Reconsecrating America.

RECONSECRATING AMERICA is about the "establishment of religion" and "free exercise" clauses of the First Amendment, and maybe you have to have tried to explain constitutional principles yourself in order to appreciate fully what a feat of grace and concision and simple wisdom this little book is. George Goldberg is a member of the bar of the United States Supreme Court, among other things, and I can only hope the Court listend carefully to him.

Scholars have often spoken of a "tension" between the two requirements, i.e., of government neutrality in religious matters and of full freedom of worship. Goldberg sensibly takes the position that there used to be no problem to speak of, since it was assumed by the Framers and by most Americans that the purpose of both clauses was, in fact, religious freedom. Moreover, the Federal Government was hardly concerned with religion at all: The stipulation that "Congress shall make no law respecting" religious establishment and practice was understood to leave such matters to the states, several of which continued to have official churches and religious freedom long after the Constitution was ratified.

The real trouble began when the Supreme Court took the dubious position that the Fourteenth Amendment had "incorproated" the Bill of Rights into the state constitutions. If, for example, the Federal Government had to recognize your right of free speech, so did the states. Liberals loved this "expansion" of our liberties, although for some reason they don't want to "expand" the right to bear arms.

There are other difficulties with the incorporation doctrine. One is historical. The Court didn't announce it until 1925, or put it into effect until even later; nor has it ever done so consistently or convincingly. It obviously didn't occur to the general public, which debated and rejected a proposed constitutional amendment shortly after the Civil War that would have done for religious freedom what the Court now says the Fourteenth Amendment had already done. Even after 1925 state courts weighed issues of religious freedom without recourse to the national constitution, which all sides tacitly agreed had no bearing on the cases at hand.

Another difficulty is logical. The incorporation doctrine holds that citizens of the several states are entitled to the same "privileges and immunities" as citizens of the United States. This plainly applies to the free exercise of religion; but how to the establishment clause? You have no personal "right" not to have an established church, since, as the British case illustrates, you can have establishment along with your freedom to worship elsewhere or not at all. Establishment may or may not be used to abridge religious freedom, but it doesn't constitute a violation in itself.

The Court didn't even address the establishment question until 1947, in the famous Everson case. It discovered that public-school prayer was unconstitutional only in 1962, and changed its rationale for saying so within a year. Truly, the Constitution is a "living document," at least in the wrong hands. Goldberg's brisk review of the Courts flip-flops on these big questions finds time for amusing details. Felix Frankfurther was so angry at Hugo Black and William O. Douglas for deserting their early alliance that he wrote (in a letter to Learned Hand) that Black was "a self-righteous, self-deluded part fanatic, part demagogue, who really disbelieves in law," and Douglas "the most cynical, shamelessly immoral character I've ever known." The school-prayer decision was condomned not only by Herbert Hoover and Cardinal Spellman but also by Bishop James Pike and a young Jesuit named Robert Drinan, who denounced "the alliance of Protestantism, secular humanism, and Judaism which controls the public schools." (Do me a favor and quote that frequently.)

The Court's "legal legerdemain," as Goldberg calls it, has resulted in nearly total incoherence. Unwilling simply to repeal the errors of its predecessors, the Burger Court has tried to modify their practical effects by introducing quibbling and untenable distinctions. So the Court has wound up having to decide the case of a Jehovah's Witness who was jailed for putting tape over the state motto on his license plate--and Burger complains about his work load!

The Court could have saved itself a lot of trouble by striking down earlier rulings for the nonsense they were, but the Justices have always had too strong a political instinct to do that: It would weaken the prestige and power of the whole judiciary, which profits by an aura of oracular infallibility. Burger has preferred to maintain the pretense that his liberal predecessors were cogent. On the other hand, he has refused to follow their logic further by ruling that tax exemptions for religious bodies are unconstitutional, which would have picked a political fight the Court could only lose, and lose badly. In his own way, Burger has been as "result-oriented" as the liberal ideologues. Goldberg notes shrewdly that the Court has a long habit, too, of casually claiming powers for itself that it is too prudent to exercise at the moment of their invention.

This man knows judges. In fact he speaks from experience throughout, and he speaks as a Jew who demands full religious freedom for Jews without supposing that this can be enjoyed at the expense of others' freedom. He is well disposed not only toward thier freedom but toward their faith itself. The book begins with a warm reminiscence of his high-school chorus, in which Jews and Christians sang religious music on religious occasions without dreaming that they were conspiring against the Constitution. He thinks the experience was valuable, and he ridicules the idea that JKewish children need to be "protected" from such corner-stones of Western culture as the Messiah.

On the matter of school prayer, Goldberg is confident that amicable settlement is feasible within communities without the aid of judicial taboos on religion. To give primacy to the establisment clause, as liberals have construed it, can only curtail free exercise. But the basic objection to the liberal position, he says, is that "it is not honest."

It is fascinating how the same people who on certain occasions profess great sympathy for minorities and poor people turn into Marie Antoinette when confronted with school prayers: Let them go to private school, or let their parents teach them religion. How can a person who in the context of aid to dependent children cite statistics of broken homes, rodent-infested apartments crowded beyond imagination, and children roaming the streets untended, in the context of school prayers conjure up warm families sitting around the fireside listening to the paterfamilias (50 per cent of minority children in the United States live in fatherless homes) recite verses from the Bible with appropriate commentary?

This is an excellent point, not just because it is logical, but because it recognizes religious faith as a concrete need--which is why its possession is an important right. Liberalism has tried to reduce religious freedom to a sort of suburb of intellectual freedom. While answering liberalism powerfully on its own terms, Goldberg doesn't fall into the trap of supposing that those terms are the ones in which religious freedom really ought to be considered. A man like him, as opposed to a liberal, would regard the Soviet persecution of believers as a horror worth our attention. A man like him should sit on the Supreme Court.