And those who seek to change that relationship are neither "strict constructionists" nor faithful to the Constitutional heritage handed down to us by the Founding Fathers, who specifically enshrined this neutrality in the First Amendment. This legislation undertakes to reverse the two

landmark school-prayer decisions of the 1960's, Engel v. Vitale, 370 U.S. 421 (1962) and Abington School District v. Schempp, 374 U.S. 203 (1963). In Engel, the Supreme Court ruled that the recital of a non-denominational prayer by children before the start of each school day was unconstitutional. The following year, the Supreme Court, in Schempp, declared unconstitutional a program in which passages from the Bible and the Lord's Prayer were read in public schools. The fact that attendance at these functions was

not required and an excuse procedure provided, failed to
legitimize these activities. The Court recognized that
young children would be unable to withstand the subtle
(and often not so subtle) coercive pressures to conform
and participate. (See, Schempp, supra, at p. 208n.3.)

Ever since these landmark Supreme Court decisions, there have been a variety of plans and contrivances attempting to circumvent the legal strictures against prayer in public schools. For example, several attempts, including Congressman Becker's in 1963 and Senator Dirksen's in 1966 and 1967, were made to amend the Constitution to allow voluntary recitation of prayers in public schools. These attempts failed, largely because at the hearings on the proposed amendments, leaders of an overwhelming majority

of faiths and denomination: 2/ as well as the nation's leading Constitutional lawyers, voiced strong opposition to them.

Sections 11 and 12 of S. 450 (referred to as the "Helms Amendment") are the latest in this series of attempts to reintroduce prayers into the schools. This legislation is a blatant attempt to bypass the existing First Amendment cases outlawing public school prayer. By trying to remove the entire issue from the federal courts, the sponsors of this bill seek to accomplish that which they have failed to achieve through the Constitutional amendment process. It is indeed ironic that the sponsors of this legislation call themselves "strict constructionists" of our Constitution. It is these "strict constructionists" who strenuously object to Government interference with our rights in other areas, who now support Government interference with citizens' rights in this First Amendment realm.

The

"strict contructionist, " who pays lip service to the strict interpretation of the Constitution, who claims utmost respect for our Constitution, is eager to employ, when the

2/ Many of these leaders have again voiced their opposition to this legislation. See letter dated June 19, 1980, signed by representatives of the National Council of Churches; Lutheran Council, U.S.A.; Presbyterian Church in the U.S.; Baptists Joint Committee; American Ethical Union; United Church of Christ; The Episcopal Church; United Methodist Church; Church of the Brethren; Union of American Hebrew Congregations; Mennonite Central Committee; and our own organization, the Anti-Defamation League of B'nai B'rith.

political cause suits him, what Senator Mathias correctly labeled a "backdoor" approach to amending the Constitution, a method which is itself unconstitutional.

All of this is in

the name of "strict construction" and with the purpose

of putting prayers back into the schools.

This proposal, which is unconstitutional both

in its substantive purpose as well as in its procedural aspect, must be defeated. It must be defeated not only for itself and the danger it poses to fundamental First Amendment rights, but for the precedent it provides for the circumvention of other fundamental rights. This legislation, if adopted, becomes a precedent; it shows the route for those who would attack other Constitutional guarantees, but who cannot muster the votes and support required by the Constitutionally provided amendment process. This proposal threatens to undermine the finely tuned balance of powers between the three branches of government. If the federal courts are no longer to be the interpreters of the U.S. Constitution, and if the U.S. Supreme Court is no longer its ultimate arbiter, then the Constitution has no more worth than any other statute, and the amendment process will become superfluous. As the Department of

Justice stated in its June 16, 1980, opposition to this

bill:

"We believe it difficult to conceive of a more essential role for the Court than to preserve the unity of our constitutional law. If the "Helms amendment" were enacted and found constitutional, this unifying function so central to the preservation of federalism would be destroyed in one class of cases, and instead of the one "supreme

law of the land" envisioned by the Framers, see
U.S. Const. Art. VI, § 2, we would have

potentially differing views of what the

Constitution requires. Once such a precedent were established, Congress could presumptively rely on it to divest all federal courts of jurisdiction over other classes of cases raising both controversial issues and touching on fundamental civil liberties of all citizens. We believe that the "Helms amendment" is unconstitutional because it impinges on the essential role of the Supreme Court to pass on the constitutionality of state acts and thereby to maintain the unity and supremacy of the Constitution itself."

Surely this Committee, which is a guardian of

the Constitution, would not want to see the Constitution thus opened to the popular political wave of the moment by this statutory mechanism, which avoids the Amendment process. As Senator Mathias stated in the Senate floor debate:

"One of the great strengths of the American system is that we have not allowed the organic law of the Nation to be pulled and hauled with each ebb and flow of the tide of public opinion. That is exactly what we would be doing if we passed this amendment." Cong. Rec., April 9, 1979, S. 4142.

The Helms Amendment permits rights guaranteed

in the Constitution, including the Bill of Rights to be changed by statute. That cannot be acceptable under our system of Constitutional government. The Helms Amendment is a short-cut through the Constitution. does not honor it. It denigrates it. It is a dangerous precedent which, if successful, would chart the route for,

It

and indeed invite, new

nfringements on our basic rights

by special interest groups and champions of transient causes, who are convinced that they have heard or know the "Word of God" and that the law must make all Americans comply with their version of what is right or what conduct is proper.

All of that aside, the Helms Amendment is un

constitutional.

We recognize that Congress has some

authority to alter the jurisdiction of the federal courts, as shown by the other provisions of S. 450. However, never before has Congress legislated that the federal courts cannot interpret the provisions of the U.S. Constitution, most particularly any portion of the Bill of Rights, where no other avenue of court relief is available. That is exactly what Sections 11 and 12

would do. They would preempt the Establishment Clause of the First Amendment insofar as school prayer is concerned. Such an action by Congress would be unprecedented. No such attempt has ever become law.3/

Supporters of the Helms Amendment cite Ex parte McCardle, 74 U.S. 506 (1868), as precedent for their

proposal's constitutionality.

In McCardle, the Supreme

Court upheld the power of Congress to make exceptions to its jurisdiction.

However, McCardle is very different

from the case before us now. There, a civilian held under

3/ See letter from Attorney General Bell to Chairman Ribicoff, April 9, 1979, reprinted Cong. Rec. April 9, 1979, S. 4145 (Col. 1).