DOBBS, KENNEDY AND A JUDICIAL TIME MACHINE: OVERCOMING THE ESTABLISHMENT CLAUSE WITH TRUTH
“He is before all things, and in Him all things hold together.” Colossians 1:17
“A religious error is the main root of all government and social evils.” Leo XIII, Inscrutabili Dei Consilio
Pius XI “If, therefore, the rulers of nations wish to preserve their authority, to promote and increase the prosperity of their countries, they will not neglect the public duty of reverence and obedience to the rule of Christ.” Quas Primas (1925) para. 18.
To conservatives in America, the Supreme Court’s latest term ended with a number of rousing successes regarding gun rights, environmental regulation, abortion, and religious liberty. Dobbs v. Jackson Women’s Health overturned Roe v. Wade and Casey v. Planned Parenthood sending the issue of abortion back to the states, and Kennedy v. Bremerton School District held that the Establishment Clause did not prohibit a public high school coach from praying on a football field with his players after a game.
New life was breathed into the American Proposition, as it seemed capable of being fair to both conservatives and liberals while ending a great evil for at least half the population. The badly truncated Federal system was given renewed vigor with these decisions as it seemed the States could regain at least some of their lost sovereignty over cultural and social issues. The opinions of Justices Samuel Alito and Clarence Thomas enkindled new hope in the hearts of conservatives who thought that contentious social issues like “gay marriage,” homosexual sex and contraception use could be returned to the States where they would be limited or outlawed. There is even a possibility now that by limiting Substantive Due Process of the Fourteenth Amendment to a review of the history and traditions of the American people, the States could take back their culture by limiting the reach and content of Hollywood movies and establishing a religion.
The Decisions
The Supreme Court majority in Dobbs found that there was no right to an abortion under either the concept of ordered liberty or under the Substantive Due Process Clause of the Fourteenth Amendment. This determination required a study of the American laws that existed at America’s founding up and through the Nineteenth Century. Both statutory law and the Common Law were evaluated by the Court. Justice Alito offered the possibility of putting morality back into the laws when he wrote “We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”[1] Federalism was revived, and the following Monday, June 27, to some observers, the cause of Christianity in the public sphere was given a boost.
Kennedy did not find a violation of the Establishment Clause of the First Amendment when a public high school coach prayed on the fifty-yard line after a football game. In reaching that conclusion, the Court held that the First Amendment’s Free Speech, Free Exercise and Establishment Clauses should be read in tandem and not exclusive of each other. Most notably, the Kennedy court discredited Lemon v. Kurzman (1971) that established a three part test for determining if a statute or policy violated the Establishment Clause. That test analyzed the purpose of the policy or statute, its impact on religion, and whether there was any “excessive entanglements” with religion. While not specifically overruling Lemon, the Kennedy court simply declined to give it any further relevance and cited a line of authorities over the course of several years that supported its decision[2]. Without Lemon, the question of whether or not a statute has a secular or nonsecular purpose is not to be addressed by the courts[3]. The test for finding Establishment Clause violations appears simplified, and, arguably, cuts more favorably for Christianity which has been locked in a battle with secularists for decades.
Under Kennedy, in assessing whether conduct or a policy violates the Establishment Clause, courts are to make
“reference to historical practices and understandings….The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers….An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some exception within the Court’s Establishment Clause jurisprudence.”[4]
Courts are not to give effect to a “heckler’s veto,” or someone who claims they are harmed by an action they consider to be an establishment of religion. The majority cited a string of cases in which a person was coerced or forced to participate in a prayer or a religious ceremony because that person had to be at the ceremony. The majority explained the “First Amendment aimed to prevent one or multiple sects from `establishing a religion to which they would compel others to conform.’” The reasonable interpretation of that sentence in the context of the opinion is that establishing religious sects that required others to engage in that sect’s prayers and liturgies was unconstitutional. Such a narrow understanding of the Establishment Clause comports with Dignitatis Humanae. If the Court means only prohibitions on compelling certain forms of worship, then there is opened the greater possibility of laws based on Catholicism or the moral order. That would entail legislation that advances the moral order which would serve the common good.
In Indiana, less than a month after Dobbs overturned Roe, more than 200 businesses signed a petition put forth by the ACLU called “Don’t Ban Equality Business Letter.”[5] That letter laid out the whole materialistic dynamic that is America:
“Equality in the workplace is one of the most important business issues of our time. When everyone is empowered to succeed, our companies, our communities and our economy are better for it.
“Restricting access to comprehensive reproductive care, including abortion, threatens the health, independence and economic stability of our employees and customers. Simply put, it goes against our values, and is bad for business. It impairs our ability to build diverse and inclusive workforce pipelines, recruit top talent across the states, and protect the well-being of all the people who keep our businesses thriving day in and out.
“Bans on equality put our families, communities, businesses and the economy at risk. We, the undersigned, employ Hoosiers across the state of Indiana and stand against policies that hinder people’s health, independence and ability to fully succeed in the workplace.” (emphasis in original)
Within days of Dobbs and Kennedy, Joe Biden signed an Executive Order[6] to make abortion still possible in a limited way by making chemical abortifacients available. There was a rush to pass bills codifying the right to contraception,[7] as well as same-sex marriage[8] and abortion[9], and the “blue” states were promising to keep their abortion facilities open while amending their state constitutions to allow for a woman’s “right to choose”[10]. This swift reaction came about as a result of the Dobbs decision and Justice Thomas’ concurring opinion questioning the use of the Fourteenth Amendment’s Substantive Due Process. That doctrine was the legal grounds for striking down laws against “gay marriage”, homosexual sodomy, and even interracial marriage. Substantive Due Process was also the basis of a lot of other decisions that nationalized American culture in a bad way.
There was no doubt as to which side the corporate elites or the powerful private interests supported.[11] Corporations and the powerful private interests pushed for and got LGBTQ month while successfully pressuring states like Indiana to soften their stance on “gay rights”. The surrender of the Hoosier State and others to the demands of corporate America may show cowardice of the elected officials, but it also shows that there is insufficient conviction for the Truth and for the common good, something that Catholicism shores up. Americans have been taught for many decades that religion is something to keep private and that it should not inform public policy, and they have also been taught that material success – wealth as gained by entrepreneurs and successful businesses – is the insignia of truth. When the rich succeed, goes the narrative, all of us benefit. As a result, in America, the rich get their way. The conflict between wealth and the people, service to money versus service to God, is at the heart of the 1939 motion picture Mr. Smith Goes to Washington, and that struggle continues to this day in America.
By the long Fourth of July weekend, the issue of Church and State relations was on everyone’s mind. Representative Lauern Boebert of Colorado questioned why there was separation of church and state in America and went so far as to say that the church should tell the state what to do.[12] Retired Army LTG Michael Flynn months earlier stated that America needed an established religion. NPR’s 1A was touting a program examining Christian Nationalism which it said meant that the laws of the USA should be based on Christianity. William Galston in an editorial for the Wall Street Journal made the plutocrats’ position clear: “Mrs. Boebert seems to have overlooked the Establishment Clause, which prohibits the government from giving any one religion—or religion in general—preferred standing to “direct” public policy.”[13] The plutocrats want to be the ones to direct public policy and that is what the Establishment Clause allows as admitted by Mr. Galston.
Church and State, which translates to the basis of the laws, is on everyone’s mind, and for good reason. These are fundamental issues to the ordering of any society. Getting wrong the relation between state and church, society and religion, leads to serious problems, and tyranny by a plutocracy, the likes of which we have in America today. People are waking up to the fact that what we have been taught for years as right and good, is in reality both wrong and bad.
We are seeing that the foundation of this society — the philosophy, or belief system, that underlies the statutes and public policy in this country – is deeply flawed[14]. An essential tool used in keeping matters from improving has been, and remains, the Establishment Clause. This has kept from implementation a system that benefits the whole person – material and spiritual – while maintaining right order, peace and security in society. In other words, the Establishment Clause despite, or in spite of, the Preamble to the Constitution, does not advance the common good.
Limiting the Establishment Clause to just the national level of government while allowing the states to do what they want will require overturning Everson v. Board of Education (1947). Yet the effects of the clause on the national government, and hence the national culture, will have to be ameliorated in some sense if the Union is to hold together. With the States free to legislate in accordance with the dictates of religion, some will and others will not. The divisions in the country will intensify given the ideological, ethnic, and economic differences that already exist.
It is my contention that to best remedy this situation, we have to understand the not-so-hidden dynamic behind the Establishment Clause. We have to understand that the Establishment Clause benefits the powerful private interests, the entrepreneurs, the rich. It is to them that efforts of reform and instituting right order must be addressed, and it is essential that the Catholic Church leadership understand and fulfill its responsibility to preach, and establish, the Faith in the United States and around the globe. While we are addressing these important issues of social organization in the United States, what we do is heard around the world.
Establishment of Religion
The First Amendment to the Constitution of the United States has the following language: “Congress shall make no law respecting an establishment of religion.” This is known as the Establishment Clause and it operates to deprive the Congress of power to establish a national religion while also depriving the Congress of the power to remove, or establish, religions in the various states.[15]
With Everson v. Board of Education in 1947, the reach of that clause was vastly extended to include a prohibition of the State legislatures from establishing a religion. This was done by the Supreme Court using something called the incorporation doctrine and the Substantive Due Process clause of the Fourteenth Amendment. As stated earlier, Substantive Due Process is being questioned as a legitimate means to decide certain cultural issues unless the tradition and history of the American people is adequately and correctly reviewed by the courts.
While the Establishment Clause is, by its explicit terms, a limitation of Congress’ power, the case authority has expanded that limitation to include government entities of all sorts (e.g., school boards, commissioners). Can the Executive establish a religion by Executive Order or policy? Perhaps the answer, given a proper analysis of America’s history and traditions as the Supreme Court has so recently emphasized, is a “yes”.
Stated Reasons for The Establishment Clause
The terms “religion” and “establishment” need to be defined at least as of 1789. In that regard, I suppose I am using “Old Originalism” to arrive at the meaning that was extant when the process begun to have the First Amendment added to the Constitution. James Madison’s use of both terms should be considered because of his pre-eminence in the founding of the United States. Judge Michael McConnell’s treatment of these matters[16] should also be considered since the Kennedy majority referenced his work in a footnote as an authority on the Establishment Clause.
Madison authored the Constitution, and he also authored the Memorial and Remonstrance Against Religious Assessments (June 20, 1785) (“Memorial and Remonstrance”), a crucial document for anyone who wishes to understand the Establishment Clause. The Memorial and Remonstrance was in response and in opposition to a bill introduced into the Virginia Assembly by Patrick Henry on December 24, 1784 “Establishing a Provision for Teachers of the Christian Religion.” Henry’s bill would assess a tax on property which would be used to support Christian teachers. His reasoning was that the “general diffusion of Christian knowledge that a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society” and he was offering it “without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies or communities of Christians.”
Madison’s Memorial and Remonstrance mixed in elements of religious establishment with elements of religious liberty. It defined religion in paragraph 1 as “the duty which we owe to our Creator and the manner of discharging it”. The term included not only worship but also doctrines, and appears distinguishable from “ecclesiastical establishments” as set forth in paragraph 7 which indicates churches (i.e., ecclesial groups) and the reference in paragraph 3 to sects. Madison’s Memorial and Remonstrance argued that Henry’s bill would establish a religion (Christianity) which might lead to the establishment of a particular sect, and in so doing he defined establishment as being recognized or benefitted by force of law. At the time, the focus was on Christian sects though Jews and atheists were well-known and present in the new country.
Madison’s main objection to Henry’s bill was that it harmed the freedom of the people, a matter of principle as he explained in paragraph 3. In paragraph 10 he wrote that Henry’s bill and its attendant principles would “have a like tendency to banish our Citizens”; in paragraph 11 he wrote that such would “destroy that moderation and harmony” that had developed in America to avoid spilling “torrents of blood”; and in paragraph 2, he wrote that a religion could not be recognized by the legislature as necessary to preserve “a free Government.” The people in such a situation would be governed not “by an authority derived from them” and therefore become “slaves”.
In perhaps the most troubling, if not also illuminating paragraph, paragraph 5, Madison wrote “the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.” With this argument, Madison was enunciating a principle picked up upon by John Courtney Murray, SJ nearly 160 years later and that was that the civil authorities cannot determine the true religion[17]. This of course is false as Francis Connell, C.Ss.R. explained, but the principle lives in American minds. Given Madison’s definition of religion, and his use of the term “engine”, the clause also stands for the proposition that religion cannot be used, or invoke, or even inspire human actions in the public policy realm. Civil authorities could neither use prayers and ceremonies to determine who can sit in positions of authority or receive benefits of one kind or another, nor could they call on the need to save men’s immortal souls nor call people to a higher duty because of God-given morality.
Judge McConnell went into some depth on some of the specific aspects of establishment of religion and the value of his work is that it is a look at American history and the traditions which the current Supreme Court examines so intently.[18] He worked from the definition that establishment of religion was the “promotion and inculcation of a common set of beliefs through governmental authority.”[19] This inured to the benefit of ecclesial communities or churches of varying sects as they were the carriers or proponents of these beliefs. Not specifically addressed was the manner of making the official relationship between the state and the religious sect, though we may understand that there was some law passed by the legislature that established the relationship formally.
The Real Reasons for the Establishment Clause
The moral offenses that Judge McConnell identified in his category five of establishment of religion, were largely from the English Common Law which incorporated local law, Roman Law and canon law. That implicates the whole trajectory of Western history and social development from antiquity, through the Middle Ages, to modern times. Professor David Thomas Konig concluded that the American Founders realized the Common Law had to be curtailed, abrogated and over-ridden in some measure because it contained authoritarian and anti-republican ideas and codes of conduct.[20] Despite their efforts, a form of the Common Law existed and persisted in America, and was even codified in some states, until well into the Twentieth Century. Its remnants remain today where statutes are not on point.
The republican spirit demanded the limitation of the Common Law with its philosophy and ideas so anathema to the new country, and with its recognition of ecclesiastical organizations . With the limitation of the Common Law, the republican spirit was allowed to arise and the spirit of commerce was allowed to flourish.
The spirit of commerce is what motivated the American Revolution as Thomas Pownall, former Royal Governor of Massachusetts observed[21]. The Founders needed to give in to that spirit and forge a new economic system, capitalism, which was different from mercantilism, the system of the English that was used to keep America as a colony. The Founders severed their new-found society from the ways of England and hence of Europe, and they did so under the banner of republicanism.
They had help from an Englishmen who was promoted and advanced by a notable member of the aristocracy, Anthony Ashley Cooper known as Lord Ashley. That Englishman was John Locke whose A Letter Concerning Toleration, written anonymously around 1685, inspired Madison.[22] While Locke wrote that true religion was meant to elevate men’s souls by virtue and piety, Government had a completely different, and solely material, purpose:
“I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men’s souls, and, on the other side, a care of the commonwealth. The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests. Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like. It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general and to every one of his subjects in particular the just possession of these things belonging to this life.”[23]
By the 1770s, America had squabbling religious sects. It was something that had plagued the Americans since the founding of the colonies. The private colonial governors experienced considerable difficulties with the various sects and communities that were recruited to work the land and settle the regions.[24] These difficulties often lead these private companies to petition, and obtain, royal charters for the colonies and hence the appointment of royal governors. With that came the appointment to positions of authority a class of administrators who had connections to the Crown and the English aristocracy. Their appointment in America even placed them among the members of the aristocracy.
Madison was aware of this conflict and its impact on – commerce and industry. In a letter from January, 1774 to his good friend and future Attorney General of Virginia, Mr. William Bradford, Madison complained:
“I want again to breathe your free Air. I expect it will mend my Constitution and confirm my principles. I have indeed as good an atmosphere at home as the climate will allow: but have nothing to brag of as to the State and Liberty of my country. Poverty and luxury prevail among all sorts pride ignorance and knavery among the priesthood and vice and wickedness among the laity. This is bad enough but it is not the worst I have to tell you. That diabolical Hell conceived principle of persecution rages among some and to their eternal infamy the clergy can furnish their quota of Imps for such business. This vexes me the most of any thing whatever. There are…in the adjacent County not less than 5 or 6 well-meaning men in close Goal for publishing their religious sentiments which in the main are very orthodox. I have neither patience to hear talk or think of anything relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it….that I am without common patience. So…pity me and pray for Liberty of Conscience….”[25]
Madison was more direct in an April 1, 1774 missive to Bradford. After describing events in the legislature, he explained the reasons for disestablishment of churches and religion, and a big part of that was because religion “shackles and debilitates the mind”:
“Our assembly is to meet the first of May when it is expected something will be done in behalf of the dissenters: petitions I hear are already forming among the persecuted Baptists and I fancy it is in the thoughts of the Presbyterians also to intercede for greater liberty in matters of Religion. For my part I cannot help being very doubtful of their succeeding in the attempt. The affair was on the carpet during the last session; but sch incredible and extravagant stories were told in the House of the monstrous effects of the enthusiasm prevalent among the sectaries and so greedily swallowed by their enemies that I believe they lost footing by it and the bad name they still have with those who pretend too much contempt to examine into their principles and conduct and are too much devoted to the ecclesiastical establishment to hear of the Toleration of Dissentients, I am apprehensive, will be again made a pretext for rejecting their requests. The sentiments of our people of fortune and fashion on this subject are vastly different from what you have been used to. That liberal catholic and equitable way of thinking as to the rights of conscience, which is one of the characteristics of a free people and so strongly marks the people of your province is but little known among the zealous adherents to our hierarch. We have it is true some persons in the legislature of generous principles both in religion and politicks but number not merit you know is necessary to carry points there. Besides the clergy are a numerous and powerful body have great influence at home by reason of their connection with and dependence on the bishops and crown and will naturally employ all their art and interest to depress their rising adversaries; for such they must consider dissenters who rob them of the good will of the people and may in tie endanger their livings and security.
“You are happy in dwelling in a land where those inestimable privileges are fully enjoyed and public has long felt the good effects of their religious as well as civil liberty. Foreigners have been encouraged to settle among you. Industry and virtue have been promoted by mutual emulation and mutual inspection, commerce and the arts have flourished and I cannot help attributing those continual exertions of Genius which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it. Religious bondage shackles and debilitates the mind and unfits it for every noble enterprize every expanded prospect.”[26] (emphasis supplied)
Religion was a hindrance to commerce and industry and would retard the human spirit, the human ego, Madison believed. The entrepreneur could not flourish in places where religion held sway. Eleven years later, in joining with Thomas Jefferson to disestablish the Episcopalian Church as the Church of Virginia, Madison brought some of these same themes into his Memorial and Remonstrance as discussed above[27].
The Constitutional Convention convened in Philadelphia about two years after the Virginia fight over religious liberty. It was meant to “fine tune” the Articles of Confederation but the business interests were deeply troubled by Shays Rebellion and the confusion and difficulties with the current commercial regime in which each of the states held primary responsibility. [28] The Founders knew that they had to establish a strong enough political structure that allowed for economic institutions to grow and form so that this new, decentralized form of economic activity called capitalism could take root and flourish.
Alexander Hamilton acknowledged this reality in private correspondence from the end of September, 1787, or within days of the completion of the secret Constitutional Convention. He wrote:
“The new constitution has in favour of its success these circumstances – a great weight of influence of the persons who framed it, particularly in the universal popularity of General Washington – the good will of the commercial interest throughout the states which will give all its efforts to the establishment of a government capable of regulating, protecting, and extending the commerce of the Union – the good will of most men of property in the several states who wish a government of the union able to protect them against domestic violence and the depredations which the democratic spirit is apt to make on property…the hopes of the creditors of the United States that a general government possessing the means of doing it will pay the debt of the union….Against its success is to be put…the opposition of all men much in debt who will not wish to see a government established one object of which is to restrain the means of cheating Creditors – the democratical [sic] jealousy of the people which may be alarmed at the appearance of institutions that may seem calculated to place the power of the community in few hands and to raise few individuals to stations of great pre-eminence….”[29]
This dedication to, this preeminence of, commerce and material wealth accumulation required changes in societal organization, and new laws, laws uniquely American that broke with tradition, were needed. The power, or even the whiff of power, of ecclesiastical institutions and their religious tenets, along with the power of hereditary aristocracies, had to rooted out. America, a new system of social organization and orientation, had to be severed from the past. The First Amendment was one of these laws and it kept with the idea of republicanism and self-rule that so infused the American mind in the 15 years or so running up to the Declaration of Independence.[30]
The English Common Law was summed up in works by legal scholars like William Blackstone, Henry Coke, Matthew Hale, and Henri de Bracton. Blackstone’s Commentaries are perhaps the best known sources of the Common Law and were written in the 1760s. Comprised of four books, the treatise dealt with the rights of persons, the rights of things, private wrongs, and public wrongs. Of note, in book four which dealt with public wrongs, the rights of the English Crown were discussed at length as were the rights of the Anglican Church and the rights of Christianity. In Chapter Four of Book Four, Blackstone explained that the Common Law allowed punishments of those actions or wrongs against God and Christianity:
“…part of the offenses to be enumerated in the following sheets are against the revealed law of God, others against the law of nature, and some are offenses against neither; yet…punishable, from the law of man…
“…I shall next proceed to distribute the several offenses, which are either directly or by consequence injurious to civil society, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more especially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the public or common wealth…..
“First then, such crimes and misdemeanors, as more immediately offend Almighty God, by openly transgressing the precepts of religion either natural or revealed; and mediately, by their bad example and consequence, the law of society also….”[31]
Blackstone explained such offenses include “apostasy, or a total renunciation of Christianity, by embracing either a false religion or no religion at all.” In support of this provision, he reasoned that
“Doubtless the preservation of Christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state…..The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the supreme being, and a firm persuasion that he superintends and will finally compensated every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our savior Christ) these are the grand foundation of all judicial oaths….all moral evidence therefore, all confidence in human veracity, must be weakened by irreligion, and overthrown by infidelity. Wherefore all affronts to Christianity, or endeavors to depreciate its efficacy, are highly deserving of human punishment.”[32]
Other punishable offenses against Christianity were “heresy which consists not in a total of Christianity, but of some of its essential doctrines, publicly and obstinately avowed”; offenses “which affect the established church” such as by “reviling its ordinances; or…non-conformity to its worship”; blasphemy “against the Almighty, by denying his being or providence; or by contumelious reproaches of our Savior Christ”; “common swearing and cursing”; witchcraft, “conjuration, enchantment, or sorcery”; those who claim to be holy men or “religious imposters; such as falsely pretend an extraordinary commission from heaven; or terrify and abuse the people with false denunciations of judgments” as well as those who tend to “subvert all religion, by bringing it into ridicule and contempt”; simony; profanation of the Lord’s Day; drunkenness; and “open and notorious lewdness.”[33]
All of the Founders, especially lawyers like James Madison, would have been aware of the contents of the Common Law, with the authority it gave the aristocracy and the ecclesiastical authorities while endorsing Christianity. The law had to be changed or broken from to accommodate republican principles.[34] Thomas Jefferson went so far as to resign from the Continental Congress in the latter part of 1776 to address the issue of rewriting the laws to be in accord with the new society.[35] In place of the structure and morality provided by traditional societies and an established Christian religion, the Founders had to come up with another adhesive for society. That was found in, as Professor Konig writes, the idea of sociability. This means that one must not hold extreme views or take sudden actions while being likeable, friendly, and moderate, to a point. The other cannot be made to feel uncomfortable, within limits. These are the qualities and skills needed for a commercial society or one that is dedicated to the creation and service of wealth. Instead of churches or state churches, social groups were formed as were corporations and banks where money and efforts could be pooled to achieve some end in the ever-expanding American economy. The growth of that economy as remarked by Dr Richard Werner, and as observed by Thomas Pownall, was due to the decentralization of economic activity.
To make all of this happen, a new people had to be cut off from its roots. The best way for doing that was to change the laws to promote “republican values”, jettison the patrimony of the Common Law, dethrone Jesus Christ, and invent new doctrines to justify all of this as somehow an improvement on things.
Rationales for Establishment, and Dis-establishment
The reasons given for the Establishment Clause have been shown to be wrong: the state regularly overreaches and often succeeds in manipulating doctrine whether through doctrinal warfare or prayer breakfasts, religious fervor has declined such that most people no longer believe in God, a tyranny of the plutocrats has arisen over state and church, and people are paying for the societal collapse that comes with rampant immorality in an officially secular society. The Establishment Clause is based on lies and as lies are weapons, it is used against the American people to their detriment.
Judge McConnell spent a large portion of his paper discussing the rationales for the establishment of religion. He wrote that there was a theological rationale which is that establishment “is intended to glorify God, to save souls, and to ensure God’s providence for the nation.” And he wrote that there was a political rationale in which the “purpose of a religious establishment is to shape public opinion and character in a way favorable to the regime.” The former, he surmised, was based on the “primacy of religion” and the latter was based on “the utility of religion to the state.”[36]
Regardless of the rationale used, there was practical value to the establishment of religions in both England and the United States.[37] In England, an established church insured support for the ruling political regime (King and Parliament) which tampered with doctrine and practices of the Church of England. Oaths of loyalty to the Crown and oaths rejecting any other religion other than the established religion were regularly required. The result was of course religion at the service of the political authorities. Though the American regime was based on principles different from the British regime – republicanism — support was still needed. That support came differently.
Early America was Protestant and Protestantism is dissident. Dissent in religious matters lead to a plethora of religious groups and churches and faiths, and the fracturing was likely to continue. Support for the American regime could be had by not establishing any churches, but rather by allowing the fracturing of the churches. Madison wrote in Federalist 51, the fourth most quoted of The Federalist Papers, that the multiplicity of factions was a good way to preserve the regime for “a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.” That is because the Revolution did away with an hereditary aristocracy that presented “a will in the community independent of the majority” or, again, “a will independent of the society itself.” In addition, Madison recognized “happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.”
While there were established churches in some of the colonies, later states, these churches faded away first because of the Revolution itself that saw Anglicans as sympathizers with the British regime, and later as “sociability” and Thomas Pownall’s spirit of commerce took deeper root.[38] The First Amendment was adopted by 1791, and that served as a teacher for all of the elites of the states even though legally the idea that the Bill of Rights could be applied to the states did not occur until Gitlow v. New York (1925) and the First Amendment’s Establishment Clause was not applied to the states until Everson. As the young country grew from 1789 to 1861, the States simply did not establish churches and those that had been established slowly died.
Judge McConnell’s article shows that the Americans did not, and certainly do not now, have the benefit of Catholic theology informing their actions. There was, and is, no discussion of the civil authorities serving the development of the whole person – spiritual and material.[39] The emphasis in America is, and always has been, solely on the material without any reference to the spiritual. The spiritual is used to serve the regime, to validate the Liberal Order, and so the state ends up being secular which means materialistic with the need to inculcate virtue and to establish the common good both ignored.
The Establishment Clause establishes the primacy of secularism in public life which always boils down to material, or economic, success as the ultimate arbiter of what is acceptable and what is not acceptable. The Establishment Clause was of utility not just to the state, but more importantly, utility to the powerful private interests, the businessmen, the rich, the entrepreneurs who are the real powers in Liberal societies. The political entity with its Constitution and underlying philosophy, or, in other words, its system of social and political organization, exists to serve these powerful private interests primarily and how it best does that is to give the illusion, and a few crumbs, to the rest of society that is incapable or unwilling to ascend to the heights of the ruling socio-economic elites. These powerful private interests do not respect the will of the people, they detest principle, they especially hate Christianity, and they are given over to materialism.
Rejecting Christ
The Kennedy Court’s analysis[40] for finding a violation of the Establishment Clause in that case came down to recognition in law, or policy, of a certain religious sect or certain religious practices – as a religious sect or as religious practices — to which others must conform. With the discrediting of Lemon, arguably laws can be passed that pertain to or are based on religion so as to promote morality, though some commentators say the rejection of Lemon is for more pedestrian reasons[41]. Christianity may be allowed back as the basis of the laws, and should be allowed back, without facing an Establishment Clause challenge, though these same laws may face challenges from other Constitutional doctrines.[42] The basis of such an allowance would be the courts’ reliance on the history and traditions of the American people. The States actually passed laws at one time based on at least some doctrines of the Christian religion except in those cases where the Common Law remained sufficient. The Tenth Amendment’s jurisprudence always recognized that the States could pass laws under their police powers for the public morality.[43]
Justice Anthony Kennedy’s opinion in Lawrence v Texas (2003) striking down laws against homosexual sodomy is prominent in its opposition to having Christianity, openly or otherwise, form the basis of laws,[44] even if the people so decide. That view was attenuated somewhat by Justice Sandra Day O’Connor who wrote in her concurring opinion: “But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law.”[45]
The American elites of today are not the ones of yesteryear. They have grown hostile to their own people and are actively engaged in destroying the American people with things like Critical Race Theory, financing and supporting “peaceful protests” that turn violent, promoting LGBTQ identity and rights, and an ever more toxic national culture through the media and entertainment that confuses and sterilizes the people. The number of people who believe in God has dropped to all time lows[46], the majority of adults do not believe Jesus Christ is God[47], the number of young who identify as gay or lesbian or multi-gender is growing[48], economic disparities increase[49], population growth is declining,[50] hostility is on the rise between groups and individuals,[51] trust in the main stream media[52] as well as government and the medical profession[53] is plummeting.
Professor Adrian Vermeule of Harvard is trying to patch things up using what is before us. He discusses the civil law and the Common Law in his latest book, Common Good Constitutionalism.[54] He explains that there is a concept of the common good inherent in the Common Law that should also be continued with the statutes or what is known as positive law. Focusing only on the material needs that are satisfied by the common good, Vermeule writes there are foundational principles in the Common Law that should survive to this day. Individual rights are subordinated to the best interests of the group and not the other way around. He writes that towards the end of the 1800s and going into the early years of the Twentieth Century, the idea of the common good was changed to emphasize private rights over the common good, and an ideology crept into the law that was not organic to the laws development. Professor Vermeule’s effort is to once again find continuity with the past so the American people are no longer cut off from their own rich heritage. Limited as it is, his effort is one in keeping with the recent decisions of the Supreme Court and may be developed in, and by, the Courts.
At a time like this, Madison’s principles of Federalism come into play. When people of similar world views, religions, beliefs, and politics want to live in their own society away from those holding opposite views, then Federalism may be the way for people live in relative harmony in the same country with disparate groups and still keep political union, at least for a while. If history is a guide, the financial and social interests of the “blue states” and the plutocratic elites will go on the offensive yet again so any peace bought with federalism is fleeting. Perhaps now is the time of preparation for another civil war.
Conclusion
If America wishes to serve of God, it must repeal the Establishment Clause. Only then may it be saved, for in attaining right order, the economic interests will be subordinated to and put in service of the common good. The laws must be based on the Divine Positive Law. Yes, this is audacious, and it will encounter ferocious opposition from the plutocrats who will employ their usual group of ideologues and lackeys to keep their power.
Since Constitutional Amendments are very hard to come by, and the basic law of the land is the Constitution, then that leaves the option of revisiting, with the view of overturning, all of those decisions that used the Substantive Due Process doctrine to find liberty interests or to apply the provisions of the First Amendment to the states. Everson, which made applicable the Establishment Clause the states, was decided on Substantive Due Process grounds and so along with “gay marriage” and bans on homosexual sex, the prohibition against State churches could also fall. Certainly, there should be a serious first effort in returning motion pictures to the realm of commercial speech capable of being regulated by the States for matters of faith and morals[55].
Even if the States do achieve these and other victories, their laws will be subject to challenges under the Privileges and Immunities doctrine of the Constitution (See, Article IV, Section 2) and the Full Faith and Credit doctrine (See, Article IV, Section 1). The latter doctrine is to ensure that each of the States honor the public acts of each of the other states. This threatened to skirt the efforts of those states holding to traditional marriage and so in 1996 there was passed something called the Defense of Marriage Act (DOMA) at the national level which excused the traditional family states from honoring same sex marriages obtained in other states. DOMA was struck down with Lawrence. However, there does at least exist a precedent for providing some national protection against States that have political and cultural orientations different from those with conservative leanings.
As to the Privileges and Immunities Clause, there is considerable authority that only fundamental rights are to be respected amongst the various states.[56] With disagreement on what those fundamental rights are, there is some doubt that such a clause will be invoked with much success to compel the “red states” to accede to the world view of the “blue states” in cultural matters. The divisions will deepen.
There is a matter that I wish to point out as I proceed to the end of this rather lengthy, and yet only initial, treatment of the subject at hand. The Privileges and Immunities Clause and the Full Faith and Credit Clause of the Constitution are examples of barrier removal. These are examples of what Amintore Fanfani wrote about in Catholicism, Protestantism and Capitalism and the efforts of capitalism to remove barriers to the creation and accumulation of wealth. These two clauses allow the free flow of people, goods, and services across state boundaries. That is important in any capitalist system of social and economic organization. This dynamic is being reproduced around the Globe in trade agreements and treaties that simplify and make easier the movement of all these things across country borders. The existence of the Privileges and Immunities Clause and the Full Faith and Credit Clause is evidence of the economic importance of the Constitution and the desire of the Founders to serve wealth and its creation. These two clauses support my thesis that the Constitution is primarily an economic document.
Federalism, or more properly the truncated Federalism that we have today, offers a way to slow America’s destruction by the plutocrats, but the fight has to be taken to the plutocracy. The absence of Catholicism as the national religion is crippling this effort as it does not curb their appetites, and, because, more importantly, its absence as the country’s faith does not make possible achievement of the common good. Under the current Constitution, the orientation and purpose of the political and social institutions is not to develop the whole person, materially and spiritually by building virtue, so as to serve God. The orientation of the current Constitution is to give real power to the plutocracy by putting, and keeping, in place the needed institutions, processes, policies, and philosophy. At best, the current Constitution may provide some material goods to most of the people.
If America does not recognize in law the Social Kingship of Jesus Christ, its people, the socio-economic elites, and the political entity known as the United States of America, are all doomed. The world is watching, as is God.
[1] Dobbs v. Jackson Women’s Health, 597 US ____ (2022) at 78-79.
[2] The Court referenced Justice Gorsuch’s concurring opinion in Shurtleff v City of Boston which issued in May, 2022. Justice Gorsuch wrote that the Lemon test only bred confusion and was a “freewheeling approach to interpreting legal texts” without “inquiry into the Clause’s original meaning.” Again, the meaning of terms and clauses and laws must be determined with an examination of “historical practices and understandings”. The Court also referred to other cases (some Establishment Clause cases) such as Torcaso v. Watkins (1961) (requiring governors to take a religious oath in which they declared their belief in God), McGowan v. Maryland (1961) (Sunday closing laws), Walz v. Tax Commissioner (1970) (Church tax exemptions), Timbs v Indiana (2019) (excessive fines), McDonald v. Chicago (2010)(the right to keep and bear arms) and Town of Greece v Galloway (2014) (chaplains praying as an opening of legislative sessions) for the proposition that Courts must do an historical analysis to find if either a practice or a claim for some sort of liberty from government action may be protected either under the Fourteenth Amendment’s Due Process provision or capable of being protected from the same amendment and claims of violation of the Establishment Clause. The key phrase that recurs for constitutional analysis is “deeply rooted in the nation’s history and tradition.”
[3] See, Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” 44 Wm & Mary L. Rev. 2105, 2206 (2003) 5/4, which references a study done by Professor Andrew Koppelman whose exhaustive study concluded that a “law lacks a secular purpose when its justification is based on the tenets of some religion.” Andrew Koppelman, Secular Purpose, 88 VA L. Rev. 87, 88 (2002). Judge McConnell’s article was specifically referenced by the Kennedy majority.
[4] Kennedy v. Bremerton School District, 597 US ___ (2022) at 23-24.
[5] ACLU Indiana as retrieved July 21, 2022 from https://www.aclu-in.org/en/dont-ban-equality-business-letter?fbclid=IwAR2HthTaSmQ8bteg0qwW_9coVfABOC23r3-ipaaS1ce3weH1dEf-RabmTew
[6] “Executive Order on Protecting Access to Reproductive Healthcare Services,” July 8, 2022, White House.
[7] Sahil Kapur, “House passes legislation to enshrine a right to contraception in federal law,” July 21, 2022, CNBC.
[8] Lisa Mascaro, “House passes same-sex marriage bill in retort to high court,” July 19, 2022 AP.
[9] “US House passes bill to protect abortion rights,” July 15, 2022, Center for Reproductive Rights.
[10] Nicole Narea, “Blue states have been preparing to become abortion safe havens: Democrats have been bracing for the Supreme Court’s decision to end Roe but there’s still more they can do,” June 24, 2022, Vox.
[11] Jeffery Sonnenfeld, Steven Tian, Georgia Hirsty, “A list of companies supporting abortion rights after the Roe v Wade ruling shows which firms are stepping up and why,” June 30, 2022, Fortune.
[12] Adela Suliman and Timothy Bella, “GOP Rep. Boebert: ‘I’m tired of this separation of church and state junk’,” June 28, 2022, The Washington Post.
[13] William Galston, “Lauren Boebert Is Half-Right on Church and State: The core beliefs of many religions determine decisions on public policy,” July 12, 2022, Wall Street Journal.
[14] See, Patrick Deneen, Why Liberalism Failed (Yale University Press, 2018).
[15] Carl H. Esbeck, “The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text,” February 3, 2021, Federalist Society Review, volume 22.
[16] See Footnote 3 above.
[17] Of course, this was repudiated by Francis Connell, C.Ss.R., also known as the Catholic Theologian of America. See David Wemhoff, John Courtney Murray, Time Life and the American Proposition (Wagon Wheel Press, 2015, 2022), Chapter 24.
[18] Judge McConnell’s six categories of law and policy exhibiting establishment hinged on the government’s directly dealing with a church or sect for certain purposes. This involved the acknowledgement by the governments of these different religions while recognizing in law a certain church or sect as the state church. Judge McConnell presented issues of religious freedom or religious liberty in these categories as he discussed tampering with church doctrine and punishing dissenters or heretics. Of note, Anglican churches were established in the middle and southern colonies, whereas the New England colonies had dissenting churches established (e.g. Congregationalist). These dissenting churches were hotbeds of revolutionary activity and with the British defeat the Anglican established churches suffered a terrible loss.
Judge McConnell’s six categories are briefly: first, those laws pertaining to governmental control over the doctrines, structure, and personnel of the state church (i.e., the one recognized in law); second, those regarding mandatory attendance at religious worship services in the state church; third, public financial support of the state churches through taxation or land grants; fourth, prohibition of religious worship services in other denominations; fifth, use of the state church to advance civil functions such as social welfare, education, conducting marriages and maintaining public records, and providing information for the prosecution of moral offenses (i.e., swearing, profanity, sabbath breaking, absence from church, drunkenness, fornication, adultery, and slander); and sixth, limitation of political participation to members of the state church. See, Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” 44 Wm & Mary L. Rev. 2105, 2131 – 2181 (2003) 5/4
[19] Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” 44 Wm & Mary L. Rev. 2105, 2131 (2003) 5/4.
[20] David Thomas Konig, “Jurisprudence and Social Policy in the New Republic,” Devising Liberty: Preserving and Creating Freedom in the New American Republic (Stanford, Stanford University Press, 1995).
[21] See Thomas Pownall, The Administration of the Colonies (ca. 1764), and A Memorial Most Humbly Addressed to the Sovereigns of Europe (1780).
[22] See, “Religion On The Founding of the United States: Influences on Madison’s Memorial and Remonstrance,” Southern Methodist University; Kevin Vance, “The Golden Thread of Religious Liberty,” Oxford Journal of Law and Religion, Volume 6, Issue 2, June 2017, Pages 227–252, https://doi.org/10.1093/ojlr/rwx006
[23] John Locke, A Letter Concerning Toleration, as accessed July 17, 2022 at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/toleration.pdf.
[24] John Spencer Bassett, A Short History of the United States 1492-1938 (Macmillan Company, New York, 1938).
[25] National Archives Founders Online, “From James Madison to William Bradford, 24 January 1774.”
[26] National Archives Founders Online, “From James Madison to William Bradford, 1 April 1774.”
[27] See paragraph 10: “Because it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.”
[28] See Isaac Kramnick’s Editor’s Introduction to James Madison, Alexander Hamilton and John Jay, The Federalist Papers (Penguin Books, 1987).
[29] The Papers of Alexander Hamilton Volume IV (Columbia University Press 1962) editors Harold C. Syrett and Jacob E. Cooke, pp. 275-276.
[30] See, David Thomas Konig, “Jurisprudence and Social Policy in the New Republic,” Devising Liberty: Preserving and Creating Freedom in the New American Republic ed. David Thomas Konig (Stanford University Press, 1995); Lance Banning, “Political Economy and the Creation of the Federal Republic,” Devising Liberty: Preserving and Creating Freedom in the New American Republic ed. David Thomas Konig (Stanford University Press, 1995).
[31] William Blackstone, Commentaries on the Laws of England Book 4: Of Public Wrongs (Wallachia Publishers, New York, 2015), Chapter 4.
[32] William Blackstone, Commentaries on the Laws of England Book 4: Of Public Wrongs (Wallachia Publishers, New York, 2015), Chapter 4.
[33] Ibid.
[34] Lance Banning, “James Madison, the Statute for Religious Freedom, and the Crisis of Republican Convictions,” The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History Merrill D. Peterson and Robert C. Vaughan, editors (Cambridge University Press, 1988).
[35] David Thomas Konig, “Jurisprudence and Social Policy in the New Republic,” Devising Liberty: Preserving and Creating Freedom in the New American Republic (Stanford, Stanford University Press, 1995), 179. Professor Konig writes “Thomas Jefferson…resigned from Congress to return to Virginia, motivated by `his persuasion that our whole code must be reviewed, adapted to our republican form of government.’” The quote comes from Thomas Jefferson’s “Autobiography” in Works 1:57.
[36] Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” 44 Wm & Mary L. Rev. 2105, 2131 (2003) 5/4.
[37] Judge McConnell dwells in some detail on the justification provided by Massachusetts Chief Justice Theophilus Parsons in the 1810 case known as Barnes v. First Parish. CJ Parsons made clear that public morality was benefitted by establishment as civil laws could not prevent all evils and a fear of hell helped to keep people acting rightly. Justice McConnell concludes “Actual truth does not seem to be necessary for social utility for Parsons any more than it was for the more candid Machiavelli.” at 2202. The entire discussion is from 2198 to 2205 of Judge McConnell’s article.
[38] See, Konig, “Jurisprudence and Social Policy in the New Republic”; Thomas Pownall, A Memorial, Most Humbly Addressed to the Sovereigns of Europe, on the Present State of Affairs, Between the Old and New World (London 1780)
[39] See, David Wemhoff, “The Catholic International Order: More Important than Ever,” April 6, 2022, The American Proposition; David Wemhoff, “The Fundamental Right to the Catholic Confessional State: An Outline of the Case According to Key Post-Vatican II Documents,” November 11, 2019, The American Proposition.
[40] The Court cited a number of cases for the authority that the courts have to examine American history and tradition and that conduct that violates the Establishment Clause is something that mandates a certain religious practice or belief. However, the Kennedy court did not exhibit hostility to religion. Of note, it cited Zorach v Clauson (1952) which involved a New York released time policy allowing parents to have their children released from public schools for religious education. In that case, the Court held that “Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction.”
[41] For example, laws may be passed or policies implemented concerning the regulation of the military chaplaincy or concerning the tax exempt status to churches.
[42] In particular, the Full Faith and Credit Clause (Article IV, Section 1) and the Privileges and Immunities Clause (Article IV, Section 2) as discussed further herein.
[43] The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” See, Berman v. Parker (1954) and a general discussion at Cornell Law School, Legal Information Institute, “police powers” found at https://www.law.cornell.edu/wex/police_powers
[44] It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).
“ Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).”
[45] Lawrence v Texas, 539 US 538, 602-603 (2003)
[46] Jeffrey M. Jones, “Belief in God in U.S. Dips to 81%, a New Low,” June 17, 2022, Gallup.
[47] “A Majority Of Americans Think Jesus Is A Great Teacher Yet Reject His Claims To Be God,” August 27, 2020, PRNewswire.
[48] Paul Bond, “Nearly 40 Percent of U.S. Gen Zs, 30 Percent of Young Christians Identify as LGBTQ, Poll Shows,” October 20, 2021, Newsweek.
[49] Edward Lempinen, “How plutocrats, populists are driving a precarious moment in US history,” July 10, 2020, Berkeley News.
[50] See Derek Thompson, “Why US Population Growth Is Collapsing,” March 28, 2022, The Atlantic; William H. Frey, “US Population Growth Has Nearly Flatlined New Census Data Shows,” December 23, 2021, Brookings.
[51] Elizabeth Nolan Brown, “Most Americans Think Government Is Corrupt; A Third Say Armed Revolution May Be Necessary Soon,” July 25, 2022, Reason.
[52] Megan Brenan, “Americans’ Trust in Media Dips to Second Lowest on Record,” October 7, 2021, Gallup
[53] James F. Sweeney, “The eroding trust between patients and physicians,” April 10, 2018 Medical Economics; Dave Muoio “Physicians say Covid-19 has lowered their trust in organizational leadership and healthcare at large,” May 24, 2021, Fierce Healthcare.
[54] Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (Polity Press, Medford Massachusetts, 2022).
[55] In the “Miracle Case,” Burstyn v. Wilson (1952), the Supreme Court ruled that the First Amendment included motion pictures because they were political speech and the First Amendment applied to the states under the Fourteenth Amendment’s Due Process Clause by the doctrine of incorporation first announced in Gitlow v. New York.
[56] See Corfield v. Coryell, 6 F.Cas. 546 (1823).