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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:

"The first amendment, however, does not say that in every and all respects there shall be a separation of church and state. * * * That is the commonsense of the matter. Otherwise the state and religion would be aliens to each other: hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection of religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls: the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths; these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the first amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this honorable Court.' a religious people whose institutions presuppose a Supreme (Supra. pp. 312–314).

"We are Being ***"

The application of the establishment clause to religion in the general sense was discussed at some length in a House Judiciary report of 1854 rejecting the petitions of citizens of several States that "the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Congress, be abolished" (U.S. House Reports, vol. 2, No. 124, 33d Cong., 1st sess., 185354).

Mr. James Meacham of Vermont, reviewing the reasons for the committee's decision to reject the petition, wrote as follows:

"Another article supposed to be violated is article I of amendments:

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''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" (supra).

The report continues further:

"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" (supra).

FOURTEENTH AMENDMENT NOT INTENDED TO PROHIBIT PUBLIC NONSECTARIAN PRAYERS

There is some question whether the due process clause of the 14th amendment applies to the States the same prohibition which the 1st amendment places upon the Federal Government. The decision of the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940), appears to extend these prohibitions to the States. But a recent case, Bartkus v. Illinois, 359 U.S. 121 (1959), casts doubt on the nature and extent of the Court's pronouncement in the Cantwell case.

In the Bartkus case, 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. It was argued that this violated the double jeopardy provision of the 5th amendment, made applicable to the States by the 14th amendment.

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. [Citing cases.] The relevant historical materials have been canvassed by this Court and by legal scholars. [Citing 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." (Bartkus v. Illinois, 359 U.S. 121, 124.)

The Blaine amendment

The history of the Blaine amendment of 1875 indicates that the Congress did not contemplate that the 14th amendment was a shorthand incorporation of the first eight amendments.

In 1875, James G. Blaine, who as the Republican presidential candidate opposed Grover Cleveland in the campaign of 1884, was a Member of the House of Representatives. On December 14, 1875, Blaine introduced a constitutional amendment which would have extended to the States existing restrictions upon the Federal Government with regard to the establishment of religion or the interference with the free exercise of religion.

The Senate version of the amendment provided in part:

"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 ***. This article shall not be construed to prohibit the reading of the Bible in any school or institution * * *” (4 Congressional Record 5453).

The Blaine amendment passed the House on August 4, 1876, by a vote of 180 to 7. The Senate, after adding the sentence relating to Bible reading and making other changes, approved the amendment by a vote of 28 to 16, but not by the necessary two-thirds vote.

Clearly the Members of the 44th Congress—and in particular, those who like Blaine had been in Congress when the 14th amendment was adopted less than 10 years earlier-thought that the 1st amendment was not applicable to States. Beyond any reasonable doubt, they did not consider themselves engaged in an idle and meaningless repetition of an amendment less than a decade old.

Furthermore, the Senate specifically revised the Blaine amendment to make it clear that this proposal would not prohibit the reading of the Bible in any school or institution. Clearly, the Senators who urged and agreed to this protection for the reading of the Bible did not think that the 14th amendment had already prohibited the reading of the Bible in State schools.

A DECISION WITH BROAD IMPLICATIONS

Three cases are now before the Supreme Court which offer ample opportunity for the Court to enlarge upon its recent misconstruction of the establishment clause. Some have claimed that the Court's decision in the New York case would not outlaw the use in public schools of the Lord's Prayer. But that is the specific issue in Murray v. Curlett, the pending case from the Court of Appeals of Maryland. That State court held against the petitioner, but the U.S. Supreme Court granted her a writ of error.

The most comprehensive of pending test cases is the Florida case of Chamberlin v. Dade County Board of Public Instruction. In this case, appellees seek to be relieved of the daily reading of a brief passage from the Bible. In addition, they also seek 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.

The implications of Engel v. Vitale are not limited to religious activities in the public schools. It is conceivable that the Supreme Court in the near future will be hearing petitions to strike the phrase "In God we trust" from the currency, to sever the words "Under God" from the Pledge of Allegiance, to repeal the act of Congress establishing "The Star-Spangled Banner" as our national anthem, and to abandon the recitation of the prayer with which each session of the Supreme Court itself is opened-all on the ground that the Constitution forbids any such recognition of God. Obviously, the implications

of Engel v. Vitale are as unlimited as the references to the Deity in our civic affairs.

PROPOSED REMEDIES

With few exceptions, congressional sentiment has run strongly against the Supreme Court's decision.

On July 2, 1962, I introduced a Senate joint resolution, which states: "*** That it is the sense of the Congress that the designation by a public school authority of a nonsectarian prayer for use, as a part of the activities of a public school, does not constitute an establishment of a religion or an infringement of the doctrine of separation of church and state in violation of the Constitution of the United States, if participation in the offering of that prayer by individual students is not made compulsory."

Other Members of Congress have introduced constitutional amendments, which, if approved, would nullify Engel v. Vitale. We must consider and act upon an amendment to the Constitution which will leave no doubt that America is determined to remain a nation which has a "firm reliance on the protection of divine providence."

This is still a republic in which the declared will of the definite majority can be made to prevail. Regardless of the fact that the Supreme Court has power to say what the Constitution means and to use force to carry out its decision, as long as we remain a republic the people can, as Jefferson said, by the process of amendment, bind any Government officials, including the Supreme Court, by the chains of the Constitution.

I recommend the adoption by the Congress and ratification by the States of an amendment to the Constitution which, while fully protecting the fundainental principle of separation of church and state, will permit in the future, as in the past, Government officials to recognize publicly that we are a religious nation.

Senator ROBERTSON. I shall not dwell upon the history of prayer in the schools, because Senator Stennis covered that quite fully and very extensively.

I was interested in the question asked by the distinguished Senator from Michigan about the Lord's Prayer. That is the issue in the Maryland case. There, an atheist woman said that it embarrassed her son to be asked to recite the Lord's Prayer, but the Court of Appeals of Maryland said that for many years Maryland had had a provision that when you open school you either read a passage from the Bible or recite a prayer, and that it was being done legally, and no minority group has a constitutional right to be prevented from being embarrassed by what is legally done.

Senator Stennis said, and I think properly so, that if you cannot voluntarily use in a school a 22-word prayer that says, "Oh, Lord, bless our country, bless our teachers, and bless us," how can you use a prepared prayer which was prepared by one who is not accepted by a very large group in this country? I say to you, my friend from Michigan, again suppose that this atheistic_woman, who has been granted certiorari by the Supreme Court-I do not know what is going to be done by the Court-I hope that we will take some action that will assure us what we can do and, let me say that Justice Douglas heard all of the arguments, did he not-he heard all of the discussion in chambers and what does he say, that the real meaning of this decision is to outlaw, I believe, 19 different things, and that includes the Lord's Prayer, "In God we trust," over the south door of the Senate and, "God smiles on this undertaking," over the east door of the Senate. We would have to take those down and to remove any reference to God from the coins and the pledge of allegiance and to abolish the chaplains in the Senate and in the House. Justice Douglas says that the decision goes this far,

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