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New Orleans, it was specifically held that the first amendment made no provision for the protection of citizens of the respective States in their religious liberty, and that the Constitution left this to State constitutions and State laws (and you do not have to be a lawyer to comprehend its meaning from its simple terse language), it will be seen that the recent Supreme Court decision in the New York School Prayer case has again amended the Constitution by fiat when it states that religious liberty was guaranteed by the first amendment.
As heretofore stated, the Supreme Court, in a series of recent cases culminating in the recent New York School Prayer case, has held that the 14th amendment brings the 1st amendment into effect in respect to States (whereas the 1st amendment actually related only to Federal legislation). There is nothing
in the 14th amendment which says this. The opinion in the New York School Prayer case is vague and ambiguous about the provisions of the U.S. Constitution and how they apply to the case. The opinion frequently refers to the "establishment clause" which reference is to the first amendment, the entire force and effect of which is to forbid the Federal Congress to enact any law for the establishment of a national religion.
It indulges in general language and cliches as "the constitutional wall of separation of church and state" when no such words or anything like them are to be found in the Constitution itself. Under the ruling of the Supreme Court in the Permoli case, not only were no rights in respect to religion granted to any citizens, but it specifically held that the Constitution left to the State constitutions and the State laws the control of this matter within the States with no inhibitions imposed on the States by the Federal Constitution. Under the ruling, any State had the power to establish an official religion for itself, and any statements made by early political leaders such as Jefferson and Madison about a constitutional wall of separation of church and state related solely to enactments of the Legislature of the Federal Government. There were no inherent or inalienable rights in the citizens preventing the States by the constitutions or by acts of the State legislature from establishing a State religion.
That the foregoing is true is shown by the history of the United States in which for many years some of the States did maintain established religions at the time and for many years immediately following the adoption of the Constitution. As we move from a consideration and understanding of the language and meaning of the 1st amendment to the language and meaning of the 14th amendment, we are left in ignorance and lack of comprehension from the opinion of Justice Black as to how the "establishment clause" of the 1st amendment referred to so frequently became engrafted onto the 14th. The portion of the 14th amendment, as explained in some of the prior cases such as Cantwell v. Connecticut, which is supposed to accomplish this transposition is the clause in the 1st section of the 14th amendment reading, "Nor shall any State deprive any person of life, liberty, or property, wtihout due process of law." When we consider that no citizen has any religious rights under the 1st amendment by the Permoli case, the only right under the Federal Constitution left to the citizen is any inhibition against the State contained in the 14th amendment. But, so long as the religious liberty of a citizen is not restricted (i.e., the freedom to be a member of any religious body he may choose and to engage in the practice of such religion), he would not be deprived of his "liberty" without due process of law and there would be no infraction of the 14th amendment no matter what the State might do toward the establishment of a religion.
The Supreme Court recognizes that its holding cannot be supported by the 14th amendment alone, and it therefore seeks to transpose and engraft upon the 14th amendment an enlargement of the language of the 1st amendment that "Congress shall make no law respecting the establishment of a religion:" which clearly is restricted to the enactment of legislation by Congress) into the Court's construction of the 14th amendment to the effect that nothing can be done by the legislature or the courts of a State or anyone else under the authority of the State government in respect to religion by a transposition of a part of the "establishment clause" from the 1st to the 14th amendment so as to permit enlargement thereof under the 14th amendment without the virtue of a proposal of such transposition and enlargement by a two-thirds vote of the House and Senate of the United States and a ratification thereof by threefourths of the States. This is an amendment by judicial fiat.
When remedial action for this and the many other decisions of the Supreme Court of recent years (which have effectually amended the Constitution) is considered in the form of constitutional amendments with the slow and ponderous proposal by a two-thirds vote and ratification by three-fourths of the States, it is realized at once that such form of action is not practical and that something simple and speedy is needed. I suggest one simple and speedy method is to amend the Constitution to provide that the Senate by a majority vote might resolve that the decision makes an erroneous construction of the Constitution and that it shall not be considered to be a precedent for future cases. This would allow the decision of the Court to stand as a final determination of the specific case decided. But, the precedent would be established that it was erroneous for future cases. It might be argued that such an amendment has no teeth in it-which would be true. But, the moral force of such a resolution and the power of the Congress to impeach would, in my opinion, be a sufficient force to control future cases. Such a procedure is analogous to the confirmation of the
Senate of Executive appointments.
Senator JAMES O. EASTLAND,
Chairman of the Senate Judiciary Committee,
PINCKNEY G. MCELWEE. VILLAGE OF TUCKAHOE,
July 29, 1962.
Senate Building, Washington, D.C.
DEAR SENATOR EASTLAND: I would like to appear before the Senate Judiciary Committee on the school prayer ban hearings.
Enclosed is a statement, that I would like to read to your committee.
Please let me know when I may appear.
MILTON A. GIBBONS, Mayor.
The enclosed petitions signed, for the most part, by residents of New York State, expresses the concern of our people over the recent ruling of the U.S. Supreme Court, declaring that it is unconstitutional for pupils in New York State public schools to voluntarily recite a prayer for the guidance of God in their daily school endeavors.
In my mind, and in the minds of all those who have signed these petitions, this decision is an unspeakable condemnation of those who made it and calls for their impeachment and removal from the highest court in the Nation as rapidly as possible.
This decision uses the first amendment of our Constitution to outlaw the very guarantees of religious freedom it was designed to supply.
The first amendment forbids the passage of any law "respecting an establishment of religion or prohibiting the free exercise thereof."
If the decision of the Supreme Court is not prohibiting the free exercise of religion, there never was any such prohibition anywhere and millions of believers in God were never persecuted, tortured, or killed.
In view of this Supreme Court decision, it is imperative that the Constitution be amended to positively guarantee that every American has the right to the belief in and the practice of the worship of God at any and all such places and times as he may desire. This guarantee must be so worded that no one could misconstrue it. This should be accomplished as speedily as the law will allow. The statistics on juvenile delinquency show positively the need for greater emphasis on the teaching of the word of God in every walk of life and at every age level. Those of us who have spent a lifetime fighting juvenile delinquency believe we have a right to expect that there will be on the U.S. Supreme Court men who will help rather than hinder such efforts.
Meanwhile, it is imperative that those responsible for this decision be forthwith removed from positions in which they have the power to make such decisions, by impeachment or any other legal means.
The signers of this petition wholeheartedly endorse these actions and will support any legal moves to carry them out.
So believing, we earnestly entreat your support.
SHEA & GARDNER, Washington, D.C., October 19, 1952.
Senator JAMES O. EASTLAND,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
MY DEAR SENATOR EASTLAND: This is in reply to your letter of October 17, 1962. If possible, I would like to have printed as part of the transcript of the hearings on the resolutions regarding prayer in public schools my letter "To the Editor" of June 27, 1962, a copy of which I previously have filed with the committee. Transmitted herewith is an additional, somewhat faint copy. I suggest that, by omitting the salutation and the "sincerely yours," it could serve as a written statement on my part. Certainly it represents my views and my support of a proposed constitutional amendment.
I thank you for the courtesy you have afforded me in this matter.
ALFRED L. SCANLAN.
SHEA & GARDNER,
Washington, D.C., June 27, 1962.
To the EDITOR,
Washington Post and Times Herald,
DEAR SIR: I should like to express some disagreement with the recent majority opinion of the Supreme Court of the United States in Engel v. Vitale, decided Monday, June 25, 1962, wherein it was held that the voluntary recitation of a nondenominational prayer by public school children of the State of New York constituted an establishment of religion in violation of the first amendment of the Federal Constitution. My dissent is based on the same ground that the Court assigned in reaching the conclusion it did, i.e., the result constitutes governmental preference of certain religious sects as opposed to others. It is too late for effective criticism of the Court's persistent reliance on a misreading of American constitutional history which has been discredited by sound scholarship. Professor Corwin and Professor Crosskey, among others, both eminent students of American constitutional history, have demonstrated the limited purposes which lay behind the nonestablishment clause of the first amendment, i.e., a prohibition was laid upon the new Federal Government against establishing a national religion and against affording any religion or religions a preferred status. As Professor Crosskey's recent monumental study of the antecedents of the Constitution conclusively documents, the nonestablishment clause of the first amendment "was deliberately drawn to create a field, not only of exclusive but of inviolable state power," respecting religious establishments.
Again, it is too late in the day, I suppose, to argue that American history and tradition also irrefutably point toward a conclusion opposite to that reached by the Supreme Court in the Engel case. Instances abound of Federal and State Government cooperation and assistance to religion and religious institutions. The presence of chaplains in the Congress of the United States and in the Armed Forces comes immediately to mind. "In God We Trust," at least when I last looked, was still the motto on the coins being turned out at the mint, and, as dissenting Justice Potter Stewart has pointed out, the third stanza of our national anthem reads more like a prayer than a song. All this and much more supports the observation once made by the Supreme Court that "We are a religious people, whose institutions presuppose a Supreme Being ***"
However, all of the above apparently are relegated to the category of overruled arguments. The Court must be met on its own ground. In this respect, we are forced to agree that the decision in Engel v. Vitale is the logical culmination of recent Supreme Court decisions interpreting the nonestablishment clause. However logical that result, it nevertheless appears that the Court may have painted itself into a corner. For purposes of argument, therefore, one can accept the Court's opinion in the Maryland test oath case, Torcaso v. Watkins, 367 U.S. 488, 495. In that decision, the Court classified among religions in this country which are entitled to the protections established by the first amendment, the sects of Buddhism, Taoism, Unitarianism, ethical culture, secular humanism and others, including, I infer, agnosticism and atheism. Some of these sects or philosophies presuppose the nonexistence of a Supreme Being. According to their tenets, charity, honor, morality, good citizenship, patriotism, and ethics can be effectively instilled without reliance on the presumption of a diety. Their
philosophy and their tenets are propagated, consciously or unconsciously, in those public schools which attempt, and commendably so, to teach the above stated virtues in this manner, without reliance on or reference to those religions which teach that such virtues have their roots in belief of a divinity.
Thus, it appears, under the Court's own elastic definition of religion and religious sects, that the decision which confronted it in Engel v. Vitale involved a Hobson's choice. Which religious sect or sects are to be preferred—those presuming the existence of a Divine Being, or those prefering the nonexistence of such a Being? The election, however unintentional, has been made to prefer those sects which forswear belief in a divinity or in the supernatural. One is entitled to observe, however, that the choice thus made on grounds of the Court's own making in the form of prior decisions and dicta is one which permits the nonestablishment clause to be violated in favor of the minority rather than sanctioning its violation in favor of the majority. I have always been opposed to substituting the legitimate protection of minority rights for the principle of majority rule. I therefore disagree with such misapplication of that principle in interpreting the nonestablishment clause as may have occurred in the Engel case. However, what is done is done. All that the majority can do to protect against
a Court-approved violation of the nonestablishment clause in favor of the minority sects is to attempt to secure the enactment of an amendment to the Constitution. I suggest one along the following lines:
"Nothing in this Constitution shall be construed to prohibit the United States, or any territory or possession thereof, or the States, from permitting the public invocation, recitation or statement of nondenominational, nonsectarian and noncompulsive prayers or references to Divine Providence, Nature's God, the Lord Almighty, or God, at public occasions, meetings, gatherings, school sessions, ceremonies or holidays, whether the same be held on public or nonpublic property or facilities, including any public building of the United States, the States, or the political subdivisions and municipalities thereof."
To Whom It May Concern:
ALFRED L. SCANLAN.
The Founding Fathers of these United States of America suggested "nature's God" in their attitude of sincerity for religious respect. (See the Declaration of Independence.)
If they wanted an, "Almighty God," as used in the so-called New York school prayer, they could have said so. If they wanted any of the many, many Gods of human ideologies, past, present, or future, these Founding Fathers could have made the choice of their convictions. They took "nature's God" as their foundation choice in wisdom. This is truly a nation of freedom in religious philosophies outside of this suggestion by the Founding Fathers.
The Supreme Court of these United States did not outlaw the word, "God," even if this word "God" is very much abused, misused, and could be expressed more intelligently in such wording as "natural universal power of creation." "Almighty," the very first word in the New York school prayer is incomprehensive, the words "all" and "mighty" are not natural teammates because they imply an excessive value even to the point of flattery. Such vain and egotistical assumption by the human mind is not the right form of sincerity in religious respect and is enough to outlaw the word in any form of religious freedom.
"Almighty," is denominational because it demands exclusive franchise in a set point of view, even if that denominational factor is within the construction of the word itself. This point outlaws a prayer wording which includes this obnoxious word in religious freedom.
"Almighty," is a slang expression used by the uneducated for want of a more proper wording. "Almighty," is dictatorial by the demand within itself for exclusive franchise without a time limit or vote of assurance in a democratical method. This point makes this word antisocial; all must bow down before such unreserved powers.
That anyone could thrust this word, compounded with the word “God," upon the mind of a child in the hope of teaching respect, when the mature mind cannot explain or understand the many complexities involved with such association, shows a lack of plain ordinary commonsense, in my opinion.
In all nature, there is no one almighty source of universal powers-each natural law is independent. Each in turn hands the product of creation over
to the next natural law in line. They all work together in or out of harmony with each other in a system of universal use, reuse, building, tearing down, and rebuilding over and over again, into the times of eternity. There is no magic formula in nature's laws.
In their wisdom the Founding Fathers called this system of law "nature's God." It is wise to not propose any religious ideology outside this comprehensive conclusion as laid down by these more intelligent minds in philosophical speculation.
Rt. Rev. LUCIUS LEEOTTO,
ALBANY JEWISH COMMUNITY COUNCIL, INC.,
Senator JAMES O. EASTLAND,
DEAR SENATOR EASTLAND: We understand that the Senate Judiciary Committee will hold hearings on July 26 to consider various proposed constitutional amendments designed to overturn the Supreme Court decision in the New York State Regents' Prayer case.
The Albany Jewish Community Council wishes to express its strong opposition to any revision of the Bill of Rights of our Constitution which has the purpose of invalidating the recent decision of the Supreme Court in barring State-sanctioned prayer. We believe that tampering with the Bill of Rights would be inimical to the cause of religious freedom and the welfare of all Americans. It is a matter of history that State-sanctioned prayers have resulted in the oppression of minority groups. Our first amendment, guaranteeing religious freedom and separation of church and state, has made it possible for the United States to escape much of the bitter religious conflict and sectarian strife that have divided other nations. The decision of the Supreme Court in the Regents' Prayer case has warded off an intrusion of religion upon the public school system which threatened the basic concept of the separation of church and state. We urge that our communication be made a part of the record of the hearing. Sincerely yours,
ALBERT FENSTER, President.
JEWISH COMMUNITY COUNCIL OF METROPOLITAN DETROIT,
Hon. JAMES O. EASTLAND,
DEAR SENATOR EASTLAND: This is written with reference to the hearings scheduled before the Judiciary Committee to consider proposals for amendment to the Constitution as an aftermath of the recent Supreme Court school prayer decision. The Jewish Community Council of Metropolitan Detroit and its member organizations are opposed to any amendment which would in any way weaken or diminish the guarantees set forth in the Bill of Rights. It is our belief that the burden of the proposed changes in this instance would undermine important safeguards to the flourishing and freedom of religion. Accordingly, such changes would inevitably contravene principles firmly established in American tradition. We respectfully request that this expression of our opposition to a constitutional amendment be incorporated in the record of the scheduled hearing. Respectfully,
STANLEY J. WINKELMAN, President.
COMMUNITY RELATIONS BUREAU,
Kansas City, Mo., July 23, 1692.
Hon. JAMES O. EASTLAND,
Chairman, Senate Judiciary Committee, Washington, D.C.
DEAR SENATOR EASTLAND: It comes as a shock that the august Senate Judiciary Committee should take seriously the recent attacks against the Supreme Court for defending the Bill of Rights and religious freedom. The latest announce