Terry Jeffrey

No one may be better placed to understand Chief Justice William Rehnquist's unfinished counter-revolution than his former clerk, John Roberts.
 
When Roberts was an associate White House counsel in 1985, he wrote a memo analyzing the sweeping dissent then-Associate Justice Rehnquist filed in Wallace v. Jaffree, a case reviewing an Alabama law that set aside one minute per day in public schools "for meditation or voluntary prayer." Reading between the lines, Roberts suspected his old boss had initially succeeded in getting four other justices to uphold the Alabama law, but then lost two votes when he tried to use the case to restore the original meaning of the Establishment Clause.

 Rehnquist's dissent revealed a vision both conservative and revolutionary. It was conservative because it defended the Constitution's original meaning. It was revolutionary because it required reversing decades-old Supreme Court decisions that had changed the Constitution's meaning.

 "The true meaning of the Establishment Clause can only be seen in its history," wrote Rehnquist.

 He then demonstrated that the Framers had subsidized religious schooling for secular state purposes and had voted for a national day of prayer one day after approving the First Amendment. What the Framers intended to prohibit, Rehnquist concluded, was establishment of a state religion, or government preference for one religion over another.

 Rehnquist's logic was irrefutable: If the First Amendment did not prohibit its framers from asking the nation to pray for a day, how could it prohibit Alabama from asking students to pray for a minute?

 But to act on Rehnquist's logic, at least five justices needed the courage to overturn decisions dating back through the 1971 opinion in Lemon v. Kurtzman (which created a complicated three-pronged test for determining when state involvement in religion violated the First Amendment) to the 1947 opinion in Everson v. Board of Education, which cited a letter written by Thomas Jefferson (not a framer of the First Amendment) in erroneously declaring that the Constitution had erected "a wall of separation between church and state" that, according to Justice Hugo Black, must be kept "impregnable."

 "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history," wrote Rehnquist, "but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years."

 Rehnquist lost Wallace 6-3, when Republican Justices Lewis Powell and Sandra Day O'Connor sided with the liberals.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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