Author:Jackson, Robert Houghwout

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson's writing about religion in his life.

After Justice Jackson's death in 1954, his secretary Elsie L. Douglas found the thirteen pages among his papers. [1] She concluded that the pages were "undoubtedly prepared as part of his autobiography," [2] typed them up, and gave a file folder containing the original pages plus her typescript to Jackson's son William Eldred Jackson, then a young partner in the Milbank, Tweed, Hope, and Hadley law firm in New York City. [3] Bill Jackson preserved this material carefully for decades but never shared it. Much later, the folder and its contents were entrusted to me. I will be donating it soon to the Library of Congress, for addition to Jackson's papers there.

Justice Jackson's essay on religion, the material that follows, covers two topics: (1) his religious beliefs and practices plus those of his ancestors, who were farmers in Warren County, Pennsylvania, where young Robert Jackson lived for his first five or so years before moving to and then growing up in adjacent Chautauqua County, New York; and (2) some history on Spiritualist movements in that western Pennsylvania and western New York State region. Unfortunately, Jackson did not explain in his draft how his views on religion were shaped by growing up in a landscape of such varied religious beliefs and practices, including Spiritualism. But the gist of his thinking seems clear enough: there are all kinds of people, religions, and beliefs, and the proper way to live is to give people space and to tolerate what they are and what they choose to believe and to practice in their spaces, so long as they do not intrude unduly on one's own.

Jackson's essay is significant in many respects. One is that it gives us--readers, scholars, historians--more of Robert H. Jackson. He is remembered, indeed revered, as one of the most interesting, thoughtful, and significant justices in U.S. Supreme Court history, in part because he is regarded as one of the Court's best writers ever. [4] In addition to his Supreme Court work, Jackson had a distinguished career as a lawyer: in private practice (1913-34); in President Franklin D. Roosevelt's administration, including as Solicitor General of the U.S. (1938-40) and Attorney General of the U.S. (1940-41); and, appointed by President Truman and absent from the Supreme Court, as the United States chief prosecutor of Nazi German war criminals in Nuremberg (1945-46). In each phase of his career, Jackson did his own work, perhaps most importantly his own writing. This essay thus is something special because it is more, and new, from a special voice that we were not expecting to hear--it is a first-person, late-life, deeply personal piece of Jackson.

This essay also is significant because it is Justice Jackson on religion, a topic of great significance across human history, in U.S. constitutional law, in every person's life, in numerous public issues and debates, and in major legal cases, including in the U.S. Supreme Court today.

As a Supreme Court justice, Jackson wrote many notable opinions addressing how the U.S. Constitution limits and empowers government in the realm of religion. In the landmark case of West Virginia State Board of Education v. Barnette (1943), Justice Jackson wrote the Court's opinion holding that the Constitution prohibits public school officials from compelling Jehovah's Witness schoolchildren to salute and pledge allegiance to the American flag. [5] For Jackson, that limit on government power to compel professions of faith was of a piece with his view that government constitutionally may prohibit religious proselytizers from harassing others, especially in their homes. [6] In Jackson's view, the Constitution bars government from ranking religions as more or less correct, or from evaluating the sincerity of professed adherents. [7] To practice any religion or none at all is for the individual to determine, separate from government imposition or even involvement. [8] Government has constitutional power to regulate religious actors only where their conduct imposes upon the freedom and peace of others.

The Robert Jackson essay that follows reveals that his personal views on religion and his own religious practices very much fit with his judicial interpretations of the Constitution. Jackson did not really believe in God or practice religion, but he was tolerant of others who did and how they chose to do so. He respected and deferred to the sincerity of people whose belief systems were not his, and which indeed seemed to him, on the outside of those beliefs, as at least irrational and even odd. In Jackson's living and in his constitutional judging, he gave religion its private space. He objected, however, and he read the Constitution as stating grounds on which to object, when government sought to bring religion into public spaces, which belong equally to people whose beliefs range from religious belief to non-belief (such as Jackson's own).

Justice Jackson's manuscript was, as he left it, still a draft and incomplete. He likely would have, with more time, expanded and polished it. Then he might well have published it, as he did other memoir-type articles during his final years, including a famous one in this Law Review. [9]

For this publication, I have made minor corrections of grammar and punctuation, corrected dates, filled in some date-blanks, and added the bracketed text and bracketed footnotes.

That aside, the unbracketed words that follow are all Jackson's.


I cannot remember any effort by either of my parents or any of my grandparents to instill in me any religious doctrine. There were several Bibles in the house, including some gruesomely illustrated. There were a few books on religious subjects [*]. Afar back the Jacksons, like many of the Scotch-Irish stock, had been Presbyterians and the early days in the [western Pennsylvania and Western Reserve] wilderness may have been colored by the gloomy teachings of [John] Knox and [John] Calvin. The Eldreds [the family of Jackson's father's mother] originally were of the Church of England school. But neither Presbyterians nor Episcopalians were strong in the regions where we lived and none of my family in my days at home was affiliated with any formal religious group. Not one of them was intellectually or emotionally committed to any denomination or dogma.

The organized religions of the region were in that time chiefly Methodist, Baptist, and various splinters of the evangelical order. Their sermons and services were often highly emotional and among my people there was plenty of sentiment but little sentimentalism. They had no time for fanatics of any breed, they distrusted extremists and hated hypocrites. Of all the pities they least knew self-pity, which often led to embracing of a faith. Moreover, the discipline of the prevailing Protestant denominations would have been intolerable to any of them. They were all moderately pleasure-loving. They danced the square dances of their day and loved the music of the fiddle [10] and the lively measures of the quadrille as well as the tones of the organ and the stirring measures of the hymns. They played cards some. They raced horses. They went to the few shows that were within their reach. All of these were sins in the eyes of the ostentatiously Protestant part of the community. And of course Catholic discipline or practice was alien to their habit and nature.

While we lived rather apart from the religious elements of the community we had no hostility to it, nor it to us, except I suppose we were pitied as unbelievers. Now and then some [family members] attended services, when it was convenient, but more in the nature of a social diversion than an exercise of religion. I cannot recall that I was ever "sent" or urged to go to Sunday School, but along with those of my age I attended the Baptist Sunday school, [11] mainly because its teachers included some I admired--and so did its choir. But it was all without submission to its discipline or commitment to its doctrinal teachings. [12]

But I was reared in an atmosphere of perfect respect for the religious views of others--or at least the respect for the personal right to have any religion one preferred...

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