Senator SCOTT (continuing). May I address this to you. It is on something else that I would like to know about that deals with this subject.

If this Congress should act, it would come at a time when almost all State legislatures are in session; namely, in an odd-numbered year, 1963. If, however, we pass 1963, that situation will only be true of three States which will be holding regular sessions of their legislatures in 1964, and again with the exception of certain States that meet annually, but not many of them. I am not sure, but I think Virginia, New Jersey, maybe Alabama; just a few meet.

Senator STENNIS. Yes, sir.

Senator SCOTT. I would appreciate your reasoning on that.

Senator STENNIS. I would think that is a matter that should be considered. It should be weighed, but I do not think it is really controlling. There must be the beginning of some sound expression.

I thank you. I am concluding in deference to the Senator from Virginia who has two conferences to attend.

Senator HART. This is not in the broader field of general policythis relates to the wording in Senate Joint Resolution 206 which you introduced for yourself and several other distinguished Members of the Senate. You propose that we amend the Constitution to provide that it shall not be construed to prohibit nondenominational religious observances through prayers, et cetera.

Senator STENNIS. Yes.

Senator HART. Who would determine whether a practice was nondenominational?

Senator STENNIS. That would be a practical and a legal questiona practical question for the drafters to decide first and a legal question for the courts. What I was really striking at there was trying to cover the activity that has been banned.

Senator HART. My purpose is to raise the question as to the wisdom of making it by the Supreme Court.

Senator STENNIS. They are pretty good at passing on everything else.

Senator JOHNSTON. Just one question, Senator Stennis. When the Supreme Court is deciding a case, they decide it upon the question before the Court; is that not true?

Senator STENNIS. Correct.

Senator JOHNSTON. The question before the Court in this particular case, the Engel case, was whether or not the Board of Regents of New York State could tell the schools what prayer they could pray when they were going to pray in the schools; is that not true?

Senator STENNIS. That is generally true, yes.

Senator JOHNSTON. That was the question before the Court, whether or not the board of regents could do that; is that not true?

Senator STENNIS. The board of regents composed an optional prayer. It was optional with the local boards, as I understand it.

Senator HRUSKA. Will you yield?

Senator JOHNSTON. Yes.

Senator HRUSKA. As the first words of the opinion reflect, however, the local school board in this instance directed the principal of the school to see that the prayer was said aloud by each class each morning. Senator STENNIS. That is what I have understood the facts to be.

Senator HRUSKA. I think it is important for our purposes to note the language in Justice Black's opening paragraph:

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, N.Y., acting in its official capacity under State law, directed the school district's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day.

Senator STENNIS. I understood that the local board directed it.
Senator HRUSKA. Exactly.

Senator STENNIS. The local board directed the prayer to be held.
Senator HRUSKA. Right.

Senator STENNIS. The State board composed and approved the prayer.

Senator HRUSKA. Which they recommended.

Senator STENNIS. Yes, and sent it on down, and then the local board decided whether or not the teacher would use it.

Senator HRUSKA. So the question before the Court related to the direction of a specific prayer by the local board of education of a particular school-that was the question.

Senator STENNIS. Yes, I think that is what it comes to.

Senator HRUSKA. That board gave the direction.

Senator STENNIS. It makes no difference whether it is the State board that requires it, or the local board, or as I said earlier whether the teacher requires it. In any case it will be under the same ban. That is so, I think, because the teacher represents the State.

Senator JOHNSTON. Just one further question. That was the only question before it-being the only question before the Supreme Court, and nothing else but the Supreme Court did go all over the world on it and that is what brought about this confusion, did it not?

Senator STENNIS. I think a great deal of it lies there. I think the actual holding is as you have said.

Thank you.

Senator JOHNSTON. Thank you.

The next witness is Senator A. Willis Robertson, of Virginia.
We will be glad to hear from you now, Senator.

STATEMENT OF HON. A. WILLIS ROBERTSON, U.S. SENATOR FROM
THE STATE OF VIRGINIA

Senator ROBERTSON. Mr. Chairman and members of the committee, I welcome the privilege of appearing before this great committee on one of the most vital issues that has been presented to our Nation since Thomas Jefferson sponsored his bill for religious freedom in Virginia. You will recall, of course, that Mr. Jefferson was a great President and accomplished many things, but he only asked that he be remembered for three, and one of them was that he was the author of the bill for religious liberty in Virginia.

I propose to explain to you what that bill meant. I propose to explain to you what the first amendment, based upon the proposals of James Madison, meant and to indicate to you that this decision was a bad decision.

Now, Mr. Chairman, the time is growing late, you have a lot of witnesses, and I have an engagement to present two conference reports on an appropriation bill to the Senate. One of them appropriates about $6 billion, and in these days that is not considered much, but

the other one appropriates $48 billion and that is still a considerable amount of

money.

With the consent of this committee I ask that my prepared statement appear in the record, and that I be permitted to hit what I think are a few of the highlights of what is involved here.

Senator JOHNSTON. This is the statement that you have in mind? Senator ROBERTSON. That is the one.

Senator JOHNSTON. It shall become a part of the record, hearing no opposition.

(The prepared statement of Hon. A. Willis Robertson follows:)

[For release July 26, 1962]

STATEMENT OF SENATOR A. WILLIS ROBERTSON, DEMOCRAT, OF VIRGINIA

THE NEW YORK PRAYER CASE

Mr. Chairman, few Supreme Court decisions have raised more controversy than Engel v. Vitale, the so-called New York Prayer case.

On June 25 of this year, the Supreme Court, by a 6-to-1 majority, held unconstitutional the daily recitation in New York public schools of a short prayer composed by the State board of regents and adopted by a local school board.

As my following remarks indicate, I believe that the decision misconstrues the 1st and 14th amendments to the Constitution. Some sincere clerics have been misled by the mistaken claim that the New York Prayer case involved the separation of church and state. What the decision really does, as recently pointed out by Bishop Pike of California-an able lawyer as well as a distinguished cleric is to deconsecrate our National Government. Accordingly, Engel v. Vitale has broad implications for every American citizen. Unless the decision is nullified, it could help to undermine the religious traditions which we inherited from our ancestors, and which we should pass on to posterity.

ANALYSIS OF THE DECISION

This is the text of the prayer involved in the Supreme Court's controversial decision:

"Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our country."

No local school board was required by the New York State Board of Regents to prescribe this or any other prayer for recitation in its classrooms. But each local school board could, if it wished, prescribe the prayer for its own students. Recitation by the students was voluntary. Any child could remain silent. Or, with the written consent of his parent or guardian, a student could be excused from class during the prayer.

Nevertheless, parents of 10 pupils (not in New York City where the prayer is not used) challenged the constitutionality of the State law authorizing the use of the prayer in the public schools of the State of New York and the local board's regulation requiring its recitation. Their challenge was based on the ground that, "these actions of official governmental agencies violate that part of the 1st amendment of the Federal Constitution which commands that 'Congress shall make no law respecting an establishment of religion'— -a command which was 'made applicable to the State of New York by the 14th amendment of the said Constitution'" (Engel v. Vitale, U.S. Supreme Court, October term, 1961, p. 2).

The Court accepted this contention. It did so despite the fact that the prayer was nondenominational, that it did not establish a church, and that its recitation was voluntary.

A DEPARTURE FROM TRADITION

The first amendment to the Constitution states in part that:

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ***”

In order to interpret the Constitution properly, one must determine what the members of the Constitutional Convention and of the ratifying conventions had in mind when they discussed and adopted our Constitution.

Thomas Jefferson discusses the need for this type of approach in his letter to William Johnson of June 12, 1823:

"*** The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states: to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed * * * on every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed * * *.”

Or according to Justice Stewart in his dissenting opinion in Engel v. Vitale: "What is relevant to the issue here is *** the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our Government" (supra, p. 2).

A. The Founding Fathers

After being buffeted for months on a cold and hostile Atlantic Ocean the Virginia colonists reached Cape Henry on April 26, 1607. Before going up the James River where they would be better protected from Spanish attack they went ashore at Cape Henry and knelt and worshiped. There they built a cross which is still maintained. When the settlers arrived at Jamestown, the first permanent building they erected was a church.

While the Virginia settlers were not as much influenced in coming to Virginia by problems of religious freedom as were the settlers in Massachusetts they were strongly affected by religion. They had received substantial support from the officials of the Church of England. They brought a minister with them and one of their earliest efforts was to Christianize the Indians. They built a church school at what is now Richmond for that purpose.

James Madison and Thomas Jefferson were strong exponents of religious freedom and the separation of church and state. In fact, largely through their efforts, Virginia became the first State to achieve the blessings of both. For Madison and Jefferson, however, the proposition that church and state should be separate did not imply that church and state should be antagonistic. And that is the dangerous implication of the Court's decision in the New York Prayer case.

On June 26, 1962, I inserted in the Congressional Record the text of a speech on "Madison's Contributions to Religious Freedom" which I delivered last year. In this speech I discussed Madison's "Memorial and Remonstrance" of 1784 which was directed against a proposal advanced by Patrick Henry in the Virginia House of Delegates to provide, through assessments, for teachers of the Christian religion.

But the argument of Madison against the use of State funds to subsidize religion cannot logically be interpreted as an objection to giving the Deity public recognition. In fact, Madison concludes his "Memorial and Remonstrance" with the following words:

"We, the subscribers, say that the general assembly of this Commonwealth have no such authority. And in order that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it this remonstrance earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act which would affront His holy prerogative or violate the trust committed to them; and, on the other, guide them into every measure which may be worthy of His blessing, redound to their own praise, and establish more firmly the liberties, the prosperity, and the happiness of the Commonwealth." [Italic added.]

A man like Madison who ends his plea against State subsidy of religion with a prayer would certainly not have objected to the use of a voluntary, nonsectarian prayer as a daily exercise in public schools. Madison's position is clarified still further by his membership on a joint committee to determine the manner of appointing chaplains for Congress and by his approval as President of statutes authorizing compensation for the chaplains of both Houses of Congress and of the Armed Forces.

Thomas Jefferson was the author of the bill which in 1785 established religious freedom in Virginia. But his position on religious freedom did not extend in any way to a prohibition on the recitation of prayers in the schools.

Jefferson, in fact, founded the University of Virginia as a tax-supported educational system on State property. While rector of the university, Jefferson submitted to the board of visitors the following regulations, which James Madison, a member of the board, approved:

"One of [the] * * * * rooms on [the] * * middle floor [of the Library] shall be used for annual examinations, for lectures to such schools as are too numerous for their ordinary schoolroom, and for religious worship * * *.” Our heritage abounds with public expressions of a belief in and a reliance upon God. George Washington said in his farewell address that:

"Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

John Adams, speaking to the militia of Massachusetts in 1798, observed that: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

We find public expression of reliance upon divine providence again and again, over the years, in the Mayflower compact (1620), the Declaration of Independence (1776), the constitutions of all but one of the States (beginning in 1776), the national anthem (1931), the Pledge of Allegiance to the Flag (1954), and the national motto inscribed on our currency (1956).

The Supreme Court, which struck down the New York prayer, has traditionally opened each session with the supplication: "God save the United States and this honorable Court." On the south wall of the Senate Chamber we find the phrase "In God We Trust"-and on the east wall the words "Annuit Coeptis," that is, "He has smiled on our undertakings." Every President upon assuming office has prayed for the help and protection of God.

B. The Northwest Ordinance

The Northwest Ordinance was passed by the Continental Congress in 1787 to provide for the government of the territory encompassed by the Mississippi and Ohio Rivers and the Great Lakes.

According to Canon Stokes in "Church and State in the United States": "This ordinance embodied in permanent form, and for the whole of the Northwest Territory, the provisions of the act passed May 20, 1785, by the Continental Congress disposing of western lands and ordering the rectangular system of townships. This policy was begun the following year, in what is now the southwestern section of Ohio. Under these provisions*** Lot No. 29 [of every township was set aside] for the support of religion.* * *” (vol. I, Anson Phelps Stokes, p. 481).

On August 7, 1789, the First Congress-and, I might add, the same Congress which proposed the first amendment-passed an act making certain changes of an administrative nature in the Northwest Ordinance, "in order that the ordinance *** may continue to have full effect" (1 Stat. 50–53).

The Northwest Ordinance as passed by the Continental Congress and affirmed by the First Congress provides in article III:

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged * * *”

This article would seem to imply that although no particular religious sect was encouraged to the detriment of other sects, nevertheless, religion in the general sense of the term, by the clear implication of article III, was recognized in the schools.

The provisions of the Northwest Ordinance regarding religion served as models in the drafting of the constitutions of many States, particularly for States which were a part of the territory itself.

For example, the Constitution of Ohio provides in section 3, after certain provisions establishing freedom of religion :

"*** But religion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience."

THE NEW YORK REGENTS' PRAYER NOT AN ESTABLISHMENT OF RELIGION

Mr. Justice Douglas, who delivered the majority opinion in Zorach v. Clauson, 343 U.S. 306 (1952), demonstrated a far greater understanding of American tradition in this case than he did in Engel v. Vitale. He asserts in Zorach v. Clauson: