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only means open to us is to abstain from introducing any religious element in the curriculum. Only thus can we secure for the child the guarantee of the first amendment that the Congress shall make no law prohibiting the free exercise of religion. By introducing prayer in the public schools there is a coercive, compulsive, or at the very least a subtly persuasive form of religion which violates the constitutional "free exercise thereof."
For that period of time that the religious prayer is recited in the school, the school becomes a house of worship. To that house of worship we would, under our system of compulsory education, be sending our children willy-nilly. On the American scene religion has always been and should always be a voluntary right in every sense of the word, not to be abrogated for any period of time, however brief.
This concept of the captive child, it seems to us of the United Synagogue, lies at the heart of the Supreme Court's decision, as it lies at the very core of religious freedom. We feel that our children should be taught religion; the Old Testament enjoins us, "These words, which I command thee, shall be upon thy heart; and thou shalt teach them diligently unto thy children." But those children should be taught God's words where alone such teaching can be of value in a free atmosphere devoid of any hint or taint of coercion, at a time and place of the parents' own choosing, in a form and manner acceptable to the family's religious convictions. Religion must be taught always to a free child, never to a captive child. In the language of the Constitution, the child must be able to pray in the free exercise of his religious rights. He must never pray where governmental authority has told him he must.
The United Synagogue of America earnestly prays that no legislation will be enacted by the Congress which will in any way compel or threaten to compel the children of America to worship in Government agencies or under the aegis of temporal authority. The religious training of American children should be permitted to flourish in church, synagogue, and home, where it belongs. Religion cannot become, however remotely, an arm of Government.
STATEMENT ON PROPOSED AMENDMENTS TO THE U.S. CONSTITUTION CONCERNING
PRAYERS IN PUBLIC SCHOOLS, SUBMITTED TO THE SENATE COMMITTEE ON THE JUDICIARY BY 110 DEANS AND PROFESSORS OF LAW AND POLITICAL SCIENCE AT AMERICAN UNIVERSITIES
In our Nation the Constitution is the supreme law of the land and the Supreme Court is the tribunal to which has been committed the responsibility for the final interpretation of its provisions. As a people committed to the rule of law we are obligated to comply with the restrictions imposed upon us by the Constitution as interpreted by the Court, whether or not we agree with the constitutional provision or its interpretation. The people of the United States, of course, have it within their power to change the Constitution by amending it in accordance with its terms, and the recent decision of the Court in the case of Engel v. Vitale (370 U.S. 421), invalidating public school sponsored recitation of prayer has given rise to proposals to amend the Constitution, and specifically the first section of its Bill of Rights, to authorize such recitation.
We express our strong opposition to any tampering with the Bill of Rights. We believe the decision of the Supreme Court to be required, not only by its prior decisions interpreting the first amendment, but by the cause of religious freedom and the welfare of all Americans as well.
It is not the Supreme Court's decision but the action of State authorities in sponsoring public school recitation of prayer that is truly hurtful to religion. It is unreal to expect that an appreciation of religious values can be communicated to our children by the rote recitation of formalized prayer in public school classrooms. Whatever is good and meaningful in prayer must inevitably be lost by its mechanical repetition in an atmosphere devoid of the religious spirit which only the home and church can provide.
If the prayer selected by State authorities for public school recitation is taken from the liturgy of one faith, the action is unfair to and a violation of the religious freedom of children adhering to other faiths. If it is formulated so as to appear nonsectarian, as in the case of the New York regents' prayer, it not only infringes upon the rights of those affiliated with no religious body, but it poses the danger of the establishment of a new, public school religion which, in seeking to be least offensive, will succeed only in being least meaningful, and yet most pervasive.
The first amendment's guarantee of religious freedom and the separation of church and state has during its history of almost a century and three-quarters thrown its mantle of protection at one time or another over many religious groups. There is indeed no American to whom it has not directly or indirectly secured the blessings of liberty. Every individual and every group in our Nation has a great stake in its preservation.
Since the adoption of the first amendment, the United States has escaped much of the bitter religious conflict and sectarian strife that have divided other nations of the world and driven men to violence and bloodshed. That good fortune has been due in no small part to two of the truly great contributions the American people have made to Western civilization : the concept of the separation of church and state and the free public school system. The first, by pro tecting religion against the intrusion of civil authority and by making it impossible for the state to become a battleground for sectarian preference and favor, has preserved both our political freedom and our religious freedom. The second, by providing for the education of our children on terms of complete equality and without cognizance of their differences in religious beliefs or disbeliefs, has been the cornerstone of our American democracy. The intrusion of religion upon the public school system both threatens the separation of church and state and challenges the traditional integrity of the public schools. That intrusion, if permitted, will greatly endanger the institutions which have preserved religious and political freedom in the United States and have prevented religious warfare in this Nation. The decision of the Supreme Court in the Regents' Prayer case has warded off that threat. It would be tragic if the beneficial effects of that decision were nullified by any tampering with the Bill of Rights. Respectfully submitted.
Benjamin Aaron, University of California ; Henry J. Abraham, Uni
versity of Pennsylvania; Norman Abrams, University of Cali-
College; Quincy Wright, University of Virginia.
Eric E. Bergsten, State University of Iowa; Donald E. Boles, Iowa
State University ; Arthur E. Bonfield, State University of Iowa ;
July 26, 1962.
DEAR MR. CHAIRMAN: I will appreciate it very much if you will have the attached letter written to me on July 1, 1962, by Mr. H. Larry Ingle inserted in the record of the hearings upon the resolutions which are designed to modify the interpretation placed by the Supreme Court in Engel v. Vitale on the establishment of religion clause of the first amendment. I make this request pursuant to a promise made by me to Mr. Ingle.
In so doing, however, I am constrained to say that the inference of Mr. Ingle that I had not read the opinion of the Court before I made comments upon the same lacks validity. It is of course possible, as Mr. Ingle infers, that I do not always understand what I read. Be this as it may, I do feel constrained to say that my interpretation of the majority opinion does not coincide with Mr. Ingle's.
In my judgment as a lawyer, there was really no necessity for the Court to have handed down any decision whatever in this particular case. Since the regulations of the school authorities in New York did not require the plaintiffs or their children to participate in the saying of the prescribed prayer, the Court ought to have refused to take jurisdiction of the case on the grounds that the plaintiffs had no legal interest entitling them to raise the question decided.
The action of the Court in making an adjudication merely indicates what I conceive to be an unfortunate tendency of a majority of the members of the Court as it is now constituted-a tendency which all too often prompts a majority of the Court to embrace every conceivable opportunity to make decisions on constitutional questions in lieu of following the salutary rule of all other courts to refrain from making decisions on constitutional questions unless such decisions are absolutely required. Sincerely yours,
SAM J. EBVIN, Jr.
WRIGHTSVILLE BEACH, N.C., July 1, 1962. Hon. SAM J. ERVIN, JR., Senate Office Building, Washington, D.C.
DEAR SENATOR ERVIN:I was shocked and dismayed by your comments on the Supreme Court decision in Engel v. Vitale, reported on pages 10874 and 10875 of the June 26 Congressional Record. What was even more astounding is that many of us believe you to be a leading constitutional authority. Yet your statements indicated that you, like most of your colleagues in both Houses of Congress, had not read, or at least understood, the majority opinion in this case before you spoke about it.
The Supreme Court did not in its decision segregate God, as your statement averred; it merely asserted that the State of New York could not officially write or require to be said any prayer. The decision does not relate to speaking of God at public occasions, but of the unconstitutionality of a State requiring religious, qua religious, exercises. The decision was thus not opposed to prayer, to God, to religion, or to the best interests of the country. It does militate against the establishment of a religion by degrees, for once the legitimacy of a required nonsectarian prayer is recognized, a sectarian prayer would be the next step. This is one of the prices we pay for having a doctrine of church-state separation.
As a historian, I would like to clear up one other misstatement: Although Franklin did propose that the Constitutional Convention should pray, no action was taken on his resolution. At least some of the delegates, including Hamilton, spoke against the need for any “foreign intervention.” You may check my facts in Van Doren, "The Great Rehearsal," pages 101 and 102; Warren, "The Making of the Constitution," page 251 ; and Farrand, "The Framing of the Constitution," page 94.
Finally, Senator Ervin, as an active member and deacon in the Presbyterian Church and as an American citizen, I applaud the decision in Engel v. Vitale. I would suggest that the best interest of religion will better be served when it relies upon the voluntary adherence of individuals to its doctrines. I would sincerely question that religion, religion, that is, which is best shown in the lives of believers, can be instilled by a process of rote. Prayers may be a good way to begin a school day, but their impact would certainly be better for all concerned if they came from the individual rather than the state.
I hope therefore that you will use all your influence to oppose any constitutional amendment to water down our time-tested doctrine of church-state separation.
I would appreciate it if this letter could be incorporated in any hearings which the Senate Judiciary Committee might hold on proposed constitutional amendments concerning prayer in public schools. With all good wishes, I am, Yours sincerely,
H. LARRY INGLE, Assistant Professor, Social Science Department, Wilmington College.
U.S. SENATE, COMMITTEE ON BANKING AND CURRENCY,
August 11, 1962, Mr. L. P. B. LIPSCOMB, U.S. Senate, Judiciary Committee, Washington, D.C.
DEAR MR. LIPSCOMB: I shall appreciate your kindness in including in your published hearings on the New York Prayer case of Engel v. Vitale the enclosed statement that I made on the floor of the Senate. With best wishes, I am, Sincerely yours,
A. WILLIS ROBERTSON. [From the Congressional Record, Aug. 10, 1962]
AN ESTABLISHMENT OF RELIGION Mr. ROBERTSON. Mr. President, as soon as I learned that the U.S. Supreme Court in the now celebrated New York Prayer case of Engel v. Vitale had held that a 22-word nonsectarian prayer, prepared by the joint action of Protestants, Catholics, and Jews in the State of New York and promulgated by its State board of regents for use in public schools on a voluntary basis, violated the first amendment, I said on the floor of the Senate that the Supreme Court had misconstrued that amendment.
Subsequently, in testimony before the Senate Judiciary Committee, I contended that the amendment should be construed in the manner intended by those who framed it and, to that end, I quoted Thomas Jefferson as saying in a 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."
At that time Jefferson was complaining of the position taken by Chief Justice John Marshall that the Supreme Court had the power to nullify State laws. Jefferson claimed, and of course correctly so, that no such power was definitely granted the Supreme Court by the Constitution and that if the Supreme Court would interpret the 10th amendment in the spirit manifested by the ratifying States it would have to give the States the benefit of all possible doubts on all Federal powers not specifically delegated to the Federal Government by the Constitution. And so at the outset of the decision of the Supreme Court in the New York Prayer case we have jurisdiction to invalidate a State law, concerning the use of a prayer in public schools, taken by a Federal court purely by assumption and not through any authority delegated to it by the Constitution itself.
The next step taken by the Supreme Court in violation of the 10th amendment was in holding that the 14th amendment automatically related to the States all other amendments to the Constitution including the Bill of Rights. That again is a pure assumption of power, because those who framed and adopted the 14th amendment were dealing exclusively with the future protection of the civil rights of those in the Nation who but recently had emerged from slavery.
The third step taken by the Supreme Court in violation of the 10th amendment in the New York Prayer case was when it deliberately distorted the meaning of the 1st amendment. Even if it be conceded that the "due process" clause of the 14th amendment automatically related the 1st amendment to State acts, the 14th amendment could certainly put nothing in the 1st amendment that was not placed there by those who framed it.
In my testimony before the Senate Judiciary Committee in connection with an effort in the U.S. Senate in 1854 to abolish the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Con