Mr. TALMADGE. If we do not take such an oath addressed to God, to whom can it be addressed?

Mr. ROBERTSON. It would have no validity if it were not addressed to God. That is the essence of our country. That is what we are talking about. Yet there are those who want us to deny that our Government has anything to do with God. While we do not want to put Government into religion, we do not want to take every vestige of religion out of Government.

Mr. TALMADGE. Does the Senator share my view that this decision was so monumental that it rocked the very cornerstone of the creation of our Republic?

Mr. ROBERTSON. I never in my experience saw such a violent reaction as followed this decision. It has aroused more discussion by more Members of Congress than any other decision. It was the first time in the history of our country, so far as I know, that a member of the Supreme Court tried to defend the decision after it had been delivered.

Mr. TALMADGE. If a prayer by the schoolchildren of New York addressed to Almighty God is unconstitutional, would not the Senator think that our oath of office as Senators is unconstitutional?

Mr. ROBERTSON. We would have no right as Senators to propose that kind of oath.

Mr. TALMADGE. Is not the same principle involved?

Mr. ROBERTSON. Certainly. We might as well, then, take an oath on the volume of hearings of the Agricultural Appropriation Act. It is a bigger volume than most Bibles.

Mr. TALMADGE. The same principle is involved; namely, the existence of a Supreme Being.

Mr. ROBERTSON. That is the whole essence of it.

Ever since we became a nation and ever since we became free of the domination of the mother country, we have acknowledged that there is a God and that we depend upon Him. We have a form of government based upon the Holy Word.

Mr. TALMADGE. Is it not true that the Supreme Court has taken jurisdiction of a case that originated in Pennsylvania regarding the reading of the Bible in school classes?

Mr. ROBERTSON. I understand it has.

Mr. TALMADGE. Is it not true that the Supreme Court has taken jurisdiction of a case which originated in Maryland which also involves the same question? Mr. ROBERTSON. Yes. This case also involves the recitation on a voluntary basis of the Lord's Prayer.

Mr. TALMADGE. Is it not also true that the same type of case is in the process of being appealed to the U.S. Supreme Court from the Supreme Court of the State of Florida?

Mr. ROBERTSON. That involves, in addition to the reading of the Bible and the Lord's Prayer, the use of religious paintings and hymns, and celebrations on religious anniversaries, such as Christmas and Easter.

Mr. TALMADGE. Is it not further true that the Supreme Court does not normally take jurisdiction of cases on certiorari unless it intends to overrule the lower court?

Mr. ROBERTSON. If the Supreme Court feels that the lower court was right, they do not usually grant certiorari. When they do grant certiorari, they feel that there is something in the decision which justifies taking a look at it. In the New York case they reversed the decision of that State's highest court. We do not know what the Supreme Court will do next.

Mr. TALMADGE. If they did what their decision presages? It would remove all the chaplains in the armed services, the Pledge of Allegiance to the Flag, the word "God" in "The Star-Spangled Banner," and everything else that the American Republic has held dear throughout the history of our country.

Mr. ROBERTSON. That is the clear implication of the concurring opinion of Mr. Justice Douglas. He said that if the New York decision were carried to its logical conclusion, some 19 other religions' well-established practices would be unconstitutional. We could not have a chaplain to open the Senate with prayer; chaplains could not serve at military academies or in the Armed Forces of the Nation. Mr. Justice Douglas said that because the Government would be paying for religious instruction with public funds, those services could not be performed.

Mr. TALMADGE. Is not the New York State school prayer, which was outlawed by the recent decision of the Supreme Court, in the same category as the prayer which is offered by the Chaplain when he opens the session of the Senate each day?

Mr. ROBERTSON. It is a brief prayer acknowledging the Deity and asking His help. That is the essence of the opening prayer of the Senate.

Mr. TALMADGE. The Senator from Virginia is making a magnificent speech. I wish every person in the United States of America could read it. Above all, I hope the Justices of the Supreme Court will read the historic background and presentation which the Senator makes in his speech. If they do, unless they violate their oath of office, they cannot keep from reversing the unconscionable decision they have already made.

Mr. ROBERTSON. The junior Senator from Virginia would not flatter himself that the Supreme Court will read what he is saying. He hopes, however, that somebody who will appear before the Supreme Court next October will have read the speech and will present these facts in the hope that the Court will reverse itself and not follow further what I consider to be a most dangerous trend.

Continuing from my text, our Founding Fathers never anticipated that government was to be hostile to churches. They never expected that government was to deny to individuals the privilege of affirming publicly their belief in God. The Right Reverend James A. Pike-Protestant Episcopal bishop of the diocese of California, a member of the bar of the U.S. Supreme Court, and a former teacher in the field of church-state relations at the Columbia University Law School-testified recently before the Senate Judiciary Committee. He said that the principles on which the Constitution and the Bill of Rights are founded can be traced to the Bible. He stated that the system of checks and balances and the separation of powers are in effect an affirmation of the Biblical doctrine of original sin. That is, these divisions of power within the Constitution recognize the frailties of man and therefore seek to avoid the assumption of absolute power by a single man or group of men. He observed further that the origin of the Bill of Rights can be traced to the Biblical recognition of the worth of the individual as opposed to the supremacy of the State.

Commenting on the traditional relationship between church and state in America, Bishop Pike stated:

"The American approach to relationship of religion to the Nation has steered clear of church-state union on the one hand and secularization of public life on the other.

"We have, unlike countries which have chosen these other ways, steered a middle course reflected in virtually all aspects of our public life, including our schools; a recognition of dependence upon Almighty God and of the fact that He is the highest reality and not the state" (transcript of report of proceedings, hearing held before Committee on the Judiciary, relating to the holding of prayers in public schools, Aug. 2, 1962, p. 82).

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."

Woodrow Wilson observed that

"America was born a Christian nation. America was born to exemplify that devotion to the elements of righteousness which are derived from the Holy Scriptures" ("Our Public Schools Christian or Secular," Martin, R. H., National Reform Association, 1952, p. 65).

Over the years we find public expression of reliance upon divine providence again and again 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 "In God We Trust"-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." Every President upon assuming office has prayed for the help and protection of God.

Mr. TALMADGE. Mr. President, will the Senator yield?

Mr. ROBERTSON. I yield.

Mr. TALMADGE. Has not the same invocation, "God save the United States and this honorable Court," been used from the days of Chief Justice Marshall until the present time?

92395-63--13

Mr. ROBERTSON. Absolutely. It is one of our greatest traditions.

To continue, Justice Story, in his "Commentaries on the Constitution," discusses the place of religion in early American history as follows:

"There will probably be found few persons in this or any other Christian country who would deliberately contend that it was unreasonable or unjust to foster and encourage the Christian religion generally as a matter of sound policy, as well as of revealed truth.

"In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, if, indeed, that State be an exception, did openly, by the whole course of its laws and institutions, support and sustain in some form the Christian religion. * * * Indeed, in a republic, there would seem to be a peculiar property in viewing the Christian religion as the great basis on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty."

Mr. TALMADGE. Was not the prayer with which the bailiff opens the session of the U.S. Supreme Court written by someone?

Mr. ROBERTSON. Of course it was.

Mr. TALMADGE. Was it not paid for with tax money?

Mr. ROBERTSON. In all probability.

Mr. TALMADGE. Is there any distinction between the Supreme Court's own prayer and the New York State school prayer?

Mr. ROBERTSON. None that I can see.

Mr. TALMADGE. Are not both prayers addressed to the Supreme Being?

Mr. ROBERTSON. That is correct. The Supreme Court Justices ask God to bless and protect the Court. The New York prayer included a request that God bless the parents, the teachers, and the country. That is the only difference between the two prayers.

Mr. TALMADGE. Does the Senator from Virginia share my view that the Supreme Court needs much prayer?

Mr. ROBERTSON. I think the views of the fine lady in Covington, whose letter said the Supreme Court needed prayer, are shared by a good many people.

Mr. TALMADGE. Does not the Senator from Virginia believe that it might be in order for Congress to adopt a resolution asking the country at large-all 185 million of us-to pray for the Supreme Court?

Mr. ROBERTSON. I do not know about that; but I hope that the thinking citizens of this country will realize that a very grave problem confronts us, and that the Supreme Court should give what might be called prayerful consideration to what should be done next.

I have been criticized by some persons in my State, who say that I am trying to break down the wall of separation between church and state. Others have said, "You do not like the Court anyway, and, therefore, you criticize anything they do."

Before I conclude my remarks today, I hope that I will have demonstrated that my views are not based upon any prejudice against the Court or any lack of interest in preserving fully the doctrine of separation of church and state. My view is that the Supreme Court has misterpreted the meaning of the 1st amendment; and that the Court has misapplied the 14th amendment. I believe that if the Supreme Court is not somehow checked, it will, as the distinguished Senator from Georgia has stated, eliminate from our Government every established and cherished reference to the fact that there is a God and that we are a God-fearing people.

Mr. TALMADGE. Mr. President, will the Senator from Virginia further yield? Mr. ROBERTSON. I yield.

Mr. TALMADGE. Is not what the Senator from Virginia objects to, as I object to it, not separation of church and state, but separation of God and state?

Mr. ROBERTSON. That is true; that is the point: We want to keep the state out of the churches, but we do not want to take the recognition of God out of our Government.

I continue to read from Justice Story's "Commentaries on the Constitution": "Probably at the time of the adoption of the Constitution and of the amendment to it now under consideration [the first amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indig

nation" ("Story's Commentaries on the Constitution," vol. 2, Cooley's edition (1873), pp. 604–605).

Present State laws and practices regarding nonsectarian recognition of the Deity in the public schools are discussed by Canon Anson Phelps Stokes in "Church and State in the United States," as follows:

"It is noticeable that no State specifically prohibits public school Bible reading by statutory law, though about three-fourths prohibit 'sectarian' instruction or textbooks. These two facts taken together clearly imply that lawmakers in general either do not consider Bible reading as practiced in the public schools to be instruction, or do not consider the Bible sectarian, or consider both of these arguments of opposers of the plan to be fallacious. *** "Generally speaking there is in most States little legal or other objection, except on the part of a relatively few extremists, to the voluntary recital of the Lord's Prayer at opening exercises" ("Church and State in the United States," vol. II (1950), pp. 551-552).

As our history confirms, America is a nation with a profound religious heritage.

B. JAMES MADISON

Since recent Supreme Court decisions, among them Everson v. Board of Education, 330 U.S. 1 (1946), McCollum v. Board of Education, 333 U.S. 203 (1947), and Zorach v. Clauson, 343 U.S. 306 (1952), have relied heavily upon statements of Madison and Jefferson regarding the relationship of church and state, I intend to examine the positions of these two great Virginians in some detail.

James Madison, it will be remembered, was the author of the first 10 amendments to the Constitution. This Bill of Rights embodied the basic guarantees of personal liberty expressed earlier in the Virginia Declaration of Rights written by George Mason.

Madison proposed the adoption of the Bill of Rights in the House of Representatives on June 8, 1789. The original draft dealt with the subject of religion in the fourth and fifth amendments.

The fourth amendment was intended by Madison to be a limitation upon the powers of Congress. It provided:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed" (1 Annals of Congress 434 (1789)).

The fifth amendment was intended to be a limitation upon the States: "No State shall violate the equal rights of conscience" (id., p. 435).

The differences between Madison's fourth and fifth amendments are both obvious and significant. First, whereas the Congress and the States would be prohibited from violating "equal rights of conscience," the clause "nor shall any national religion be established" is proposed as a limitation upon the powers of Congress only. Second, as Madison's remarks will show more explicitly, the clause "nor shall any national religion be established" means simply that Congress shall not be empowered to select a particular religious sect-be it Baptist, Methodist, or Roman Catholic-and establish this sect as the "national" religion.

Madison's draft of the Bill of Rights was referred to a select committee of which he was a member. This committee altered the provisions regarding religion in the fourth and fifth amendments to read respectively:

"No religion shall be established by law, nor shall the equal rights of conscience be infringed" (id. p. 729).

And

"No State shall infringe the equal rights of conscience" (id. p. 755).

On August 15, 1789, the House resolved itself into a Committee of the Whole to consider the select committee's report. Madison is recorded in the Annals of Congress as having said the following about his fourth amendment as revised by the select committee:

"Mr. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion-”

I call that specifically to the attention of the distinguished Senator from Georgia and the distinguished Senator from North Carolina. Those are the words of Madison. He apprehended the meaning to be that, and I continue to read:

"Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their

conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit” (id., p. 730).

In explaining his proposed fourth amendment, as revised by the select committee, Madison interpreted the clause, "no religion shall be established by law," to prohibit Congress from enacting a law which would establish a particular religion as the "national" religion. We may, therefore, infer that when Madison used the clause, "laws as might establish a national religion," he was not referring to laws, State or Federal, which merely affect religion in general.

Although incidental to the present discussion of Madison, the remarks of Congressman Benjamin Huntington, of Connecticut, at this point in the debate underscore the irony of the decision in Engel versus Vitale.

"Mr. Huntington said that he feared *** that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it. * **

"By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all" (id., pp. 730–731).

Madison moved during the debate on the proposed amendment, as revised by the select committee, to insert "national" before "religion." It will be remembered that the word "national" had appeared in the proposed fourth amendment as originally introduced by Madison.

Referring again to the debate:

"Mr. Madison thought, if the word 'national' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word 'national' was introduced, it would point the amendment directly to the object it was intended to prevent" (id., p. 731).

Madison withdrew his motion after Elbridge Gerry had pointed out the political overtones of "national" as compared with "federal;" nevertheless, it is clear that to Madison the term "religion" in the proposed fourth amendment meant "national religion." His remark that "one sect might obtain a preeminence and establish a religion," is hardly consistent with the Supreme Court's interpretation of the establishment clause in Engle against Vitale.

On August 17, 1789, the House began to discuss Madison's fifth amendment as revised by the select committee. This amendment, it will be remembered, would have prohibited the States from infringing the "equal rights of conscience." but not from establishing religions. In defense of his proposal, Madison is reported to have made the following argument:

"Mr. Madison conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State governments. He thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people" (id., p. 755).

Madison's proposed fourth and fifth amendments, as revised by the select committee, were passed by the House with some modifications and sent to the Senate on August 24.

The Senate rejected the proposal to protect the free exercise of religion from State infringement. It also modified the House version of Madison's proposed fourth amndment to read:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion" (Senate Journal, First and Second Cong., p. 77).