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).

A conference committee was appointed, and on September 24 and 25 the House and Senate, respectively, approved the Bill of Rights.

Madison's position during the congressional debates on his proposed fourth and fifth amendments may be summarized as follows:

First, the free exercise of religion is a basic right of the individual which must be preserved from any encroachment by either the Federal or the State governments.

Second, the Federal Government must be prohibited from establishing a religion, that is, from designating a particular religion as the national religion. Third, the Federal Government-and certainly the State governments are not to be prohibited from enacting legislation which affects religion but which does not establish a particular religion.

Madison's "Memorial and Remonstrance" of 1784 is an important landmark in the struggle for freedom of religion and separation of church and state. It was directed against a proposal advanced by Patrick Henry in the Virginia House of Delegates to raise funds, through assessments, for the salaries of teachers of the Christian religion. The "Remonstrance" paved the way for the enactment 2 years later of Jefferson's bill establishing religious freedom in Virginia.

On July 26, 1962, I inserted in the Congressional Record the text of a speech which I delivered last year on "Madison's Contributions to Religious Freedom." In that speech I discussed the "Memorial and Remonstrance" at some length.

It is sufficient at this time to point out that Madison's argument in his "Remonstrance" against using State funds to subsidize religion must not be taken to imply that he objected to giving public recognition to the Diety. The "Remonstrance" was directed-not against religion-but against the establishment of a particular religion. Section 9 remonstrated against the subsidy proposal.

"Because the proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every nation and religion, promised a luster to our country, and an accession to the number of its citizens. What a melancholy mark in the bill of sudden degeneracy. Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the legislative authority" ("Letters and Other Writings of James Madison," vol. I, 1865, J. B. Lippincott & Co., p. 166).

Madison concluded 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 opposed 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" (id., p. 169).

Madison's belief that "establishment of religion" meant establishment of a particular religion is expressed in several of his letters.

On March 2, 1819, he wrote to Robert Walsh:

"It was the universal opinion of the century preceding the last, that civil government could not stand without the prop of a religious establishment" (id., p. 125).

And on July 10, 1822, to Edward Livingstone:

"It was the belief of all sects at one time that the establishment of religion by law, was right and necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was, what was the true religion. The example of Holland proved that a toleration of sects dissenting from the established sect was safe, and even useful. example of the Colonies, now States which rejected religious establishments altogether, proved that all sects might be safely and advantageously put on a footing of equal and entire freedom" (id., pp. 275-276).

In a letter of 1832 to Reverend Adams, Madison wrote:

"In most of the governments of the Old World the legal establishment of a particular religion and without or with very little toleration of others makes a part of the political and civil organization. * * *

"Until Holland ventured on the experiment of combining a liberal toleration with the establishment of a particular creed, it was taken for granted, that an exclusive and intolerant establishment was essential. ***The prevailing opinion in Europe, England not excepted, has been that religion could not be preserved without the support of government nor government be supported without an established religion. * * *

"It remained for North America to bring the great and interesting subject to a fair, and finally to a decisive test" (Writings of James Madison," vol. 9, ed. Gaillard Hunt, pp. 484-488).

If any doubt remains regarding Madison's attitude toward legislation affecting religion, but not establishing a religion, it should be resolved by the fact that Madison was a member of the joint committee for appointing chaplains for the two bodies of Congress, that he approved, as President, bills appropriating funds for the payment of the chaplains of Congress and of the Armed Forces, and, further, that he approved as President bills appropriating funds for the promotion of religion and religious education among the Indians.

C. THOMAS JEFFERSON

In Everson against Board of Education ("Writings of James Madison," vol. 9, ed., Gaillard Hunt), Mr. Justice Black stated at page 16:

"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.""

In recent years, the Supreme Court has misinterpreted what Jefferson meant by "a wall of separation." A review seems appropriate, therefore, of Jefferson's concept of the church-state relationship.

I will begin with the epitaph which Jefferson wrote for inscription upon his tombstone. It reads quite simply:

"Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the statute of Virginia for religious freedom and father of the University of Virginia."

Presumably Jefferson considered these three achievements to be the most significant of his contributions to society. Therein we find his concept of the proper relationship between church and state.

In the Declaration of Independence Jefferson wrote these familiar words: "We hold these truths to be self-evident; that all men *** are endowed by their Creator with unalienable rights; that among these are life, liberty, and the pursuit of happiness."

In conclusion Jefferson stated:

“With a firm reliance on the protection of divine providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."

Jefferson introduced his bill for establishing religious freedom in Virginia on June 13, 1779. It was adopted in 1786. Section 1 begins:

"Well aware that the opinions and belief of men depend on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint" (Padover, op. cit., p. 946).

The bill concludes with these words:

"We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, or shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities" (id., p. 947).

These two documents mark Jefferson unmistakably as an advocate of religious freedom and as an opponent of the establishment of religion. His interpretation of "establishment" is clearly defined in the following excerpt from a paper which Jefferson wrote in February 1826:

"The attack on the establishment of a dominant religion, was first made by myself. It could be carried at first only by a suspension of salaries for 1 year, by battling it again at the next session for another year, and so from year to year, until the public mind was ripened for the bill for establishing religious freedom, which I had prepared for the revised code also. This was at length established permanently, and by the efforts chiefly of Mr. Madison, being myself in Europe at the time that work was brought forward" (id., Padover, p. 1295).

Or as P. A. Bruce said in his "History of the University of Virginia": "Jefferson was fully resolved to tear up the Episcopal Establishment of Virginia root and branch, whenever the hour seemed opportune to do so. He was eager, as we have seen to raze the whole system of monopoly, which in 1776, he found in existence in the New Commonwealth; but he was particularly impatient to demolish that branch of it which was represented in the union of the church with the state" ("History of the University of Virginia," vol. 1, Bruce, P. A., p. 22.)

In providing for religious worship at the University of Virginia, Jefferson showed again that his insistence upon the separation of the state from an established religion was, by no means, to include the separation of the state from religion generally.

The University of Virginia, of course, has been a tax-supported, education system on State property ever since its foundation. While rector of the university, Jefferson submitted to the board of visitors the following regulation, which James Madison, as 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 school room, and for religious worship" (id. p. 1111). Jefferson wrote on October 7, 1882:

"In the same report of the commissioners of 1818 it was stated by them that in conformity with the principles of constitution which place all sects of religion on an equal footing, with the jealousies of the different sects in guarding that equality from encroachment or surprise, and with the sentiments of the legislature in freedom of religion, manifested on former occasions, they had not proposed that any professorship of divinity should be established in the university; ** *.

"It was not, however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society. On the contrary, the relations which exist between man and his Maker, and the duties resulting from those relations, are the most interesting and important to every human being, and the most incumbent on his study and investigation. The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in a general institution of the useful sciences.

"But it was thought that this want, and the entrustment to each society of instruction in its own doctrine, were evils of less danger than a permission to the public authorities to dictate modes or principles of religious instruction, or than opportunities furnished them by giving countenance or ascendency to any one sect over another. A remedy, however, has been suggested of promising aspect, which, while it excludes the public authorities from the domain of religious freedom, will give to the sectarian schools of divinity the full benefit for public provisions made for instruction in the other branches of science. These branches are equally necessary to the divine as to the other professional or civil characters, to enable them to fulfill the duties of their calling with understanding and usefulness."

Jefferson went on to conclude:

"It has, therefore, been in contemplation, and suggested by some pious individuals, who perceive the advantages of associating other studies with those of religion, to establish their religious schools on the confines of the university, so as to give to their students ready and convenient access and attendance on the scientific lectures of the university; and to maintain, by that means, those destined for the religious professions on as high a standing of science, and of personal weight and respectability, as may be obtained by others from the benefits of the university. Such establishments would offer the further and greater advantage of enabling the students of the university to attend religious exercises with the professor of their particular sect, either in the rooms of the building still to be erected, and destined to that purpose under impartial regulations, as proposed in the same report of the commissioners, or in the lecturing room of such professor.

"To such propositions the visitors are disposed to lend a willing ear, and would think it their duty to give every encouragement, by assuring to those who might choose such a location for their schools, that the regulations of the university should be so modified and accommodated as to give every facility of access and attendance to their students, with such regulated use also as may be permitted to the other students, of the library which may hereafter be acquired,