Vital Signs

A 60-Year-Old Error

Since the days of Earl Warren, the U.S. Supreme Court has engaged in a lot of freewheeling jurisprudence: the decision granting Washington the power to dictate when and how police may apprehend criminal suspects; the declaration that the racial integration of America’s public schools is a matter of federal, rather than state, law; the ukase that state legislatures can only be apportioned on the basis of population, even though the U.S. Constitution provides for one branch of the federal legislature to be constituted based on historical political subdivisions; the finding that, somewhere in “penumbras and emanations” of provisions of the First, Fourth, Fifth, and Ninth Amendments, there is a “right to privacy” that allows women to terminate their pregnancies at will.  Still, for sheer audacity, it is difficult to top the Supreme Court’s decision in Everson v. Board of Education (1947), when the Court ruled, for the first time, that the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion” prohibits state and local governments from allowing any breach of a purported “wall of separation” between Church and state.  In Everson, and in subsequent cases, the Court has opined that this language meant not only that states are prohibited from favoring one religion over another (itself a departure...

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