A Historic Example Of Judicial Activism: The Cantwell Case

by David W. New, Esq.

(Originally published in 2005. Updated in 2018.)

     The problem of judicial activism is on the radar scope more today than ever before. Many people who were not sure if judicial activism was a problem changed their mind when the Supreme Court ruled that homosexuals have a right to marry. The American Bar Association released a poll which indicated that more than half of all Americans believe judicial activism is a serious problem. Note 1.

Many people think judicial activism is something new. However, the history books suggest that it has been with us since the 1940’s if not earlier. In my opinion, one of the most important examples of judicial activism in American history occurred on May 20, 1940. On this date, the Supreme Court decided the Cantwell v. Connecticut case. Note 2.

Surprisingly, very few Americans know anything about this case. However, the Cantwell case has affected your life in a very big way. If religious freedom is important to you then you should learn as much as possible about this case. Cantwell could be the most important religion case in American history. In fact, it could be argued that it is more important than the First Amendment.

In this article, I will explain why the Cantwell case is important. I will provide the basic facts of the case and how it affected religion law in the United States.

In a nutshell, the Supreme Court through the Cantwell case illegally seized control of religious freedom in the United States. As a result of this case, the Supreme Court began a new career as the final referee for issues involving the separation of church and state in America. Thus, Cantwell was a turning point for religious freedom in American history.

The Basic Facts of the Cantwell Case

The Cantwell family were very devout Jehovah’s Witnesses. Newton Cantwell and his two sons Jesse and Russell wanted to share their faith with other people. One day in 1938, they went door to door in New Haven, Connecticut to spread the Good News of the Kingdom to come. Apparently, a problem began when they went to Cassius Street, which was a neighborhood thickly populated with Roman Catholics. The Cantwells would play a phonograph record titled “Enemies” which attacked the Catholic Church. At one point, a dispute arose between young Jesse Cantwell and two other individuals over the recording. The police had to intervene and Newton Cantwell and his sons were charged with inciting a breach of the peace and soliciting money for a religious organization without a license. This began a legal fight that would change America forever.

Today the hot button issues involving religion are the display of the Ten Commandments and the so called ‘rights’ of homosexuals. In the 1920’s and 30’s, it was about Jehovah’s Witnesses. Many Americans felt this group had made a nuisance of themselves by constantly going door to door. State and local governments responded by requiring anyone who went door to door to ask for money to first obtain a permit. The Jehovah’s Witnesses refused to comply with these laws.

Religious Freedom Before Cantwell

Prior to the Cantwell case, disputes involving the separation of church and state were left to the states. The state constitution and laws drew the line between church and state. Consequently, the separation between church and state varied from one state to another. The people in each state through their elected representatives decided how religion and government would interact. This of course was the intent of the First Amendment. It is an undisputed fact that the Framers of our Constitution intended religion issues to be left to the states. Unless the Federal Government was directly involved somehow, federal courts would not intervene.

The Cantwell case reversed this. The Supreme Court reversed the Framers of our Constitution.

Religious Freedom After Cantwell

As a result of the Cantwell case, a new institution would have the power to decide church state issues. This institution was the Supreme Court. Many Americans might be surprised to learn that prior to 1940, the Supreme Court rarely decided religion cases. From the time the Supreme Court came into existence in 1790 until 1940 there were approximately 12 to 15 cases which could be classified as religion cases. This is true because the Framers of our Constitution gave the Supreme Court a very limited role in this area. Unless the Federal Government was involved, the Supreme Court stayed out of the case.

How did the Supreme Court get the power to control religion law in the states? By expanding the jurisdiction of the First Amendment to include the states. When the Supreme Court ruled that the state governments must obey the First Amendment, this effectively transferred power from the states to the Supreme Court for religion cases. This is what Cantwell did. Cantwell said the states must obey the religion clauses in the First Amendment. Before Cantwell, the states were not bound by it. The Cantwell case said the states must obey the First Amendment’s Establishment and Free Exercise Clause which says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . .”

By limiting the First Amendment to the Federal Government, no one should think the Framers wanted the states to abuse the freedom of religion. Surely this cannot be true. The Framers limited the jurisdiction of the First Amendment because they believed the people in each state through their own constitution were better able to protect the freedom of religion.

The most important effect of the Cantwell case was to transfer power. Power over religion was transferred from the states to the Supreme Court. Essentially, religion law in the United States became federalized in 1940. In addition, the separation of powers for religion law within the Federal Government does not exists. The Supreme Court alone has almost all the power. The President and Congress can affect religion law only at the margins. The federal takeover of religion law has been so complete that if you deleted the religion clauses in the state constitutions very little would change. The state religion clauses are largely worthless. Only the First Amendment counts or to be more precise, only the Supreme Court’s interpretation of the First Amendment counts. Groups like the ACLU and Americans United for Separation of Church and State strongly support the transfer of power for religion law to the Supreme Court. These groups oppose what the Framers of our Constitution wanted for America.

Why the Cantwell Case is More Important Than the First Amendment

In a sense, the Cantwell case is more important than the First Amendment because it gave the Supreme Court the power to control religion in the states. The Framers of the First Amendment did not do it. They wanted the states to be free to govern themselves. This is why the First Amendment begins with the word “Congress.” By beginning the First Amendment with the word “Congress” this excluded state and local governments from its jurisdiction. Cantwell reversed this. In effect, Cantwell amended the First Amendment! Very few Americans are aware that the First Amendment was amended in 1940. But in a sense it was. The First Amendment has 45 words in it. It begins with “Congress shall make no law . . . ” In 1940, the Supreme Court amended it to add three words. It now has 48 words “Congress and no State shall make no law . . . ”

The Supreme Court violated the Constitution when they de facto amended the First Amendment. They enlarged its jurisdiction to include the states.

How Cantwell Affected the Public Schools

The authority to remove prayer and Bible reading from the public schools in America was based on the Cantwell case. In 1962 and ‘63, the Supreme Court removed vocal prayer and Bible reading from the classroom. What authority did the Supreme Court cite to do this? The Cantwell case. Note 3. Prior to Cantwell, there were about 30 cases which involved prayer and Bible reading in the public schools. This covered a period from the1850’s to the 1930’s. In every case, the state constitution and laws decided the case. The First Amendment was never used. However, after Cantwell this would no longer be possible. The First Amendment must now decide the case. The first time the First Amendment was used in a school prayer/Bible reading case was in 1950. Why is the Cantwell case more important than the First Amendment? Because the First Amendment originally did not give the Supreme Court the power to decide these cases. Activist judges on the Supreme Court made a bogus claim that the Fourteenth Amendment required them to apply the First Amendment to the states. The fact that it took more than 70 years after the Fourteenth Amendment was ratified (1868) to make this claim has never been explained by the Supreme Court. It remains a mystery to this day.

Interestingly, in the 30 cases discussed above, as long as student participation was voluntary, state courts overwhelmingly ruled in favor of prayer and Bible reading. If student participation was not voluntary, the courts made it voluntary. They did not ban prayer and the Bible. If the Supreme Court had never decided the Cantwell case, it’s likely these activities would continue in many schools today. Each state would be free to decide the issue for itself. No doubt this explains why the ACLU strongly supports the transfer of power for religion law to the Supreme Court.

How Cantwell Affected the Ten Commandments

In 1980, the Supreme Court ruled against the display of the Ten Commandments in the Kentucky public schools. What authority did the Supreme Court cite to do this? The Cantwell case. Specifically, the Supreme Court cited Abington v. Schempp which in turn cited Cantwell. You may recall the Supreme Court banned the Bible for moral instruction in the public schools in 1963 in the Abington case.  Note 4.

In 2005, the Supreme Court decided two cases involving the display of the Ten Commandments in Kentucky and Texas. What authority did the Supreme Court cite to do this? Again, the Cantwell Case.

Special Note: If prayer, Bible reading or the Ten Commandments were displayed on federal property such as in a school on a military base, then the Supreme Court would have the authority to hear the case.

Judicial Activism in Cantwell

Judicial activism is a serious threat to our freedom. It subverts the authority of the Constitution and threatens the independence of the judiciary. The Cantwell case resulted in an unconstitutional transfer of power from the states and a massive loss of freedom for the American people. Sadly, when the Supreme Court removed prayer from the public schools, they set an example of intolerance for religion. The message they sent was that prayer is offensive speech. Today, many people are ‘offended’ if they can hear someone pray in public. The Supreme Court is responsible for this new attitude toward religion.

Incredibly, in the legal briefs filed in the Cantwell case with the Supreme Court, neither party asked the First Amendment to be applied to the states. The Supreme Court did this on their own initiative. This is another reason Cantwell is an important example of judicial activism.

Is there any doubt that Cantwell was a major turning point in American history? Just think how free Americans would be if the Supreme Court had not reversed the Framers of our Constitution? Right now only nine unelected judges have power over religion law– a power never given to them by the Constitution.

I support what the Framers of our Constitution intended for America. I support their view that power for religious freedom should be shared with all the American people. It’s time to end the discrimination against religious speech in the United States begun by the Supreme Court.

A note from the author:  Watch for my latest book due out in 2018, The Separation of Church and State for Beginners available at Amazon.com

Note 1. Half of U.S. Sees ‘Judicial Activism Crisis’ by Martha

Neil. To read the ABA poll visit:

http://www.abanet.org/journal/ereport/s30survey.html

Note 2. Cantwell v. Connecticut, 310 U.S. 296 (1940).

Note 3. Abington v. Schempp, 374 U.S. 203 at 215 (1963).

Note 4. Stone v. Graham, 449 U.S. 39 (1980).

David W. New is an attorney in Washington, D.C. He graduated

from the Georgetown University Law Center in 1989.