"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 establishment of a national church.

In George Washington's Farewell Address, he gave the following counsel: "Of all the dispositions and habits which lead to political prosperity, religion and morality are

indispensible supports. In vain would that man claim the tribute 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

in the Bill of Rights.

Professor Edwin S. Corwin, one of our

most distinguished constitutional scholars, rejected any

interpretation of the First Amendment which would force upon

government institutions the formal agnosticism which results from the "wall of separation" theory. Professor Corwin writes:

The historical record shows beyond
peradventure that the core idea of an
"establishment 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
phrase.

The

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
establishment 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
Rights . . . 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. McGuigan 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 wa was intended to prevent the Federal Government from interfering 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 was whether the Establishment Clause of the First Amendment

applied to the action of state governments through the Fourteenth 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 states? 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 Clause

Consistent with the theory of checks and balances, Congress is not without power to correct judicial distortions of the

It is my position that Congress should pursue--indeed that Congress has a duty to pursue--all available constitutional remedies to restore the integrity of the Constitution in those areas where it has been distorted by the courts. To this end I intend to continue to push my Voluntary School Prayer bill, S. 1742, at the same time I support the President's proposed con titutional amendment. Despite the amazing and shrill outery in the media against withdrawal of jurisdiction, this power has specifically been conferred on Congress in Article III, sections 1 and 2. My bill employs this power to ameliorate constitutional distortions made by the federal courts in the area of school

prayer.

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 et 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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