Bring It On!

A Bible Story

March 29th, 2007 | by Omnipotent Poobah |

A recent Time magazine cover story raised some interesting questions about the role of the Bible in public education. Although the article wasn’t nearly as skeptical as I would have liked, the premise was interesting - the Bible might be a valuable teaching tool offering valuable insight into why our society is the way it is and why understanding those issues is worthwhile for budding adults.

Although teaching the Bible has been adopted by several public school boards across the country, the story largely focuses on an evangelical Oklahoma religion teacher. Comments from the teacher and her students - including some non-Christians - indicate she is relatively neutral, presenting the Bible as a starting point for discussion and open to other points of view, even those she doesn’t personally agree with. While I applaud the teacher for her intellectual honesty, using the Bible as an educational tool is still bothersome. Many committed atheists - including me - agree that fostering understanding between the religious and irreligious isn’t a bad thing. But, there are many problems with no easy answers.

What About Everyone Else?

While teaching the Bible may indeed foster more discussion and better communications between Christians and non-Christians, it does so in a particularly limited way. The singular focus on Christianity tends to exclude other points of view - Judeo, Islamic, atheistic - no one is presenting their take on the world. If Christianity has much to offer, the same is true for other belief systems. The Bible is a rich work of literature and includes many common sense recommendations for daily living, but so do other religious and irreligious belief systems. The question becomes, what makes the Bible the chosen text?

Many Christians argue that American culture flowed directly from the Christian cultures in Europe. Many of our national trappings - from the Constitution to our money - contain explicit and implicit Christian references and some believe this is what makes the Bible “special”. The country didn’t start from a base of Jews, Muslims, or Buddhists, but from Christian sects - primarily protestant - that fled Europe to escape persecution. That much is true, but that argument doesn’t address the rich native American religions already here, nor the diversification of religion since. We may still be a “Christian” nation, but that’s a rapidly changing condition that suggests the Bible may not be the universal religious text needed for the job of fostering religious understanding.

Trust Is An Issue

Quite frankly, there is an issue of trust too. Over the past decade, evangelical Christians have become more vocal in evangelizing the public square. From bogus Wars on Christmas to hanging the Ten Commandments in every courthouse, they believe the country is literally going to hell in a handbasket and God has chosen them to save us all. In the process, they trample the religious views of those who don’t believe in hell as well as those who picture a God that happens to be different than theirs. This work isn’t done in the spirit of understanding, but as a different - although no less virulent - strain of religious persecution their forefathers fled centuries ago. However, denigrating religion as the universal province of the weak and stupid is every bit as wrong as imposing a personal religious belief system on others and that doesn’t help.

The core issue - as is usually true - is not whether the Bible contains useful knowledge or fosters open discussion (it obviously does), it’s about people believing their way is the only way and being too pigheaded to back down. If our society was as truly inclusive as we like to think, bringing a Bible into class for a rational, sociological discussion would be a no-brainer. So would a discussion on the merits of Islam. So would enlightening others on the benefits of atheism. But, we don’t live in that society. We live in one where distrust, anger, and stubborn pride rules. In many ways, it’s no more advanced than in the days Christians believed Jesus walked the earth. All religions - and atheists too - have much to learn and change. As things stand now, using the Bible as a teaching tool has some promise, but until these thorny problems are addressed, it’s just promise, not reality. Regardless of what you believe, we’re just not ready yet.

Cross Posted at The Omnipotent Poobah Speaks!
[tag]religion, education, politics, omnipotent+poobah, bring+it+on[/tag]

Unfortunately, that’s part of what makes us human.

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  1. 27 Responses to “A Bible Story”

  2. By Craig R. Harmon on Mar 29, 2007 | Reply

    Such courses as Biblical Literacy or The Bible as Literature are Constitutional as long as they are not taught in a sectarian way or to evangelize. That doesn’t answer the question of whether it is a good idea or not. I think it is but only as an elective and in a strictly non-sectarian manner. It is questionable whether a Christian teacher could manage to pull that off without turning the class into Sunday School during the week.

    I do think there is a case to be made for basing the classes on the Bible. Christians, at least nominally, are the vast majority of society. The Bible, to a much larger extent than any other religion’s scripture, has permeated the literature and social institutions of Western society and, so, students have the most to gain from a solid knowledge of the Bible.

    On the other hand, there is a good case for teaching the Koranic Literacy, The Bhagavad Gita as Literature, The Upanishads for Today. Their general unfamiliarity outside of the smaller communities within which these are considered sacred scripture itself is a very strong argument for teaching them.

    On the whole, however, I disfavor teaching any such classes in High School, preferring such courses be held off until College. Too many students can barely add and subtract, put together a coherent sentence, let alone a thesis and cogent defense thereof, are weak in history, geography, science etc. There really is no room in the High School curriculum, as far as I am concerned, for courses in Scripture as Literature.

  3. By Jersey McJones on Mar 30, 2007 | Reply

    Comparative Religion should be taught to all kids in grammar and high school as part of the Social Studies cirriculum.  To have a class specifically about the Bible is unconstitutional, pointless, and dangerous.

    Unconstitutional, because taken on it’s own without comparison it in and of itself is proselyzation.

    Pointless, because it is a pervasive part of society as it is and is regularly taught in churches and at home.

    Dangerous, because the Bible is an extremely vague and oxymoronic book that is extremely wide open to various interpretation.


  4. By Craig R. Harmon on Mar 30, 2007 | Reply

    To have a class specifically about the Bible is unconstitutional, pointless…

    I’m sorry, Jersey, but the Supreme Court disagrees. School District of Abington Township, Pennsylvania v. Schempp:

    In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

    The Court avers that the Bible is worthy of study for its literary and historic qualities and positively asserts that, when presented objectively as part of a secular program of education, may be effected consistently with the First Amendment.

    In a contest of constitutional interpretation between the Supreme Court and Jersey McJones, I’m afraid I have to side with the Supreme Court.

    In short. It is unconstitutional to teach the Bible. It is not unconstitutional to teach about the Bible. 

  5. By Craig R. Harmon on Mar 30, 2007 | Reply

    As to whether teaching about the Bible is dangerous, that is purely your opinion. The Supreme Court does not agree with you, so long as it is done objectively as part of a secular program of eduction but you are welcome to disagree on that point.

  6. By Jersey McJones on Mar 30, 2007 | Reply

    Craig, I don’t give a rat’s ass in hell what the SCOTUS thinks about this.  They’re wrong.  The Bible is in and of itself a tool of proselyzation.  If they teach about it, then they should use sources that discuss it and not the Bible itself.  Having it as an elective is a sneaky way of making seem constitutional, but it doesn’t change the fact that the taxpayors would still be paying for it and therefore the government would be making law to proselytize a religion.

    It’s a bad, stupid, pointless, sleazy, assholish idea.


  7. By Chris on Mar 30, 2007 | Reply

    Personally I believe that the more knowledge people have the better. I also believe that the more universal the course the better chance of it not being turned into sunday school. While a course in comparitive religion would probaly be best, given our culture, the bible is not a bad place to begin. 

    I took acourse in Judeo- Christian traditions in college in 1966 and can see no constitutional problems. 

  8. By Jersey McJones on Mar 30, 2007 | Reply

    It’s a Pandora’s Box.  Mark my words.


  9. By Craig R. Harmon on Mar 30, 2007 | Reply


    Then I guess it’s alright for Christians to disagree with Roe v. Wade.  :^) 

    You disagree with the SCOTUS. That’s fine. I’m just saying whom I side with in your debate with the SCOTUS over the proper interpretation of the Constitution. The Court has ruled consistently and repeatedly against you.

    The Bible is, as you say, inherently proselytizing. I agree. That’s why the distinction between teaching the Bible as catechesis or devotional resource and teaching about the Bible, objectively, as a part of a secular curriculum but, in my opinion, teaching about the Bible, without readings from the Bible would be like teaching about Shakespeare’s Romeo and Juliet without readings from the play itself.

    The Bible shouldn’t be the sole textbook or curricular resource for teaching and learning the course but to say “We’re going to learn about the Exodus today and how it relates to the civil rights movement in this country” without actually reading the biblical account of the Exodus seems, well, overly exclusive. One cannot properly understand, for example, MLK’s “I have been to the mountain top…” speech without knowing the account of the exodus, wandering in the desert, and entry into Canaan. Any textbook would at least excerpt the biblical account. I don’t see why the student shouldn’t have the biblical account available to them to read for themselves. Otherwise, they’re just taking someone else’s word for what the biblical account says and means.



    You’re talking about a College course. Most people, including, I would assume, Jersey, would say that, by the time students are in College, they can choose to take courses in the Bible or any of the other courses taught in College. At a certain point, people are free to choose to read whatever they choose to read, including the Bible. The point, I think, is that, before College, students are not quite capable of resisting the ideas presented in the Bible, are too open to being swayed by them, particularly if the teacher is not strictly objective in his or her teaching of the material. 

  10. By Craig R. Harmon on Mar 30, 2007 | Reply

    Darnit. That last point should have been addressed to Chris, not Charlie.

    Sorry for the confusion. 

  11. By Jersey McJones on Mar 30, 2007 | Reply

    To that last misaddressed point, yes, Craig, I would say that.

    In an ideal world - a pink, fuzzy one with really smart people dancing about - this wouldn’t be a problematic issue.  The SCOTUS (especially this lousy SCOTUS) lives in that world. 

    Welcome to the real world…

    Some teachers are more competent, secular and sensitive than others.  Though the Bible is already a ubiquitous presence in all our lives, it’s interpretations are so varied, so disparate, so convoluted, that a particularly competent, secular, and sensitive teacher would be absolutley requisite to teach it.  Good luck with that.

    Each kid, being kids, will react differently to the class in and out of the class.  There will be intraclassroom tensions guarenteed, and those tensions will be particularly rough in some cases and extend far beyond the classroom.  It could even become violent.  People’s religious beliefs are private, but they will become public in class.  Public clashes of religious beliefs are bad enough among adults.  They will be far worse among kids.

    Trying to teach the Bible as “literature” or “history” will cause confusion among literalists, scripturalists, and interpretists.  Again, among kids this confusion will be all the more exaserbated.

    I could go on and on here.

    This is a really bad, really stupid idea.  And the SCOTUS is wrong - public funding, and therefore law, of inherently proselytizing teaching tools is unconstitutional.  It’s so fuckin obvious, it blows my mind that anyone with more than half a brain can’t see it. 


  12. By Dr. Forbush on Mar 30, 2007 | Reply

    Using the Bible in a classroom is a smoke screen for the real issue, and that is teaching of a personal point of view on religion in the classroom. You could put ten different people in a classroom and have them teach a class on the Bible and the students would come away with ten different points of view. The issue is not whether the Bible should be used in school, it is what the teacher does with the material.

    In our country we have a consensus on most of the subjects that we teach. Its hard to go wrong on grade school math, addition, subtraction, multiplication and division basically reflect the real manipulation of objects. However, even in math some people have problems with word problems, that is there cultural basis and vocabulary. But most of the complainers are the extremists. Similarly in History most of our country shares a common view of what happened when, but they still argue over the “why.” And, there again the extremists are the ones who disagree. In English and literature the “how” to read isn’t in question as much as the “what” to read aspect of this subject.

    The point is that the closer we come to teaching students about how we define our culture the more we run into controversy. This is because America is a melting pot of immigrants and each immigrant brings their own personal cultural values with them. And, most people attach themselves to these values and defend the value of these values. Immigrants from Germany and France in the early twentieth century obviously had a different point of view on the situation in Europe. Similarly here today Immigrant from south of the border have a different perspective from those coming from Eastern Europe and those that already live here. And, most pertinent to this post, Christian Evangelicals have a different perspective on the value and meaning of the Bible than an anthropologist who studies ancient literature.

    So, the question isn’t about whether the Bible should be used for instruction in school. It is more important top have guidelines, rules and objectives that are allowed to be discussed in a public school. Since most students would have only one perspective on the subject, there is bound to be a large number of different opinions about the text itself from the history, authors, context and meanings. Although school is the place for these types of discussion, it is also a place where students are marked right or wrong more often than praised for their insight so it would be difficult to assess the students in the traditional ways. This being said, I would guess that some parents would prefer right or wrong grading to the type of subjective grading for a course like this. Therefore, it would make sense to leave this type of study for the college level.

  13. By Craig R. Harmon on Mar 30, 2007 | Reply


    That’s a valid point of view, I guess, just not mine. The thing is, the Supreme Court is there to interpret and apply the Constitution, generally in accord with their own precedent, not decide what ideas are stupid or smart. Frankly, I think you give too little credit both to students and to teachers.

  14. By Jersey McJones on Mar 30, 2007 | Reply

    Craig, I’m married to a teacher.  I think most people give teachers far too little credit.  But the requisite skills to teach the Bible in class are pretty overwhelming, and certainly there will be the wolves (proselytizers) in sheeps’ (secular) clothing.

    The SCOTUS interpreted this wrongly.  They’ve done that before.


  15. By christopher Radulich on Mar 30, 2007 | Reply

    I have not found much difference between 17 year olds and 20 year olds. If a freshman in college can hadle it a junior in high school can.

  16. By Jersey McJones on Mar 30, 2007 | Reply

    There’s a world of difference, Christopher - and it’s not just among the kids, but in how the institutions work and their liabilities.


  17. By Craig R. Harmon on Mar 30, 2007 | Reply


    And I think there’s a world of difference between saying, “The SCOTUS interpreted this wrongly”, which I don’t agree, and saying “There are good reasons for not allowing study about the Bible below the University level”, which I might agree with, although my reasons would certainly be different from your reasons. I happen to agree with the SCOTUS that an objective course of study about the Bible is not unconstitutional in public schools. I also think I agree that such courses should be reserved for College level courses.

  18. By Dr. Forbush on Mar 30, 2007 | Reply

    Christopher said: “I have not found much difference between 17 year olds and 20 year olds. If a freshman in college can hadle it a junior in high school can.”


    The point isn’t an ability to “handle” the material. The point is whether or not they are prepared to honestly be skeptical about the material.  

  19. By Craig R. Harmon on Mar 30, 2007 | Reply


    The point isn’t an ability to “handle” the material. The point is whether or not they are prepared to honestly be skeptical about the material.

    How many 17 year olds have you known that have been unprepared to be skeptical, let alone honest, about anything their parent’s believe? Wasn’t a problem in our house.

    Those who, at 17 years of age, are committed Christians are going to take away from the course what they already believe, even if the teacher’s take is different. Those who are agnostic, do you really believe a teacher saying, “Read Deuteronomy chapter 34 and relate it to Martin Luther King’s speech of April 3, 1968″ is going to change a 17 year old from an agnostic into a raving, fundamentalist Christian? I’m skeptical. I know I’m not a 17 year old anymore but I haven’t altogether forgotten what I was like at 17 years old.

  20. By Jersey McJones on Mar 30, 2007 | Reply

    Craig, “a course about the Bible” is a world away from a course about religion, or Judeo-Christianity, etc.  The Bible in and of itself tells only a limited part of the story of Christianity or Judaism.  The Bible is the primary tool of proselyzation of Christianity.  Why you can’t see the constitutional problem with “a course about the Bible” is beyond me.  I have no problem with teaching kids about the history of Christianity as part of history or comparative religion classes, or teaching kids about the literature of the Bible as part of reading or literature classes, but a course about “the Bible” goes a step too far.  It would be like having a course on “The Rings Trilogy” or ”America: The Book,” except that the Bible is far more ubiquitous than those books, therefore making the endeavor rather unnecessary.  And the lack of necessity is what raises my eyebrows - why the fuck should schools bother teaching something that everyone “knows” anyway?  Sounds to me like “ID” - sneaky back-door Christian proselyzation.  And, on top of that - what happens when a kid comes home from “The Bible” class and tells his Marionite parents that he’s a Johnist?  And what happens when a kid comes home from “The Bible” class and tells his Baptist parents that he’s a Paulist?  The problems with this seem insurmountable.  And one or two Dem appointments to the SCOTUS could easily change their minds about this, even though the court was rather united on the decision.  This is trouble just waiting to happen.  More useless, unnecessary, diversionary trouble.


  21. By Dr. Forbush on Mar 30, 2007 | Reply


    That may be true for some of the students. But, I really think the main issue here isn’t the use of the Bible as classroom material which I stated above. The problem is with how the teacher uses the material. And how the students graded on the use of that material. At the High School level there are quite a few interfering parents that will make the issue controversial by confronting the teacher. These parents will come from both the extreme left and the extreme right making straightjacketing the ability of the teacher to do very much other than what the parents want. At the University level teachers can say pretty much whatever they want without the fear of retribution.


    Maybe some of the students in High School are ready to handle such a class as an elective, just as some college students would avoid such a class because of their personal lack of interest in the subject.

  22. By Craig R. Harmon on Mar 30, 2007 | Reply


    The SCOTUS that handed down the ruling I gave you were ALL Democrat appointed Justices. Adding two more Dem appointed Justices isn’t going to change the consistent rulings on this issue over the last three quarters of a century. It’s not. It shouldn’t. Whether I see a constitutional problem or not is not my point. My point is, the most liberal SCOTUS in the history of this country disagrees with you. Adding more Liberals to the present Court isn’t going to yield a more Liberal Court than the Warren erra Court.

    And what happens if a student comes home to Baptist parents and declares himself a Paulist Christian? All manner of hell would break out but as long as the student arrived at that position based upon his own reading and understanding of the Bible, as opposed to because the teacher told him that that is what he had to believe based upon the teacher’s understanding of the Bible, that’s a problem between the student and the parents, not a problem for the school or the teacher. The teacher merely has to avoid even the appearance of supporting one interpretation or another of the Bible. I don’t see that that’s so difficult to do and I’m a Pastor, or was. If I can conceive of allowing various interpretations of the Bible, I don’t see why a professional teacher couldn’t do so. If a teacher fails to do so, you do what you’d do to a science teacher that teaches creationism in science class. You can him.



    I agree that it’s about how the teacher uses the material but that’s true of any course, isn’t it? And teachers will always catch hell from parents over one thing or another. I’m afraid that that comes with the territory like the native Americans to Columbus. Religious services, prayers led by teachers or administrators or any coercive situation are out of bounds. An elective course, by it’s very electivity, allows parents to keep kids out of the course if they have the slightest doubt of the teacher’s objectivity. I mean, why would a student who did not want to be in the class take the class? Why would a parent who did not want her child learning about the Bible for any reason at all, have her child in the class. Being an elective, it will be populated, by natural selection, as it were, with students interested in learning about the Bible and avoided like the ten plagues visisted upon Egypt by those who had no interest.

    All I’m saying is that since the 1940’s at least, this has been the first amendment jurisprudence in this country. It has been consistent and it shows no sign of changing any time soon. 

  23. By Craig R. Harmon on Mar 30, 2007 | Reply

    Well, when I err, I err big time. Above (comment #21), I stated, erroneously, that all the members of the court in the School District of Abington Township, Pennsylvania v. Schempp had been appointed by Democrats. Not so. For the record, the court in Schempp consisted of the following Justices (Justice’s Name, Dates of Service on the SCOTUS, Party of President who Nominated, and Nominating President’s Name):

    Hugo Laffayette Black, 1937-71, Democrat, Franklin D. Roosevelt
    William Orville Douglas, 1939-75, Democrat, Franklin D. Roosevelt
    Thomas Campbell Clark, 1949-67, Democrat, Harry S. Truman
    Byron Raymond White, 1962-93, Democrat John F. Kennedy
    Arthur Joseph Goldberg, 1962-65, Democrat, John F. Kennedy

    Earl Warren, 1953-69, Republican, Dwight D. Eisenhower
    John Marshall Harlan II, 1955-71, Republican, Dwight D. Eisenhower
    William Joseph Brennan, 1956-90, Republican, Dwight D. Eisenhower
    Potter Stewart, 1958-81, Republican, Dwight D. Eisenhower

    The moral of the story is, do your research before you pontificate (naaaaah!).

    The fact that four of the Justices, including the Chief Justice at the time (Warren) were nominated by Republicans, ought not to be taken as a sign that those justices were Conservative in their rulings.

    Chief Justice Warren turned out to be much more Liberal and activist than expected. His activism began with Brown v. Board of Education (1954), which overturned Plessy v. Furguson (1896) and expanded the application of the Equal Protections clause of the Fourteenth Amendment. This turned the Court’s interest to expanding individual rights as opposed to economic issues which had taken up much of the Court’s interests up to that time. In Reynolds v. Sims (1964), Warren completely overhauled the nation’s apportionment rules to bring about one person, one vote. In 1963, in Gideon v. Wainright, Warren extended the sixth amendment’s right to counsel to the states. His 1966 Miranda v. Arizona, expanded the fifth amendment to include a requirement to, yes, you guessed it, read suspects the now-famous Miranda warning.

    Brennan, with Black and Douglas, was and remained highly supportive of the activism begun by the Brown decision. Eisenhower came to look upon Justice Brennan, himself a Democrat, as one of his worst mistakes. Brennan became the theoretical architect of the Warren Court’s expansionistic interpretation of the Constitution.

    Potter Stewart, neither consistently Liberal nor consistently Conservative, in other words a swing-vote Justice, dissented in Schempp.

    Harlan II, was more Conservative and deferential to governmental claims of national defense and of federalism but he could also participate in some expansion of privacy and individual rights.

    Thus, of the four Justices that were appointed by Republican Presidents that ruled in Schempp, only John M. Harlan II was reliably Conservative, Stewart being a swing-vote.

    This is my self-imposed penance for mis-speaking earlier (thank goodness this isn’t a congressional investigatory session or I’d be in real trouble.)

    As for my readers, I don’t know what you did to deserve the penance of reading all of this but, heck, you chose to do so. You’ve got no one to blame but yourself! ;^)

  24. By Craig R. Harmon on Mar 30, 2007 | Reply

    Before I have to nail myself again and do more penance, I admit, up front, that the information for all of the above information was shamelessly stolen from two sources: (1) The Wikipedia articles on the nine Justices and (2) articles on the Justices found in The Oxford Companion to the Supreme Court of the United States, edited by Kermit L. Hall, 1992. Shamelessly stolen, I say.

  25. By Jersey McJones on Mar 31, 2007 | Reply

    Very interesting research there, Craig.  I have to say - you are one of the most honest debators I’ve ever debated with!

    To call Brown v and Miranda v “activist,” and to infer that just because justices were appointed by Dems back then makes them “liberal,” is a little nutty, though.


  26. By Craig R. Harmon on Mar 31, 2007 | Reply


    There’s no definition of activist that Brown and Miranda would not fit. Jersey, there has never been a more liberal SCOTUS than the one that Warren presided over, especially after Frankfurter left the court. It was the string of ever expanding and, very often outright creation of rights, virtually out of thin air that marks them as liberal, regardless of who appointed them.

    But thanks for the compliment.  

  27. By Craig R. Harmon on Apr 1, 2007 | Reply


    You are right in this: “to infer that just because justices were appointed by Dems back then makes them “liberal,” is a little nutty, though.”

    Very well. Whether that’s nutty or not, I’ll leave to others to say but you are right that it is bad policy to infer one from the other. Just as some very Liberal Justices have made it onto the Court after being appointed by Republicans specifically searching for Conservative Justices, so it is not a good idea to assume that Democrats, even Liberal one’s, haven’t succeeded in placing some Conservative Justices on the court.

    Rather than infer that justices appointed by Dems back then were, in fact, Liberal, I guess I shall have to produce for the five Democratic appointees what I did for the four Republican appointees and see what we see. Here goes.

    Arthur Joseph Goldberg. From Wikipedia (emphasis added by me):

    Goldberg became a prominent labor lawyer, representing striking Chicago newspaper workers on behalf of the CIO in 1938. He served in the Office of Strategic Services as a contact with the European underground labor movement during World War II. Appointed general counsel to the CIO in 1948, Goldberg served as a negotiator and chief legal advisor in the merger of the AFL and CIO in 1955.

    Goldberg was by this time a prominent figure in the Democratic Party and in labor union politics. President Kennedy appointed Goldberg to two positions. The first was Secretary of Labor, where he served from 1961-1962. As Secretary, he served as a mentor to the young Daniel Patrick Moynihan. The second was as an associate justice of the Supreme Court of the United States, replacing Felix Frankfurter, who had resigned because of poor health. 

     Is it possible that I’ve been mistaken all these years, that the representatives and supporters of labor unions have been Conservatives rather than Liberals. But, no. Goldberg was a Liberal. More from Wikipedia:

    Despite his short time on the bench, Goldberg played a significant role in the Court’s jurisprudence, as his liberal views on constitutional questions shifted the Court’s balance toward a broader construction of constitutional rights. His best-known opinion came in the case of Griswold v. Connecticut (1965), arguing that the Ninth Amendment supported the existence of an unenumerated right of privacy.

    Perhaps Goldberg’s most influential move on the Court involved the death penalty. Goldberg argued in a 1963 internal Supreme Court memorandum that imposition of the death penalty was condemned by the international community and should be regarded as “cruel and unusual punishment,” in contravention of the Eighth Amendment. Goldberg was the first to argue this position: prior to Goldberg’s memo, no Supreme Court case had addressed the question of whether the death penalty violated the Eighth Amendment. Finding support in this position from two other justices (William J. Brennan and William O Douglas), Goldberg published an opinion dissenting from the Court’s denial of certiorari in a case, Rudolph v. Alabama, involving the imposition of the death penalty for rape, in which Goldberg cited the fact that only five nations responding to a United Nations survey indicated that they allowed imposition of the death penalty for rape, including the U.S., and that 33 states in the U.S. had outlawed the practice.

    Goldberg’s dissent sent a signal to lawyers across the nation to challenge the constitutionality of capital punishment in appeals. As a result of the influx of appeals, the death penalty effectively ceased to exist in the United States for the remainder of the 1960s and 1970s, and the Supreme Court was forced to consider the issue in the 1972 case of Furman v. Georgia, where the Justices, in a 5-4 decision, struck down the death penalty laws of states across the country. That decision would be revisited in 1976’s Gregg v. Georgia, where the justices voted to allow the death penalty under some circumstances; the death penalty for rape, however, would be struck down in 1977’s Coker v. Georgia. Goldberg’s mode of analysis, comparing the practices of other nations and states of the U.S., became a standard test used by the Court in evaluating Eighth Amendment claims.

    Perhaps I’m mistaken but it seems to me those are pretty darned Liberal views, judicially speaking.

    From The Oxford Companion to the Supreme Court of the United States:

    Goldberg’s tenure on the Court was significant, particularly considering its brevity. There was a marked contrast between Frankfurter’s adherence to judicial restraint (see JUDICIAL SELF-RESTRAINT) and Goldberg’s belief that the Court should protect a “permanent minority” that had been excluded from the political process.

    Can we agree that Goldberg was a Liberal by any recognizable definition of the word?


    Byron Raymond White. White appears to have been considerably more Conservative and less activist than Goldberg. For example, Wikipedia says that White was “[f]requently a critic of the doctrine of “substantive due process[]“. Although he concurred in Griswold v. Connecticut, which struck down the ban on the use of contraceptives, he did not join in the main decision with it’s emanating penumbras. He dissented from Miranda v. Arizona. He later, with Justice Rehnquist, dissented from Roe v. Wade.

    On the death penalty, he took a “middle road”. He insisted that the eighth amendment meant that penalties be proportional to the crime and could vote to strike down states’ death penalty laws that he felt were arbitrary but was not against the death penalty, per se and argued vigorously against finding the death penalty for offenders below 16 years of age to be cruel and unusual punishment.

    The Oxford Companion says of White that his decisions range “from Liberal to quite Conservative across a broad range of issues.” It continues by sayng:

    “White’s most liberal positions have been on discrimination questions. During the Warren Court era he steadfastly supported the constitutionality and enforcement of the *Civil Rights Act of 1964 and the *Voting Rights Act of 1965, and he advocated an expanded definition of state action in *equal protection cases. He has taken similarly liberal positions on issues of sex and economic discrimination. In the 1980s, however, White often parted company with the Court’s liberal wing on questions of *affirmative action and “set aside” programs designed to eliminate the effects of past discrimination.”

    “On personal liberty issues, White has generrally taken a conservative stance. He supported the Burger Court’s restrictive position on obscenity (see OBSCENITY AND PORNOGRAPHY), rejected the notion of a newsman’s privilege, voted to enforce laws against flag burning by political protesters, and approved government aid to sectarian schools.” 

    He has

    “consistently voted to uphold state regulation of *abortions. Additionally, White wrote the majority opinion in *Bowers v. Hardwick (1986) upholding state sodomy statutes against privacy righ challenges.”

    “Justice White’s most consistently conservative rulings have occurred in criminal rights cases. He dissented from the Court’s liberal rulings in *Escobedo v. Illinois (1964) and *Miranda v. Arizona (1966)…White has also been a critic of the *exclusionary rule in search and seizure cases and authored the 1984 majority opinions limiting that rule.”

    On the whole, whether White was Liberal or Conservative depended upon the issue. I would mark him more Conservative than Liberal overall (but that’s my take, not from either Wikipedia or the Companion).

    More later.

  28. By Craig R. Harmon on Apr 1, 2007 | Reply

    Thomas Campbell Clark. Wikipedia says of Justice Clark:

    Appointed Attorney General by President Harry Truman in 1945, Clark was appointed to the court in August 1949, filling the vacancy left by the death of Frank Murphy. Truman later came to regret his choice; he remarked to a biographer many years later that “Tom Clark was my biggest mistake.” But, he insisted: “It isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch.”

    The basis for the change in Truman’s attitude stemmed from Clark’s vote to strike down as unconstitutional Truman’s seizure of the nation’s steel mills to avert a strike in 1952’s Youngstown Sheet & Tube Co. v. Sawyer after having advised Truman as attorney general that he had legal authority to do so.

    While on the Supreme Court, Clark was generally a conservative who nonetheless proved a key vote in some Warren Court cases expanding the scope of individual rights. He is noted for writing the majority opinion in the landmark cases Mapp v. Ohio, applying the Fourth Amendment “exclusionary rule” to the states, and Abington School District v. Schempp, invalidating daily Bible readings in public schools. Clark supported the end of racial segregation, siding with the majority in Brown v. Board of Education and Sweatt v. Painter. Clark also took a decidedly anti-Communist stance during the “Red Scare.”

    Generally conservative but he voted to overturn nearly 60 years of settled precedent in Brown v. Board of Education, pretended that the fourth amendment demanded that even damning evidence be excluded from trial so that guilty people must go free no matter how iron-clad the proof against them was, that the Bible could not be read in public school. But I guess being anti-Communist makes him generally Conservative.

    From the Companion, we find that Clark wrote the decision in U.S. v. Seeger, a 1965 case that “broadened the opportunity for young men to attain *conscientious objector status based upon religious belief.” It continues:

    “In later years Clark became a champion for judicial reform. He was a tireless writer and public speaker who worked with legal organizations to stimulate improvements in court procedures, rule making, and in-service judicial education. He continued his work after his retirement from the Court, helping to establish the Federal Judicial Center and serving as its first director.

    That’s an awful lot of working awful hard to bring about an awful lot of change for a “generally conservative” guy. But I guess being anti-Communist will do that: brand the most liberal person a Conservative. The Companion does not use the word ‘conservative’ of Clark, as does Wikipedia and every decision and action mentioned in either source points to Clark being about as Liberal as any Justice ever to sit on the Court. So do we go with Wikipedia’s “generally conservative” or judge him by his decisions and actions while on and off the court. I’m going to be controversial and call him a Liberal who happened to have some common sense about the perniciousness of Communism during the cold war.


    William Orville Douglas. If Clark is considered by Wikipedia as “generally conservative” for his anti-Communist stance, the same is not true of Douglas. He “dissent[ed] from the Supreme Court’s decision in Dennis v. United States (1952) affirming the conviction of the leader of the U.S. Communist Party.” “[I]n Terminiello v. City of Chicago (1949) [he] overturn[ed] the conviction of a Catholic priest who allegedly caused a “breach of the peace” by making anti-Semitic comments during a raucous public speech.”

    “Over the course of his career Douglas grew to become a leading advocate of individual rights against the government generally. For example, Douglas wrote the lead opinion in Griswold v. Connecticut, finding a “right to privacy” in the “penumbras” of the first eight amendments of the Bill of Rights. This went too far for his old ally Black, who dissented in Griswold.”

    On the nuttier side, he held that trees have standing to sue in court. In Sierra Club v. Morton, argued that “inanimate objects” have standing to sue in court:

    “Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation soul - a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases . . . .

    “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes - fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”

    Not only Liberal as the day is long, nuttier than the proverbial fruitcake.

    The Companion says of Douglass that “[h]e came to see legal doctrines not as autonomous but as devices that could be manipulated for social good or ill.” Translation: he was a Liberal who would let neither settled law nor settled judicial tradition stand in the way of protecting trees. When he was up for the position of Supreme Court Justice, Douglas’s “loyalty to the New Deal became suspect, so he made a fiery speech condemning the financial community and confirming his reformist brand of New Dealism.” “Black and Douglas played central roles, providing arguments for sustaining or interpretatively expanding late New Deal legislation, especially in the areas of *labor Law and control of markets (see PROPERTY).”

    Liberal? I report; you decide. 


    Hugo Laffayette Black. Wikipedia says of Black:

    Because of his insistence on a strict textual analysis of Constitutional issues, as opposed to the process-oriented jurisprudence of many of his colleagues, it is difficult to characterize Black as a liberal or a conservative as those terms are generally understood in the current political discourse of the United States. On the one hand, his literal reading of the Bill of Rights and his theory of incorporation often translated into support for strengthening civil rights and civil liberties. On the other hand, Black consistently opposed the doctrine of substantive due process and believed that there was no constitutionally-protected right to privacy.

    Black had, in the twenties, been a member of the Ku Klux Klan. When this was discovered by the press after his placement on the Court, there was grave concern about Black in the press. Black explained his brief stint in the Klan and “quickly established a record sympathetic to African Americans and the civil rights movement. Chambers v. Florida (1940), where he ruled in favor of African American defendants put most of those concerns to rest.”

    “During his early years on the Supreme Court, Black helped reverse several earlier court decisions taking a narrow interpretation of federal power.” Translation: “Big Government Good”.

    On Communism:

    in American Communications Association v. Douds (1950), the Court upheld a law that required labor union officials to forswear membership in the Communist Party. Black dissented, claiming that the law violated the First Amendment’s free speech clause. Similarly, in Dennis v. United States, 341 U.S. 494 (1951), the Court upheld the Smith Act, which made it a crime to “advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States.” The law was often used to prosecute individuals for joining the Communist Party. Black again dissented…

    He may not have loved Communists but, by golly, he wasn’t going to allow the government to put them down.

    Black wrote Engel v. Vitale, “declar[ing] state-sanctioned prayer in public schools unconstitutional.”

    Like all human beings, Black was complex. He opposed the concept of a “living Constitution” and refused to find a constitutionally protected right of privacy emanating from penumbras, dissenting in Griswold and he took a textualist approach to interpreting the Constitution. Yet, “Black was often regarded as a member of the liberal wing of the Court, together with Warren, Douglas, William Brennan, and Arthur Goldberg.”

    Black refused to join his bretheren in an attempt to abolish the death penalty.

    On the other hand, “Black consistently voted with the majority in these decisions” which vastly expanded the Federal Government’s reach via the commerce clause. Translation: “A Meddling Federal Government is a Good Federal Government”.

    One of the most notable aspects of Justice Black’s jurisprudence was the view that the entirety of the federal Bill of Rights was applicable to the states. Originally, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (1833). According to Black, the Fourteenth Amendment, ratified in 1868, “incorporated” the Bill of Rights, or made it binding upon the states as well. In particular, he pointed to the Privileges or Immunities Clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” He proposed that the term “privileges or immunities” encompassed the rights mentioned in the first eight amendments to the Constitution.

    This is a very Liberal position. Yet today, not all of the BoR has been incorporated via the 14th amendment against the states.

    On the other hand:

    Justice Black was well-known for his rejection of the doctrine of substantive due process. Most Supreme Court Justices accepted the view that the due process clause encompassed not only procedural guarantees, but also “fundamental fairness” and fundamental rights. Thus, it was argued that due process included a “procedural” component as well as a “substantive component.”

    Black, however, believed that this interpretation of the due process clause was unjustifiably broad. In his dissent to Griswold, he charged that the doctrine of substantive due process “takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination.”[8] Instead, Black advocated a much narrower interpretation of the clause. In his dissent to In re Winship, he analyzed the history of the term “due process of law”, and concluded: “For me, the only correct meaning of that phrase is that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions as interpreted by court decisions.”[17]

    None of Black’s colleagues shared this interpretation of the due process clause. Harlan in particular was highly critical of it, indicating his “continued bafflement at my Brother Black’s insistence that due process … does not embody a concept of fundamental fairness” in his Winship concurrence.[18] Since Black’s death the Court has continued to apply the doctrine of substantive due process (most notably in Roe v. Wade, which proclaimed that abortion was a constitutionally protected right), and on the present Court, only Justices Antonin Scalia and Clarence Thomas are on record as explicitly and categorically rejecting it, as did Black.

    Conclusion: Although relying upon textualism and historical intent as his guides to Constitutional interpretation and opposing the concept of a “living Constitution”, most of his rulings came down in favor of Liberal outcomes in most of the issues that Liberals’ favor.

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