Date of Award

12-1-1996

Document Type

Thesis

Degree Name

Master of Arts (MA)

Department

History

Abstract

Few sections of the Bill of Rights have prompted more controversy than its initial clause: "Congress shall make no law respecting an establishment of religion." Over the past half-century, judges and legal scholars have sought repeatedly to define the intent of the framers of the clause. Their efforts and their use of historical sources in that pursuit have led to considerable discord and legal confusion. The modern controversy began with Justice Hugo Black's opinion in Everson v. Board of Education (1947) which included an extensive historical essay maintaining that the framers of the First Amendment meant to erect a "wall of separation" between church and state. This formally launched the absolutist position or the belief that all government aid to religion is unconstitutional. A reaction against this decision appeared almost immediately led by the Brooklyn College Communication Professor, James O'Neill, who maintained that the historical record clearly showed that the framers meant to allow government aid to religion as long as no specific sect received preference. This position is called accommodation in this study. Between 1947 and 1967 the debate was dominated by absolutists through the efforts of Leo Pfeffer. As an attorney for the American Jewish Congress, he presented many of his arguments before the Supreme Court. Following Pfeffer's semi-retirement from the American Jewish Congress, a new group of accommodationist scholars countered many of his arguments. Scholars like Mark DeWolfe Howe, Michael J. Malbin, Chester Antineau, and Robert L. Cord reinvigorated the accommodationist or equal aid position by examining new sources like state constitutions and First Congressional debates. After a series of court rulings that incorporated accommodationist ideas, Leonard W. Levy and Thomas Curry attempted to rebuild the absolutist position. This study concludes with a look at the emerging challenge to the use of history as a valid source of legal interpretation.

Comments

A Thesis Presented to the Department of History and the Faculty of the Graduate College University of Nebraska In Partial Fulfillment of the Requirements for the Degree Masters of Arts University of Nebraska at Omaha. Copyright Angela McMullen December, 1996

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