ABSTRACT
There are few issues so likely to generate heat rather than light as the question of the proper line between the realm of the state and that of the church. And yet, with the gratuitous courage they so often displayed, the framers of the Constitution’s Bill of Rights began their blueprint for freedom by drawing exactly such a line. The first clauses of the first amendment provide: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” If this language is, to some, reminiscent of words of Delphi’s Pythia, it should be remembered that they were not uttered until after provision had been made for priests to make the words meaningful for those who had to know their meaning. Nor have these justices of the Supreme Court been wanting in advice from self-appointed guardians. “The difficulty [with the advice] in this field, as in so many other fields of constitutional controversy, is that the contestants are more convincing when they criticize their opponents’ interpretations than when they seek to establish the validity of their own.…” 1 It is the function of this essay to examine, not the theories of the commentators, but rather the actions and words of the Supreme Court in applying the constitutional language to the controversies that have come before it. Lest such a piece be reduced to what Thomas Reed Powell used to label “mere recitativo,” however, these cases will also be measured against a “neutral principle” that, it is suggested, will give the most appropriate scope to the religion clauses in such a manner as to provide guidance for the legislatures and courts that are required to abide by the constitutional command. This “neutral principle” has been framed in reliance on the Aristotelian axiom that “it is the mark of an educated man to seek precision in each class of things just so far as the nature of the subject admits,” rather than the Platonic precept that “a perfectly simple principle can never be applied to a state of things which is the reverse of simple.”
