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the United States. If the whole section were quoted, we apprehend that no one could suppose it intended to apply to the appointment of chaplains.
* "Another article supposed to be violated is article 1 of amendments :
“ 'Congress shall make no law respecting an establishment of religion.' Does your present practice violate that article? What is an establishment of religion? It must have a creed, defining what a man must believe ; it must have rites and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an established religion without all these" (p. 1).
With regard to the history of Chaplains in Congress, Representative Meacham continued :
"Here, as before, we shall find that the same practice was in existence before and after the adoption of the Constitution. The American Congress began its session September 5, 1774. On the second day of the session, Mr. Samuel Adams proposed to open the session with prayer.
"I give Mr. Webster's account of it: 'At the meeting of the First Congress there was a doubt in the minds of many about the propriety of opening the session with prayer; and the reason assigned was, as here, the great diversity of opinion and religious belief: until, at last, Mr. Samuel Adams, with his gray hairs hanging about his shoulders, and with an impressive venerableness now seldom to be met with (I suppose owing to different habits), rose in that assembly, and, with the air of a perfect Puritan, said it did not become men professing to be Christian men, who had come together for solemn deliberation in the hour of their extremity, to say there was so wide a difference in their religious belief that they could not, as one man, bow the knee in prayer to the Almighty, whose advice and assistance they hoped to obtain; and, independent as he was, and an enemy to all prelacy as he was known to be, he moved that Rev. Mr. Dushe, of the Episcopal Church, should address the Throne of Grace in prayer.'
"John Adams, in his letter to his wife, says he never saw a more moving spectacle. “Mr. Dushe read the Episcopal service of the Church of England; and then, as if moved by the occasion, he broke out into extemporaneous prayer, and those men who were about to resort to force to obtain their rights were moved to tears; the floods of tears, he says, ran down the cheeks of pacific Quakers, who formed part of that interesting assembly; and depend upon it, that where there is a spirit of Christianity, there is a spirit which rises above form, above ceremonies, independent of sect or creed, and the controversies of clashing doctrines' ” (p. 2).
This report discussed the purchase of Bibles by the Continental Congress, as follows:
"I do not deem it out of place to notice one act, of many, to show that that Congress was not indifferent to the religious interests of the people, and they were not peculiarly afraid of the charge of uniting church and state. On the 11th of September 1777, a committee having consulted with Dr. Allison about printing an edition of 30,000 Bibles, and finding that they would be compelled to send abroad for type and paper, with an advance of £10,272 10s., Congress voted to instruct the Committee on Commerce to import 20,000 Bibles from Scotland and Holland into the different ports of the Union. The reason assigned was, that the use of the book was so universal and important. Now, what was passing on that day? The army of Washington was fighting the Battle of Brandywine; the gallant soldiers of the Revolution were displaying their heroic though unavailing valor; 1,200 soldiers were stretched in death on that battlefield ; Lafayette was bleeding; the booming of the cannon was heard in the hall where Congress was sitting-in the hall from which Congress was soon to be a fugitive: at that important hour Congress was passing an order for importing 20,000 Bibles; and yet we have never heard that they were charged by their generation of any attempt to unite church and state, or surpassing their powers to legislate on religious matters” (p. 3).
The House Judiciary Committee report went on to discuss the prayer of Benjamin Franklin in the Federal Convention of 1787. In this prayer, Franklin appealed to the “Father of Lights” to illuminate the understandings “of this assembly, groping, as it were, in the dark to find political truth.” The report continued by reviewing the action taken by the First Congress in providing for Chaplains:
"The First Congress under the Constitution began on the 4th of March 1789; but there was not a quorum for business till the 1st of April. On the 9th of that month Oliver Ellsworth was appointed, on the part of the Senate, to confer with a committee of the House on rules, and on the appointment of Chaplains. The House chose five men-Boudinot, Bland, Tucker, Sherman, and Madison. The result of their consultation was a recommendation to appoint two Chaplains of different denominations-one by the Senate and one by the House-to interchange weekly. The Senate appointed Dr. Provost, on the 25th of April.
"On the 1st day of May Washington's first speech was read to the House, and the first business after that speech was the appointment of Dr. Linn as Chaplain. By whom was this plan made? Three out of six of that joint committee were members of the Convention that framed the Constitution. Madison, Ellsworth, and Sherman passed directly from the hall of the Convention to the Hall of Congress. Did they not know what was constitutional? * * * The convention of Virginia elected on its first day a chaplain-Rev. Abner Waugh—who every morning read prayers immediately after the ringing of the bell for calling the convention. No one will suppose that convention so inconsistent as to appoint their chaplain for their own deliberative assembly in the State of Virginia, and then recommend that this should be denied to the deliberative bodies of the Nation” (pp. 4, 5).
Summarizing the Judiciary Committee's position with regard to the constitutionality of chaplains, Representative Meacham concluded :
"While your committee believes that neither Congress nor the Army or Navy should be deprived of the service of chaplains, they freely concede that the ecclesiastical and civil powers have been, and should continue to be, entirely divorced from each other. But we beg leave to rescue ourselves from the imputation of asserting that religion is not needed to the safety of civil society. It must be considered as the foundation on which the whole structure rests. Laws will not have permanence or power without the sanction of religious sentiment—without a firm belief that there is a Power above us that will reward our virtues and punish our vices. In this age there can be no substitute for Christianity; that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That was the religion of the founders of the Republic, and they expected it to remain the religion of their descendants” (pp. 8, 9).
F. FOURTEENTH AMENDMENT
The first amendment was proposed and ratified as a prohibition upon the Federal Government, not upon the States (Barron V. Baltimore, 7 Peters 243 (1833), Permoli v. Municipality of New Orleans, 3 Howard 389 (1845)).
It would appear, therefore, that even if the New York regents' prayer did constitute “an establishment of religion,” the State of New York would, nevertheless, be constitutionally justified in its action. Since the Supreme Court's decision in Cantwell v. Connecticut, 310 U.S. 296 (1940), however, the due process clause of the 14th amendment has been interpreted as extending to the States the provisions of the 1st amendment dealing with religion, including both the establishment clause and the freedom of worship clause.
This holding of the Court misinterprets the intent of those legislators who framed and who ratified the 14th amendment. Since the Supreme Court's misinterpretation of the establishment clause has somewhat paralleled its misapplication of the due process clause, it seems appropriate to review briefly the relationship of church and state during and subsequent to the passage of the 14th amendment.
To begin with, the 14th amendment was intended by the Reconstruction Congress to extend to former slaves existing State guarantees of basic rights which in certain cases were being extended to whites only. It was not intended, either by the Senators and Congressmen who proposed it or by the State legislators who ratified it, to superimpose on the constitutions of States, both Northern and Southern, the particular guarantees secured to individuals in the Bill of Rights against arbitrary Federal action. Charles Fairman, professor of law emeritus of Harvard, has made a comprehensive study of this very point. “Does the 14th Amendment Incorporate the Bill of Rights? The Original Understanding," Fairman, C., 2 Stanford Law Review 5 (1949) cited favorably in Bartkus v. Illinois, 359 U.S. 121 (1959).
To argue, as Mr. Justice Black does, that the due process clause of this amendment was intended to apply to the States every guarantee of the Bill of Rights is to rewrite history. Mr. Justice Black might ponder the retort in 1871 of then Representative James A. Garfield, of Ohio, to Representative John A. Bingham, also of Ohio. Bingham, the author of the 14th amendment, was arguing 5 years after the amendment had been passed by Congress that it applied the first eight amendments to the States. Garfield denied this; he replied :
“My colleague can make but he cannot unmake history” (Congressional Globe, 42d Cong., 1st sess. (1871), app. 151).
As in the case of Congress, debates by legislators in the ratifying States were free of any implication that the 14th amendment was to apply the establishment clause to the States. I have already reviewed provisions in the Ohio constitution and statutes authorizing the support of religion out of public funds.
New Hampshire went even further. The New Hampshire constitution required that the Governor, councilors, senators, and members of its house of representatives must be “of the Protestant religion." This provision was not eliminated until 1877. In addition, New Hampshire townships were authorized to establish churches where “public Protestant teachers of piety, religion, and morality” might preach.
In one of the leading New Hampshire cases of the 19th century, Hale v. Everett, 53 N.H. 9 (1868), these constitutional provisions were held to prohibit the use of such a church by an advanced Unitarian who felt he could not call himself a Christian. The majority opinion pointed out that the first amendment did not apply to the States. It cited Judge Story to the effect that the first amendment applied only to the Federal Government and that the State governments were free to enact legislation on religious matters.
In 1874, the Supreme Court of Michigan in Weimer v. Bunbury, 30 Mich. 200, heard arguments that a Michigan statute violated the fourth and fifth amendments to the U.S. Constitution. Judge Cooley took the position that there was nothing in this objection :
"It is settled beyond controversy, and without dissent, that these amendments are limitations upon Federal, and not upon State power" (citing Barron v. Baltimore, ibid.).
It is interesting to note that Judge Cooley took the same position in his great work on "Constitutional Limitations," which first appeared in 1868. This same position is maintained in the eighth edition of “Cooley's Constitutional Limitations” issued in 1927, which continued to quote Judge Story.
The history of the Blaine amendment of 1875 further substantiated the fact that the 14th amendment was not intended to extend to the States those provisions of the 1st amendment regarding religion.
James G. Blaine, who opposed Grover Cleveland in the presidential campaign of 1884, was a Member of the House of Representatives in 1875. On December 14 of that year, Blaine introduced a constitutional amendment which would have extended to the States existing restrictions upon the Federal Government regarding the establishment of religion and the free exercise of religion.
Both the Senate and the House versions of the amendment provided in part:
"No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof” (Congressional Record, vol. 4, pt. 6, pp. 5189, 5453).
Although the Blaine amendment passed the House, it failed to receive the two-thirds majority in the Senate. The significance of Blaine's proposal lay in the fact that if the 14th amendment had already applied to the States the religious provisions of the 1st amendment, the Blaine amendment would have been a mere duplication.
The following colloquy between Senator Francis Kernan, of New York, and Senator Oliver Morton, of Indiana, illustrated by the absence of any reference to the 14th amendment what a limited application these legislators considered it to have. In this respect they reflected the general sentiment of Congress.
Senator Kernan discussed the Blaine proposal as follows:
“I have said that, in my judgment, the proposed amendment would be a very wide departure from correct principles. As to the first clause I have no comment to make; this declares that ‘no State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State.
"That provision has my most hearty commendation; but for all that it is not necessary to put it in the Federal Constitution. That matter was discussed in the Convention that made the Constitution, and it was not thought wise to put in any such provision, but to leave it to the States” (id., p. 5581).
Senator Morton answered the argument of Senator Kernan, as follows:
“The Senator from New York took the ground that the Constitution of the United States should not interfere with a State upon the question of schools or religion, and my friend's argument amounts to this * * * that the States should be left free if they see proper to establish sectarian schools by public taxation, and that if the State of New York desires to levy a tax and collect money of the people to establish, if you please, Protestant schools on the one hand or Catholic schools on the other, should be left free to do that, and we should not interfere by a constitutional amendment to prevent her. That is my friend's argument, that the States should be left free to establish a religion or to establish sectarian schools” (id., p. 5584).
Both Senators in this colloquy evidently believed that the 14th amendment had not already extended to the States the restrictions upon Congress enumerated in the 1st amendment. Furthermore, the prohibition in the first amendment against "an establishment of religion” would clearly not have been construed by them as an impediment to voluntary public religious exercises. In these beliefs, they represented the general feeling of Congress at that time.
G. COURT DECISIONS In Holy Trinity Church v. United States, 134 U.S. 457 (1891), the Supreme Court stated emphatically that we are a religious people :
“But beyond all these matters no purpose of action against religion can be imputed to any legislation, State or National, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation” (p. 465).
More recently Judge Martin P. Burks, speaking for the Virginia Supreme Court of Appeals, declared in Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922), a decision upholding the Virginia Sunday closing laws:
“But from the creation of the State until the present time, this State has been recognized as a Christian State, at least in the sense that the great body of its citizens adhere to the tenets of the Christian religion, and, while at all times according freedom of conscience to all men, it has so far respected the opinions of this great body of its citizens as always to preserve from desecration the sanctity of Sunday which they regard as holy” (p. 717).
In 1940, as I have stated, the Supreme Court in Cantwell v. Connecticut (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), interpreted the 14th amendment as extending to the States the provisions of the 1st amendment dealing with religion. An examination of McCollum v. Board of Education (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922), and Zorach v. Clauson (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), illustrates the difficulty which the Court created for itself by adopting the Cantwell doctrine and by failing to apply the historical distinction between laws which would establish a particular religion and laws which merely affect religion generally.
In the McCollum case, the Board of Education of Champaign, Ill., instituted a program under which public school students with the permission of their parents were released during the day to attend classes conducted in the schools by representatives of the Roman Catholic, Protestant, and Jewish faiths. Only students whose parents had so requested were required to attend.
The Supreme Court held this program unconstitutional. Citing favorably Iverson v. Board of Education (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), Mr. Justice Black quoted the Everson case in his majority opinion as follows:
"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion” (p. 210).
In spite of the constitutional history to the contrary, the Court, after applying the establishment clause to the States, went on to hold that the utilization of Illinois tax-supported public schools in the teaching of the Protestant, Roman Catholic, and Jewish religious faiths was an establishment of religion.
In Zorach against Clauson, the Court reached the opposite verdict on a set of facts which were substantially the same, with the exception that students received their religious instruction off the school grounds. The Court deter
mined in the Zorach case that the policy of the New York Board of Education was not inconsistent with the establishment clause.
Distinguishing the two verdicts, the Court stated at page 315 :
"In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction."
The Court seemed to be saying that in cases of this type the primary factor to be considered is whether State funds have been spent to further religious purposes. However, the Court in the Everson case had upheld in 1946 the reimbursement of parents by the State of New Jersey for fares paid in the transportation of children by bus to and from Roman Catholic schools.
If the Court, on the other hand, had interpreted the 1st and 14th amendments as their framers intended, this confusion in the law could have been avoided. Clearly, public funds in every State in the Union are diverted in some way to the support of religion. This is done, for example, when States and localities grant tax exemptions to religious institutions.
In 1959 the Supreme Court gave some indication that it might reconsider its application of the first amendment to the States and, by implication, its misinterpretation of the establishment clause. I am referring to Bartkus v. United States, 359 U.S. 121, in which the Court upheld a State prosecution for violation of its own penal law after the appellant had previously been acquitted by a Federal court on substantially the same evidence. The Court declared:
“We have held from the beginning and uniformly that the due process clause of the 14th amendment does not apply to the States any of the provisions of the first eight amendments as such (cites cases). The relevant historical materials have been canvassed by this Court and by legal scholars (cites Fairman, 'Does the 14th Amendment Incorporate the Bill of Rights? The Original Understanding,' 2 Stan. L. Rev. 5). These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the 14th amendment was a shorthand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States" (p. 124).
After the Regents Prayer case, however, any alteration by the Supreme Court of its religious posture since 1940 appears very unlikely. Indeed the majority opinion of Mr. Justice Black seems to indicate that the Supreme Court intends to follow-not constitutional history—but rather the Court's own decisions misinterpreting it.
ENGEL VERSUS VITALE-A DECISION WITH BROAD IMPLICATIONS Mr. President, the repercussions of Engel against Vitale are likely to be far reaching.
Two cases are now on appeal before the Supreme Court which offer ample opportunity for the Court to enlarge upon its recent misinterpretation of the establishment clause. Petitioners in a third case, I understand, intend also to seek a writ of certiorari. These three cases-Schempp against School District of Abington Township, Murray against Curlet, and Chamberlin against Dade County Board of Public Instruction-originated in Pennsylvania, Maryland, and Florida, respectively. All cases involve the reading of the Bible in the public schools; and the Maryland case the daily recitation of the Lord's Prayer is at issue also. In each instance, the students' participation is voluntary.
The most comprehensive of the test cases comes on appeal from the Supreme Court of Florida. In the Chamberlin case, appellants seek not only to terminate the daily reading of a brief passage from the Bible, but in addition, to be relieved of the singing of hymns in music classes, the painting of pictures on religious themes, the decoration of schoolrooms at Christmastime, the saying of grace or other prayers at school functions, and the holding of baccalaureate ceremonies at commencement.
In delivering the opinion of the Supreme Court of Florida, which denied the claim of the petitioners, Justice Millard F. Caldwell stated :
"To say that the vast majority of students in the Dade County public school system are to be foreclosed of the privilege of living a few moments each day with the words of the Bible the greatest of all literature, or of observing in the classroom, if such were possible, the magnificent painting of "The Last Supper,' or of listening to Caruso's recording of 'Adeste Fidelis,' because a minority might suffer some imagined and nebulous confusion, is to approach the ridiculous.