Justice John Paul Stevens

Before the Federal Bar Association
October 23, 1985, Chicago, Illinois

What do Supreme Court Justice do during the period between the day in July when the last opinion is announced and the first Monday in October? Just as there is no single answer to a similar question about practicing lawyers, United States Senators, or law professors, I am sure that each of the nine Justice would answer the question in a different way. Nevertheless there would be more similarity in the nine answers than many of you may assume.

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I also find time during the summer to read some of the criticism of our work product. Since I have already adverted to the Jaffree case, [105 S.Ct. 2479 (1985),] I shall mention one of the many adverse comments on that six-to-three decision. In his speech to the American Bar Association on July 9th, Attorney General Meese not only endorsed the rationale of Justice Rehnquist's dissenting opinion-that the Establishment Clause was originally designed to guarantee strict neutrality between religion and non-religion-he also expressed an even more basic disagreement with the Court's decision. In advocating what he described as a constitutional "Jurisprudence of Original Intention," Attorney General Meese placed great emphasis on the fact that "the Bill of Rights, as debated, created and ratified was designed to apply only to the national government."

I have emphasized the word "only" because it is underscored on page twelve of the written text of his speech and because the point is so forcefully made in the following quotation from pages thirteen and fourteen:

Though the first ten amendments that were ultimately ratified fell far short of what the Anti-Federalists desired, both Federalist and Anti-Federalists agreed that the amendments were a curb on a national power.

When this view was questioned before the Supreme Court in Barron v. Baltimore (1983), Chief Justice Marshall wholeheartedly agreed. The Constitution said that what it meant and meant what it said. Neither political expediency nor judicial desire was sufficient to change the clear import of the language of the Constitution. The Bill of Rights did not apply to the states-and, he said, that was that.

Until 1925, that is.

Since then a good portion of constitutional adjudication has been aimed at extending the scope of the doctrine of incorporation. But the most that can be done is to expand the scope; nothing can be done to shore up the intellectually shaky foundation upon which the doctrine rests. And nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation. 

Of course, the Attorney General has correctly stated the holding in Barron v. Baltimore in 1833, and he was quite correct in identifying the year 1925 as the time when the Supreme Court first held that the State of New York as well as the Congress of the United States, must obey the dictates of the First Amendment. The development of his argument is somewhat incomplete, however, because its concentration on the original intention of the Framers of the Bill of Rights overlooks the importance of subsequent events in the development of our law. In particular, it overlooks the profound importance of the Civil War and the post-war amendments on the structure of our government, and particularly upon the relationship between the Federal Government and the separate States. Moreover, the Attorney General fails to mention the fact that no Justice who has sat on the Supreme Court during the past sixty years has questioned the proposition that the prohibitions against state action that are incorporated against federal action that are found in the First Amendment.

The importance of evaluating subsequent developments in the law, as well as the original intent of the Framers, is well illustrated by James Madison's view about the constitutionality of a federally charted national bank. As a Congressman he opposed the first National Bank in part because he did not believe Congress had the constitutional power to authorize it, but as President twenty years later he no not only signed the bill authorizing the second bank, but also accepted the interpretation of the Constitution that had been adopted by the Supreme Court in the interim. In a letter written in 1819 he explained: "It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate and settle the meaning of some of them." (Powell, "The Original Understanding of the Original Intent," 98 Harvard L. Rev. 885, 939-941 (1985)).

It is possible that I have misconstrued the speech given by Attorney General Meese last July and that he did not actually intend his recommended "Jurisprudence of Original Intention" as a rejection of the proposition that the Fourteenth Amendment has made the First Amendment applicable to the States. But if there is ambiguity in the message that was conveyed by an articulate contemporary lawyer last July, is it not possible that some uncertainty may attend an effort to identify the precise messages that equally articulate lawyers ware attempting to convey almost two hundred years ago? We must, of course, try to read their words in the contexts of the beliefs that were widely held in the late Eighteenth Century. Relying on that background, the Attorney General forcefully asserted "to have argued, as is popular today, that the amendment demands a strict neutrality between religion and irreligion would have struck the founding generation as bizarre."

The term "founding generation" describes a rather broad and diverse class. It included apostles of intolerance as well as tolerance, advocates of differing points of view in religion as well as politics, and great minds in Virginia and Pennsylvania as well as Massachusetts. I am not at all sure that men like James Madison, Thomas Jefferson, Benjamin Franklin or the pamphleteer, Thomas Paine, would have regarded strict neutrality on the part of government between religion and irreligion as "bizarre." Consider for example this passage that was penned by Thomas Paine in 1794:

I believe in one God, and no more; and I hope for happiness beyond this life.

I believe in the quality of man, and I believe that religious duties consist in doing justice, loving mercy, and endeavoring to make our fellow-creatures happy.

But, lest it should be supposed that I believe many other things in addition to these, I shall, in the progress of this work, declare the things I do not believe, and my reasons for not believing them.

I do not believe in the creed professed by the Jewish church, by the Roman church, by the Greek church, the Turkish church, by the Protestant church, nor by any church that I know of. My own mind is my own church.

All national instutitions of churches-whether Jewish, Christian, or Turkish-appear to me no other than human inventions set up to terrify and enslave mankind and monopolize power and profit.

I do not mean by this declaration to condemn those who believe otherwise. They have the same right to their belief as I have to mine. But it is necessary to the happiness of man, that he be mentally faithful to himself. Infidelity does not consist in believing, or disbelieving; it consists in professing to believe what he does not believe.

T. Paine, The Age of Reason 231-323 (Hist. Ed. 1928). 

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