religion. This Administration believes the historical record clearly reveals that the Founding Fathers never intended the Constitution to suppress religious speech in public places. Indeed, the history of public education in this country until 1963 was in actuality one of religious freedom. As a biographer of Horace Mann, the founder of modern public education has observed:

He [Mann] took a firm stand against the idea
of purely secular education, and on one
occasion said he was in favor of religious
instruction "to the extremest verge to which
it can be carried without invading those
rights of conscience which are established
by the laws of God, and guaranteed to us
by the Constitution of the State."

Schools represent the marketplace of ideas in which our future leaders

are trained. Character, which is the bedrock of a civilization, is formed through making good choices rather than by limiting the selection of available options. Constitutional freedoms are nowhere more vital than in the context of American public schools (Shelton v. Tucker, 364 U.S. 479, 487 (1960). Mr. Justice Jackson observed in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943),

That [boards of education] are educating the
young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the
individual, if we are not to strangle the

free mind at its source and teach youth to

discount important principles of our government
as mere platitudes.

In fact, prior to 1962, local school authorities demonstrated a respect

both for religion and diverse views about religion.

The implied coercion theory presumes that group prayer by consenting students has a coercive effect upon the objecting students in violation of their right to the free exercise of religion. As one deeply engaged with public education for years I must register my disagreement over this charge. When teachers wore black armbands to protest the Vietnam war,

wasn't their right of expression successfully defended against any charge that they were manipulating children? We know from letters and from public opinion polls that parents would welcome the influence upon their children of other students seeking to develop their character through involvement in religious activities in the public school setting.

This amendment only allows students to participate in prayer if they so desire. In local situations when children are too young to make independent decisions, the wishes of parents or guardians would be honored.

The President's school prayer amendment primarily revolves around the question of religious liberty. This Nation was founded upon the

one.

theme of religious liberty and freedom. Our heritage is a deeply religious The pledge of allegiance proclaims that we are "one Nation under God". Our coins are engraved with the motto, "in God We Trust". Since Benjamin Franklin requested that prayer be observed by the Constitutional Convention, prayer has been a part of our national assemblies. Today, both the Congress and the Supreme Court invoke God's name and ask his blessings at the opening of every session and until 1962, the widespread practice of prayer had been allowed in public schools. In every inaugural address and in every Constitution of every State, reference is made to God. In the Chamber of the U.S. House of Representatives there is a sign over the Speaker's Chair that says "In God We Trust."

The 1962, 1963 Decisions marked the the erosion and decline of religious liberty in our Nation. Court decisions since then have served to limit the freedom of speech and the free exercise rights of students in America's schools. The President's proposal will, as he expressed, "restore the simple freedom of our citizens to offer prayer in our public schools and

institutions."

From the beginning, America has been a profoundly religious nation with

a tradition of publicly declaring and encouraging a belief in and dependence upon God; and from the beginning, education was treated as an enterprise with inseparable religious and moral components. To the Founders, a wholly secular education would have been a contradiction in terms, a certain blueprint for disaster.

The President's amendment would enable students the opportunity to exercise their Constitutional right of freedom of speech. I hope that this distinguished committee will rule promptly and favorably on this matter and by so doing reflect the will of the people of this Nation.

Thank you.

Senator HATCH. Our next witness will be Michael Malbin from the American Enterprise Institute. He is also a contributing editor of the National Journal. Dr. Malbin is one of the leading authorities on the constitutional development of the first amendment and is the author of a number of monographs on the subject published by the American Enterprise Institute. He is also a lecturer at Catholic University.

I noticed in particular two excellent monographs, Dr. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment; and, Religion, Liberty, and Law and the American Founding.

So we appreciate having you with us. We look forward to taking your testimony at this time.

STATEMENT OF MICHAEL J. MALBIN, RESIDENT FELLOW,
AMERICAN ENTERPRISE INSTITUTE

Mr. MALBIN. Mr. Chairman, thank you.

As you have indicated, I am a political scientist at the American Enterprise Institute for Public Policy Research where I am a resident fellow.

I appreciate your asking me to testify here today on what the members of the First Congress intended the establishment clause to mean and the implications of that meaning for contemporary concerns about school prayer and other issues.

What I have to say will be my own opinions, based on my own published investigation of the historical record. As you know, AEI takes no organizational positions on matters of public policy, and on this subject as on many others, there is a wide diversity of opinion at the institute.

Mr. Chairman and Senator Grassley, I know your time is limited. I will summarize my historical research briefly, and to support

what I say, I request the two items you mentioned be inserted in the record or submitted for the record, as well as a chapter called "Religion and the Founding Principle," from Walter Berns' book, "The First Amendment and the Future of American Democracy.' Senator HATCH. Without objection, they will be inserted into the record after your oral statement.

ORIGINAL INTENTIONS

Mr. MALBIN. The Supreme Court has held since 1947 that the first amendment's establishment clause applies to the States as well as Congress, and that it prohibits both State and Federal law from giving direct or indirect assistance to religion.

The law, according to the court, must be strictly neutral between religious and secular institutions and activities. The Supreme Court asserted in Everson, Engel, and Schempp that its neutrality test was based on the intentions of the authors of the first amendment.

As evidence, it drew upon a phrase, "wall of separation," from a private letter written by Thomas Jefferson in 1802, and some statements Jefferson and Madison made in support of the 1784 Virginia Bill for Establishing Religious Freedom. But Jefferson was not even a member of the First Congress. Madison was the floor manager for the amendments, to be sure, but one should not interpret the result of a collective deliberation solely from statements made by a floor manager in an entirely different setting 5 years before, particularly not when we have better records available in the "Annals of Congress."

The debates over the Bill of Rights in the "Annals" are less complete than we might wish, but there was more discussion of the establishment clause than of most of the other proposed amendments. Although the debate left many questions unsettled, it was clear on some key points.

Madison thought the Bill of Rights was not necessary given his views on enumerated powers and his views on the necessary and proper clause. The best protection, he thought, against a national religious establishment, or against all forms of majority tyranny, was an extended republic that was friendly to and fostered a multiplicity of sects, opinions, and interests.

Nevertheless, to respond to concerns raised during ratification, he agreed to sponsor a set of amendments in the First Congress. One of them read, "No religion shall be established by law." It was interpreted by Madison to mean, "that Congress should not establish a religion." Please note that Madison said 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. This led members of Congress to express two different kinds of concerns. 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 might permit Congress to pass laws that would threaten religious establishments in the States. Various formulas were offered to deal with both issues.

Some would have limited the amendment to the establishment of articles of faith, but that did not satisfy members who were concerned about other less discriminatory issues.

Another formula-and this one was adopted temporarily would have prohibited any law touching religion. That formula would satisfy today's most extreme separationists at the national level, but it also would have barred any law that even indirectly affected establishments in the States.

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

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, which the Congress re-enacted in 1789. One key clause in the ordinance read as follows: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of learning should forever be encouraged.

This clause clearly implied that schools, which were to be built on Federal lands with Federal assistance, were expected to promote religion as well as morality. In fact, most schools at this time were church-run, sectarian schools. However, the aid was open to any sect that applied.

In summarizing the history, I should like to emphasize the broad area of agreement between Madison and others in the First Congress; they all wanted religion to flourish, but they all wanted a secular government. They all thought a multiplicity of sects would help prevent domination by any one sect and thus help avoid the religious divisiveness and religious warefare with which they were all so familiar from recent English history. We should not lose sight of the importance of this concern about divisiveness to the framers as we seek to correct recent misinterpretations of their intent.

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 not as a policy designed to achieve religious objectives, but as one, to use the current language, "with a secular purpose and effect."

CONTEMPORARY IMPLICATION

What does this all mean for contemporary deliberation? Obviously, the intentions of the framers cannot be binding upon you. The amending power specifically grants you the authority to make your own determinations.

On the other hand, I personally believe the framers' intentions offer more than historical guidance. I believe their principles were wise and remain so today.