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I was highly gratified by this interest and support, but I would not presume to speak for these colleagues before this committee.
Therefore, I would like to emphasize that the statement I shall present today is my own and is not meant to be considered as representing the views of the 14 cosponsors of Senate Joint Resolution 205.
As background for my discussion of my proposed constitutional amendment, I would like to stress that neither this bill itself nor any of the statements I have made concerning it should be considered as critical of the Supreme Court or its members.
Instead, the sole purpose of the proposal is to correct what I consider to be a misinterpretation of the first amendment and to return this Nation to that condition which many of us thought was protected rather than denied by our Constitution.
Again I say, Mr. Chairman, that this is done with no animosity to the Court but with the firm conviction that our system of checks and balances within the Government must operate, when need be, as effectively against the judicial branch as it does against the executive or the legislative.
Ever since the Supreme Court made its ruling on this matter, Mr. Chairman, I have become increasingly aware of the enormous volume of traditions, customs, laws, and practices which prove that we are truly, to use the Court's own words, “a religious people whose institutions presuppose a Supreme Being.'
In the interest of time, I shall not enumerate these proofs, but if anyone doubts that they exist, I refer him to the Court's opinion itself, which contains quite an impressive list.
With this fact as background, let us look at the Supreme Court's decision.
Time and again during the past few weeks it has been argued that the ruling—Justice Douglas' opinion notwithstanding—is an extremely narrow one.
I have consistently agreed with this point of view, and consequently I framed my proposed constitutional amendment to treat the one area on which the decision was made.
Let me explain. According to my interpretation of what the Court said, the issue in question was the fact that the New York school prayer had been composed by an official group and had been prescribed by that group for use in the public school system.
Carrying this thinking to its logical conclusion, the decision would mean that no prayer of any kind could ever be offered in any classroom, since the mere fact that a teacher, principal, school board, or State legislature would specify a prayer would mean that the particular wording of that prayer was approved at that moment by an authority of the government. Consequently, the prayer would immediately fall into the category of being "officially designated.”
This might sound like a fine distinction, Mr. Chairman, but it was just such a narrow issue which resulted in the Supreme Court's decision.
Our recourse from this position is to reverse the Court through adoption of a constitutional amendment.
My amendment, Mr. Chairman, states only that: Nothing contained in this Constitution shall be construed to prohibit the authority administering any school, school system, or educational institution supported in whole or in part from any public funds from providing for the
voluntary participation by the students thereof in regularly scheduled periods of nonsectarian prayer.
As you can see, this merely permits some authority to designate a prayer--whether this designation be on a daily, weekly, monthly, or annual basis—for use in our public schools.
It has been argued that such a right-a right which, in fact, many persons felt we always enjoyed—might leave openings for abuse.
I agree completely, Mr. Chairman, and I feel strongly that the minority position in this matter should be zealously protected.
However, this protection must be established, fought for, if need be, and insured at the local level.
The Congress and the various States can act together to provide a constitutional amendment which would permit local authorities to provide an opportunity for prayers in public schools, but it is the duty of the citizens and officials of our political subdivisions to guarantee that no child is coerced in any way into participating in such religious exercises.
A few of the strict regulations which govern prayer periods in some of our States and communities are discussed in the Court's ruling on the New York case, and I personally recommend the philosophy behind them to local authorities faced by the school prayer issue.
Justice Douglas pointed out that "the atheist or agnostic— the nonbeliever—is entitled to go his own way.”
This is true, Mr. Chairman, and it is a right we must preserve. We must also realize, though, that believers—who are clearly in the majority—are entitled to go their own way, too, and if their way includes the desire for an opportunity to participate in voluntary school prayers, it must be respected as strongly as we observe the minority rights of those citizens who sincerely disagree with them.
Mr. Chairman, I personally share the deep apprehension felt by so many of our people that Justice Douglas' concurring opinion foreshadows ever-increasing attempts to remove the name of God from our coins, the presence of our chaplains from the armed services, and the supplication to God from the sessions of the Court itself.
However, my proposed amendment definitely does not deal with these possibilities.
In the first place, I feel that any blunderbuss attack on the problem would be so all inclusive that it would have little chance of being passed by the Congress and ratified by the necessary number of States.
Secondly, I believe that a strong expression of the views of this Nation, as proclaimed through the amendment I propose, could well ward off future Court incursions into our religious freedoms.
Mr. Chairman, I did a great deal of work in attempting to formulate a measure which could gain the necessary approval and could solve the problem we face.
However, I am not wedded to the language of my amendment.
If this committee decides in its wisdom that other terminology would accomplish my purpose more effectively, I shall surely support whatever changes must be made.
I do respectfully urge, though, Mr. Chairman, that a committee decision on this matter be made as promptly as possible so that the Congress will get a chance to vote on this issue during this session.
It has been pointed out that most of the State legislatures will meet during 1963 and they may be given a chance to express their views.
Thank you, Mr. Chairman, I will not take any more of the committee's time.
Senator JOHNSTON. Thank you, Senator Beall.
Congressman Eugene Siler, of Kentucky, wishes to present some testimony for our record. STATEMENT OF HON. EUGENE SILER, A REPRESENTATIVE IN CON
GRESS FROM THE EIGHTH CONGRESSIONAL DISTRICT OF THE STATE OF KENTUCKY
Representative SILER. Mr. Chairman and gentlemen of the committee, you may have already listened in this hearing to many good, sound reasons for keeping prayer in our public schools. And truly we believe that the Supreme Court's recent ruling goes beyond the whole concept of what our forefathers ever intended for our Nation by way of keeping church and state separate.
But what the Supreme Court and our Nation now need in seeking various decisions on moral questions, what our Congress itself needs in helping us make the laws of our country, is a foundation from which to start. The constitutional amendments that are being suggested, if adopted, would serve to legalize prayer and Bible reading in our schools. But if we do nothing about this there are many other ways in which our country might be weakened morally and spiritually by those who want to take God out of our oaths, prayers out of our congressional halls, chaplains from our armed services, “In God We Trust” off our coins. “This Nation under God” from our Pledge of Allegiance to the Flag, the Prayer Room from our Capitol.
We believe that what our Constitution needs is a fundamental change, something to guide all our courts in these different areas, and we believe we have it in the proposed Christian amendment which has been introduced by nine of us over in the House, and which has been introduced in five different Congresses here in the Senate.
A hearing on this proposed amendment was held here in the Senate before your Judiciary Committee on May 17, 1934, was acted upon favorably by your committee and was referred to the floor for consideration. That was in the 83d Congress, and the number of the measure was Senate Joint Resolution 87. Due to the shortness of the time after reference, the measure did not come up for discussion on the floor. But it did get that far, as indicated.
The measure which was approved by this Judiciary Committee in 1934 and which is the same measure that nine of us over in the House have introduced in this 87th Congress, reads as follows:
Section 1. This Nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God.
Section 2. This amendment shall not be interpreted so as to result in the establishment of any particular ecclesiastical organization or in the abridgment of the rights of religious freedom, or freedom of speech or press or of peaceful assemblage.
Section 3. Congress shall have power in such cases as it may deem proper to provide a suitable oath or affirmation for citizens whose religious scruples prevent them from giving unqualified allegiance to the Constitution as herein amended.
Now we believe that since the Judiciary Committee of this Senate once acted favorably upon this proposed amendment, and referred it
out to the floor, it again should have similar favorable action from your present committee.
The numbers of the bills which the nine of us have introduced in the House are House Joint Resolutions 103, 189, 216, 243, 301, 434, 456, 599, and 602. And the Congressmen who have introduced them are from eight different States: Illinois, Maine, Kansas, New York, Kentucky, Ohio, Oklahoma, and two from Texas.
A number will be coming to testify for this measure, and we urge that they be heard, and their testimony entered in the records. And we want to place in your hands a copy of the resolution at this time.
Finally, it will be noted that this measure in no wise provides for taking any tax money from anyone to support any creed or church. Neither does the measure commit anyone to believe religiously in any particular manner. But our measure, recognizing the Christian complexion and attitude of the vast majority of our American citizenship, simply declares ours to be a Christian nation.
Your kind indulgence for this valued privilege of making the above statement is greatly appreciated. Thank you very much.
Senator JOHNSTON. I see that Senator Thurmond is present. Senator, we will have to suspend very shortly in order to go to the live quorum which is set for 12 o'clock. I hate to limit your time as much as you do, but I think I shall have to. If you would prefer you can wait until this afternoon.
Senator THURMOND. Mr. Chairman, I would rather present my statement now and go as far as I can with it.
Senator JOHNSTON. As you prefer, sir. STATEMENT OF HON. STROM THURMOND, U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA Senator THURMOND. Mr. Chairman and members of the committee, it is a pleasure to appear before you today and testify on behalf of Senate Concurrent Resolution 81.
The Supreme Court decision in Engel v. Vitale, which prompted the introduction of this concurrent resolution has already received overwhelming disapproval by the people of this country. It is now incumbent upon Congress to go on record in disapproving this decision also. Senate Concurrent Resolution 81, which was introduced on July 2, 1962, by Senator Robertson on behalf of himself, Senator Talmadge, Senator Stennis, Senator Byrd of Virginia, Senator Byrd of West Virginia, and myself, is designed to do just that.
We are all familiar with this decision which held that a simple nondenominational prayer as devised by the New York State board of regents for recitation by the schoolchildren of that State who desired to say it was an infringement of the Constitution. This decision was arrived at by what I consider a misapplication of the first amendment to the Constitution, the pertinent part of which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
This amendment is held applicable to each State of the Union under the provisions of the 14th amendment to the Constitution.
In order to determine the correct construction of this constitutional provision, it is necessary to study the contemporaneous events leading up to its adoption as a part of the Constitution. It is clear that the
framers of our Constitution were concerned about the prospects of a nationally established religion which would be a suppression of the free exercise of the religion of one's choice. Fresh in their minds was the practice of Great Britain and the officially established Church of England which all taxpayers were required to support by their tax dollars. This is the evil which the first amendment was designed to prevent.
The original proposal leading to the first amendment was introduced in the House of Representatives by James Madison, and read as follows:
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 pretense, infringed.
This was altered in the House to read:
Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
The Senate approved the following language:
The conference committee adopted, by and large, the House language, but added the neutral term, "respecting an establishment,” to take the place of the sweeping ban against any law “establishing religion."
Explaining this phraseology, in his commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather to exclude from the National Government all power to act on the subject."
Several of the individual States, populated almost wholly by people of the same religious faith, had, for all intents and purposes, recognized an established religion. This amendment did not, at the time of its adoption, even pretend to prohibit this practice. It was aimed exclusively at the National Government.
For many years after the adoption of the 14th amendment, there was no evidence of an intention to extend to the States, through the 14th amendment, the prohibitions contained in the first 10 amendments. These were matters remaining entirely within the realm of each individual State. The first indication of a shift in the Court's point of view was in the case of Gitlow v. New York, in 1925. By way of dictum in that case the Court stated :
For present purposes we may and do assume that freedom of speech and of the press which are protected by the 1st amendment from abridgement by Congress—are among the fundamental personal rights and "liberties” protected by the due process clause of the 14th amendment from impairment by the States.
This unsolicited and unnecessary dictum became the law just 2 short years later in the case of Fiske v. Kansas, wherein the Court invalidated a State law on the ground that it abridged freedom of speech contrary to the due process clause of the 14th amendment.
Subsequent decisions have brought within the purview of this doctrine other rights protected from infringement by the National Government which are contained in the first 10 amendments. The case of Cantwell y. Connecticut, decided in 1940, was the first dealing with the section of the first amendment which relates to religion.
This extension of authority by judicial decision over areas formerly reserved to the States closely parallels the expanded meaning which