Divided by God : America's Church-state Problem - and What We Should Do About It (9780374708153) by Feldman Noah

Author:Feldman, Noah [Feldman, Noah]
Language: eng
Format: epub
ISBN: 9780374530389
Publisher: Macmillan
Published: 2006-09-15T05:00:00+00:00

FRANKFURTER AND THE QUESTION OF

RELIGIOUS MINORITIES

Pained by the Court’s reversal of his opinion from just two years before, and by the implication that his earlier decision had authorized religious oppression, Frankfurter began by calling attention to his Jewish immigrant heritage—a rhetorical move attempted neither before nor since in an opinion of the Supreme Court: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.”18 The first sentence in particular upset some Justices who saw Frankfurter’s draft.19 Why would Frankfurter, writing in the midst of World War II and so concerned about the importance of national unity, draw attention to his Jewish minority status in this self-dramatizing manner? This was, after all, just another Supreme Court case, and while the Court does not overturn its recent decisions every day, such a thing was hardly unprecedented.

The Justices’ notes reveal that Justice Frank Murphy—the Court’s lone Catholic—urged Frankfurter to modify the highly personal remarks, but Frankfurter adamantly refused.20 Frankfurter did not take tradition lightly. In fact, he worshipped the notion of what he liked to call “the Anglo-American legal tradition” with the profound love of an immigrant and adopted son, and his opinions are liberally sprinkled with references to the importance of continuing and extending that legal past into the future. The fact that he now insisted on departing from the well-established practice of keeping personal references out of judicial opinions suggests the depth of feeling that accompanied his dissent in Barnette and makes it all the more important to consider the substance of the argument about church and state that he presented in the opinion. For Frankfurter, clearly, this was not just another case, but the most important he would face in his nearly two decades on the Court.

Some writers have understood Frankfurter’s insistence that he, of all people, would not lightly consent to the oppression of a religious minority as an essentially defensive posture. The legal ground had shifted under Frankfurter’s feet with the appointment of the new Justices and the looming ascendancy of a jurisprudence that emphasized the Court’s responsibility to ensure individual liberties. On this reading, Frankfurter did not want it thought that he lacked the human feeling or progressive attitudes that seemed to motivate the majority in protecting the Witnesses from the mandatory flag salute.21 In response to Stone’s focus on the protection of minorities, now taken up by the majority of the Court, Frankfurter wanted to emphasize that he, as a member of a traditionally oppressed religious minority, was not reaching his decision through any lack of solicitude for another one.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.