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war conditions made civil courts impossible. After passage of the Reconstruction Act, however, in March 1867, the Court took a different tack. In Mississippi v. Johnson (April 1867) the injunction sought by Mississippi to prevent Johnson from carrying out the provisions of the Reconstruction Act was denied. The Court feared Johnson might get impeached for carrying out this Court order. In Georgia v. Stanton, the Court would not consider the case since this case, which involved the constitutionality of the Reconstruction Act, raised political, not judicial issues. In Ex parte McCardle, a Mississippi editor was arrested by a military court and applied for a writ of habeas corpus. Congress, fearing this case would involve a decision on the constitutionality of the Reconstruction Act, passed a bill repealing Supreme Court jurisdiction of the habeas corpus issues raised by the Mississippi editor. The Supreme Court bowed to the congressional restrictions and again refused to determine the constitutionality of the Reconstruction Act and the 14th amendment.


The history of Reconstruction indicates that the 14th amendment, which the Supreme Court now relies upon in its decisions on religious tradition in the States, was made possible by three major factors, the assassination of Abraham Lincoln, the Reconstruction Act of March 2, 1867, and the continuous refusal of the Supreme Court since that date, to consider any case involving the constitutionality of the Reconstruction Act and the 14th amendment. As the 14th amendment is the major departure in American history from the federal system of government under a limited constitution, with powers not delegated to the Federal Government being reserved for the States, it is astounding that the highest Court in our land has remained silent on this question. The silence is ominous for the Nation, for the unwillingness or inability of the Supreme Court to tackle this question head-on indicates a grave erosion of judicial integrity.

The Supreme Court had a constitutional duty to declare illegal either the Louisiana government created by Lincoln or the government set up under the Reconstruction Act. In doing neither, and by refusing to even decide any cases involving the constitutionality of the Reconstruction Act, the Supreme Court declared in effect that Lincoln's Louisiana government was the illegal one. The facts that Lincoln was removed from the scene by assassination, his successor Andrew Johnson, was neutralized by impeachment proceedings, and Congress used its powers to curb and threaten the Supreme Court, appear to be the major historical factors explaining why the Supreme Court kept silent on Reconstruction during the heyday of the Radical Republicans.

Why has the Supreme Court remained silent on Reconstruction for an entire century? This is a great mystery. But it will hardly remain a mystery, however, if the Supreme Court persists in using the 14th amendment to club the States into submission, in violation of the 10th amendment. To clobber the States on prayers in schools and do absolutely nothing about eliminating prayers in Congress, in the Supreme Court itself, and national days of prayer proclaimed by the President is a clear indication that the Supreme Court is not now wedded to the Federal theory of government founded upon a limited constitution.


In the contest for power between Federal and State Governments under constitutional rules, it is the Supreme Court that is supposed to be the impartial arbiter or umpire of the rules, blowing the whistle on infractions when either the Federal Government or a State government steps out of line. According to Alexander Hamilton, in the Federalist (No. 78) an independent Supreme Court is a major prerequisite for a limited constitution that works:

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. Limitations *** can be perserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

The purpose of this independent judiciary, again according to Hamilton, is to judge all law according to the Constitution:

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

While it is desirable that Supreme Court Justices consider all law from the standpoint of the Constitution, unfortunately, or perhaps fortunately, Justices are human beings subject to passions and personal viewpoints like all other humans. Consequently it is of utmost importance that those who hold positions of great responsibility and trust in the Supreme Court exercise personal restraint to insure that decisions are made on the basis of constitutional considerations, and not through personal bias to prove a pet theory. Perhaps the best expression of the duty to exercise judicial restraint was put forward by the most restrained, but passionately idealistic Justice ever to sit on the Supreme Court, the "Great Dissenter," Justice Oliver Wendell Holmes, Jr. famous summary of judicial restraint was given in 1905 in the case of Lockner v. New York:



"The 14th amendment does not enact Herbert Spencer's social statics * * Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez-faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

It is perhaps difficult for the individual American citizen to appreciate the burdens carried by those in the Supreme Court who must determine what is right or wrong, what is constitutional or unconstitutional for an entire nation and people. The quality of character, even heroism, that is required for Justices to do their duty to think straight and think deeply was expressed in the life of Justice Holmes, who had this to say about intellectual heroism to Harvard University undergraduates in 1886:

"No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen--to dig by the diving rod for springs which he may never reach. In saying this, I point to that which will make your study heroic. For I say to you in all sadness of conviction, that to think great thoughts you must be heroes as well as idealists. Only when you have worked alone *** can you gain the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who have never heard of him, will be moving to the measure of his thought."

Perhaps more than any other Justice in American history, Oliver Wendell Holmes, Jr., is revered by the American people for the idealism and rugged individualism he brought to his task of determining the guiding constitutional principles in the midst of passionate legal controversies. Behind his decisions, the American people could sense a consistent mind at work, and a human being who cared deeply. While his decisions and dissents were respected, he was more than respected as a human being. Perhaps Justice Holmes would sympathize and understand the basic reasons for the clamor released by the Supreme Court decision on prayer in public schools. For more than any other Justice, he understood decisions that involved ideals and constitutional philosophy.


The basic question raised by the Supreme Court decision in Engel v. Vitale involves the nature of American Government. Is the Constitution neutral toward God, because it nowhere mentions divine providence or Almighty God? While Justice Black's majority opinion does not spell out what constitutional philosophy the decision rests on, perhaps Justice Douglas' concurring opinion does :

"The first amendment leaves the Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic-the nonbeliever is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The first amendment teaches that a government neutral in the field of religion better serves all religious interests."

While Justice Douglas proposes that constitutional ideals are neutral toward religion and God, the philosophy proposed in Zorach v. Clauson is that God is central to American institutions: "We are a religious people whose institutions presuppose a Supreme Being." Which philosophy does the Supreme Court hold to, the one enunciated in Zorach v. Clauson in 1952 or the one proposed in Engel v. Vitale in 1962?

This is not an idle academic matter, for the religious issue raised by the Supreme Court involves the guts of American Government as set forth in the Declaration of Independence. Is the Constitution premised on the self-evident truth that all men are created equal, that the rights of life, liberty, and the pursuit of happiness are God-given inalienable rights? Do rights come from God, or are they manmade, a gift of the state? If rights are given by the state, they can also be taken away by the state. With no God, rights are temporary, alienable. Where do our American rights come from, from the state, from the Constitution, or from Almighty God?

The relevance of ideals to government was pointed out by the sixth President, John Quincy Adams, at the jubilee of the Constitution in 1839. Former President Adams pointed to the similarity in ideals of the Declaration of Independence and the Constitution, while the Articles of Confederation, which failed, were totally foreign to the principles enunciated by Thomas Jefferson in 1776: "There was *** no congeniality of principle between the Declaration of Independence and the Articles of Confederation. The foundation of the former was a superintending providence, the rights of man, and the constituent revolutionary power of the people. That of the latter was the sovereignty of organized power, and the independence of the separate or disunited States. The fabric of the Declaration and that of the Confederation were each consistent with its own foundation, but they could not form one consistent, symmetrical edifice. They were the productions of different minds and of adverse passions; one, ascending for the foundation of human government to the laws of nature and of God, written upon the heart of man; the other, resting upon the basis of human institutions, and prescriptive law, and colonial charter. The cornerstone of the one was right, that of the other was power **

The only oath administered under the Articles of Confederation was for commissioners sworn in to judge disputes between the States. They swore *** well and truly to hear and determine the matter in question according to the best * ** judgment, without favor, affection, or hope of reward." The only oath specified in the Constitution is for the office of President.

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States."

Upon being sworn in as our first President, George Washington added the words, "So help me God." According to this precedent, every President since has repeated the solemn words "So help me God." In addition, most Presidents have placed a hand on the Bible while being sworn in, while President Lincoln kissed the Bible.

The real question which the Supreme Court has raised in its School Prayer decision is: "Is the United States one Nation under God, or one Nation without God?"

While the Supreme Court has raised this question, it cannot answer its own question, since it can only declare on those issues brought before the Court. If no one ever brings a case involving this question to the Court, it will never be answered by the Court.

Thus, those Americans who want an answer to the issue of prayer, the nature of American Government, and the 14th amendment will have to turn elsewhere than the Supreme Court for a solution to the problems the Supreme Court itself has created. For the Supreme Court has had an entire century to set straight the matter of Reconstruction and constitutional ideals. This lack of diligence in meeting a fundamental moral issue in American history does not increase confidence that the Supreme Court, the way it is now going, can find an answer to the question of whether the United States is truly one Nation under God.

The solution for concerned Americans is to require specific action on the part of our elected representatives in Congress and in the State legislatures in two areas:

(1) Pass a constitutional amendment to add the words "so help me God" to the President's oath of office. This addition would make legal what has been established and recognized by custom, after the example of George Washington, presiding officer of the Constitutional Convention. This amendment would indicate that American Government is founded upon spiritual principles and ideals. (2) Pass a constitutional amendment to resubmit the 14th amendment to the States for ratification. This time the amending process would be without the compulsion of Federal military force, and in accordance with constitutional procedure. Action on this amendment could be completed prior to April

14, 1965, in centennial commemoration of Abraham Lincoln's last week of life when he strove to bind up the Nation's wounds, even at the sacrifice of his own life. Passage of this amendment would indicate that the American people intend to bind up this Nation's wounds in memory of their beloved Civil War President, Abraham Lincoln, and that the United States of America was, is, and ever shall be one Nation under God.



October 12, 1962.


Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.

DEAR JIM: I am enclosing several items which have been forwarded to me with the request that I insert them in the record of the Judiciary Committee hearings on constitutional amendments concerning prayer in public schools. They are the following:

1. A sermon delivered by Rev. E. Warren Rust, Sunday, July 15, 1962, at the First Baptist Church, Cleveland, Tenn.

2. Letter from Marvin K. Jacobs, of Jaffee & Jacobs, attorneys, Toledo, Ohio. 3. "Statement on Public Prayer in the Public Schools," signed by a group of lay and religious leaders of the Kansas City, Mo., area.

4. Letter to me from Mr. Irving L. Geisser, executive director, and Marvin Levey, chairman, community relations, of the Flint, Mich., Jewish Community Council.

I respectfully request that each of these items be included in the record of the hearings. I would appreciate receiving about a dozen copies of the record when it is printed.




(Sermon preached by Rev. E. Warren Rust, Sunday, July 15, 1962 (Matthew 6: 1-8), First Baptist Church, Cleveland, Tenn.)

Public indignation, regret, and disgust have been deeply aroused by the recent decision of the highest court in our land. The Supreme Court ruled that the prayer recommended by the New York Board of Regents for use in the public schools is unconstitutional. The prayer recommended by the board and required by local school boards for use in the public schools reads:

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

The prayer was held to be constitutional by the high court of New York State but was declared unconstitutional by the Supreme Court in a 6 to 1 decision. Two of the members of the High Court did not vote on this decision.

The State board of regents in New York is a governmental agency created by the constitutional processes of that State. It has broad supervisory, executive, and legislative powers over the public school system. In 1951, this board composed the prayer for use in the public schools every morning along with the Pledge of Allegiance to the flag of the United States. Under the instructions of the board, the teacher was obligated to conduct this opening exercise, but the pupils participated or refused to participate voluntarily.

The Supreme Court presented a 15-page opinion read by Mr. Justice Black. Mr. Justice Stewart presented a six-page dissent. On the surface, it seems the Court has laid down a ruling in opposition to prayer. The ruling insists that (1) the regulation of religion or "establishment" of religion by the State is a breach of the vital principle of separation of church and state; (2) composition of prayers by a legislative body is an imposition of religion upon some people who might not want it; and (3) the State has no business composing official prayers for any group of American people to recite as a part of a religious program carried on by the government.

The pro and con of this decision will be discussed for months and years. It is a tragedy and a bad commentary upon our forebears, our liberties, and our religious fundamentals when a right ruling is set in the backdrop of anti

religious intentions. While the Court was deciding essentially on the question of composition of prayers directed by an agency of the government, the common understanding and interpretation of the judgment of this Court is that they have ruled it wrong to pray. It is common knowledge that the pressure on this issue was placed by irreligious people. The plaintiffs are from minority groups and atheists who feel that their rights and liberties are being violated by majority pressures and compulsions. Their children were not required to recite the prayer; participation was voluntary. This definite minority group will, no doubt, persist with this encouragement to further use the public school system as a whipping boy for their persistent attack upon religion in our Nation. They seem to be shooting at the tearing down of every form or symbol which would give evidence of the religious roots of our Nation by using the legislative process through our public schools. They have a dedication to eliminate all hymns, poems, religious paintings, and special events, as Christmas, Thanksgiving, and Easter, which have spiritual significance.

This is not the only issue. In Maryland, the court of appeals ruled 4 to 3 that required reading and/or recitation of the Lord's Prayer was constitutional. This case is headed to the Supreme Court. In Pennsylvania, Rhode Island, the District of Columbia, and in Virginia, the school officials are struggling over religious practices in the public schools.

Our Nation has deep religious roots. If we understand the intention of the sentences of our Bill of Rights we must understand at least three things: (1) the setting in which they were framed; (2) the men who participated in their construction; and (3) the purposes our forebears saw in government relations to the basic institutions of the home, the school, and the church.

These are all a matter of 186 years of history. In the home, the schools, and the churches of 1776 the Bible and prayer were conspicuous and experiential. It was never the intention of our forebears to eliminate either prayer or the Bible from the roots of any or all of these institutions. Rather, it seems evident, they intended that they stay and be used.

Through this almost two-century period strange conceptions and ideas have now developed. Some good people feel that the Christian faith should be formally written into our Constitution-a kind of European state-churchism—and some Baptists are buying the idea.

Some would turn "Christian citizenship" into a quasi-political party, a type of "Christian front" like the European Roman Catholic political thrusts. Some would organize Protestants against the Roman Catholics, or against the Jews, or against Democrats, or against Republicans. Some would organize the church against labor and some against management. "Freedom" tends to be the cry raised against government when it serves the "other fellow." Anyone who doesn't see things exactly according to the warped design of some minds is a "Communist."

There are some questions which must be answered, and Baptists must accept their part in bringing forth the answers.

Our Nation has rolled over in our beds of passive response and after 186 years of nominal acceptance that ours is a great religious heritage yet we wake now to try to find out what this heritage means. We must rethink our principles and premises in terms of current relevance. It is like writing some statements hundreds of years ago and letting them grow cold from misuse or no use, and then, reading them back to ourselves, we ask, "What did we mean?” We keep running head on into situations which call to focus our modern dilemma: What is the place of religion in public education, in tax policies, where the church is concerned, the place of our denomination's institutions in relation to government, the role of the Christian in politics, the monopoly of radio and television where religion or irreligion is flashed before millions of homes in America daily-the Supreme Court has solved only one dilemma. They have said that government has no right to write prayers and these prayers become a part of the academic setting in our public schools. They have said that government agencies should be out of the business of directing the prayers of American people.

I concur enthusiastically in this decision. The Court could have ruled no other way without doing an injustice to the fundamental concept of our Constitution. When I first heard of this decision, I felt as many others. I got the impression through the press that our highest Court had outlawed prayer. I was fit to be tied. I felt that this was the last straw. I even questioned when it would become unlawful to pray about anything. However, upon further investigation and consideration of the Court ruling, I feel that it is, and will prove to be, a fundamental decision upon which many areas of our religious

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