Getting to Know Supreme Court Justice David J. Brewer:

David Josiah Brewer

January 20, 1837- March 28, 1910

Associate Justice of the U.S. Supreme Court from December 18, 1889 to March 28, 1910 when he died of a heart attack.

He was born of American parents in Turkey (Smyrna, Asia Minor [modern Turkey]) where his Father was a Congregationalist Minister and Missionary. His father was there to convert Jews to Christianity. He was a lifelong member of the Congregational Church and active in missionary work. At one point, he was on the board of directors of Washburn University in Kansas which was a Congregationalist college. He didn't attend meetings regularly but apparently did attend some. His uncle (Stephen J. Field) was on the Supreme Court at the same time he was and together they made up the ultraconservative wing of the court.

As a supreme Court Justice, he is today largely forgotten. He fits into the "Average" category on most lists ranking Supreme Court Justices. That isn't a raving endorsement of his performance as a justice considering he was on the high court for slightly over twenty years.

He has been described by at least one person as a racist. He was also described as writing a great deal but that he wrote more out of a desire for quantity rather than quality. (To be fair it has to be pointed out that racism was not exactly uncommon in this country, even among leaders of this country, during that time period. His actual record on the court in matters of race was rather mixed.)

His uncle wrote the opinion for another case that David Barton likes to cite in his books and on his tapes--Davis v Beason. That case was argued 8 days before Brewer was confirmed as a member of the high Court, and was decided two months later. It is unlikely that Brewer had any official input to that case since he hadn't been confirmed yet but he might have had discussions with his uncle over it. In his case summary, legal analyst, Paul L. Murphy wrote:

Davis v. Beason, 133 U.S. 337 (1890) was argued December 9-10, 1889, and decided February 3, 1890 by vote of 9 to 0; Field writing for the Court. Davis v. Beason interpreted free exercise of religion narrowly and inconsistently. Idaho had enacted a territorial statute denying the vote to those who advocated or practiced plural marriage or belonged to an organization that did. Samuel B. Davis and a number of non-polygamous Mormons, after trying unsuccessfully to vote in the 1888 election, sued. The Idaho court treated their disenfranchisement solely as a political question. On appeal, the U.S. Supreme Court upheld the statute as within the territorial powers of the legislature to set voter qualifications. The justices held that religion was a matter of belief, which was constitutionally protected but that conduct was outside the purview of the First Amendment. The Court then defined polygamy as conduct rather than religious belief. Using the Idaho statute as a soapbox for a diatribe on polygamy, Justice Stephen J. Field concluded that "crime is not the less odious because sanction by what any particular sect may designate as religion" (p.345). The preservation of a monogamous family unit was more important to American society than religious liberty for believers in polygamy. "Religion" was defined solely as having reference to one's view of relations with the creator and to the obligations they imposed.

Source of Information:

The Oxford Companion to the Supreme Court of the United States, edited by Kermit L. Hall Oxford University Press. (1992) pp. 220.

Brewer sprinkled religion throughout his writings, speeches and on occasions his opinions. In lectures at Washburn University and other places, he frequently claimed that our nation was founded upon the teaching of Christ.

He apparently fully believed that Jesus taught that the individual was primary and the state, secondary. Therefore the power residing in the people comes from Christ's teaching thus making the Constitution and our nation a Christian Nation based on a Christian Constitution.

He authored the opinion in Holy Trinity in 1892, but afterwards in speeches he would often declare that the Supreme Court had declared this to be a Christian Nation. (He had authored the opinion that declared it a Christian Nation, but would make the claim as if being author of that decision was totally another entity separate from himself.)

In 1893 in Fong Yue Ting v United States in his dissent he complained: "In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, why do they send missionaries here?"

A series of three lectures by him were published as a book published as The United States: A Christian Nation, by David Brewer, Associate Justice of the Supreme Court of the United States. The book was published in 1905. The lectures, converted to chapters, are titled:

I. The United States: A Christian Nation

II. Our Duty As Citizens

III. The Promise and the Possibility of The Future.

Brewer was one of the first of a very few people who have tried to weave and build a case for the words "Sunday Exempted" in the section of the Constitution laying out vetoes. He claims that this is proof that the Constitution is based on Christianity and cites several state constitutions of that time period which contain the words "Sunday exempted" as further evidence. (The Rev Jasper Adams appears to have been the first to advance this argument in his sermon and then published a pamphlet titled The Relation of Christianity to Civil Government in The United States, February 13, 1833.) There are few, if any, modern scholars who try to build a case on those words; but Brewer does in his 98 page booklet based on the three lectures he gave at Haverford College in 1905. (For more information on "Sundays Excepted," please see The "Sundays Excepted" Clause.)

Here are a few things he says:

We classify nations in various ways as, for instance, by their form of government. One is a kingdom, another an empire, and still another a republic. Also by race. Great Britain is an Anglo-Saxon nation, France a Gallic, Germany a Teutonic, Russia a Slav. And still again by Religion. One is a Mohammedan nation, others are heathen, and still others are Christian nations.

This republic is classified among the Christians nations of the world. It was formally declared by the Supreme Court of the United States. In the case of Holy Trinity Church vs. United States, 143 U.S. 471, that court [meaning himself], after mentioning various circumstances, added "these and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."

But in what sense can it be called a Christian nation? Not in the sense that Christianity is the established religion or that people are in any matter compelled to support it. On the contrary, the Constitution specifically provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' Neither is it Christian in the sense that all of its citizens are either in fact or name Christian. On the contrary, all religions have free scope within our borders. Numbers of our people profess other religions, and many reject all. Nor is it Christian in the sense that a profession of Christianity is a condition of holding office or otherwise engaging in public service, or essential to recognition either politically or socially. In fact, the government as a legal organization is independent of all religions.

Nevertheless, we constantly speak of this republic as a Christian Nation--in fact, as the leading Christian Nation of the world. [Editor's note: In 1905 we were not thought of, at home or abroad, as a world power or leading nation in any real sense or area.] This popular use of the term certainly has significance. It is not a mere creation of the imagination. It is not a term of derision but has substantial basis--one which justifies its use. Let us analyze a little and see what is the basis.

Source: The United States A Christian Nation, by David J. Brewer, Associate Justice of the United States Supreme Court, The John C. Winston Company (1905) pp 11-12 .

From the bottom of page 12 to the end of the booklet at page 98 he proceeds to show how, in his opinion at least, this is a Christian nation.

The Reverend Jasper Adams seems to have created the style of presenting his case in the sermon/pamphlet that was given and published in 1833 (The Relation of Christianity to Civil Government in the United States). That style, which was followed by David Brewer, still seems to be the style of choice by those like David Barton and others.

That style begins with all the original charters for the colonies then moves to various clauses in the first state constitutions. From there, it manages to proceed to the federal constitution. More likely than not, there will be included a number of old state court cases, and frequently some comments thrown in by members of state government and/or federal government.

That style of argument has its opposite, but that is never mentioned. By opposite, I mean describing how the various unions between religion and government that had existed in those original charters were weakened or eliminated by the time the first state constitutions were framed. Nor is there any mention that there was further breaking or weakening of surviving unions as various states revised their constitutions during the next fifty years or so. Neither is there mention of the ultimate ending of religion government unions that the federal Constitution, either unamended and with its Bill of Rights created. There is also have no mention of any court cases that denied the Christian nation concept or that our laws were based on any common law-Christianity connections. There are no quotes by state or federal government members that would not agree with the Christian Nation idea.