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"That provision has my most hearty commendation; but for all that it is not necessary to put it in the Federal Constitution. That matter was discussed in the Convention that made the Constitution, and it was not thought wise to put in any such provision, but to leave it to the States" (id., p. 5581).

Senator Morton answered the argument of Senator Kernan, as follows: "The Senator from New York took the ground that the Constitution of the United States should not interfere with a State upon the question of schools or religion, and my friend's argument amounts to this *** that the States should be left free if they see proper to establish sectarian schools by public taxation, and that if the State of New York desires to levy a tax and collect money of the people to establish, if you please, Protestant schools on the one hand or Catholic schools on the other, should be left free to do that, and we should not interfere by a constitutional amendment to prevent her. That is my friend's argument, that the States should be left free to establish a religion or to establish sectarian schools" (id., p. 5584).

Both Senators in this colloquy evidently believed that the 14th amendment had not already extended to the States the restrictions upon Congress enumerated in the 1st amendment. Furthermore, the prohibition in the first amendment against "an establishment of religion" would clearly not have been construed by them as an impediment to voluntary public religious exercises. In these beliefs, they represented the general feeling of Congress at that time.


In Holy Trinity Church v. United States, 134 U.S. 457 (1891), the Supreme Court stated emphatically that we are a religious people:

"But beyond all these matters no purpose of action against religion can be imputed to any legislation, State or National, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation" (p. 465).

More recently Judge Martin P. Burks, speaking for the Virginia Supreme Court of Appeals, declared in Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922), a decision upholding the Virginia Sunday closing laws:

"But from the creation of the State until the present time, this State has been recognized as a Christian State, at least in the sense that the great body of its citizens adhere to the tenets of the Christian religion, and, while at all times according freedom of conscience to all men, it has so far respected the opinions of this great body of its citizens as always to preserve from desecration the sanctity of Sunday which they regard as holy" (p. 717).

In 1940, as I have stated, the Supreme Court in Cantwell v. Connecticut (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), interpreted the 14th amendment as extending to the States the provisions of the 1st amendment dealing with religion. An examination of McCollum v. Board of Education (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922), and Zorach v. Clauson (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), illustrates the difficulty which the Court created for itself by adopting the Cantwell doctrine and by failing to apply the historical distinction between laws which would establish a particular religion and laws which merely affect religion generally.

In the McCollum case, the Board of Education of Champaign, Ill., instituted a program under which public school students with the permission of their parents were released during the day to attend classes conducted in the schools by representatives of the Roman Catholic, Protestant, and Jewish faiths. Only students whose parents had so requested were required to attend.

The Supreme Court held this program unconstitutional. Citing favorably Everson v. Board of Education (Pirkey Brothers v. Commonwealth, 134 Va. 713 (1922)), Mr. Justice Black quoted the Everson case in his majority opinion as follows:

"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion" (p. 210).

In spite of the constitutional history to the contrary, the Court, after applying the establishment clause to the States, went on to hold that the utilization of Illinois tax-supported public schools in the teaching of the Protestant, Roman Catholic, and Jewish religious faiths was an establishment of religion.

In Zorach against Clauson, the Court reached the opposite verdict on a set of facts which were substantially the same, with the exception that students received their religious instruction off the school grounds. The Court deter

mined in the Zorach case that the policy of the New York Board of Education was not inconsistent with the establishment clause.

Distinguishing the two verdicts, the Court stated at page 315:

"In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction."

The Court seemed to be saying that in cases of this type the primary factor to be considered is whether State funds have been spent to further religious purposes. However, the Court in the Everson case had upheld in 1946 the reimbursement of parents by the State of New Jersey for fares paid in the transportation of children by bus to and from Roman Catholic schools.

If the Court, on the other hand, had interpreted the 1st and 14th amendments as their framers intended, this confusion in the law could have been avoided. Clearly, public funds in every State in the Union are diverted in some way to the support of religion. This is done, for example, when States and localities grant tax exemptions to religious institutions.

In 1959 the Supreme Court gave some indication that it might reconsider its application of the first amendment to the States and, by implication, its misinterpretation of the establishment clause. I am referring to Bartkus v. United States, 359 U.S. 121, in which the Court upheld a State prosecution for violation of its own penal law after the appellant had previously been acquitted by a Federal court on substantially the same evidence. The Court declared:

"We have held from the beginning and uniformly that the due process clause of the 14th amendment does not apply to the States any of the provisions of the first eight amendments as such (cites cases). The relevant historical materials have been canvassed by this Court and by legal scholars (cites Fairman, 'Does the 14th Amendment Incorporate the Bill of Rights? The Original Understanding,' 2 Stan. L. Rev. 5). These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the 14th amendment was a shorthand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States" (p. 124).

After the Regents' Prayer case, however, any alteration by the Supreme Court of its religious posture since 1940 appears very unlikely. Indeed the majority opinion of Mr. Justice Black seems to indicate that the Supreme Court intends to follow-not constitutional history-but rather the Court's own decisions misinterpreting it.


Mr. President, the repercussions of Engel against Vitale are likely to be far reaching.

Two cases are now on appeal before the Supreme Court which offer ample opportunity for the Court to enlarge upon its recent misinterpretation of the establishment clause. Petitioners in a third case, I understand, intend also to seek a writ of certiorari. These three cases-Schempp against School District of Abington Township, Murray against Curlet, and Chamberlin against Dade County Board of Public Instruction-originated in Pennsylvania, Maryland, and Florida, respectively. All cases involve the reading of the Bible in the public schools; and the Maryland case the daily recitation of the Lord's Prayer is at issue also. In each instance, the students' participation is voluntary.

The most comprehensive of the test cases comes on appeal from the Supreme Court of Florida. In the Chamberlin case, appellants seek not only to terminate the daily reading of a brief passage from the Bible, but in addition, to be relieved of the singing of hymns in music classes, the painting of pictures on religious themes, the decoration of schoolrooms at Christmastime, the saying of grace or other prayers at school functions, and the holding of baccalaureate ceremonies at commencement.

In delivering the opinion of the Supreme Court of Florida, which denied the claim of the petitioners, Justice Millard F. Caldwell stated:

"To say that the vast majority of students in the Dade County public school system are to be foreclosed of the privilege of living a few moments each day with the words of the Bible the greatest of all literature, or of observing in the classroom, if such were possible, the magnificent painting of "The Last Supper.' or of listening to Caruso's recording of 'Adeste Fidelis,' because a minority might suffer some imagined and nebulous confusion, is to approach the ridiculous.

"We believe it necessary that public education give due recognition to the place of religion and the culture and convictions of our people but that in doing so the principle of separation of church and state must be safeguarded. The road is a difficult one but, certainly, we cannot agree that banishing the Bible and music and paintings of religious connotation will benefit the plaintiff's children in any material way. We are of the opinion that erasing the influence of the best literature, music, and art and gentler aspects of American life in general would be to create an antireligious attitude in the schools and substantially injure the well-being of the majority of the schoolchildren" (Chamberlin v. Dade County Board of Public Instruction, June 6, 1962).

In answer to another question bearing upon the issue, Mr. Justice Caldwell said the following about the embarrassment that might arise for children who do not participate :

"In the instant case we are told that the primary objects of solicitude are the children of the plaintiffs, atheists, Unitarians, and Jews, which children, although not required to be present at the time, will, so it is said, suffer some supposedly irreparable emotional stress if their classmates are permitted to hear the Bible read. It seems more likely that the children in question are the unwitting victims of a quasi-political contest.

"The plaintiffs assume, inferentially at least, that minorities enjoy a peculiar susceptibility to psychological and emotional trauma and compulsions and are entitled to some peculiar and fatherly protection against the strange ways of the ordinary American citizen. But such is not the case. The minority is entitled to enjoy the same privileges and the same justice as are enjoyed by people generally as an inherent right. The minority and the majority are both denied the privilege of disrupting the lives of others because of some hypersensitivity or fractious temperament" (Chamberlin v. Dade County Board of Public Instruction, June 6, 1962).

It is to be hoped that the six Supreme Court Justices who struck down the regents' prayer will somehow find no inconsistency in upholding as constitutional the recitation of the Lord's Prayer and the reading of the Bible in public schools. Such a reversal in position would be no more pronounced than that already executed by Mr. Justice Douglas. It is interesting to compare his majority opinion in Zorach against Clauson-Chamberlin against Dade County Board of Public Instruction, June 6, 1962—with his concurring opinion in Engel against Vitale.

Zorach against Clauson at pages 312,

"The first amendment, however, does not say that in every and all respects there shall be a separation of church and state. Rather it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the commonsense of the matter. Otherwise the state and religion would be aliens to each other-hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative Halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths-these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the first amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this honorable Court." " Engel against Vitale at pages 1-6 of the concurring opinion:

"The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the Federal and State levels is presently honeycombed with such financing [here he lists in a footnote some 19 'aids']. Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.

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"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. Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time that our marshal

spends announcing the opening of our sessions and offering a prayer for this Court. 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."

Conflicting positions of this type could have been avoided if contemporary Justices of the Supreme Court had but followed the historically sound definition of "establishment" as expounded by Judge Cooley-"Cooley, General Principles of Constitutional Law," in the work cited, page 213:

"By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the Government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of divine providence in the working of government might seem to require it, and where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."

The public clamor against the regents' prayer decision indicates how strongly the American people value the place of religion in our national life. Action must now be taken to preserve this heritage.

At an annual conference held in Hershey, Pa., early in July of this year the Governors of 49 States-with only Gov. Nelson Rockefeller of New York abstaining-resolved that

"The conference urge the Congress of the United States to propose an amendment to the Constitution of the United States that will make clear and beyond challenge the acknowledgement of our Nation and people of their faith in God and permit the free and voluntary participation in prayer in our public schools." The firm action of our State Governors underlines the impact of the Court's recent decision upon the American people.

Several Members of Congress have introduced constitutional amendments which, if approved, would nullify Engel against Vitale. The Senate Committee on the Judiciary has conducted hearings on these amendments.

In his testimony before the committee, the Right Reverend James A. Pike suggested that the establishment clause of the first amendment be amended so that the words "the establishment of religion" would be restated as "the recognition as an established church of any denomination, sect, or organized religious association." Bishop Pike noted in his testimony that under this amendment "the secularization and deconsecration of the Nation which-recent-Supreme Court decisions have begun would be blocked. Our middle way would be preserved." Such a proposal seems to me to be the type of amendment which Congress should recommend to the States for ratification, if the Court will not reverse its present position.

Mr. President, the great New England statesman, Daniel Webster, was the Isaiah of his day and generation when he said:

"If we and our posterity ** * shall live always in the fear of God, and shall respect His commandments; if we and they shall maintain just moral sentiments, and such conscientious convictions of duty as shall control the heart and life, we may have the highest hopes of the future fortunes of our country; and if we maintain those institutions of government and that political union exceeding all praise as much as it exceeds all former examples of political associations, we may be sure of one thing-that while our country furnishes materials for a thousand masters of the historic art, it will be no topic for a Gibbon, it will have no decline and fall. It will go on prospering and to prosper. But if we and our posterity reject religious instruction and authority, violate the rules of eternal justice, trifle with the injunctions of morality, and recklessly destroy the political constitution which holds us together, no man can tell how sudden a catastrophe may overwhelm us that shall bury all our glory in profound obscurity" ("Chaplains of the General Government," Johnson, L. D., (1856), p. 55).

Mr. ERVIN. Mr. President, will the Senator from Virginia yield?

Mr. ROBERTSON. I yield to my friend.

Mr. ERVIN. I should like to commend the able Senator from Virginia for his scholarly and thorough presentation on this important question.

As I stated a few minutes ago, during the time the Senator from Virginia and I have been privileged to serve together in the Senate of the United States, the Senator from Virginia has made some of the finest contributions to the Preservation and presentation of the history of our country and to the preservation

and presentation of the fundamental constitutional principles upon which our country rests. Today he has continued in masterful fashion the task he has performed equally as well on a number of other occasions.

I wish all the people of this Nation who believe in constitutional government and who believe, as George Washington did, that it is just as necessary to preserve it as it was to initiate it in the first place, could have the benefit of the study the Senator from Virginia has given during his service in the Senate to these various fundamental questions.

Mr. ROBERTSON. Mr. President, that tribute is doubly appreciated, because it comes not only from one of the ablest Members of this body, but also from a man who has served as a member of the highest court of his own State. He is widely recognized as the best constitutional lawyer in the Senate.

Mr. TALMADGE. Mr. President, will the Senator from Virginia yield?

The PRESIDING OFFICER (Mr. Metcalf in the chair). Does the Senator from Virginia yield to the Senator from Georgia?

Mr. ROBERTSON. I yield.

Mr. TALMADGE. The distinguished Senator from Virginia has had an illustrious and honorable career in many fields of endeavor. He has served his country in uniform, in time of war. He has served his great State of Virginia, the mother State of our country, in the legislative branch, in the judicial branch, and also in the executive branch of the Government. He has served honorably and long in the Congress of the United States, both in the House of Representatives and in the Senate. But I do not believe the distinguished Senator from Virginia has ever rendered during his long career, a more outstanding service than the one he has rendered today on the floor of the Senate. I have never heard a more scholarly, logical, irrefutable, eloquent legal argument in all my life. He has gone into the history and the origin of the first amendment to the Constitution of the United States. He has quoted from those who framed that amendment. He has quoted from the debates in the House of Representatives and in the Senate of the United States as to its meaning. He has traced the decisions of the U.S. Supreme Court in construing that document. He has quoted from Mr. Justice Story and from Judge Cooley, the writers of the greatest commentaries, in all the history of our country, on the meaning and the significance of that document.

He has laid threadbare the argument that government cannot participate in religion. He has clearly demonstrated that government cannot exist without


Mr. President, I compliment the distinguished Senator from Virginia on the outstanding and eloquent job he has done today.

Mr. ROBERTSON. I thank the Senator. During my 30 years of service in the Congress I have discussed many issues, but none of such transcendent importance to the future of our Nation as the one I have attempted to discuss today. I only wish that, like Isaiah of old, my lips, in presenting this speech, could have been touched by a burning coal from the altar.


Professional Staff Member,
Committee on the Judiciary,

Senate Office Building,

Washington, D.C.

DEAR MR. LIPSCOMB: On Sunday, October 7, I appeared on the Reader's Digest program, "All America Wants To Know," with the Right Reverend James A. Pike in a debate on the Supreme Court's school prayer decision with Senator Jacob Javits and William J. Butler.

Senator Russell had the text of this debate inserted in the Congressional Record of Wednesday, October 10, beginning on page 21705 and I am writing to request for myself and Senator Robertson that it also be printed as part of the transcript of the current hearings on proposed constitutional amendments dealing with that decision.

Thank you for this courtesy.

With every good wish, I am,

92395-63- -14


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