Example Of Judicial Activism:
The Cantwell Case
By: David W.
Copyright by David W. News, Esq.
of judicial activism is on the national radar scope more today than
ever before. Americans know that something is wrong when activist
judges rule that "under God" in the Pledge of Allegiance is
unconstitutional. Many people who were not sure if judicial activism
was a problem changed their minds when the Massachusetts Supreme
Court ruled that homosexuals have a right to marry.
How can a
constitution written in 1780 by John Adams suddenly protect gay
marriage? The American Bar Association just released a poll which
suggested that more than half of all Americans believe that judicial
activism is a serious problem today. Note 1.
think that judicial activism is something new. However, a check with
the history books would suggest that it has been with us since the
1940's if not earlier. In my opinion, the most important example of
judicial activism in American history occurred on May 20, 1940.
On this date, the U.S. Supreme Court issued its infamous
decision. Note 2.
very few Americans know anything at all about this case. However,
the Cantwell decision has affected your life in a very big way. If
religious freedom is important to you then you should learn as much
as possible about this case. Cantwell is probably the most important
religion case in American history. In fact, it could be argued that
it is more important than the First Amendment!
article, I propose to explain why the Cantwell decision is in a
sense more important than the First Amendment. I will also explain
the basic facts of the Cantwell case and how it affected religion
law in the United States. In a nutshell, the U.S. Supreme Court
illegally seized control of religious freedom in the United States
through the Cantwell decision. As a result of this case, the Supreme
Court began a new career as the final arbiter of the separation of
church and state in America. Thus, the Cantwell decision was a
turning point in American history.
Facts of the Cantwell Case
family were very devout Jehovah's Witnesses.
Cantwell and his two sons Jesse and Russell wanted to do everything
possible to share their faith with other people. One day in 1938,
they went door to door in New Haven, Connecticut to spread the good
news of the Kingdom to come. Apparently, a problem began when they
went to Cassius Street, which was a neighborhood thickly populated
with Roman Catholics. The Cantwells would play a phonograph record
titled "Enemies" which attacked the Catholic religion to anyone
willing to listen. At one point, a dispute arose between young Jesse
Cantwell and two other individuals who were Catholics over the
recording. The police had to intervene and Newton Cantwell and his
sons were charged with inciting a breach of the peace and soliciting
money for a religious organization without a license. This began a
legal fight which would change America forever.
hot button issues in religion are about the display of the Ten
Commandments and the Pledge of Allegiance. However, in the 1920's
and the 1930's, it was about Jehovah's Witnesses. Many Americans
felt this group had made a nuisance of themselves by constantly
going door to door. State and local governments responded by
requiring anyone who went door to door to ask for money to obtain a
permit first. As a group, the Jehovah's Witnesses refused to comply
with these laws.
Freedom before Cantwell
Prior to the
Cantwell decision, disputes involving the separation of church and
state were largely left to the states to decide. The state
constitutions and laws would draw the line between church and state.
Consequently, the line between church and state varied from one
state to another. The people in each state through their elected
leaders decided for themselves how religion and government would
interact. This of course was the intent of the First Amendment. It
is an undisputed fact that the framers of our Constitution intended
religious freedom issues to be left to the states. Unless the issue
directly involved the U.S. Government, the Federal Government did
decision reversed all of this.
Freedom after Cantwell
As a result
of the Cantwell decision, a new institution would have the power to
decide church state issues. This new institution was the U.S.
Americans might be surprised to learn that prior to 1940, the U.S.
Supreme Court rarely involved itself in religion cases. From the
time the Supreme Court came into existence in 1790 until 1940 there
were no more than 12 to 15 cases which could be classified as
freedom of religion cases. This is because the framers of our
Constitution gave the High Court a very small role in this area.
Unless the Federal Government was involved, the Supreme Court stayed
out of the case.
How did the
Supreme Court get the power to control religion law today?
the application of the First Amendment to the states. When the
Supreme Court ruled that the state governments must obey the First
Amendment, this effectively transferred power from the states to the
Supreme Court for religion cases. This is what the Cantwell decision
that the states must obey the religion clauses in the First
Amendment. Prior to Cantwell this was not the case. The Cantwell
decision said that the states must obey the Establishment Clause and
the Free Exercise Clause in the First Amendment. The Establishment
Clause says "Congress shall make no law respecting an establishment
of religion . . .
Exercise Clause says:
" . . or prohibiting the free
important effect of the Cantwell decision was to transfer power.
over religion was transferred from the states to the U.S. Supreme
Court. Essentially, religion law in the United States was
federalized in 1940.
takeover of religion law has been so complete that if you removed
all the religion freedom clauses in the state constitutions it would
not make any difference. The religion clauses in the state
constitutions are largely worthless. Only the First Amendment counts
or to be more precise, only the Supreme Court's interpretation of
the First Amendment counts. Groups like the ACLU and Americans
United for Separation of Church and State strongly support the
transfer of power for religion law to the Supreme Court. These
groups oppose what the framers of our Constitution intended for
Why is the
Cantwell decision more important than the First Amendment?
First Amendment did not give the U.S. Supreme Court the power to
control the states in matters involving religion. The jurisdiction
of the First Amendment was limited. It was limited to the Federal
of the First Amendment did not want state and local governments to
be bound by the First Amendment. They wanted them to be free to
govern themselves. This is why the First Amendment begins with the
word "Congress." By beginning the First Amendment with the word
"Congress" this excluded all state and local governments from its
this does not mean that the framers of the First Amendment believed
that the states should run rough shot over the rights of the people.
The framers believed that religious freedom was best protected by
the people in each state and by their religion clauses in their
affected the public schools
to remove prayer and Bible reading from the public schools in
America was based on the Cantwell decision. In 1962 and 1963, the
U.S. Supreme Court removed vocal prayer and Bible reading from the
authority did the Supreme Court cite to do this?
case. Note 3.
Cantwell, there were about 30 cases which involved prayer and Bible
reading in the public schools. This covered a period from the 1850's
to the 1930's. In every case, the state laws and constitutions
decided the case. The First Amendment was never used. However, after
Cantwell this would no longer be possible. The First Amendment would
now decide the case.
time the First Amendment was used in a school prayer/Bible reading
case was in 1950. Why is the Cantwell decision in a sense more
important than the First Amendment? Because the First Amendment
originally did not give the Supreme Court the power to decide these
Activist judges on the
stole the power.
Interestingly, in the 30 cases noted above, the state courts
overwhelmingly ruled in favor of prayer and Bible reading providing
student participation was voluntary. If the Supreme Court had never
decided the Cantwell case, it is likely that prayer and Bible
reading would be allowed in the public schools today. No doubt this
explains why the ACLU strongly supports the transfer of power for
religion law to the Supreme Court.
Affected the Ten Commandments:
In 1980, the
U.S. Supreme Court ruled against the display of the Ten Commandments
in the Kentucky public schools. What authority did the Supreme Court
cite to do this? The Cantwell decision. Specifically, the Supreme
Abington v. Schempp,, (the 1963 case which removed the
Bible from the classroom) which in turn cited Cantwell.
In 2005, the
Supreme Court decided two cases involving the display of the Ten
Commandments in Kentucky
and Texas. What authority did the Supreme Court cite to do this? The
Cantwell decision. Note 5.
Cantwell case is in a sense more important than the First Amendment.
This is true because the First Amendment originally did not give the
U.S. Supreme Court the power to decide these issues within the
states. Special Note: If the Ten Commandments were displayed on
federal property such as a military base, then the U.S. Supreme
Court would have the authority to decide the case.
Activism in Cantwell:
activism is a serious threat to our freedoms. It subverts the
authority of the Constitution and disrespects the sovereignty of the
American people. The Cantwell case is an excellent example of how
American freedom is in danger from judicial activism. The judicial
activism in the Cantwell case resulted in:
- a substantial and unconstitutional transfer of power from the
states to the U.S. Supreme Court:
- a massive loss of religious freedom for Americans,
and an attitude of intolerance for religion by the judiciary.
in the legal briefs filed with the U.S. Supreme Court in Cantwell
neither party argued that the First Amendment should be applied to
Court applied the First Amendment to the states on their own
initiative. This is why I believe the Cantwell decision continues to
be the most important example of judicial activism in American
Can there be
any doubt that the Cantwell decision was a turning point in American
history? Just think how different America would be if We The People
had the final say about school prayer? Suppose we had the power to
decide issues like the Pledge of Allegiance, the Ten Commandments or
abortion? Right now only a small group of people have that power.
Only one institution, the U.S. Supreme Court effectively has the
power to decide church state issues, a role they were never
entrusted with by the framers of our Constitution.
I believe the
power should be shared. I believe we should return to the kind of
government the framers of our Constitution intended for America. I
believe the power for religious freedom should be shared with all of
the American people through their states.
insightful history of religious freedom in America, read my book
"Religious Freedom in America
for Beginners." Visit
http://www.religiousfreedom.us for ordering information.
Note 1. "Half of U.S. Sees 'Judicial
Activism Crisis'" by Martha Neil. To read the ABA poll visit:
310 U.S. 296 (1940).
Abington v. Schempp, 374 U.S. 203 at 215 (1963).
Stone v. Graham, 449 U.S. 39 (1980).
Note 5. In 2005, in the Ten
Commandments' case from Kentucky (McCreary), the Supreme Court
acknowledged their authority for the case originated from Cantwell.
Justice O'Connor said: "To that end, we have held that the
guarantees of religious freedom [in the First Amendment] protect
citizens from religious incursions by the States as well as by the
Federal Government. . . [citation omitted] . . .Cantwell
v. Connecticut, 310 U.S. 296 (1940)." [Words added.] The
dissent in the Texas Ten
Commandments' case (Van Orden) also acknowledged Cantwell for
their authority to hear the case.
Reprinted with permission from David W. New, Esq.
Articles by David W. New, Esq.
or comments regarding David New’s articles, please contact him
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