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necessary to intelligently follow the advice of Learned Hand who, speaking of the Constitution and the Bill of Rights, said: "Their meaning is to be gathered from the words they contain read in the historical setting in which they were uttered." At one time Frankfurter would have agreed.
So let us read the meaning of "an establishment of religion" in the historical setting in which the pregnant words were uttered. The temper of those times will help us by throwing light as well as heat upon the first amendment.
Among those whose fathers and forefathers had packed up and come to the free land there was the greatest concern that in this new nation which had no established national church there should never sometime be one. Hence, in the speeches, documents, letters, and daily talk of the founders of American freedom there is an ever-so-frequent mention made of the words "establishment," "church establishment," "religious establishment," "establishmentarian," "establishmentarianism," "disestablishment," "disestablishmentarian," and "disestablishmentarianism." The root word was, of course, "establishment."
A university, for instance, was an establishment. So was a charitable institution. So was a church. But bear in mind that the most frequent use of establishment was this last: a church, or an established church.
Let us take as our first of many exhibits this quotation from Jefferson: "But every State, says an inquisitor, has established some religion. No two, say I, have established the same. *** Our sister States of Pennsylvania and New York, however, have long subsisted without any establishment at all. *** They flourish infinitely. Religion is well supported; of various kinds, indeed, but all good enough."
Here Jefferson is arguing that the Nation does not need "an establishment of religion" because certain American States have done well without any "establishment" at all.
Philip Alexander Bruce, speaking of the great disestablishmentarian in his "History of the University of Virginia," says:
"Jefferson was fully resolved to tear up the Episcopal establishment of Virginia root and branch, whenever the hour seemed opportune to do so."
The same historian informs us that an anonymous signer who had subscribed for the endowment of Hampden-Sidney College, a Presbyterian institution, decided to withdraw his contribution until that institution had been put under masters who belonged to the established church. He said, in his letter:
"If this school is thus encouraged, we may reasonably expect in a few years, to see our Senate House as well as our pulpits filled with dissenters, thus they may, by an easy transition, secure the establishment in their favor."
Establishmentarian Patrick Henry delivered a speech in favor of religious assessments, to which disestablishmentarian James Madison replied that the true question was not, "Is religion necessary?" but "Are religious establishments necessary for religions?" He answered his own question, "No, for religion is corrupted when established by law. The 'downfall of states' mentioned by Mr. Henry happened when there was establishment." That is, when there was a national religion.
Madison was alertly aware that Patrick Henry was confounding, possibly deliberately, religion and religious establishments, just as the 1962 Supreme Court was, but in the opposite direction, Patrick Henry wanted a religion in; the Supreme Court wants religion out.
In his Virginia Convention, 1788, the disestablishmentarian wrote: "Fortunately for this Commonwealth the majority of the people are definitely against any exclusive establishment."
That is, they were against a monopolizing state church.
And in a letter to Monroe, Madison uses establishment in the same sense, speaking of "The Presbyterians who seem as ready to set up an establishment which is to take them in as they were to pull down that which shut them out."
Again, in a letter to Robert Walsh, dated March 2, 1819, the meaning of establishment is the same:
"It was the universal opinion in the century preceding the last, that civil government could not stand without the prop of a religious establishment." Establishments were very much on his mind. In a letter under date of July 10, 1822, Madison wrote to his friend 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. The example of
the Colonies, now States which rejected religious establishments altogether, proves that all sects might be safely and advantageously put on a footing of equal and entire freedom."
In another letter he spoke of "the Indian establishment at Paraguay by the Jesuits." Notice that the word is always associated with a particular religious belief, as it is in the following letter to Frances Wright, 1825:
"The example of the Moravians, the Harmonians, and the Shakers *** have no doubt an imposing character. But it must be recollected that in all these establishments there is a religious impulse in the members."
Establishments appear again the same year in a letter to Thomas Ritchie: "Waiving the rights of conscience, not included in the surrender implied by the social state, and more or less invaded by all religious establishments."
In 1832 establishments are still very much on Madison's mind, and of course, always with the same meaning. He writes to the Reverend Adams:
"In most of the governments of the Old World, the legal establishment of a particular religion 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."
Historians also give the term "establishment" a meaning unlike that of the Supreme Court when applying it to a prayer. W. Gordon McCabe, in his "Virginia Schools Before and After the Revolution," writes concerning the State church of Virginia:
"The cold and worldly spirit which pervaded the Church of England at the time in the mother country, was only too faithfully reflected in the Colonial Establishment."
Of Samuel Davies, the virtual founder of the Presbyterian Church in Virginia, he informs us that he was "liberal in his feelings toward the establishment." The historian does not here mean that Davies was liberal in his feelings toward school prayers but toward the established Episcopal Church. Again, he writes:
"One of the clergy, Rev. Archibald McRoberts *** in 1776 left the establishment and embraced Presbyterianism."
The same historian, McCabe, says the Presbyterian dissenters were "revolting from the worldly preaching and practices of the establishment."
Turning now to documents that the new States forged to their needs we find establishment passages that lead directly into the forthcoming first amendment, and that doubtless even helped to fix its phraseology. For instance, an amendment proposed to the Maryland convention reads in part:
"12. That there be no national religion established by law."
While the constitution of North Carolina, adopted in 1776, provided that"There shall be no establishment of any one religion, church, or denomination in the State in preference to any other."
Looking back, we can see that the first amendment was on its way. It was a specifically and stylistically worded outgrowth of what was weighing on the minds of the shapers of the new nation.
PART 2. WHAT IT MEANT TO MADISON
We now know the meaning of the "establishment of religion" clause as seen in the context of the times, when the expression was in its heyday. But let us study it still more, this time by looking through the window of the mind of the first amendment's first and final framer, James Madison.
His first penning of the amendment read:
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established."
Note that, "national religion." This wording Madison presented to the committee of 11 on July 21, 1789. It came back to him shortened to
"No religion shall be established by law, nor shall the equal rights of conscience be infringed."
At this point let "The Annals of Congress," written as the events took place, pick up the story of the amendment:
"Mr. Sylvester had some doubts of the propriety of the mode of expression used in the paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether."
Such a construction might have been satisfactory to the Supreme Court of 1962, but it proved less than so to the committee, which had no intention of wording the amendment in a way that might make it harmful to religion.
"Mr. Gerry said it would read better if it was, that no religious doctrine shall be established by law.
"Mr. Sherman thought that amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them to make religious establishments; he would, therefore, move to have it struck out."
Observe that even while the amendment read thus unsatisfactorily no one would have applied it to the making or breaking of a school prayer. Law was still considered to be Congress, even before the wording made it so.
"Mr. Madison said, he apprehended the meaning of the words to be, that 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 permit." It is clear that Madison was concerned that a national religion might be set up by Congress. The danger lay in what Congress might do in this direction. "Mr. Huntington said that he feared, with the gentleman first up on this subject, 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. The ministers of the congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meetinghouses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a Federal court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers or building of places of worship might be construed into a religious establishment.
"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."
The danger that might come from a misuse of the amendment is still felt to run within the groove of the accepted definition of religious establishment, a particular church. One of these might suffer, is the fear of Mr. Huntington. "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 that if the word 'national' was introduced it would point the amendment directly to the object it was intended to prevent."
Here we see that Madison wanted to get part of the original wording back into the amendment: "national religion." He did not succeed. Mr. Gerry, the main mover against inclusion of "national" reasoned cogently that if this word were retained the phrasing would alienate the antifederalists, who would suspect in it a wish to weld the States into a nation.
After considerable debate the first amendment was given the wording it now has:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
This was considered satisfactory. The amendment simply made it illegal for Congress to make a law respecting an establishment of religion, that is—as everyone knew at that time a particular church. With such a safeguard how could a national church be established?
So there is an enormous wealth of evidence that when the Supreme Court prayer-ban supporter argues that he is upholding the principle of separation between church and state he is not talking to the point. By such separation, Jefferson, Madison, and their fellow nationmakers meant church not as religious principles or religion in general but denominational and state religion. To repeat Madison's words:
"If the word 'national' was introduced it would point the amendment directly to the object it was intended to prevent."
The object directly pointed at, then, was a national church, not a nondenominational school prayer which no one really fears.
The Supreme Court of 1962, has, however, pointed the amendment directly to an object it was not intended to prevent.
COMMITTEE ON BANKING AND CURRENCY,
August 27, 1962.
Mr. L. P. B. LIPSCOMB,
U.S. Senate, Washington, D.C.
DEAR MR. LIPSCOMB: I enclose a tearsheet from the Congressional Record of last Saturday carrying the speech I made on the New York Prayer case.
I would appreciate your kindness in including in your printed hearings that speech with my previous testimony on the same subject.
With best wishes, I am,
A. WILLIS ROBERTSON.
[From the Congressional Record, Aug. 25, 1962]
THE NEW YORK PRAYER CASE
Mr. ROBERTSON. Mr. President, few Supreme Court decisions have raised more controversy than Engel v. Vitale, the New York Prayer case.
On June 25 of this year, the Supreme Court, by a 6-to-1 majority, held unconstitutional the daily recitation in New York public schools of a short prayer composed by the State board of regents and adopted by a local school board. I hope to show in my remarks that the establishment clause of the first amendment was not intended to prohibit such public religious exercises.
Because of my concern over this recent decision and its implications, I testified some weeks ago before the Senate Judiciary Committee. I spoke in behalf of an amendment to the Constitution which, while fully protecting the fundamental principle of separation of church and state, would permit the continuation of those governmental religious practices that have long been a part of our heritage.
In his concurring opinion in Engel v. Vitale, Mr. Justice Douglas suggested some 19 of these practices which he felt should be abolished. His list included the Chaplains of both Houses of Congress and of the Armed Forces, the national motto "In God We Trust," and the reading of the Bible in District of Columbia schools.
Mr. Justice Clark in a recent speech in California referred to public criticism of the Supreme Court's decision in the New York Prayer case. He said that the public did not fully understand the meaning of the decision. He implied, in my judgment, that the Court would not follow the course suggested by his colleague, Mr. Justice Douglas.
Mr. TALMADGE. Mr. President. will the distinguished Senator from Virginia yield?
Mr. ROBERTSON. I yield to my friend, the Senator from Georgia.
Mr. TALMADGE. I listened with much interest to the comment my distinguished friend made about the special concurring opinion of Associate Justice Douglas. Is it not true that if his opinion were the law, he would have the Nation place nonbelievers and believers in exactly the same category with respect to the law? Mr. ROBERTSON. Absolutely; he would.
Mr. TALMADGE. In other words, if his opinion were the decision of the Court, he would place the Supreme Being and the Devil in a coequal status?
Mr. ROBERTSON. Yes. His opinion, if it ever became law, would completely secularize our Nation, and there would be no more recognition of God in our Government than in any country behind the Iron Curtain.
Mr. TALMADGE. I thank the Senator from Virginia.
Mr. ROBERTSON. Mr. President, in its October term, the Supreme Court will have the opportunity to hear cases in which petitioners challenge practices that are not dissimilar to the regents' prayer. For example, in Murray against Curlett, the Court will determine whether a Maryland law providing for the voluntary recitation of the Lord's Prayer in public schools is constitutional.
It seems to me that if the Court is to be consistent, it must adopt the position of Mr. Justice Douglas and declare the recitation unconstitutional. This would apply also to many other religious practices which are a part of our heritage. To the present Court, however, consistency-known in judicial parlance as stare decisis is not considered to be "a jewel." In view of Mr. Justice Clark's recent comments, therefore, it is quite possible that the Supreme Court will follow its decision in Engel against Vitale to a logical, if unfortunate, conclusion. Mr. TALMADGE. Mr. President, will the distinguished Senator from Virginia yield again to me?
Mr. ROBERTSON. I yield.
Mr. TALMADGE. Did it strike my friend as being most unusual-as it did me— for an Associate Justice of the Supreme Court, who had concurred in an opinion which met with almost universal hostility in our country, to call a press conference while he was visiting in California, in order to interpret the decison whch was handed down in Washington, D.C.?
Mr. ROBERTSON. Well, the newspaper comment on it was that within the recollection of the newspaper commentators there was no precedent for such action by a member of the Court whose decision had been criticized.
Mr. TALMADGE. Did it strike the Senator from Virginia, as it struck me, that that member of the Supreme Court was making an effort to alibi for what he had concurred in?
Mr. ROBERTSON. That inference could be drawn.
Mr. TALMADGE. Does the distinguished Senator from Virginia know of any other time in the history of American jurisprudence when an Associate Justice of the Supreme Court has seen fit to call a press conference in an attempt to interpret an opinion in which he had previously concurred?
Mr. ROBERTSON. There is none, so far as I can recall. I did not begin the prac tice of law until 1908. Such a thing might have happened in an earlier period, but I recall none since then.
Mr. TALMADGE. The able Senator from Virginia is not only one of the greatest lawyers and one of the greatest Biblical scholars in the Senate; he is also one of the greatest historians in the Senate. Does he recall any instance in the history of the Supreme Court of the United States, from its beginning to the present time, when an Associate Justice of the Supreme Court has called a press conference, in an attempt to explain his decision?
Mr. ROBERTSON. Mr. President, my friend, the Senator from Georgia, credits me with more than I deserve; I do not, however, recall such an instance. Mr. TALMADGE. Neither do I.
Mr. ERVIN. Mr. President, will the Senator from Virginia yield to me? Mr. ROBERTSON. I yield to the distinguished Senator from North Carolina. Mr. ERVIN. Does not the Senator from Virginia agree with me in the observation that this is not the first time in recent years that the Supreme Court of the United States or some of its members have challenged by their words or by their conduct the observation of the writer of the book of Ecclesiastes that there is nothing new under the sun?
Mr. ROBERTSON. I would have to agree with that observation.
Mr. ERVIN. Until the event alluded to by the Senator from Virginia and the Senator from Georgia, there was no recorded instance in the history of our Nation when a member of the judiciary undertook to explain at a press conference what a decision of the Court meant; is not that true?
Mr. ROBERTSON. Yes, that is my understanding.
Mr. ERVIN. Notwithstanding the modest dissent of the distinguished Senator from Virginia, I should like to concur in the opinion expressed a moment ago by the able and distinguished junior Senator from Georgia [Mr. Talmadge], when he said the junior Senator from Virginia is one of the greatest lawyers and one