recommends as an alternative if the President's amendment is not adopted?

Professor CORD. My view is this, that the "equal access"-let me take this the other way around, Senator. The equal access section 2 of the subcommittee's recommendation is crucial if first_amendment rights are to be restored, irrespective of what the Supreme Court does, and we cannot predict that.

The CHAIRMAN. Now, that is on equal access?
Professor CORD. That is on equal access.

The CHAIRMAN. You favor that.

Professor CORD. That is right.

The CHAIRMAN. Now, do you favor the first part or the second part?

Professor CORD. The first part—as I said, I have not come down here to advocate a prayer amendment. What I have come down to do is to urge that nothing be passed that violates what the framers thought separation of church and state meant. A silent moment of meditation or prayer, in my judgment, does not violate the historically documented concept of separation of church and state.

The CHAIRMAN. In other words, you feel that the alternative by the subcommittee would meet the standard and would not be objectionable?

Professor CORD. Exactly.

The CHAIRMAN. Thank you.

Professor DELLINGER. I agree with Professor Cord that there are lower court decisions, three in number, and one temporary restraining order invalidating moments of silence. I am not persuaded that the Supreme Court would uphold those decisions.

The CHAIRMAN. I do not want to call your time, but our time is up now, and in fact, I have given you more time than was allotted to you.

Professor CORD. Thank you, Senator.

The CHAIRMAN. We thank you very much, both of you, for your appearance.

Professor DELLINGER. Thank you very much, Senator.

The CHAIRMAN. Our next panel includes Professor Michael Malbin and Professor Paul Bender. We would be glad to hear from you, gentlemen.

Professor Malbin is an adjunct associate professor in politics at Catholic University. He is also a resident fellow at the American Enterprise Institute and the author of "Religion and Politics: The Intentions of the Authors of the First Amendment."

With him will be Prof. Paul Bender, of the University of Pennsylvania Law School, who received his law degree as well as his undergraduate degree from Harvard, and he is a distinguished constitutional scholar.

We would be very pleased to hear from you, and if you could see fit to summarize your statements, we will put your entire statements in the record, if that is agreeable with you. In other words, if you can come down to the "juice in the coconut," so to speak, and give us your opinion here, that is what we want, as briefly as you can.

You may proceed, Professor Malbin.

STATEMENT OF A PANEL, INCLUDING PROF. MICHAEL J. MALBIN, RESIDENT FELLOW, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC, AND ADJUNCT ASSOCIATE PROFESSOR IN POLITICS, CATHOLIC UNIVERSITY, WASHINGTON, DC, AND PROF. PAUL BENDER, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

Professor MALBIN. Thank you, Mr. Chairman. I should like to start with this caveat: what I say will be based on my own research. I am not here to represent anyone, and AEI does not take any organizational positions on matters of policy.

Let me come right to the point, Mr. Chairman, and Senator, as you requested. You have two amendments before you, the President's and the silent prayer or meditation amendment. I believe the Supreme Court, since 1947, has adopted a rule of law that runs counter to the intentions of the first amendment by prohibiting nondiscriminatory public support for religion. Hence, I believe it is appropriate to amend the Constitution, but only to restore its original meaning. However, like Professor Cord, I believe the President's amendment to be contrary to the principles of 1789, because it would foster discriminatory sectarianism.

Therefore, I think of the silent prayer amendment not merely as a fallback compromise. Given the proper understanding, it is the best expression of the full range of concerns the framers had in mind almost 200 years ago and that we should have in mind today. The silent prayer amendment need not be weak-kneed, as some conservative critics have suggested. It allows public officials to make a clear, unequivocal statement on behalf of returning religion to an honored place in public life, and it allows for deep, meaningful prayers, not the watered-down pablum that comes from publicly written compromises. At the same time, and contrary to its separationist critics, the silent prayer amendment would not establish a religion or even establish religion as such. Students would be free to meditate on whatever they wish. Unlike the situation that must prevail with any vocalized prayer, no student would be pressured to accept or even listen to anything he or she found offensive.

Despite the attacks from both left and right, therefore, I believe that a silent prayer amendment and only a silent prayer amendment, can meet the serious and legitimate concerns-not all the concerns, but the serious and legitimate ones, of those who want prayer, without raising any of the serious and legitimate concerns of those who are on the other side.

Let me now go to a more detailed consideration of the issues. I shall do so in five parts, and as you suggested, I shall summarize them.

The first is on the intentions of 1789; the second is on separationist arguments against silent prayer; the third, on the President's amendment; the fourth, on conservative arguments against silent prayer, and the fifth on whether a silent prayer amendment is necessary or appropriate at this time.

The first part. Mr. Chairman, I know you have asked me to come here primarily because of my published work on this subject. I have already described that research in subcommittee, and I will

not take your time reviewing a lot of old ground. But I would like to summarize a few main points.

Speaking very broadly, most contemporary interpretations divide into two camps, both of which I think are wrong. Separationists, following the modern Supreme Court, like to say that the First Congress intended to erect an absolute "wail of separation" between church and state. They cite a private letter written by President Jefferson in 1802, some statements made by Madison in 1784 in Virginia and later while he was President. But Jefferson was not even a member of the First Congress. Madison was the floor manager of the amendments, it is true; but you know from your own experience that statements of a floor manager, made in a completely different context, several years removed, cannot be used as if they represent the result of a collective deliberation. Moreover, these statements do not even fairly represent Madison and Jefferson, as Professor Cord's work has shown.

On the other side, conservative critics like to point to the general public practices in the years just after 1789. They talk about the fact that we have had prayers for many years. If public prayers were generally accepted, they say, how can you read the framers as having intended to ban prayer? This point of view is valid—I concede that-but it does not go far enough. The framers' view may well have accepted some exercise which they did not see or understand as being inconsistent with their principles, but which proved to be inconsistent with the same principles in a religiously more diverse nation.

To resolve the difference, we have to look at the principles that the Members of the First Congress intended to convey, and we do so based on the Annals of Congress.

Madison's original proposal read, "No religion shall be established by law." He interpreted it in his own opening remarks to mean "that Congress should not establish a religion." Note that what he said is Congress should not establish "a" religion, not that Congress should not establish religion as such.

But Madison's interpretation did not match his own original language. That led Members of Congress to express two different concerns on behalf of religion. One, to quote Benjamin Huntington, was "that the words might be taken with such latitude as to be extremely hurtful to the cause of religion." The other was that the amendment did not prevent Congress from passing laws that would threaten the existing establishments in the States.

The final language compromised both issues in favor of religion. Laws touching religion were allowed, but not ones that would have directly curtailed establishments of religion. At the same time, the language prohibited Federal laws that directly favored one religion or group of religions in favor of others. Again, note the phrase, respecting "an" establishment, not "the" establishment.

But the language did not prohibit laws that might tend to assist religion as such. The First Congress did not expect the Bill of Rights to be inconsistent with the Northwest Ordinance of 1787. The same First Congress reenacted the Ordinance in 1789 in the middle of their deliberations about the Bill of Rights. One clause in the ordinance said that schools were to be built on Federal lands with Federal assistance, so they could promote religion as well as

morality, and in fact, most schools at the time were church-run, sectarian schools. However, the aid was open to any sect that applied.

In summary, the Members of the First Congress wanted religion to flourish, but they wanted a secular government. They thought a multiplicity of sects would help prevent domination by any one sect, and so help to avoid the religious divisiveness and warfare that they knew, from recent English history. We really should not lose sight of the importance of their concern about divisiveness, as we seek to correct recent misinterpretations.

At the same time as they were concerned about divisiveness, however, most members of the First Congress also thought religion was useful, perhaps even necessary for teaching morality. Most also thought a free Republic needed citizens who had a moral education. They thus tended to view nondiscriminatory aid to religion, as long as it was truly nondiscriminatory, as a policy that was designed not to achieve religious objectives, but as one, to use the current language, "with a secular purpose and effect.'

I turn now to the second point, current court doctrine and the separationist arguments against silent prayer. The Supreme Court since 1947 has consistently misstated the framers' intentions, even as they claimed to be relying on them. The Court in 1947 said that neither Congress nor a State may do anything to aid or prefer one religion over another, even in a nondiscriminatory way. The Court thus changed law in two ways, first, by prohibiting nondiscriminatory aid, and second, by applying a no-aid interpretation to the States when the original intention was in part to protect the existing State establishments.

On the Nation-State issue, by the way, if anyone wants to argue that the 14th amendment changed things, that person has to cope with the awkward fact of the Blaine amendment.

The current separationist critics of the silent prayer amendment rely on the Supreme Court "no-aid" and "neutrality" rules to say that a silent prayer or meditation amendment should be prohibited.

"Enforced classroom silence," said the New York Times, in a June 19 editorial, "is hardly less controversial than other prayer amendments that have been kicking around for years."

Nonsense. Vocalized prayer is necessarily and inherently discriminatory. Silent prayer is not. A call for silent prayer would clearly meet the framers' original intentions without requiring anyone to say anything, believe anything, or even listen to anything with which he or she did not agree.

But some say that is not the point. For example, the New Jersey Civil Liberties Union has filed suit against that State's silent prayer or meditation statute, and it says that the problem is that the law openly proclaims its intention that a period of time be set aside each day for prayer. Well, it does, but that is not the whole story. The legislative choice was between a statute that was limited to silent meditation and one that specifically included the word, "prayer."

Yes, adding the word, "prayer," does encourage religion more than leaving the word out. It also serves to encourage everything else that is mentioned in the statute. I find it strange that some of

the same groups that oppose--not all, but some of the same groups that oppose periods of silent prayer or meditation support kindergarten classes on nuclear war and junior high school classes on contraception. When challenged, these groups say they are not advocating unilateral disarmament or teenage sex. No student will be coerced or pressured, they say; they just want youngsters to make an informed choice. Well, precisely so. I do not oppose sex education. I believe in informed choice. Nothing more is involved in the silent prayer amendment.

Part three. I now turn to the President's amendment, which would permit vocal, group, voluntary prayer in the classroom. My problem is there is no such as a nondiscriminatory vocal prayer. Even a nondescript prayer thanking God for the food we eat invokes a being not at all consistent with the supreme powers accepted by those Americans who happen to be Buddhists, or Hindus, or members of one of the other large Eastern religions, or even many contemporary Unitarians.

The narrow holdings in Engel and Abington, therefore, in my view, were both correct. It is their broad rules of law and subsequent applications that cause difficulties.

What sort of prayer might be offered under the President's amendment? It seems to me there are only three possibilities: one written by the State, one chosen by the State from sectarian liturgy, or one offered voluntarily by a student. Each has a problem. A State-authorized prayer is bound to be pablum for some, while discriminating against others. Having the State choose a sectarian prayer or reading would increase its meaning for some, but also increase the discrimination against others. Having students take turns reading their own prayers would not change the discrimination. It would only change its source and predictability. But how could anyone be offended, it might be argued-and the Deputy Attorney General argued today-if participation is voluntary? What is offensive about vocal prayer or the use of visual religious symbols, artifacts, or gestures is not that they force minorities to participate, but that they inevitably stamp a discriminatory State imprimatur in favor of the religions that may be dominant in any local community.

On the other point, however, I do not believe the situation would be simply voluntary. It might be for adults, for example, when the chaplain reads before the Senate, but it is not for children.

Children may opt out, yes, or forcefully proclaim that they are different, but only at the cost of facing up to peer pressure and ridicule. The problem of peer pressure and ridicule, which has been belittled by some, in my opinion gets at the heart of what is wrong with the President's amendment. The purpose of the first amendment was to support an environment in which religion was honored, but in which the passions that produce civil strife were damped down. The President's amendment would honor religion, but it would also inflame the religious passions in every school district in the country by turning the content of prayer into a political football.

The dangers this might entail make me strongly prefer the status quo to vocal prayer if that were the only choice. It is not, however, as we have indicated.