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"feelings of indignation" by the populace against

state-maintained churches.

Both of these arguments represent an

historical sleight of hand.

In his famous commentaries on the Constitution Supreme Court

Justice Joseph Story counters both when he says, "[T]he real object of the [First] Amendment was not to countenance, much less

to advance Mohametanism, or Judaism, or infidelity, by

prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical

establishment which would give to an hierarchy the exclusive

patronage of the national government." Joseph Story III,

Commentaries on the constitution section 1871 (1833).

With the idea of a "wall of separation" Justice Black

implies that the First Amendment bans religion from the public

life of the Nation.

This has never been the case.

From the

earliest days of the American Republic Congress has begun its

sessions with a prayer.

It has further traditionally had a

formal office of Chaplain.

Courts themselves customarily open

their sessions with the announcement "God save this State and

this honorable Court." On our currency is the statement "In God We Trust." No one has ever seriously contended that these

customs, deeply embedded in our heritage, constitute a forbidden

establishment of religion.

Again, they all point to the fact

that the Establishment Clause was intended simply to prevent the

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of patriotism who should labor to subvert these great pillars of

human happiness."

Washington's view has indeed been the mainstream of the

legal and social attitude of the American people and the drafters

of the Constitution in regard to the religious rights preserved

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The historical record shows beyond
peradventure that the core idea of an
restablishment or religion" comprises the idea
of preference; and that any act of public
authority favorable to religion in general
cannot, without manifest falsification of
history, be brought under the ban of that

As to the other argument that the First Amendment expresses

indignation against the established churches which existed in the

states early in the Republic, history again is to the contrary. The drafters of the First Amendment very carefully sought to

leave the states free in the area of church-state relations.


Amendment states:

"Congress shall make no law respecting an

establishment of religion ..

" It says nothing about the

states, and it is a proscription only on that branch of the

Federal government holding the power to establish a national

church--that is, Congress.

In a recent article on the origin and purpose of the

Establishment Clause, Dr. James McClellan, the constitutional

scholar who has written the definitive book on Justice Story's

career and who now serves as Chief Counsel for the Senate

Separation of powers Subcommittee, observes:

Directed solely against Congress, the
Establishment Clause gave the states, by
implication, full authority to determine
church-state relations within their respective
jurisdictions. Thus the Establishment Clause
actually had a dual purpose: to guarantee to
each individual that Congress would not impose
a national religion, and to each state that it
was free to define the meaning of religious
establishnent under its own state constitution

and laws. The federal government, in other
words, simply had no authority over the states
respecting the matter of church-state
relations. To be sure, one of the principal
reasons for the adoption of the entire Bill of

was to deny the federal
government a commanding voice in the general
area of civil liberties, except as stipulated
in the constitution itself. The power to
define civil liberties within the several
states, including the power to decide what
practices were acceptable under the general
heading of church-state relations, was, in the
true sense of that much abused term, the
state's right, as determined by state
constitutions and state bills of rights.

James McClellan, "The Making and Unmaking of the Establishment

Clause," in Patrick B. Mcĝuigan and Randall R. Rader (eds.) A Blueprint for Judicial Reform at 295 (Free Congress Research and

Education Foundation, Inc. 1981).

Hence, if anything is clear about the First Amendment, it is

that that provision was intended to prevent the Federal

Government from interiering with the states in matters involving

church-state relations.

This intention is confirmed beyond

argument by the fact that from the late eighteenth century to the middle nineteenth century there were various degrees of established churches. And there were various religious

qualifications for holding state office. The first constitution of the state of South Carolina even stipulated that the

Protestant religion was the established religion of the state.

No court during this time or at any time prior to the Second

World War even entertained the idea that these practices were

prohibited by the First Amendment.

On the contrary, it was the

First Amendment which by its very terms prohibited Federal

government involvement in religious matters and left them

entirely to the governance of the states.

The Distortion of the Establishment Clause by the Theory of

Fourteenth Amendment Incorporation

The threshold issue presented in the Engel and Schempp cases applied to the action of state governments through the Fourteenth

was whether the Establishment Clause of the First Amendment


The Supreme Court rejected an historical analysis of

the meaning of the Fourteenth Amendment and relied on unsupported assertions. "First," wrote Justice Clark, "this Court decisively

settled (that the Establishment Clause) has been made wholly

applicable to the states by the Fourteenth Amendment." For proof,

he cited an opinion of Justice Roberts in Cantwell

v. Connecticut, 310 U.S. 296 (1940).

The difficulty here is that

the Cantwell case did not deal with the Establishment Clause and

therefore did not settle anything at all. Thus the fundamental

issue before the Court was disposed of by hypothesis.

Here again, an open historical inquiry would have led to a

result far different than that reached by the court.

The framers

of the Fourteenth Amendment themselves did not intend, nor did

they believe, that the amendment would prohibit the states from encouraging prayer in public schools. How else can one

understand Senator James Blaine's proposed constitutional

Amendment in 1877 that the Establishment Clause be applied to the


The Blaine amendment, which failed, would have produced

the result that the Supreme Court reached in the Engel and

Schempp cases. If the Fourteenth Amendment was intended to

achieve the Engel-Schempp result, why would those who had just adopted it propose to do it again?

The answer is that the Fourteenth Amendment was never

intended to apply the Establishment Clause of the First Amendment

to the states.

Only a distortion of both amendments and their

history permits such an application.

Remedies for the Supreme Court's Impairment of the Establishment


Consistent with the theory of checks and balances, Congress

is not without power to correct judicial distortions of the

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:: is ex position that congress should pursue--indeed tha:

Congress has a duty to pursue--3!1 available constitutional

rezed:es to res:ore the integrity of the coestitution ia those areas where it has been dissorted by the courts. To this end I iriers to continue to push ay Voluntary School Prayer dill, s. 1:2, at the saza tise I suppor: the President's proposed constitutiona! azerdient. Despite the aaicing and shrill outery

in the sedia against withdrawal or jurisdiction, this power has specifically beea conferred on Congress in Article III, sections 1 and 2. Wy bill esploys this power to ameliorate constitutional distortions sade by the federal courts in the area of school


Suggestions concerning S. J. Res. 199

Finally, let me say that while I am delighted to be a

cosponsor of the President's proposal to restore voluntary school

prayer by way of a constitutional amendment, there is one aspect of it which gives me some pause. The purpose and spirit of the

Establishment Clause was to assure that the federal government

had no role in setting policies governing church-state relations. The states in this area were to be free from interference by the Federal government. This principle has been severely distorted

by the Supreme Court, and any amendment to correct such

distortions should return to the original principle.

I'm afraid

that some of the language of S.J. Res. 199, especially the second

sentence, may actully confer on the Federal government certain

authority in church-state relations which, but for erroneous

Court rulings, the Federal government has never had.

Therefore I

encourage the Committee to modify such language so as

to assure

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