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amendment and the 14th amendment, respectively, as entirely separate and unrelated provisions of the Constitution. These repetitious constructions were in complete harmony with historical facts.
When the 14th amendment was ratified its authors and proponents had no idea that it would ever be construed to bring the provisions of the 1st amendment into operation against State governments.
On the contrary, in 1876, 8 years after the 14th amendment had been adopted, a new constitutional amendment was proposed in Congress which read, in part, as follows: "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof." This proposed amendment was voted upon in the U.S. Senate on August 14, 1876, and the proposal failed because it did not receive the necessary two-thirds majority.
If the 14th amendment embraced the 1st amendment when it was adopted in 1868, as Justice Black says it did, why did Congress feel it necessary in 1876 to attempt to adopt another amendment specifically restricting the States in the terms that had been used to restrict Congress in the 1st amendment?
Since this specific prohibition against State-established religions was expressly rejected by Congress in 1876, by what authority does Justice Black now assume to add such a prohibition to the Constitution in 1962? Justice Black does not cite any authority for this revolutionary transformation of the English language and of American history except his own judicial opinions.
The "wall of separation between church and state," to which Jefferson referred in a private letter written in 1802, has become an obsession with Justice Black, but he conveniently ignores what Jefferson said publicly 3 years later in his second inaugural address, namely: "In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General (Federal) Government.
Jefferson realized that large areas of American life were expressly made independent of the powers of the Federal Government by the language of the 10th amendment and that religion was merely one of these areas deliberately reserved for the exclusive operation of States rights.
Justice Black and most of the Justices associated with him on the Supreme Bench during the past 25 years, have been so preoccupied with the 1st amendment, the 5th amendment, and the 14th amendment-that they have never been able to consider the equally valid import of the 9th and 10th amendments which protect the immunities of the States and of the people in the States against the intrusion of unlawful Federal action.
Pursuant to the rulings of Justice Black and his associates, Federal judges are now taking over the constitutional duties of State legislatures in the field of reapportionment of representatives (Baker v. Carr, 82 S.C.).
The constitution of Maryland provides that Maryland officeholders shall declare their belief in the existence of God, but that constitutional provision was swept aside last year by Justice Black's Supreme Court opinion that the 1st and the 14th amendments will no longer permit the State to protect itself in this respect (Torcaso v. Watkins, 81 S.C.).
It so happens that the constitution of the State of Maryland like that of New York begins with an expression of thanks for God's blessings, followed by an invocation of His continued protection; but all this will soon be changed by the Supreme Court under Justice Black's infiuence, and Justice Douglas, in his separate concurring opinion in the New York school case, confidently predicts that the change is coming.
If this Court has its way, God must get out of government-State and Federal. As a byproduct of this Court-made law, the States will have to disappear as selfgoverning units of our constitutionally established Federal system and become mere administrative agencies of the tightly centralized, absolute authority in Washington.
A constitutional amendment is now being considered to remedy the situation created by the Court's decision in the New York school case, but constitutional amendments cannot be proposed and ratified fast enough to protect the Constitution from the kind of a Supreme Court that we have now.
Its decisions have destroyed more established legal precedents in the last 20 years than were accomplished in the previous 133 years of Supreme Court history. What this Court will do next is anybody's guess.
The appellate jurisdiction of the Supreme Court is determined by Congress. Article III, section 2, of the Constitution of the United States empowers Congress to regulate and limit the questions of law and fact that may be appealed to the Supreme Court from State and inferior Federal courts. Using this author
ity, Congress should withdraw all appellate jurisdiction from this Supreme Court now and thus leave final determination of constitutional questions with State courts and Federal circuit courts of appeal.
Unless this is done, and done quickly, the Supreme Court as presently constituted will make a shambles of our republican form of government. If this Nation under God is to have a new birth of freedom, then it is up to Congress to get the present Supreme Court out of the delivery room.
Hon. JAMES O. EASTLAND,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
GAITHERSBURG, MD., November 14, 1962.
DEAR SENATOR EASTLAND: I appreciate the opportunity of preparing a statement for the Committee on the Judiciary in connection with proposed resolutions concerning prayer in public schools.
The enclosed paper on "Prayer, the 14th Amendment, and American Constitutional Ideals" I hope provides helpful research for your committee. As the present school prayer controversy is closely related to the 14th amendment, the entire situation in my opinion is related to the history of reconstruction and the ideals for which Abraham Lincoln gave his life nearly a century ago.
As the school prayer question is at heart a matter of ideals, I believe the basic solution lies in restoring the balance of power in our federal system of government. This could be implemented through two amendments to the Constitution, adding the words "so help me God" to the President's oath of office, and resubmitting the 14th amendment to the States for ratification.
If the 14th amendment were not ratified, all those cases based upon the 14th would automatically be subject to revision, namely the decision on Engel v. Vitale, and also Brown v. Board of Education of Topeka. Thank you again for the opportunity you extended. Sincerely yours,
PRAYER, THE 14TH AMENDMENT, AND AMERICAN CONSTITUTIONAL IDEALS
In times of national crisis, the American people elevate to leadership reverent and patriotic men, statesmen who inspire that devotion to duty and dedication to ideals that preserve a nation. Wars and alarms bring to each home and heart the reminder that America exists today because in the past other Americans were willing to pay the supreme sacrifice. The ceremonies of Veterans' Day evoke humility and thanksgiving for the blessings that Almighty God has continually bestowed upon America.
What price did our forefathers pay to bring forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal? How heavy was the burden that Gen. George Washington carried, a burden which forced him to his knees in the snow at Valley Forge in the dark winter of 1777-78? We do not know the specific request Washington made in seeking Divine protection for America's cause, but we do know his thankful and reverent comments to the Governors of the States, upon disbanding the Continental Army in 1783:
"I now make it my earnest prayer that God would have you and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of obedience to government, to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large, and particularly for their brethren who have served in the field; and, finally, that he would be most graciously pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind, which were the characteristics of the Divine Author of our blessed religion."
Every American schoolchild knows the story of George Washington and the cherry tree, and perhaps most are familiar with, and even inspired by the picture of the Father of their Country on his knees praying at Valley Forge. As children seek to emulate great men, heroes, and great Presidents, it is only natural for American schoolchildren to follow their elders and pray for their
country, their parents, and even their teachers. The schoolchildren of New York State, until recently, did make such prayer:
"Almight God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country."
This prayer the Supreme Court of the United States declared unconstitutional on June 25, 1962. The decision in Engel v. Vitale caused an uproar among the American people. This decision touched everything which Americans hold dear-God, country, children. Because the case of Engel v. Vitale is of such import to fundamental American ideals, the following facts, questions, and comments are presented. It is hoped these will be of assistance to those Americans who seek to come to sound and knowledgable conclusions on prayer, the 14th amendment, and American constitutional ideals.
THE SUPREME COURT AND SCHOOL PRAYER
Justice Hugo Black, speaking for the six Justices who declared the New York prayer unconstitutional, stated:
"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.'
While Justice Black's opinion concerned the constitutionality of State-prescribed prayers for schoolchildren, Justice William O. Douglas, in a concurring opinion, raised the question of whether prayer is also constitutional when performed by Federal officials:
"Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time our marshal spends announcing Yet for me the openings of our sessions and offering a prayer for this Court. 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."
Justice Potter Stewart, the lone dissenter, offered the opinion that this decision denied to American schoolchildren their own national spiritual heritage. **** the Court says that in permitting schoolchildren to say this simple prayer, the New York authorities have established 'an official religion.'
"With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these schoolchildren to join in reciting this prayer is to deny them the opportunity to share in the spiritual heritage of our Nation."
THE 1ST AND 14TH AMENDMENTS
The basis upon which the Court decided that the New York school prayer was unconstitutional was that the 1st amendment prohibits Congress from passing a law to "establish" any religion. This amendment, in turn, applies to all the States through the 14th amendment which prohibits the States from denying individual rights to life, liberty, and the pursuit of happiness without due process of law. Jusice Black stated:
"There can be no doubt that New York's State prayer program officially establishes the religious belief embodied in the regents' prayer. **Neither the fact that the prayer may be denominationally neutral, nor the fact that this observance on the part of the students is voluntary can serve to free it from the limitations of the establishment clause, as it might from the free exercise clause, of the 1st amendment, both of which are operative against the States by virtue of the 14th amendment."
While Justice Black found State prayers unconstitutional, he did not declare unconstitutional Federal religious ceremonies, documents, customs which contain references or prayers to the Creator, such as "The Star-Spangled Banner," the Declaration of Independence, etc.
"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."
Justice Stewart, however, took exception to Justice Black's unproved assertion that national religious prayers and ceremonies are not in the same class as unconstitutional State prayers:
"I am at a loss to understand the Court's unsupported ipse dixit that these official expressions of religious faith in and reliance upon a Supreme Being
'bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.' * * * I can hardly think that the Court means to say that the 1st amendment imposes a lesser restriction upon the Federal Government than does the 14th amendment upon the States. Or is the Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer, but prohibits schoolchildren from doing so?"
The key to the Supreme Court's stand on school prayer in the States, however, and all other Supreme Court cases involving traditional religious customs of long standing, is the vigor to which the Justices apply the 1st amendment (written for control of the Federal Government) to the States by virtue of the 14th amendment. The Torcaso v. Watkins decision (June 19, 1961) declaring unconstitutional article 37 of the Maryland constitution, was on the basis that the Maryland oath of public office, requiring officeholders to believe in God, was in violation of the 1st and 14th amendments. The view taken by most of the Justices, Justice Potter excluded, favors vigorous application of the 14th as far as religious custom and culture in the States is concerned, an application that can go far beyond merely forbidding an established church. Justice Felix Frankfurter (no longer on the Court) stated in the concurring opinion, McCullom v. Board of Education:
"We are all agreed that the 1st and 14th amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an ‘established church.'*** We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between state and religion is best for the state and best for religion.'"
While the majority of Supreme Court Justices have indicated little restraint in utilizing the 14th amendment to eliminate from the States' religious customs that go back to our Puritan forebears and the American Revolution, Justice Oliver Wendell Holmes took a more restrained approach toward compelling the States through a liberal application of the 14th amendment:
"There is nothing I more deprecate than the use of the 14th amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect." (Truax v. Corrigan, 1921.)
The 14th amendment, while a subject of great interest in 1962, created great controversy at its inception nearly a century ago. Supreme Court decisions regarding the ratification of the 14th amendment are a major factor that can fan present concern over the 14th amendment into a major controversy over American Civil War history.
RECONSTRUCTION AND THE 14TH AMENDMENT
After Appomattox in 1965, with war over and northern arms victorious in battle, the chief issue was peace, binding up the Nation's wounds. At stake were the terms under which the South would return to the Union. Were the Southern States still in the Union, to be welcomed as lost brothers, as President Abraham Lincoln maintained? Or were the "rebel" States to be treated as conquered territory, subject to military occupation, a condition much desired by Thaddeus Stevens and the radical Republicans in Congress?
Lincoln deliberately refused to discuss in public this question of whether the South was in the Union or out of it, terming this issue merely a pernicious abstraction meant to divide friends. For Lincoln, as President, to lend his weight to this discussion would have meant focusing public attention on the legal technicalities of restoring the South to the Union and binding up the Nation's wounds. For if the technicality were established that the South had been out of the Union, then the 10 Southern States would probably have been considered territories or new States subject to congressional rules and regulations under the Constitution, article IV, section 3. By avoiding the pressure to take a stand on this question, Lincoln successfully escaped the trap set for him by his congressional enemies. He intended to pursue his own reconstruction plans for the South, based on the view that the South had not really left the Union, since secession had been put down by northern military force. In binding up the Nation's wounds, Lincoln turned not to law and legal technicalities, but to morality and the Biblical parable of the prodigal son and the forgiving father.
Acting under his Presidential powers, Lincoln directed the formation of a State government in Louisiana in 1863. The constitution that was devised Lin
coln termed more favorable to Negroes than the Illinois Constitution. In his last public speech on April 11, 1865, Lincoln discussed the question of reconstruction and Louisiana :
*** the question is not whether the Louisiana government, as it stands, is quite all that is desirable. The question is 'will it be wiser to take it as it is, and help to improve it; or to reject, and disperse it?' 'Can Louisiana be brought into proper practical relation with the Union sooner by sustaining, or by discarding her new State government?' *** Now if we reject, and spurn them, we do our utmost to disorganize and disperse them. We in effect say to the white men 'You are worthless, or worse- -we will neither help you, nor be helped by you.' To the blacks we say "This cup of liberty which these, your old masters, hold to your lips, we will dash from you, and leave you to the chances of gathering the spilled and scattered contents in some vague and undefined when, where, and how.' If this course, discouraging and paralyzing both white and black, has any tendency to bring Louisiana into proper practical relations with the Union, I have, so far, been unable to perceive it. If, on the contrary, we recognize, and sustain the new government of Louisiana the converse of all this is made true * * *. What has been said of Louisiana will apply generally to other States *** no exclusive, and inflexible plan can safely be prescribed as to details and collaterals. Such exclusive, and inflexible plan, would surely become a new entanglement. Important principles may, and must, be inflexible."
The issue at stake was whether the South would be restored to the Union on an equal basis under Lincoln's principles of charity and forgiveness, or whether the South would be considered conquered territory, under military occupation and under the vindictive political tutelage and plans of the Radical Republicans in Congress.
This great question was resolved by two events-by the assassination of Abraham Lincoln at Ford's Theater April 14, 1865, and by the Reconstruction Act of March 2, 1867. With Lincoln removed from the scene by the act of a Southern assassin, John Wilkes Booth (a deed considered by some to be most providential for the Republic) the South lost the only man who could have brought the South back into the Union on an equal and democratic basis. With the passage of the Reconstruction Act, over Johnson's veto and Lincoln's dead body, the stage was set for military occupation of the South. The passage of the 14th amendment in southern legislatures (at the point of northern guns and bayonets) was the price the South had to pay to obtain representation in Congress.
The government in Louisiana which Lincoln had helped create, the Reconstruction Act termed illegal, stating that in the "rebel" States "no legal State government existed." The same Louisiana legislature which prior to the Reconstruction Act had unanimously rejected the 14th amendment, when "reconstructed" by northern troops, approved the amendment.
While Lincoln recognized that Congress had the right to stipulate the rules by which southern members would be accepted in Congress, congressional control of State legislatures was an entirely different matter. But then Lincoln was not around to point this out. By what authority under the Constitution did Congress have the right to control, with military force, the deliberations in southern legislatures? Article IV, section 4, of the Constitution says, "The United States shall guarantee to every State in this Union a republican form of government * * *" Perhaps the Radical Republicans sincerely felt that military occupation was the way to insure republican governments in Southern States (and also a republican administration in Washington), but did they have the right to declare illegal the republican government Lincoln had set up in Louisiana? Was the manner in which Congress forced ratification of the 14th amendment in Southern States in violation of the 10th amendment which states that:
"The powers not delegated to the United States by the Constitution or prohibited by it to the States, are reserved to the States respectively, or to the people."
The Reconstruction Act of 1867 raised fundamental questions about the relationship of Congress to the President and the balance between Federal delegated powers and powers reserved to the States under the Constitution. Was the Reconstruction Act constitutional or unconstitutional? This momentous question the Supreme Court of the United States has never decided.
In the Milligan case, December 1866, prior to the Reconstruction Act, the Supreme Court declared that military courts were unconstitutional, except where