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"feelings of indignation" by the populace against
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.
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
of patriotism who should labor to subvert these great pillars of
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
The historical record shows beyond
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.
"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
and laws. The federal government, in other
was to deny the federal
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
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.
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
:: 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.
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.
encourage the Committee to modify such language so as
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