Taylor Jipp on Twentieth-Century Supreme Court Justice, Felix Frankfurter
As Trump recently addressed his audience at the CPAC conference, he called them “the loyal defenders of our heritage, our liberty, our culture, our Constitution, and our God-given rights.” He later closed the speech with a rallying cry: “We have to defend our cherished constitution and uphold our heritage as a society built and sustained by Judeo-Christian values.” Trump’s language here reveals a much more widespread American phenomenon: a tendency to raise the Constitution almost to the status of Scripture, to worship it as a document containing a revelation of the Word of God.
While a majority of those inclined to think of the Constitution in this way are also devout Christians, what we might call “Consecrated Constitutionalism” was not always cornered by the Christian faith or by conservatives. As I uncover in The Prophet of Harvard Law, one of the exemplars of this belief system was, to the contrary, a Jewish liberal: Felix Frankfurter, the twentieth-century Supreme Court Justice. Frankfurter was descended from a long line of rabbis dating back centuries. Yet neither his rabbinic lineage nor his upbringing in an observant Jewish home was sufficient to bond him to the family religion as he came of age. In his late teens, Felix attended a Yom Kippur service and was suddenly struck by its insignificance to him. He felt it was a sort of sacrilege for him to be there without feeling anything – so he simply walked out. Although he continued to think of himself as a Jew for the rest of his life, he was never Jewish in any theological sense.
Instead, Frankfurter became a dedicated adherent of what he called the “true democratic faith.” He told his fellow justices, “As one who has no ties with any formal religion, perhaps the feelings that underlie religious forms for me run into intensification of my feelings about American citizenship.” He had a sturdy conviction that the mechanisms of governance set out in the Constitution would lead humanity into a time of unprecedented technological progress, social unity, and overall flourishing, writing that “the Constitution has within itself ample resources for meeting the changing needs of successive generations.” It was the Constitution – not God – which bore the responsibility for bringing humanity into higher realms.
Like any religion, Frankfurter’s faith in the American Constitution needed a pantheon of prophets. The most important of these, Frankfurter’s Moses, was James Bradley Thayer. Thayer had been a professor at Harvard Law, where Frankfurter earned his law degree, but had only just died the year before Frankfurter matriculated. That didn’t stop the young Frankfurter, though, from finding Thayer’s inspired writings and becoming his most devoted acolyte.
For Frankfurter, the central tenet of Thayer’s catechism was the theory of judicial deference. In a democracy, the people are the ultimate sovereign, and their will is expressed through elected representatives; it follows that unelected judges ought to nullify statutes adopted by those representatives only in extreme cases. In most of the landmark cases before the Supreme Court during Frankfurter’s tenure on the bench, the Thayerian devotee acted strictly in line with what judicial restraint required. As Frankfurter worked on the majority opinion for Minersville v. Gobitis, he told a fellow justice that he intended for the decision to be “a vehicle for preaching the true democratic faith of not relying on the Court for the impossible task of assuring a vigorous, mature, self-protecting and tolerant democracy.”
But the lurking danger in the practice of any faith is the temptation to let it overpower the disinterested objectivity required for rational thinking. In a series of iconic cases involving the rights of religious groups, he fell prey to that exact temptation. His belief in the American system would not allow for conflicting loyalties. In Everson v. Board of Education (1947), McCollum v. Board of Education (1948), and Zorach v. Clauson (1952), Frankfurter violated his cherished principle of deference, overturning state legislation in order to keep religion altogether out of the private sphere.
In the McCollum case, he wrote a concurring opinion insisting on a hard separation of church and state, highlighting his fanaticism for the Constitution as the sole claimant to religious loyalties in the public sphere. The Champagne Board of Education in Illinois had created a program allowing privately funded, voluntary religious classes to be offered on public school grounds during school hours. In Frankfurter’s view, the country’s educational system was “designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people,” and as such, he held that it “must keep scrupulously free from entanglement in the strife of sects.” He called the public school “at once the symbol of our democracy and the most pervasive means for promoting our common destiny.” Frankfurter was remarkably untroubled by his typical concern that if unelected judges corrected bad policy, it would sap a democratic people’s sense of its own civic responsibility. His concern about the ability of religion to interfere with faith in American democracy instead reigned supreme.
Frankfurter had long ago substituted the religious faith of his youth, Judaism, with the secular faith of his adulthood, American democracy. His abiding fidelity to the “true democratic faith” undergirded his oft-stated conviction that an unelected bench ought not interfere with legislative processes, save in extreme cases. And yet he was willing to undermine that faith in representative democracy to shield the republic from the influence of religion. For Frankfurter, faith in American democracy left no room for any other religious affiliation.
The tendency to worship the Constitution as revelatory of a Divine Will has a long history in the United States. Whether it is seen to work in concert with the Christian God, or as supplanting Him, Consecrated Constitutionalism has a remarkable ability to lodge itself in the part of the psyche, far beyond the influence of rational discussion, where religious impulses reside – the impulse to deference, to worship, and – at the extreme – to holy violence. The phrase “separation of church and state” has become such a central part of constitutional discourse that it risks obfuscating an equally serious and pervasive danger: making the state itself into a religious system.
Taylor Jipp lives and works in London as a research and writing consultant. She is the co-author of The Prophet of Harvard Law (University Press of Kansas, 2022), from which this piece is adapted.