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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

-- The First Amendment to the U.S. Constitution --


An Historic Example Of Judicial Activism:

The Cantwell Case

By: David W. New, Esq.

Copyright by David W. News, Esq.

The problem 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.

Most people 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 Cantwell v. Connecticut decision. Note 2.

Surprisingly, 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!

In this 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.

The Basic Facts of the Cantwell Case

The Cantwell family were very devout Jehovah's Witnesses.

Newton 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.

Today, the 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.

Religious 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 not interfere.

The Cantwell decision reversed all of this.

Religious 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. Supreme Court.

 Many 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?

By extending 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 did.

Cantwell said 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 . . .

The Free Exercise Clause says: 

" . . or prohibiting the free exercise thereof."

The most important effect of the Cantwell decision was to transfer power.

 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.

The federal 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 America.

Why is the Cantwell decision more important than the First Amendment?

Because the 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 Government.

The framers 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 jurisdiction.

Of course, 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 state constitutions.

How Cantwell affected the public schools

The authority 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 classroom.

What authority did the Supreme Court cite to do this?

The Cantwell case. Note 3.

Prior to 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.

The first 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 cases.

 Activist judges on the Cantwell Court 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.

How Cantwell 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 Court cited Abington v. Schempp,, (the 1963 case which removed the Bible from the classroom) which in turn cited Cantwell. Note 4.

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.

Clearly, the 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.

Judicial Activism in Cantwell:

Judicial 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.

Incredibly, in the legal briefs filed with the U.S. Supreme Court in Cantwell neither party argued that the First Amendment should be applied to the states!

The Supreme 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 history.

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.

For an 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: http://www.abanet.org/journal/ereport/s30survey.html
Note 2. Cantwell v.
Connecticut, 310 U.S. 296 (1940).
Note 3. Abington v. Schempp, 374 U.S. 203 at 215 (1963).
Note 4. 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.


Other Articles by David W. New, Esq.

For questions or comments regarding David New’s articles, please contact him directly at: david_new@msn.com

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

A Prayer Changed the U.S. Capitol (June 2006)

 

Should America Be One Nation Under God? Part 2: The Treaty of Tripoli
(June and July 2005)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Should America Be One Nation Under God? Part 1 (April and May 2005)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Federal Abortion Amendment of 1868 (February and March 2005)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

How the Supreme Court Will Decide the Ten Commandment Cases in 2005 (December and January 2005)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Where is God in the Constitution? (October and November 2004) (Revised 3/30/05)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Federal Marriage Amendment of 1868 (September 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

How We Lost the Power to Govern Ourselves (July and August 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Does the ACLU Really Believe in the Separation of Church and State? (June 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Most Unpopular Word in the First Amendment (May 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Pro-Life History of US Treaties (April 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Would Thomas Jefferson Display the Ten Commandments? Part 2 (March 2004)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Would Thomas Jefferson Display the Ten Commandments? Part 1 (February 2004)

About the Author
David W. New

David W. New is a member of the Maryland and DC Bars. David graduated from the Georgetown University Law Center in 1989. David is the author of several books on the Constitution and religious freedom. In 2003, David received an honorary Doctor of Divinity degree from the Methodist Episcopal Church USA.

For questions or comments regarding David New’s articles, please contact him directly at: david_new@msn.com


Legal Services by
David W. New, Esq.


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by David W. New


Faith and Action is a Christian outreach whose mission is to to reintroduce the Word of God into the public debate surrounding legislation and policy matters.






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