The Mission of the Archive

William Ball deserves a physical memorial and a living project. His work must continue. To use a phrase borrowed from President Abraham Lincoln, his is an “unfinished work of freedom.” The Nation William Bentley Ball II loved and served needs Catholic lawyers who, along with other Christians, can articulate an authentic Natural Law Jurisprudence as the path to providing a lasting defense of the inalienable rights which our founders articulated. These rights cannot be conferred by government and must not be denied by government.

 

The Establishment Clause

In one of many insightful articles which he wrote for the journal First Things, Ball said: “For about half a century, the Supreme Court has been at work making a game out of the Constitution’s Establishment Clause. This it has accomplished through a constant process of inventing ideas and trotting those forth as authoritative “interpretations” of the original constitutional text. These artifices become the rules of the game.

“In 1947 the Court read into the Establishment Clause the phrase “wall of separation between church and state,” and held the “wall” to bar all governmental aid to religion. The phrase was lifted out of context from a letter written by Thomas Jefferson; its appropriation by the Court to apply to the Constitution was contrary to historical evidence. Once the “high and impregnable” wall was installed, the Court was free to confront religious liberty with notions for heightening the wall.

“In 1963 the Court, in the Schempp case, voiding Bible-reading in the public schools, held that the Establishment Clause is violated by any governmental action having a “primary effect advancing religion.” This, too, was out of whole cloth. In 1971, in the Lemon case, the Court told the nation that the Clause also barred ” excessive entanglements” between religion and the state-again, brand-new, home- made doctrine. The “entanglement” concept had never appeared in any writings of the Constitution’s framers, nor even in any prior Supreme Court opinion. It is not surprising that, as the inventions multiplied, the Court would propagate variations of the inventions themselves.

“So in 1985 the Court took its “primary effect advancing religion” idea and held that a “primary effect” could consist of governmental actions that create a “symbolic union” of government and religion. By the open-ended phrasing of these constitutional add-ons, the justices have provided themselves blank checks that they can fill in according to their personal biases. But in Establishment Clause litigation, it is those add-ons, the inventions, that counsel in litigations must deal with. They now constitute the game.”

 

Natural Law

In a published roundtable discussion with Hadley Arkes, Russell Hittinger, and Judge Robert H. Bork, entitled “Natural Law and the Law” he wrote in response to Judge Bork:

“Finally, we come to an important question relating to who’s who. Bork says that Professor Arkes and I want the Supreme Court (and presumably all benches) to be filled with judges who share our moral views. Speaking for myself, he is exactly right. But I well realize what nags Bork. That is the fact that, for example, seven justices in Roe v. Wade reached out into the realm of fantasy to summon a “right of privacy” as a basis for killing people.

“ But these were his brother legal positivists. They can scarcely be accused of having resorted to Higher Law. They resorted to what one can properly call Lower Law or Unnatural Law. I agree that, under their reading and my reading of “due process,” they could do that. But the answer is not to constrict due process to procedure (thus leaving us largely at the mercy of majorities). Instead it is to labor for the seating of judges who, respectful of the legislative will, nevertheless embrace the saving concept of a transcendent order.”

 

The two quotes reveal a man who was unafraid of conflict and ever willing to contend in the realm of ideas in order to secure a future of freedom. His mission must continue……

 

Comments are closed.