Are You Now, Or Have You Ever Been

[Douglas Laycock]

Hamburger does make the point, largely drawing on Roger Newman's
biography of Black; I summarize the story in my review of Hamburger in U
Chi L Rev.  The smoking gun is not Everson, but his dissent in Board of
Education v. Allen, which has overt anti-Catholic rhetoric:  "The same
powerful sectarian religious propagandists who have succeeded in
securing passage of the present law to help religious schools carry on
their sectarian religious purposes can and doubtless will continue their
propaganda, looking toward complete domination and supremacy of their
particular brand of religion."

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, July 25, 2005 1:05 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Are You Now, Or Have You Ever Been

With regard to Bob Sheridan's comment that "[Justice] Black's record on
the Court was entirely opposite from what you might have expected of a
member of the KKK":

Some scholars suggest Justice Black did not leave behind all that he
learned from the KKK when he ascended to the Court, at least with regard
to its anti-Catholic prejudices. Here is a paragraph from a piece by
John Witte,
Jr.:

"All this changed rather dramatically with the Supreme Court case of
Everson v. Board of Education (1947). * * * Justice Black read into the
establishment clause a strict separationist logic that was amply coated
and coded with the anti-religious sentiments that Black had absorbed as
a former ranking member of the KKK. The largely fringe anti-clerical and
sometimes anti-religious sentiments of the later nineteenth century were
suddenly lifted to a constitutional mandate for the entire nation."
http://www.law.emory.edu/cisr/johnwittetext.pdf.

If I remember correctly, Phillip Hamburger makes a similar point in his
book, Separation of Church and State (Harvard Univ. Press, 2002).

Please note that I am in no way equating the Federalist Society (of
which I am not a member, though I've attended some of their excellent
programs) with the KKK.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
Sent: Monday, July 25, 2005 9:52 AM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: Are You Now, Or Have You Ever Been

We ask prospective jurors whether they belong to organizations,
including religious organizations, whose tenets include taking positions
for or against issues likely to be in contention during the trial.

Then there is the question as to whether membership in an organization
for one reason necessarily means that a former member will regard
himself bound by the tenets of organization during a later chapter in
his life.  Many organizations, including the Federalist Society, can
only wish they remained that influential down the road.

Hugo Black was member of the Ku Klux Klan in Alabama when he was running
for election.  You can read his letter of resignation from "the Knights
of the Ku Klux Klan, dated July 9, 1925, in the Roger K. Newman bio
following p. 336. Pantheon/Random House, 1994,1997.  Following his
nomination Black made a more-or-less clean breast of things in a radio
broadcast that sufficed to lay the issue sufficiently to rest in those
tolerant (of evidence of racism) times to allow confirmation.  Black's
record on the Court was entirely opposite from what you might have
expected of a member of the KKK.

Many people take their oaths of office quite seriously when they perform
legal functions and do put aside personal predilection in order "to
follow the law."  How many times have you heard jurors, post-verdict,
say as some did for example, that they believed Michael Jackson good for
some sort of misconduct but that the DA failed to prove it in this case.

One of the reasons that we hope the president, as baseball team manager,
puts in a new pitcher is that we can never really know exactly what the
game situation will be like in the later innings, only that there will
be a lot of pressure and yelling with the game on the line.

No matter what the phenom has done in the past, it's what he throws next
that counts.

rs

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