West Virginia Law Review

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In Jaffree v. Board of School Commissioners, the United States District Court for the Southern District of Alabama upheld, against a constitutional challenge, teacher led school prayers. In the companion case of Jaffree v. James, the court upheld the Alabama Prayer Law which permitted state sanctioned prayers in public schools. The religious exercises and the Prayer Law were, of course, unconstitutional when viewed in light of decisions of the United States Supreme Court holding that the first amendment erected a wall of separation between church and state. When faced with direct and settled precedent, the lower federal courts generally follow the decisions of the Supreme Court. The district court, however, was listening to a different drummer. It announced that it should: attempt to ascertain the intent of the adoptors, and after ascertaining that attempt to apply the Constitution as its adoptors intended it to be applied.... Amendment through judicial fiat is both unconstitutional and illegal. Amendment through judicial fiat breeds disrespect for the law and it undermines the very basic notion that this country is governed by laws and not by men. So the district court set aside decisions of the Supreme Court and looked instead to history. First, the district court concluded that the first amendment, as originally passed, guaranteed to each individual that Congress would not impose a national religion. Since the establishment clause applied only to the federal government the states were free to allow or prohibit religious establishment under their own constitutions and laws. Second, the court concluded that the "historical record" established that "when the fourteenth amendment was ratified in 1868 ... its ratification did not incorporate the first amendment against the states."5Indeed, the court concluded that none of the guarantees in the Bill of Rights limit the states. As a statement of law, the district court's opinion in Jaffree is of little significance. The decision was promptly reversed. However, the pinion is significant because it exemplifies the recent assault on the legitimacy of federal protection of civil liberties. The opinion is part of a growing body of political opinion which asserts that the federal courts should not be empowered to enforce the limitations of the Bill of Rights on the states. For example, George F. Will, a widely published columnist, has announced that the Supreme Court took "a radically wrong turn when it 'incorporated the First Amendment into the Fourteenth' ....,, Senator East of North Carolina has proposed a bill which would overturn court rulings holding that the federal courts may protect Bill of Rights liberties against the states. Those who seek to free the states from the guarantees of the Bill of Rights point to history as their justification and claim that they are dispassionately and scientifically following the evidence where it leads. The purpose of this article is to analyze the Jaffree decision on its own terms-to examine the court's claim that it was merely performing a neutral and dispassionate inquiry into the intent of the framers of the fourteenth amendment.



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