Gentlemen, did you know that in the First Congress the man who drafted the first amendment was a member of the committee which selected Chaplains for the House and the Senate? James Madison was the man. He recommended that. He also supported the bill for chaplains in the armed services. As President he approved the appropriation bills to pay them.

Do you know that the Senate received in 1854 a petition to do away with chaplains? Do you know that the matter was fully argued and presented and that chaplains were declared to be fully within the provisions of the first amendment?

Do you know that in 1875 a great Member of the House, James G. Blaine, afterward Senator and Republican nominee for President in 1884, against Grover Cleveland, offered, when he was in the House, an amendment to the Constitution to extend the first amendment to the States? The first amendment was never intended to apply to the States. Our Founding Fathers did not want to extend it to the States. And the Blaine amendment shows that Congress did not intend the 14th amendment to make the 1st amendment applicable to the States, and did not think this was the result of the 14th amendment. The House approved the Blaine proposal, and the Senate adopted first an amendment that this should not affect the reading of the Bible in the public schools. That was the attitude then, but the Blaine amendment never got a two-thirds majority in the Senate, so it failed.

You have on your desks a copy of my prepared statement, in which I also go through the matter of the Northwest Ordinance.

I will read you a provision of the constitution of Ohio-a part of the Northwest Territory

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.

And now Justice Douglas says that this decision should be construed broadly. And that is what Senator Stennis, my friend on the right. Senator Beall, of Maryland, and a number of others are trying to safeguard against, going to the extent that Justice Douglas said this decision should be carried. He mentioned, I believe, 19 possible extensions, and he said there could be a great many more.

As to the 14th amendment, the Supreme Court said, in the Bartkus v. Illinois case:

We have held from the beginning and uniformly that due process clause of the 14th amendment does not apply to the States any of the provisions of the first eight amendments as such.

That is the decision in the Bartkus case. In the prayer case though they claim that the 1st amendment is made to apply to the States by the 14th amendment-think of it-made to apply by the 14th amendment. And that a 22-word prayer is an establishment of religion. They jump from one inconsistency, without foundation, to another. And there is that extreme interpretation of Justice Douglas, in particular, which I say makes the decision bad law and a dangerous precedent.

There is no doubt about the broad implications of this case. That is why I proposed a resolution. But I have reached the conclusion that passage by Congress of a resolution is not sufficient in itself.

We ought to have the best advice we can get and the best brains of this great committee to frame an amendment to the Constitution which, as the distinguished Senator from New York said, will fully safeguard the fundamental principles of the separation of church and state and yet permit us to continue in public, as we have in the past, to recognize and proclaim publicly that we are a religious people. I thank you.

Senator JOHNSON. Mr. Robertson, we are certainly glad to have you with us this morning.

Our next witness is Senator Vance Hartke, of Indiana, who has a brief statement. You do have a brief statement?

Senator HARTKE. Very brief.

Senator JOHNSTON. Good. We have to close at 12 o'clock.

STATEMENT OF HON. VANCE HARTKE, U.S. SENATOR FROM THE STATE OF INDIANA

Senator HARTKE. Mr. Chairman and distinguished members of the Senate Judiciary Committee, on Monday, June 25, 1962, the Supreme Court of the United States, in a 6-to-1 decision, ruled that a State official prayer cannot be offered in our public school systems.

By this decision, a majority of Justices of the Supreme Court, said that the first amendment's ban on the establishment of a religion means at least that—

it is no part of the business of government to compose official prayers for any group of American people to recite as a part of a religious program carried on by government.

Because of this action taken by the Supreme Court, I think it necessary that the Senate, by resolution which I have introduced as Senate Resolution 356, give its sense that this is not to be construed as a prohibition against individual prayerful meditation if a governmental body so chooses to devote time for such a practice.

Permitting prayerful meditation by a governmental body, such as a school group, does not mean that the individuals participating have to pray if they choose not to do so; but for those who want to offer prayers of thanksgiving to their God, the opportunity is available under the resolution which I have introduced.

I have introduced this resolution, since I feel it is necessary that the U.S. Senate, the world's greatest deliberative body, go on record as not opposing prayer by individuals. The resolution is deemed necessary in view of the broad language used by the Supreme Court in the decision which has been handed down.

The Supreme Court's decision has a broad impact in many of the Nation's schools, including those in my State of Indiana.

As Justice Black wrote in his opinion:

Under that [the 1st] amendment's prohibition against governmental establishment of religion, as reinforced by the provision of the 14th amendment, government, in this country-be it State or Federal-is without power to prescribe, by law, any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

As I interpret Justice Black's opinion, and as I interpret the Constitution and its amendment, I see, nowhere, that prayerful meditation cannot be given by individuals as they choose. The first amendment

of the Constitution guarantees freedom of worship, which is exactly what I am calling for in this resolution-a reiteration by the U.S. Senate that this body reaffirms its belief in the first amendment that individuals may pray as they choose.

Therefore, Mr. Chairman and members of the committee, I respectfully request special consideration be given Senate Resolution 356 and the reporting of this resolution to the Senate for favorable

action.

There follows the exact wording of Senate Resolution 356:

Resolved, That it is the sense of the Senate that:

(a) Notwithstanding the recent Supreme Court decision which held that it is in violation of the first amendment of the Constitution to prescribe an official State prayer to be offered in a public school, any public school system, if it so chooses, may provide time during the schoolday for prayerful meditation if no public official prescribes or recites the prayer which is offered; and

(b) Providing public school time for prayerful meditation in no way violates the Constitution because each individual participating therein would be permitted to pray as he chooses, but that such practice is consonant with the free exercise of religion protected by the first amendment to the Constitution.

Senator JOHNSTON. Thank you, Senator Hartke.

I want to say that your statement here was brief and to the point and I wish, due to our limited time, that those who follow you will do as you have done, be brief.

Are there any questions?

Senator HART. No questions, Mr. Chairman, but I would like to express an opinion. It is this. I thought that Senator Hartke's approach was good. He said that silent prayer is all right, and I think that the Supreme Court without any change in the Constitution would hold that silent meditation periods are constitutional.

I think that it is the business of compulsion in the setting of a classroom as it affects the young child, that offends.

And I have always felt that it is this matter of compulsion that is the basis for the distinction. There is a real difference between a 10year-old in a classroom listening to a teacher recite a prayer, and a 30- or 40- or 50- or 60-year-old Senator who may or may not do his best on the Senate floor at noon.

Senator HARTKE. I want to thank this committee for giving me the time to express my opinion.

Senator JOHNSTON. We will next hear from Senator J. Glenn Beall, of Maryland. We are glad to have you here, Senator Beall.

STATEMENT OF HON. J. GLENN BEALL, U.S. SENATOR FROM THE STATE OF MARYLAND

Senator BEALL. Thank you, Mr. Chairman. I have a prepared state

ment.

Mr. Chairman and members of the committee, on June 27 I had the privilege of introducing Senate Joint Resolution 205, a proposed constitutional amendment to allow voluntary nonsectarian prayer in public schools.

I appreciate the opportunity provided by this committee for me to testify on this legislation today.

As you know, Mr. Chairman, 14 other Members of the Senate joined me as cosponsors of Senate Joint Resolution 205.

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.