharging and found guilty after a brief trial. They appealed, claiming that the state-imposed limits on their income was a violation of the Fourteenth Amendment which says, in part, that no State may “deprive any person of life, liberty, or property, without due process of law.”

Political CartoonThe Supreme Court rejected this line of reasoning and validated the “Granger Laws” as entirely appropriate and constitutional. Since before the founding of the United States, Chief Justice Waite explained, the foundational purpose of enlightened government is to support and regulate the social contract – each citizen giving up a small bit of autonomy for the larger good. In the end, this benefits everyone, including those making these minor sacrifices.

The Court also noted that while the Commerce Clause (in Article I, Section 8 of the U.S. Constitution) gives the federal legislature final power over interstate commerce, that doesn’t prevent states from reasonable regulation and oversight of the portion of that commerce taking place within their borders. The extent to which states could exercise this regulation and oversight was severely rolled back a decade later in Wabash, St. Louis & Pacific Railway Company v. Illinois (1886), after which Congress created the Interstate Commerce Commission to regulate railroad and storage rates, and eventually a wide range of public utilities.

Munn established the validity of legislation regulating any industry or service determined to be essential to public interests. In the short term that primarily meant those related to farming and distribution of crops – meaning even the all-mighty railroads were impacted by the Court’s decision. While which products or services are considered essential to the public good have naturally evolved over the years, but the underlying principle has held ever since.

A Moment of Silence: Wallace v. Jaffree (1985)

~ Blue Cereal

Is It Constitutional Now? How About Now? Or Now?

Three Big Things:

Moment of Silence1. After it became clear that state-sponsored prayer was no longer a realistic option in public education, states began experimenting with the idea of a “moment of silence” during which students could pray (although no one had ever suggested that they couldn’t).

2. Alabama, in particular, kept nudging the idea forward – first it was a “moment of silence,” then a moment in which students might choose to pray, then teachers leading students in “voluntary” prayer, etc.

3. Along the way, one federal judge acknowledged that this was akin to “establishing a state religion,” but determined that was perfectly fine because states could do that. The Supreme Court agreed with the first part of that decision. They did not go along with the second.

Background

In Stone v. Graham (1980), the Court shot down the required posting of the Ten Commandments in public school classrooms. In case anyone had wondered, the Constitution still frowned on pushing religion via the public education system.

But then Reagan took office, and a conservative revolution of sorts swept the nation. At the risk of overdramatizing, the Reagan Era wasn’t just a presidential administration. As President, he championed a sort of American Exceptionalism marinated in Book-of-Revelation Sauce. The passion and righteous zeal of his adherents at times pre-empted reason, law, or precedent. It was a social movement as much as a political shift, comparable to Kennedy’s “Camelot” in impact but quite distinct in its flavor. Evangelicals were emboldened while the media and courts were demonized. Liberals weren’t just political opponents, but America’s enemies – both deceptive and deceived.

It was in this climate that Alabama decided that American Christianity could simply no longer survive without their assistance. It was time to make a statement and test the limits of this silly “wall of separation.” If their righteous fury just happened to appeal to a widely conservative voting base, well… thy will be done.

A Moment Of (Insert Options Here)

In 1978, Alabama passed legislation calling for a “moment of silence” at the start of each school day to allow “for meditation.” They weren’t alone. Many states had instituted some variety of the “moment of silence” after Engel v. Vitale (1962) and Abington v. Schempp (1963) had made it quite clear that overt theological indoctrination or proselytization by representatives of the State were a big “no-no” during the school day.

The “moment of silence” was thus a symbolic move as much as anything. Few non-politicians would argue that taking 5 – 7 seconds (or even the full minute required by some versions) to sit in awkward silence has a measurable impact on students’ mindsets or willingness to learn. Students, of course, had never lost the right to pray whenever and wherever they chose, so long as they did not willfully disrupt classes or become overly aggressive towards the uncooperative. (In other words, they were expected to be better behaved than their political leaders.)

What the “moment of silence” allowed legislatures to do, however, was to step right up to the line of church-state separation and dare the courts to do something about it. Legislators sponsoring these bills often said as much from the floor, dropping subtle little hints like, “We’re doing this because we want to get prayer back into public schools and we dare the courts to do anything about it.”

This reality alone would have been enough to kill any chance of proposed legislation surviving the “Lemon Test,” the first stage of which was that legislation must have a valid secular purpose. It’s possible none of them knew this, but it seems more likely they simply had ulterior motives for pushing the issue anyway. In Alabama, at least, that’s exactly what they did. 

After a few years of a “moment of silence” went by without recorded difficulty, Alabama took things a step further. In 1981, the state legislature updated the statute so that the moment of silence would be presented each day as a time “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.
That part, not surprisingly, finally triggered the anticipated backlash.

Pray Or Be Prey

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, starting at the building level, but to no avail. Although he had plenty of established case law on his side, he didn’t initially focus on the abstract constitutional issues in play. Jaffree’s primary concern was that his kindergartener was being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities, and teachers refused to do much to stop it.

He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”

Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. As had been demonstrated a generation before when young Jehovah’s Witnesses quietly refused to pledge their allegiance to the American flag, it matters whether such choices are defended by those in power. There will always be those who hurt others verbally, physically, or otherwise for not sharing their nationalism or their faith, but there will be far more hurting going on when those in the minority are “otherized” by the State (at any level) because of their beliefs.

Establishing A State Religion?

In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and acknowledge that while, yes, Alabama was in effect “establishing” a state religion, they were perfectly within their rights to do so. While the federal government was constrained by the First Amendment, the states were not. “Alabama has the power to establish a State religion if it chooses to do so,” he explained. He even had a few pages of convoluted historical analysis to back this up.

Needless to say, that one caught everyone on both sides pretty much off guard. The decision was quickly reversed by the 11th Circuit Court of Appeals, and the case – not surprisingly – eventually ended up in the Supreme Court. It had already been determined in the lower courts that the first version of the law – the “moment of silence” from 1978 – was constitutionally acceptable. Since no one was disputing that, the Supreme Court acknowledged then ignored it. The Court of Appeals had already declared both the second and third versions of the law unconstitutional based on having no legitimate secular purpose. The Supreme Court accepted without debate that determination regarding version three – where teaches led willing students in a “voluntary” prayer.

What remained to be determined, however, was that middle version – the one about “voluntary meditation or prayer.” Was this establishment, or would shutting it down be a violation of free exercise?

The Decision

The Court determined 6 – 3 that Alabama, in their 1981 version of the “moment of silence” law, had violated the Establishment Clause of the First Amendment as applied to the states via the Fourteenth. They cited testimony from the lawmaker sponsoring the bill, who was – to his credit – upfront about its purpose. Because the changes implemented in 1981 clearly had no valid secular purpose, as required by the “Lemon Test,” the law was unconstitutional.

Justice Sandra Day O’Connor wrote an interesting concurring opinion, supported (but not officially joined) by Justice Lewis F. Powell in his own. O’Connor began by reminding everyone of a fact often lost in the political rhetoric: nothing decided by the Court in any way limited the rights of students to pray individually or collectively at school or anywhere else, so long as they were not overly disruptive to the school day. She used the rest of her concurrence to address two facets of Wallace she believed required a little jurisprudential elaboration. In her own words:

I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today.

Her historical analysis is interesting enough. Along the way she defends the continued use of the “Lemon Test” while suggesting perhaps it would benefit from some polishing or updating to help maintain its usefulness.
The more relevant part for states and districts post-Wallace, however, is her discussion of similar “moment of silence” laws which may share the goals and even the verbiage of Alabama’s but not its background. In other words, how would this statute – or something very similar – fare if passed without being preceded by the announcement it was intended to be evangelical and almost immediately followed by an “oh just pray with them already!” update? The short version was that they’d probably be fine if they simply avoided being quite so transparent about their religious goals.

While O’Connor expressed confidence the Court could tell the difference between sincere efforts at secular legislation and thinly veiled movements towards state-sponsorship of religion, it’s not much of a leap to infer that the real lesson was that politicians should be a bit less forthcoming about their motivations for this sort of legislation. In short, Alabama had simply made it too obvious what they were trying to do.

Dissents

Each of the three dissenting justices wrote a separate opinion. Justice White’s is brief and not particularly enlightening. The other two, however, are both scathing and poignant. As the balance of power in the nation’s highest court continues to shift, it’s quite possible they’ll find new life in 21st century jurisprudence. It’s not inconceivable they could soon represent the majority view rather than the outraged minority.

Chief Justice Warren Burger primarily disagreed with the idea that the option of voluntarily praying during a moment of silence qualified as government coercion towards religion. He cited other examples of times religion appeared in government functions without great trauma. Burger was particularly unimpressed by the Court’s citations of the law’s sponsor as proof it lacked a valid secular purpose.

Burger pointed out that the comments came after the bill’s passage and were accompanied by an assertion by the same legislator that he simply wanted to make the point that students had every right to pray in school if they so chose. Most significantly, in Burger’s mind, there was no evidence that the comments of one legislator after-the-fact in any way reflected the reasoning of the majority who’d voted to support the legislation in the first place.

Finally, for good measure, he mocks the Court’s use of the “Lemon Test,” calling it a “naive preoccupation with an easy, bright-line approach for addressing constitutional issues.” In short, Burger thinks the majority’s reasoning is absurd and their reactions completely out of proportion to circumstances, and he’s not shy about explaining precisely why.

Justice William Rehnquist (who will eventually become Chief Justice) takes an entirely different approach. His dissent undercuts the validity of the “wall of separation” imagery as an accurate representation of the goal of the First Amendment’s religion clauses to begin with. Most of his dissent is taken up in extended historical analysis of the origins of the Amendment and how very much NOT THERE Jefferson was the entire time. He also cites multiple examples from early American history in which the same men who wrote and ratified the First Amendment clearly didn’t seem to think it prohibited the federal government from proclaiming days of prayer or thanksgiving or otherwise acknowledging the role of the Almighty in their affairs.

It’s a pretty impressive historical case.

In short, Rehnquist prefers Madison’s approach to the “establishment” and “free exercise” clauses – protections from official government religions mandating one flavor of Protestantism over another and severely restricting private religious behavior. The idea that any sort of “wall” – metaphorical or otherwise – was ever intended to be erected between church and state was absurd, according to Rehnquist.

Aftermath

Many other states had similar laws on the books, and others have added them since, without serious constitutional challenge. A “moment of silence” is fine in public schools, as long as there’s no overtly expressed pressure to pray. There’s little to indicate that the 5 – 7 seconds of awkward silence typically beginning morning announcements actually accomplish anything in terms of mentally or emotionally preparing students for the school day, but effectiveness is not part of the “Lemon Test.” All it takes is a plausible assertion of valid secular goals.

Calm, focused students fit that requirement.

“Have To” History: Stone v. Graham (1980)

~ Blue Cereal

The following is a first draft for what I hope will become the follow-up to “Have To” History: Landmark Supreme Court Cases. I’m sharing some of the chapters as they’re written, partly to share with you, my Eleven Faithful Followers, and partly because nothing brings out the typos, grammar errors, and other shortcomings like publishing something online. Enjoy.

FOLLOW UP: The final version of this one (and the one that ended up in the book) can be found here.

Thou Shalt Post These In Every Classroom

Three Big Things:

1. Kentucky required that the Ten Commandments be posted in all public school classrooms without comment, but with a little disclaimer underneath about them being the “fundamental legal code of Western civilization.” 

2. The Court applied the “Lemon Test” and determined that the legislation had no clear secular purpose; it was thus a violation of the Establishment Clause of the First Amendment.

3. Whereas recent cases had dealt with efforts to support the secular education of students in religious schools without running afoul of the “wall of separation,” Stone marked a new generation of cases focused on the reverse – seeing just how far religion could be brought back into public schooling.

Background

Ten CommandmentsThe Supreme Court’s decision in Stone v. Graham was announced on November 17th, 1980. Less than two weeks earlier, Ronald Reagan had been elected President of the United States, initiating what would later be called the “Reagan Revolution” – a resurgence of conservative values and policies anchored in an idealized past. The events leading to Stone began years earlier, but its outcome sent a message to the faithful in the 1980s similar to that of Engel v. Vitale and Abington v. Schempp two decades before: American’s fundamental values (meaning public promotion of Christianity) were under attack by intellectual elitists… aka “liberals.” And some of them wore robes.

Less than a month after Stone was decided, John Lennon was assassinated. In January of 1981, Reagan took office and began “making America great again.” The symbolism is purely retrospective; it’s not like the 1970s had been great for either side of the cultural divide. The U.S. had weathered Watergate, Vietnam, and a major energy crisis before succumbing to disco, of all things. Cult-leader “Reverend” Jim Jones had recently led his followers in mass suicide, the horrifying event from which the phrase “drinking the Kool-Aid” was coined. As the new year began, the U.S. was on Day 400-plus of the Iranian Hostage Crisis. Everyone knew the exact number each day because the evening news led with it every night.

The “Miracle on Ice” at the 1980 Olympics was nice, but it already felt like a LONG time ago.

In short, there are many for whom it may not have seemed like such a bad time to try to slip some old-time religion back into the classroom, and nothing was more old-time-y than the Ten Commandments.

Rules to Live By

There’s nothing like a decade or two of perceived dissolution and chaos to make law-and-order look wonderfully shiny and assuring, and the Decalogue fit the bill perfectly. It offered clear guidelines for proper living, literally set in stone, but minus the sort of detailed penalties and depressing legalistic minutia spelled out elsewhere in the Old Testament.

It didn’t hurt that it was more-or-less universally revered – Protestants, Catholics, even Jews liked it! (You know, all the REAL religions.) What more could one ask?

The State of Kentucky required that a copy of the Ten Commandments be posted on the wall of every public school classroom. The Commandments were purchased via private contributions, so no state money was used, and teachers were not required to discuss, promote, or even draw attention to the Commandments so posted. At the bottom of each copy was this explanation:

The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.

And yet, there were a few parents who for some reason thought this might violate the Establishment Clause. The case worked its way through the courts until it was accepted on appeal by the big one.

The Decision

The Court’s 5 – 4 decision was nevertheless issued per curiam, meaning “by the court.” Per curiam decisions are traditionally  for situations in which there was little need to elaborate on constitutional reasoning and the Court was so united as to eliminate the need for an identifiable voice speaking for the whole. Gradually over the course of the 20th century, however, the Court began allowing concurring opinions to per curiam decisions, then dissents… and eventually it became an unacknowledged tool for avoiding personal responsibility for controversial ideas or arguments.

In other words, per curiam opinions periodically allow a degree of avoidance and misdirection from a body otherwise recognized as unflinching and unafraid.

The Court’s anonymous majority opinion revisited the three-part “Lemon Test” laid out less than a decade before in Lemon v. Kurtzman (1971). Part one stated that in order to pass constitutional muster, a law must have a secular purpose to begin with. Clearly, the Court argued, that was not the case here. The Ten Commandments weren’t being used to study the evolution of written law, or in comparative religion, or even as literature or general history. They were just… there.

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Nor was the majority impressed by the State’s “Religious values? Are they really?” defense:

The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact…

We conclude that {this legislation} violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

Having failed the first test, there was no reason to discuss the remaining two. End of story.

The Dissent(s)

Four justices disagreed, but only one went to the trouble to elaborate as to why. Judging from his tone, Justice William Rehnquist (who’d later become Chief Justice) was shocked and a tad appalled that the Court wouldn’t simply take state legislators at face value when they explained that posting religious laws without context in every school classroom regardless of age level or subject matter was actually part of a very important historical lesson on the evolution of Occidental jurisprudence. Because isn’t that normally how lesson plans are put together – mass stapling of posters paid for by outsiders?

Rehnquist quotes from previous decisions extensively and rather effectively:

The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that “religion has been closely identified with our history and government” (Abington School District v. Schempp, 1963) and that “[t]he history of man is inseparable from the history of religion” (Engel v. Vitale, 1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments…

What was arguably his strongest rhetorical moment, however, came in one of his footnotes:

The Court’s emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.

Aftermath

Stone was one of the first cases to rule that even a “passive display” of religion could nevertheless violate the Establishment Clause. It was from this reasoning the Court would subsequently take issue with certain government-sponsored Christmas displays and other state-sanctioned religious ceremonies. The Ten Commandments in particular would become a symbolic “line in the sand” on various state capital grounds or displayed in a public building or two. Consistent with the Court’s decision in Stone, decisions in those future cases would often come down to context – where were they posted, how were they presented, and why were they included?

The 1980s would see a minor explosion of cases directly or indirectly related to the “wall of separation” between religion and public education. The question of equitable facility usage became a thing – can schools who allow community groups to meet on school grounds after-hours deny the same opportunity to religious groups? (Spoiler: Nope.) Indirect aid to religious institutions via tax credits for parents, secular school supplies, or simply sending over teachers kept coming before the Court, always in slightly different forms and forcing the Court to continually revise their solutions. There was even a brief foray into “Evolution vs. Creationism” before the decade was out. 

By far the most interesting cases, however, would be ever-shifting efforts to circumvent Engel, Abington, and the rest by testing one problematic element at a time. Eventually, all sorts of religious expression in public schools would be framed as “student led,” but in the 80s it started much more simply. What if schools weren’t posting commandments, reading Bible verses, or leading students in prayers? What if every day simply began with a… “moment of silence”?

Turns out that one will be hard to dispute, no matter how obvious the intent. The right was finally going to have a few wins.

RELATED POST: A Wall of Separation – The Ten Commandments (Part One)

RELATED POST: A Wall of Separation – The Ten Commandments (Part Two)

RELATED POST: “Have To” History – Zorach v. Clauson (1952)