of the greatest Biblical scholars and one of the greatest students of history in our country.

Mr. ROBERTSON. Well, Mr. President, I have no words adequate to express my appreciation of that high tribute.

Mr. ERVIN. And, Mr. President, if the Senator from Virginia will pardon me, I should like to say that anyone who is interested in the history of our Nation and in the fundamentals of American government can do no better than to read some of the speeches which the able and distinguished junior Senator from Virginia has made on the floor of the Senate during the years that I have been privileged to serve with him in the Senate.

Mr. ROBERTSON. Mr. President, I appreciate what my friend has said.

Today I am making a rather extended speech because we are dealing with a vital principle of government-the question of whether we shall sit idly by and permit the Supreme Court-which, in my opinion, has misinterpreted both the 1st amendment and the 14th amendment of the U.S. Constitution-to, as Bishop Pike has said, deconsecrate our Nation.

We have no clear assurance that the Court will not follow the broad concurring opinion of Mr. Justice Douglas in rendering future decisions. That is why I say we cannot sit complacently and assume that the outlawing of a 22-word prayer, which merely recognizes that there is a God, is consistent with our Constitution and religious traditions.

It is conceivable that if the Supreme Court's decision is followed to its logical conclusion, we will have to remove the words "In God We Trust," and "Annuit Coeptis" that is, "May Providence help us," from the doorways of the Senate Chamber.

Mr. TALMADGE. Mr. President, will the Senator from Virginia yield again to me? Mr. ROBERTSON. I yield.

Mr. TALMADGE. Did not the concurring opinion of Mr. Justice Douglas state that the Nation, the States, the counties, and the school districts, must be divorced from God and that God must be divorced from our Government?

Mr. ROBERTSON. Well, he implied that it was not the proper function of anyone on the Government payroll to make any reference to God. One could carry that opinion a little further, and conclude that God must be divorced from our Government. Such an interpretation is certainly consistent.

Mr. TALMADGE. Mr. President, will the Senator from Virginia yield again to me? Mr. ROBERTSON. I yield.

Mr. TALMADGE. Would not that opinion be, in effect, a denial of the whole history of our Government and the functioning of our Government from the time of the Continental Congress to the present time?

Mr. ROBERTSON. Undoubtedly; and that is the theme of my speech today.

Mr. TALMADGE. And would not it be directly in refutation of the Constitution of the United States and of all acts of Congress since that time?

Mr. ROBERTSON. Absolutely. We have always affirmed that there is a God and that we are dependent upon His kindness and His loving care. Our unique form of government acknowledges in the Declaration of Independence that we have certain unalienable rights which we get directly from God, not from princes or potentates. Our free enterprise system and our constitutional liberties are founded upon the teachings in the Bible. Because of this we have had the freest and the most prosperous nation in the world, we have had one of the bravest nations in the world, because our people had a faith in which they believed, one they would fight for, one they would die for.

We must remember the fate of Rome when its young men, stripped of their patriotism through corruption and softness, would not defend their nation; they would not fight.

To continue, I would hope that the Court will make the most of its approaching opportunity to interpret the 1st and 14th amendments as their framers intended. Clearly, the words "establishment of religion," in the first amendment, were intended to mean establishment of a particular denomination-Methodist, Baptist, or Catholic-as the national religion. And clearly the 14th amendment was not intended to apply the establishment clause of the 1st amendment to the States.

With the hope that the Court in its October term will give greater weight to constitutional history, and the hope that the Court will not extend the doctrine of Engel against Vitale, I do not plan to ask for legislative action on an amendment to the Constitution at this session of Congress. I do, however, feel that the imminent Court action makes it particularly advisable for me to review in some detail the reasons why the decision in Engel against Vitale is bad law and a dangerous precedent.

e United States, shall be vested in one Supreme Court, ewts as the Congress may from time to time ordain and

sadicial power as follows:

nowe, shall extend to all cases, in law and equity, arising under he law of the United States, and treaties made, or which shall echority."

dila! power, like the legislative and executive power, was Fearners of the Constitution to be limited in scope. Any iccion which the Supreme Court now exercises has been assumed nits own construction of the Constitution.

Court, for example, in Martin v. Hunter's Lessee, 1 Wheat. 304 Recetas V. Virginia, 6 Wheat. 264 (1821), resolved in its favor the whether the State courts or the Supreme Court was to be the final "the supreme law of the land."

Matison, 1 Cr. 137 (1803), the Court assumed the power of of acts of Congress. Chief Justice John Marshall concluded cha a law repugnant to the Constitution is void; and that courts. of departments--of government-are bound by that instrument”— hath of the Federal Government is bound by the provisions of the But the Supreme Court is the final judicial body to interpret The Court's position has in recent years contributed to an Prvi Jons umber of decisions which misinterpret the intent of those who 1 the Constitution and its amendments. Too frequently the Supreme hi di carded the approach toward the interpretation of the Constitution bd by Thomas Jefferson in his letter of June 12, 1823, to William

tal and leading object of the Constitution was to leave with the of ruthorities which respected their own citizens only, and to transfer to Laned States those which respected citizens of foreign or other States; ke us several as to ourselves, but one as to all others. In the latter case. constructions should lean to the general jurisdiction, if the words will and in favor of the States in the former, if possible to be so con*** On every question of construction, carry ourselves back to the when the Constitution was adopted, recollect the spirit manifested in the and instead of trying what meaning may be squeezed out of the text. ented against it, conform to the probable one in which it was passed" Complete Jefferson," Padover, S. K., 1943, p. 322).

ANALYSIS OF THE DECISION

is the text of the prayer involved in the Supreme Court's controversial

Mighty God, we acknowledge our dependence upon Thee, and we beg Thy ig upon us, our parents, our teachers and our country."

No local school board was required by the New York State Board of Regents to prescribe this or any other prayer for recitation in its classrooms. But each local school board could. if it wished, prescribe the prayer for its own students. Recitation by the students was voluntary. Any child could remain silent. Or, with the written consent of his parent or guardian, a student could be excused from class during the prayer.

Nevertheless, parents of 10 New York pupils challenged the constitutionality of the State law which authorized the use of the prayer in the public schools and the regulation of the local board requiring its recitation. Their challenge was based on the following ground:

"These actions of official governmental agencies violate that part of the 1st amendment of the Federal Constitution which commands that 'Congress shall make no law respecting an establishment of religion'-a command which was made applicable to the State of New York by the 14th amendment of the said Constitution" (Engel v. Vitale, U.S. Supreme Court, October term, 1961, majority opinion, p. 2).

The Court accepted this contention. It did so despite the fact that the prayer was nondenominational. It did so despite the fact that paricipation in this recitation was voluntary.

Mr. Justice Black, who delivered the majority opinion, noted at page 9:

"The establishment clause, unlike the free exercise clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not" (id., p. 9).

The decision can, of course, be construed narrowly. It may be argued that Engel against Vitale applies solely to cases which involve prayers composed and authorized for public recitation by governmental officials. Some of the Court's language would tend to justify such a construction. I refer in particular to the following footnote at page 14 of the majority opinion:

"There is of course nothing in the decision reached here that is inconsistent with the fact that schoolchildren and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance" (id., p. 14).

A broader construction of the Court's decision, however, would seem to be supported by other language in the majority opinion. Such language, in effect, would extend the application of the Court's decision far beyond the facts in Engel against Vitale.

The following statement of Mr. Justice Black suggests a more inclusive interpretation:

"The establishment clause thus stands as an expression of principle on the part of the founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate" (id., p. 10). And further:

"It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance" (id., p. 14).

On the other hand, Mr. Justice Douglas, in his concurring opinion, leaves no doubt that if his view were to prevail, all public religious exercises would be eliminated.

He notes at page 4 of his opinion that:

"What New York does on the opening of its public schools is what each House of Congress does at the opening of each day's business.

"In New York the teacher who leads in prayer is on the public payroll: and the time she takes seems minuscule as compared with the salaries appropriated by State legislatures and Congress for chaplains to conduct prayers in the legislative halls. Yet for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution."

In discussing the Supreme Court's decision, I wish to state again, as I have said before, that a simple nonsectarian prayer like the one recited in some New York public schools would in no way be an adequate substitute for the type of prayer which we find, in God's words, according to the Book of Chronicles: "If my people, which are called by my name, shall humble themselves and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land" (2 Chronicles 7:14).

In Virginia, from time to time prayers have been recited in our public schools and passages have been read from the Bible. Although we have never had a State law that required a prepared prayer to be recited or a section of the Bible to be read, neither have we ever had a law that prohibited such a recognition of God.

The issue that disturbs me most is not whether we have prayers in our public schools. It is whether we as a nation complacently accept a decision of the Supreme Court which casts aside the plain language of the Constitution; which invades the province of the States; and which, if carried to its logical and ultimate conclusion, would undoubtedly sweep us down the broad and easy highway of secularism.

Article III of the Constitution establishes the structure and jurisdiction of the Federal judiciary.

Section 1 provides :

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Section 2 defines this judicial power as follows:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the law of the United States, and treaties made, or which shall be made, under their authority."

The Federal judicial power, like the legislative and executive power, was intended by the framers of the Constitution to be limited in scope. Any additional jurisdiction which the Supreme Court now exercises has been assumed by the Court in its own construction of the Constitution.

The Supreme Court, for example, in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), and Cohens v. Virginia, 6 Wheat. 264 (1821), resolved in its favor the question of whether the State courts or the Supreme Court was to be the final interpreter of "the supreme law of the land."

In Marbury v. Madison, 1 Cr. 137 (1803), the Court assumed the power of judicial review of acts of Congress. Chief Justice John Marshall concluded in this case, "that a law repugnant to the Constitution is void; and that courts. as well as other departments-of government-are bound by that instrument"page 180.

Each branch of the Federal Government is bound by the provisions of the Constitution. But the Supreme Court is the final judicial body to interpret these provisions. The Court's position has in recent years contributed to an increasing number of decisions which misinterpret the intent of those who framed the Constitution and its amendments. Too frequently the Supreme Court has discarded the approach toward the interpretation of the Constitution prescribed by Thomas Jefferson in his letter of June 12, 1823, to William Johnson:

"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 constructed * * * 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" ("The Complete Jefferson," Padover, S. K., 1943, p. 322).

This is the text of the prayer involved in the Suprem

decision:

"Almighty God, we acknowledge our dependence blessings upon us, our parents, our teachers and

No local school board was required by the New York State Board of Regents to prescribe this or any other prayer for recitation in its classrooms. But each local school board could. if it wished, prescribe the prayer for its own students. Recitation by the students was voluntary. Any child could remain silent. Or, with the written consent of his parent or guardian, a student could be excused from class during the prayer.

Nevertheless, parents of 10 New York pupils challenged the constitutionality of the State law which authorized the use of the prayer in the public schools and the regulation of the local board requiring its recitation. Their challenge was based on the following ground:

"These actions of official governmental agencies violate that part of the 1st amendment of the Federal Constitution which commands that 'Congress shall make no law respecting an establishment of religion'-a command which was made applicable to the State of New York by the 14th amendment of the said Constitution" (Engel v. Vitale, U.S. Supreme Court, October term, 1961, majority opinion, p. 2).

The Court accepted this contention. It did so despite the fact that the prayer was nondenominational. It did so despite the fact that paricipation in this recitation was voluntary.

Mr. Justice Black, who delivered the majority opinion, noted at page 9: "The establishment clause, unlike the free exercise clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not" (id., p. 9).

The decision can, of course, be construed narrowly. It may be argued that Engel against Vitale applies solely to cases which involve prayers composed and authorized for public recitation by governmental officials. Some of the Court's language would tend to justify such a construction. I refer in particular to the following footnote at page 14 of the majority opinion:

"There is of course nothing in the decision reached here that is inconsistent with the fact that schoolchildren and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially es poused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance" (id., p. 14).

A broader construction of the Court's decision, however, would seem to be supported by other language in the majority opinion. Such language, in effect, would extend the application of the Court's decision far beyond the facts in Engel against Vitale.

The following statement of Mr. Justice Black suggests a more inclusive interpretation:

"The establishment clause thus stands as an expression of principle on the part of the founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate" (id., p. 10). And further:

"It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance" (id., p. 14).

On the other hand, Mr. Justice Douglas, in his concurring opinion, leaves no doubt that if his view were to prevail, all public religions exercises would be eliminated.